Zahra and Secretary Department of Family Community Services and Indigenous Affairs

[2007] AATA 1295

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1295

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0066

GENERAL ADMINISTRATIVE DIVISION		)
Re		INAAM ZAHRA

Applicant

And SECRETARY DEPARTMENT OF FAMILY COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S E Frost

Date3 May 2007

PlaceSydney

Decision Tribunal affirms the decision that Mrs Zahra is entitled to carer payment and carer allowance from 8 June 2006, and no earlier.

...........[sgd]..............

Mr S E Frost      
  Member

CATCHWORDS

SOCIAL SECURITY - carer payment and carer allowance - start date - whether payment can be made from a date earlier than the date of claim - whether Centrelink has a general duty to advise clients of their entitlements

LEGISLATION

Social Security Act 1991
Social Security (Administration) Act 1999, sections 11, 15, 16, Schedule 2 clause 3

CASE LAW

Re Fry and Secretary, Department of Social Security (1990) 20 ALD 709
Scott vSecretary, Department of Social Security (2000) 65 ALD 79

REASONS FOR DECISION

3 May 2007 Mr S E Frost, Member       

INTRODUCTION

1.      For many years Mrs Zahra has been caring for her husband, who has been receiving Disability Support Pension since 1995.  In June 2006 she applied for carer payment and carer allowance.  She had not applied for these benefits before June 2006 because she was not aware that she might be entitled to them.

2.      Centrelink processed her claim and decided that she was entitled to both carer payment and carer allowance.  Centrelink started paying her from 8 June 2006, when the claim forms were lodged.  Mrs Zahra wants Centrelink to pay her from an earlier date.  She thinks that she should be paid the carer payment and carer allowance from 1995, or at least from some date earlier than 8 June 2006.

ISSUES

3.      The central issue before me is this:

·From what date should Centrelink pay Mrs Zahra carer payment and carer allowance? 

4.      In considering that question I also explored some further issues, which are:

·When did Mrs Zahra make her claim for carer payment and carer allowance?

·Is there any other claim that she made that might be treated as a claim for carer payment and carer allowance?

·Did Centrelink give Mrs Zahra wrong advice, which prevented her from receiving carer payment and carer allowance even though she was entitled to receive them?

·Should Centrelink have told Mrs Zahra, before June 2006, that she was entitled to carer payment and carer allowance?

THE LEGISLATION

5.      The Social Security (Administration) Act 1999 says that a person who wants to be granted a social security payment has to make a claim for the payment: section 11. It also says that you start getting paid from the day when you make the claim: clause 3 in Schedule 2.

WHEN DID MRS ZAHRA MAKE HER CLAIM FOR CARER PAYMENT AND CARER ALLOWANCE?

6.      Mrs Zahra made her claim on 8 June 2006, and her claim was processed so that she started getting the payments from that day. 

IS THERE ANY OTHER CLAIM THAT MRS ZAHRA MADE THAT MIGHT BE TREATED AS A CLAIM FOR CARER PAYMENT AND CARER ALLOWANCE?

7.      During the hearing I asked Mr Kenny, who represented Centrelink, to tell me if he could find in the Centrelink file any earlier claims that might be accepted as claims for carer payment or carer allowance.  I asked him this because the law also says that if you make a claim for one type of payment, which you are not entitled to, but you are entitled to a different type of payment, the claim can sometimes be treated as a claim for the payment that you are entitled to. This is in section 15 of the Social Security (Administration) Act 1999.

8.      He said he had looked, and he had searched through Centrelink’s archived records, but could not find any.  Mrs Zahra could not remember having lodged any earlier claim forms, except those that would have been lodged in 1995 or earlier.

9.      Mr Kenny said that the carer payment and the carer allowance were introduced in 1997.  They replaced the carer pension, which is the type of payment that existed in 1995.  This is important because I was trying to work out whether any of the forms Mrs Zahra gave to Centrelink in 1995 (when she started receiving parenting allowance) could be treated as if they were claims for carer payment or carer allowance.

10.     The way you qualify for carer payment and carer allowance is very different from the way you used to qualify for carer pension, or for parenting allowance.  Entitlement to both carer payment and carer allowance depends on a point score allocated under the Adult Disability Assessment Tool, and to achieve a point score the care receiver must have been assessed and rated.  In the absence of an assessment and a rating, the carer can have no entitlement. 

11.     There is no scope for any claim form lodged before 1997 to be treated as a claim for carer payment or carer allowance because, prior to 1997, the criteria for eligibility for carer payment and carer allowance had not been formulated.  On that basis none of the forms that Mrs Zahra lodged in 1995, or earlier, could be treated as claims for carer payment or carer allowance.

DID CENTRELINK GIVE MRS ZAHRA WRONG ADVICE, WHICH PREVENTED HER FROM RECEIVING CARER PAYMENT AND CARER ALLOWANCE EVEN THOUGH SHE WAS ENTITLED TO RECEIVE THEM?

12.     I asked Mrs Zahra whether she thought that anyone in Centrelink had given her wrong advice.  She did not think that this had happened. 

SHOULD CENTRELINK HAVE TOLD MRS ZAHRA, BEFORE JUNE 2006, THAT SHE WAS ENTITLED TO CARER PAYMENT AND CARER ALLOWANCE?

13.     Mrs Zahra thought that Centrelink should have told her much earlier about carer payment and carer allowance.

14.     I think that the reason why Centrelink failed to tell Mrs Zahra about carer payment and carer allowance is because Mrs Zahra had not told Centrelink about the level of care she had to provide to her husband.

15.     She says that in all the time she has been dealing with Centrelink, she has had several interviews with them and she has told Centrelink what her needs are and what her husband’s needs have been.  I accept that.  I also accept that she told Centrelink that the payments that the family was getting were not enough for their needs.  But she did not give the various Centrelink officers enough information to make them think that she might be able to get these further payments.

16.     When Centrelink officers are not given specific factual material about clients’ circumstances, there is no general duty imposed on officers to advise clients as to the types of payments they might be entitled to: Re Fry and Secretary, Department of Social Security (1990) 20 ALD 709; Scott vSecretary, Department of Social Security (2000) 65 ALD 79.

CONCLUSION

17.     Centrelink officers have done all that could be expected of them in this case.  They acted very quickly when Mrs Zahra made her claim.  They accepted everything she said in her claim form.  They processed her claim so that the payments to her would start from 8 June 2006, the day on which she lodged her claim.

18.     Mrs Zahra is entitled to carer payment and carer allowance from 8 June 2006, but no earlier.

19.     I affirm the decision under review.

I certify that the preceding 19 paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:  ……..[sgd].........Mwela Kapapa....
  Associate

Date of Hearing  26 April 2007
Date of Decision  3 May 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr John Kenny