VERONICA EDWARDS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 293

[2013] AATA 293 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3823
Re	VERONICA EDWARDS
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Ms K Hogan, Member
Date	13 May 2013
Place	Perth

The Tribunal affirms the decision under review.

……(Sgd) Ms K Hogan……
Ms K Hogan, Member

Catchwords

Social Security – Carer Payment – Applicant Qualified for Carer Payment – Date From Which Applicant can be Paid Carer Payment – Applicant Contacted Centrelink but did not Lodge Claim Within 13 Weeks of Contact –Tribunal Unable to Set the Start Date to a Date Beyond 13 Weeks Previous to the Claim – Applicant Only Qualified for Carer Payment From the Claim Date 

Legislation

SocialSecurity Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

Ms K Hogan, Member

13 MAY 2013

HISTORY

1. On 19 October 2011, the applicant lodged a claim for carer payment.

2. On 22 November 2011, a Centrelink employee decided to reject the claim as the applicant was working more than 25 hours per week in paid employment and therefore could not be providing “constant care” for Mr Edwards.

3. On 6 December 2011, the applicant contacted Centrelink regarding a second claim for carer payment as her hours of employment were likely to reduce in January 2012.

4. On 14 March 2012, the applicant lodged a claim for carer payment, on the basis that she was employed for only 10 hours each week and was providing constant care to Mr Edwards. 

5. On 19 March 2012, a Centrelink employee decided to grant the applicant’s claim for carer payment with effect from 14 March 2012 (the original decision).

6. On 11 May 2012, the applicant requested an internal review of the original decision.

7. On 31 May 2012, a Centrelink Authorised Review Officer (ARO) reviewed and affirmed the decision.

8. On 13 June 2012, the applicant requested a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT) and on 13 August 2012 the SSAT affirmed the decision of the ARO.

9. The applicant appealed to this Tribunal on 31 August 2012.

   THE ISSUE

10. The issue to be considered by the Tribunal is the date from which the applicant can be paid carer payment.

    EVIDENCE

11. The Tribunal was provided with a number of documents including:

    (a)      the section 37 documents;

    (b)     written submissions from the applicant and the respondent.

12. The Tribunal heard oral submissions on behalf of the parties.

    THE LEGISLATIVE FRAMEWORK

13. The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

14. The qualifications for carer allowance are contained in section 198 of the Act.

15. The start date for payment to a person qualified for Social Security payments is contained in sections 41 and 42 of the Administration Act which provide that the start date is determined in accordance of schedule 2 of the Administration Act.

16. The general rule is that if a person makes a claim for a Social Security payment and is qualified for that payment the start date is the date on which the claim was made.

17. Sections 11, 13 and 16 of the Administration Act provide that a person must make a written claim for a Social Security payment. If that person contacts Centrelink prior to lodging a written claim then they may be granted payment from the date upon which they first contacted Centrelink about the matter.

    APPLICANT

18. The applicant contended that she has been caring for her husband, since January 2011 when he suffered a stroke.  Initially the applicant was able to maintain her hours of work at Bunnings (28 hours per week) because she was able to share her husband’s care with her daughter.  The applicant said she understood from her conversations with Centrelink that while she was working 25 hours or more per week she would not be entitled to a carer payment. 

19. In early 2012 her daughter went overseas and the applicant was left to care for her husband without assistance.  The applicant explained that she decided to reduce her hours of work from 31 January 2012 to 10 hours each week and to re-apply for the carer payment.  The applicant stated that she expected that the carer payment would be paid from the date her hours of work reduced and that her delay in lodging her claim was because she had to wait for two payslips to attach to her claim form.

20. She had contacted Centrelink on 6 December 2011, to advise that she would be reducing her hours in January 2012 and intended to make a claim.

21. Whilst she did not complete the form Centrelink sent subsequent to the 6 December 2011 phone call within 14 days, she was not advised of the relevance of claiming within 13 weeks of that phone call, in any event.

22. The applicant contended that as she was not advised of the "13 week constraint" and was only "8 days past" this date.  She hoped "compassion and empathy from the Tribunal" could be exercised to overrule the Centrelink decision. 

    RESPONDENT

23. The respondent contended that the applicant can only be paid carer payment from the date of lodging her claim on 14 March 2012.

24. The respondent contended that at the time of the initial claim, made 19 October 2011, the applicant was not eligible for carer payment because she worked 25 hours or more. Thirteen weeks after the initial claim was made expired on or about 18 January 2012 at which time the applicant was still ineligible due to the hours worked.

25. The respondent contended that whilst the applicant made contact with Centrelink on 6 December 2011, she neither submitted her form within the 14 days allowed for in the notice dated 6 December 2011, nor within thirteen weeks after 6 December 2011.

26. The respondent contended that there is no provision in the Administration Act that allows the start date to be reconsidered earlier than 14 March 2012.

    CONSIDERATION OF THE ISSUES

27. The applicant’s current qualification for carer payment is not in dispute.  It was therefore not necessary for the Tribunal to make any findings in that regard.

28. The issue in contention is the date from which the applicant should be paid carer payment.

29. Even if the Tribunal were to consider the applicant’s claim of 19 October 2011 as an “early claim” the applicant did not become eligible for carer payment within 13 weeks of that date and therefore the Tribunal is unable to find that she satisfies paragraphs (c) and (d) of Clause 4, Part 2 of Schedule 2 of the Administration Act.

30. Although the applicant contacted Centrelink on 6 December 2011, regarding her intention to claim carer payment, regardless of whether she was qualified at that time, she did not lodge a claim within 14 days of that contact and therefore the Tribunal is unable to find that she satisfies section 13(1)(d) of the Administration Act. The Tribunal is unable to find that the start date may be earlier than 14 March 2012 under section 13(2), 13(3) or 13(3A) of the Administration Act as the applicant did not lodge a claim within 13 weeks of 6 December 2011.

31. Whilst the Tribunal is sympathetic to the applicant's position, the Tribunal is unable to find that the application for carer payment has a start date earlier than 14 March 2012.

    DECISION

32. The Tribunal affirms decision under review.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member .

(Sgd) D. Chapman...........................................

Associate

Dated   13 May 2013

Date of hearing

8 April 2013

Applicant

In person

Advocate for the respondent

Ms Ladhams

Australian Government Solicitor