Webster and Secretary, Department of Social Services (Social services second review)
[2017] AATA 792
•29 May 2017
Webster and Secretary, Department of Social Services (Social services second review) [2017] AATA 792 (29 May 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/4165
GENERAL DIVISION )Re: Jennifer Webster
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Mr D. J. Morris, Member
DATE: 6 June 2017
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- In paragraph 42 of the reasons for decision, delete the words 15 December 2015 and replace them with the words 15 September 2015.
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D. J. Morris, Member
Division
GENERAL DIVISION
File Number
2016/4165
Re
Jennifer Webster
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member
Date 29 May 2017 Place Melbourne The reviewable decision is set aside and, in substitution the Tribunal decides that the start day for the Applicant’s Carer Payment is 7 September 2015.
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D. J. Morris, Member
SOCIAL SERVICES – Carer Payment – claim for Carer Allowance – later claim for Carer Payment – obligation on Respondent in regard to inappropriate claims – correct start day – hearing on papers by consent – decision set aside and new decision substituted
LEGISLATION
Acts Interpretation Act 1901, s 36, item 7
Administrative Appeals Tribunal Act 1975, s 34J
Social Security Administration Act 1999, ss 8, 12, 13(1), 15(4A), 15(5)
Social Security Act 1991, s 23
CASES
Re Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
SUPPLEMENTARY MATERIALS
Guide to Social Security Law, Version 1.217: Released 9 November 2015
REASONS FOR DECISION
D. J. Morris, Member
29 May 2017
Background
The Applicant, Ms Jennifer Webster, lodged a claim for Carer Allowance with the Department of Human Services (Centrelink) on 6 June 2014. This claim was granted and she was paid Carer Allowance with effect from 5 March 2014.
On 24 November 2015 Ms Webster contacted the Department about making a claim for Carer Payment. She subsequently lodged a claim for Carer Payment on 8 December 2015. This claim was granted on 15 December 2015 and she was paid Carer Payment with effect from 8 December 2015.
On 16 March 2016 Ms Webster sought a review of the decision to start her Carer Payment from 8 December 2015 and requested that her Carer Payment be paid from the start day of her Carer Allowance, being 5 March 2014. This request was referred to an Authorised Review Officer (ARO), an independent officer of the Department not involved in the original decision.
On 29 April 2016 the ARO varied the original decision and decided that the start date for Ms Webster’s Carer Payment was 24 November 2015.
Dissatisfied with this decision, Ms Webster sought a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). AAT1 considered the matter on 19 July 2016 and heard evidence from Ms Webster and her representative, and considered the relevant Department records and written submissions from the Applicant.
AAT1 set aside the ARO’s decision and instead decided that the start day for Ms Webster’s Carer Payment was 15 September 2015.
Ms Webster then sought a review by the General Division of the Tribunal. In a written submission, the Applicant’s authorised representative, Mr Carson, suggested that the matter could be considered by the Tribunal without a hearing. The Respondent’s representative, Mr Henderson, made the same suggestion.
Having considered the nature of the matter under section 34J(a) of the Administrative Appeals Tribunal Act 1975, and with the consent of both parties as required under section 34J(b), I decided that I would review the decision without holding a hearing. The notional date for the planned hearing was 11 April 2017 and submissions were made by both parties up to that date which I have taken into account in this review, namely:
·Documents (‘T-documents’) submitted by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975.
·Statement of Facts, Issues and Contentions submitted by the Respondent dated 1 March 2017 and supplementary T-documents, both submitted on 2 March 2017.
·Written submission by the Applicant’s representative, dated 14 November 2016.
The Applicant’s contentions
The Applicant’s representative contended that the question before the Tribunal hinged on whether there has been a claim for Carer Payment by Ms Webster on a date earlier than 7 December 2015.
Mr Carson noted the following in support of the Applicant’s contentions. He said that Ms Webster contacted the Maryborough office of Centrelink by telephone on 28 May 2014 “regarding Claim for Carer Payment”. There is a Centrelink file note of this contact. A Centrelink officer then discussed Carer Allowance with Ms Webster. As a result of this discussion, information on both Carer Allowance and Carer Payment was sent out to Ms Webster in relation to her care for her unwell husband, together with a form headed Carer Payment/Carer Allowance Medical Report for a person – 16 years or over.
On 6 June 2014, Centrelink recorded that Ms Webster made contact regarding her claim for Carer Allowance and goes on to state that “This is a combined CP and CA claim.” A later file entry that same day states that a new claim has been lodged for Carer Allowance “obtained via Claim for Carer Pymt & Carer All…”. This file note goes on to provide details of Mr Webster as the person being cared for, that the care is expected to be required for at least 12 months, that care and attention is provided on a daily basis, that the care is being provided in the private home of the carer and care receiver, and there is no [other] commercial arrangement in place for the provision of personal care.
Mr Carson drew the Tribunal’s attention to section 13(1) of the Social Security Administration Act 1999 (the Administration Act) which states:
13.Deemed claim--person contacting Department about a claim for a social security payment
(1) For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
He contended that, on the basis that the file records of contact with Ms Webster refer to a claim for Carer Payment, “as distinct from or alternatively in addition to a claim for” Carer Allowance, the Tribunal should conclude that this claim was made in the period 28 May 2014 to 6 June 2014.
Mr Carson also submitted that Ms Webster was otherwise qualified to receive Carer Payment having regard to the Adult Disability Assessment Tool and Health Professional Assessment scores relating to the Applicant’s husband, Mr Webster, for whom she was caring.
The Applicant’s representative also sought to rely on section 15(4A) of the Administration Act, which states:
(4A) For the purposes of the social security law, if:
(a) a person makes a claim for an income support payment (the initial claim); and
(b) on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and
(c) the person subsequently makes a claim for the other income support payment (the later claim); and
(d) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made the later claim on the day on which the initial claim was made.
The Respondent’s contentions
The Respondent agreed with the Applicant’s factual outline of the contact made by Ms Webster with Centrelink on 28 May 2014. The Respondent said that in her claim for Carer Allowance lodged on 6 June 2014, Ms Webster indicated, in response to question 4 on the form that she did not wish to claim Carer Payment.
Dr Siegfried Frank of Bank Place Medical Centre, Mr Webster’s treating medical practitioner, completed a medical report in relation to Ms Webster’s claim on 5 June 2014 which detailed Mr Webster’s care needs. Question 3 on that form is to be completed by the carer and asks the carer to indicate whether the assessment is for Carer Allowance; Carer Payment and Carer Allowance; or Special Disability Trust (beneficiary status). Ms Webster ticked the box indicating that the assessment was for Carer Allowance.
The Respondent noted that the Applicant was granted Carer Allowance on 13 June 2014, backdated to 5 March 2014.
As mentioned above, on 24 November 2015, Ms Webster contacted Centrelink about making a claim for Carer Payment. On 8 December 2015 she lodged a claim for Carer Payment. The Department granted the claim on 15 December 2015 and the Applicant was paid Carer Payment backdated to 8 December 2015.
Dr Marlon Fernando, also of Bank Place Medical Centre, completed a medical report in relation to Ms Webster’s claim for Carer Payment on 3 December 2015. The form had been updated since the earlier form completed by Dr Frank, but in the part to be completed by the carer the text of question 3 is the same and asks the carer to indicate whether the assessment is for Carer Allowance; Carer Payment and Carer Allowance; or Special Disability Trust (beneficiary status). On this occasion, Ms Webster ticked the box indicating that the assessment was for Carer Payment and Carer Allowance.
Consideration
Ms Webster acknowledged in her evidence to AAT1 that she did not make a claim for Carer Payment when she lodged her claim for Carer Allowance on 6 June 2014.
Mr Carson contends that Centrelink has recorded that the initial contact on 28 May 2014 was regarding “Claim for Carer Payment” and “on any reasonable view” Ms Webster had made a claim for Carer Payment and it had been “accepted.” He goes on to say that she was otherwise qualified to receive Carer Payment at this time.
Ms Webster said in a written statement dated July 2016 that she:
“was under the clear understanding having been informed by persons on behalf of Centrelink that I was unable to make application for both Carer Allowance and Carer Payment.”
She says that this this is why she ticked the box on the form indicating “No” to the question: “Do you wish to claim Carer Payment?”
It is not clear to whom the Applicant is referring in her statement and it is not evident from the written reasons of AAT1 whether this particular contention was explored further. This contention was not reiterated in the Applicant’s later written submissions of 14 November 2016. In any event, even if Ms Webster had been told this by someone, including an officer of Centrelink, after her inquiry she then received a package of materials posted to her in response.
The Tribunal has before it the information sheet which is recorded as being sent to Ms Webster when she made her initial contact on 28 May 2014. The information sheet is headed:
Information you need to know about your claim for
Carer Payment
Carer Payment is an income support payment that provides support to people who, because of the demands of their caring role, are unable to support themselves through substantial paid employment; it is income and assets tested.
Note: If you currently receive an income support payment from the Australian Government Department of Human Services, such as Parenting Payment, Age Pension or Newstart Allowance, you will need to decide which payment is best for you.
Carer Allowance
Carer Allowance is a supplementary payment for people who provide additional daily care and attention for an adult or child with a disability or medical condition, or for an adult who is frail aged. Carer Allowance is free of the income and assets test, is not taxable and can be paid in addition to wages, Carer Payment or any other Centrelink payment.
(Emphasis added.)
It is therefore clearly set out on the information sheet that an eligible person may be a recipient of both Carer Payment and Carer Allowance.
Added to this it is evident to me that when Ms Webster saw Dr Frank for him to complete a medical report relating to her husband, she had completed the part of the form for the carer to fill in, making it clear that this medical report related to a claim for Carer Allowance (only).
I note what Mr Carson contends about the Centrelink records and also note, as I said above, that officers recorded that officers recorded “This is a combined CP and CA claim.” This may be referring, in short-hand, to the form to be used being a “combined form”, and, if taken on its face, this internal entry is misleading, because when Ms Webster lodged the form and the medical report she made clear, twice, that her claim was for Carer Allowance, not for both the allowance and the payment.
Mr Carson also contends, for the Applicant, that a reading of the file note supports the view that Ms Webster’s initial claim was “made and accepted” for both Carer Allowance and Carer Payment.
I do not accept this contention. A correct reading of the computer records is that Ms Webster’s initial contact was in relation to a claim for Carer Payment. The officer then advised Ms Webster about the possibility she might be eligible for Carer Allowance. The officer then sent her the relevant information in relation to making a claim for both benefits, including the forms and the medical report sheet to be completed by the carer and by her husband’s treating doctor. Ms Webster completed the forms and, with Dr Frank, they together completed the two-part medical report, and she then provided these documents to Centrelink. Ms Webster made clear in these forms that she was applying for Carer Allowance only, not for Carer Allowance and Carer Payment.
Mr Carson contends that the Tribunal should have regard to section 13(1) of the Administration Act in deciding an earlier start day for her Carer Payment is correct. He suggests that given that Centrelink wrote to Ms Webster on 28 May 2014, confirming her intention to make a claim and she was otherwise eligible at that time for both Carer Allowance and Carer Payment, there should be a backdating of her later claim for Carer Payment.
This is a misreading of the letter. The 28 May 2014 letter accompanied the information sheet referred to above, comprising the claim form and the medical report. Ms Webster then completed the forms she needed to, as did Dr Franks. The fact that she may have been eligible, on the basis of the care she provided to Mr Webster, for Carer Payment at that time does not provide some ‘automaticity’ in a claim for Carer Payment. The Applicant filled in the form and was explicit in what she was lodging a claim for. She also acknowledged that to AAT1.
There is no general obligation on the Respondent Secretary or officers of Centrelink acting on his behalf to determine, of their own volition, that an historical claim made by a person should have been for another benefit because the person may have been qualified for the other benefit. The Secretary administers a Department and his statutory obligations in regard to persons who have interaction with Centrelink are explicitly set out in section 8 of the Administration Act in what are called the Principles of Administration:
In administering the social security law, the Secretary is to have regard to:
(a) the desirability of achieving the following results:
(i) the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
(ii) the ready availability of publications containing clear statements about income support entitlements and procedural requirements;
(iii) the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;
(iv) the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;
(v) the establishment of procedures to ensure that abuses of the social security system are minimised; and
(b) the special needs of disadvantaged groups in the community; and
(c) the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and
(d) the importance of the system of review of decisions under the social security law; and
(e) the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and
(f) the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal.
In sending out the information material sought by Ms Webster, the Secretary’s delegates, the officers of Centrelink, were fulfilling obligations set out in section 8(a)(i) and(ii) of the Administration Act.
Member Wulf considered the question of the obligations of Centrelink in Re Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 288. In that case, Ms Milroy contended that Centrelink owed her a duty of care to provide her information as to all possible payments and/or allowances that she could claim with respect to the care of her mother.
In Milroy, the Tribunal said, at [16]:
“It is apparent that the provisions in s 8 of the Administration Act only require Centrelink to provide general advice and information to the public about the availability of income support and social security payments. Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment. Moreover, Centrelink is not required to advise a client that they must fill in any additional forms. This is clear from section 11(1) of the Administration Act, which provides:
11 General rule
(1) Subject to subsection (2) and subdivision B, a person who wants to be granted:
(a)a social security payment; or
(b)a concession card;
must make a claim for the payment or card in accordance with this Division.
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The decision of Scott v Secretary, Department of Social Security is also of importance. This was a decision of the Full Court of the Federal Court where a majority (Beaumont and French JJ) upheld the judgement at first instance where Heerey J held that “…there was no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act.” “
With respect, I agree with the reasoning in Milroy. In Ms Webster’s case, the Secretary’s delegates fulfilled their obligations under section 8 of the Administration Act. As is evident from the computer record and the letter sent out on 28 May 2014, the relevant information and forms were sent to the Applicant. I note, in particular, the wording on the front of the information sheet which I have set out above and that, for a person like Ms Webster who was already in receipt of an income support payment (in her case Newstart Allowance) at the time she lodged her claim for Carer Allowance, the information sheet particularly reminds potential claimants “you will need to decide which payment is best for you.”
Beyond the explicit requirements in section 8, and noting the judicial decision in Scott, referred to above, there is not an onus on the Respondent to make some assessment as to what might be the appropriate allowance for a person to claim in a particular circumstance. Ms Webster had a telephone discussion with a Centrelink officer about both Carer Allowance and Carer Payment and was sent the forms, for her to consider. She elected to apply for Carer Allowance. If there was some corroborated evidence before me that supported the contention that Ms Webster had been misled, or given wrong information, I may consider this matter further, but there is no such evidence before the Tribunal.
In terms of a contention that Ms Webster should have been transferred from Newstart Allowance to Carer Payment, a person applying for Carer Payment must lodge a claim for such a transfer. The Guide to Social Security Law (version dated 9 November 2015 applying at the time of Ms Webster’s contact) is an internal policy document provided for the assistance of officers and available on the Department of Human Services website, This document notes that there may be exceptional cases where vulnerable people may be transferred from one income support payment to another income support payment but the term ‘vulnerable people’ is described as those who have a mental health condition and either lack insight into their mental health condition or live in a remote community with little or no access to health services.
There is no submission from either party that the Applicant is in the category of a vulnerable person, as encompassed in this definition. Therefore the exhortation to officers in relation to exceptional cases does not apply in her case. To claim Carer Payment Ms Webster needed to lodge a claim for Carer Payment and have her eligibility assessed. This she did on 8 December 2015.
What is the correct start day for the Applicant’s Carer Payment?
AAT1 decided that the correct start date for Ms Webster’s Carer Payment was 15 September 2015, in accordance with section 12 of the Administration Act.
Section 12 of the Administration Act provides some discretion for the Secretary in determining when a person may be taken to have made a claim for an income support payment when the person is eligible for the payment:
12. Deemed claim in certain cases
(1) The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:
(a) the person became qualified for the new payment while receiving another income support payment; or
(b) the person became qualified for the new payment immediately after ceasing to receive another income support payment.
(2) The person is taken to have made the claim for the new payment on the day specified in the Secretary's determination. That day must not be earlier than:
(a) the day that is 13 weeks before the day on which the Secretary's determination is made; or
(b) if the person became qualified for the new payment after the day referred to in paragraph (a)--the day on which the person became qualified for the new payment.
With respect, AAT1 erred in its interpretation of this section. The date of 15 December 2015 was the date of Centrelink’s notice that the Secretary had decided that Ms Webster was qualified for Carer Payment, however, the date that her claim was lodged was 8 December 2015. The Secretary determined Ms Webster was eligible for Carer Payment from 8 December 2015. The day before that date is 7 December 2015. Applying the provisions of section 12(2)(a) of the Administration Act set out above and item 7 in the table for calculating periods of time set out in section 36 of the Acts Interpretation Act 1901, the claim is taken to have been made on the date counted back 13 weeks from 7 December 2015, the day before the day of the Secretary’s determination. Therefore, I find that the correct start day for Ms Webster’s Carer Payment is 7 September 2015.
For completeness, I also find that Ms Webster cannot rely on section 15(4A) of the Administration Act in support of an earlier start day for her Carer Payment because that section relates to persons who have made initial claims for an income support payment and then a later claim for another income support payment. Ms Webster’s initial claim was for Carer Allowance, which is not included in the definition of ‘income support payment’ in section 23 of the Act; Carer Allowance is a supplementary payment as separately defined in section 15(5) of the Administration Act. The two different benefits are explicitly differently characterised in the Administration Act.
It may be, as her representative contends, that Ms Webster was eligible for Carer Payment when she initially lodged her claim for Carer Allowance but the fact of the matter is that she did not lodge a claim at that time for that income support payment.
DECISION
The reviewable decision is set aside and, in substitution the Tribunal decides that the start day for the Applicant’s Carer Payment is 7 September 2015.
48. I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.
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Associate
Dated 29 May 2017
Date of hearing 7 April 2017 Advocate for the Applicant Mr Pat Carson Advocate for Respondent Mr James Henderson
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