Minas and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 73 (2 February 2010)

Last Updated: 3 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 73

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2337

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Effie Minas

Applicant

And

Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 2 February 2010

Place Sydney

Decision

The decision under review is affirmed.

................[sgd]..............................
Senior Member

CATCHWORDS

SOCIAL SECURITY - Carer Allowance - whether there is discretion to backdate payments – decision under review affirmed.

Social Security Act 1991

Social Security Act (Administration) 1991

REASONS FOR DECISION

2 February 2010	Senior Member Jill Toohey
Background

1. Alanna Minas was born on 24 March 2000. She was injured at birth, resulting in Erb’s Palsy to her left arm, and needs help with a range of daily activities. Her parents did not know, until late 2008, that it was possible to apply to Centrelink for a Carer Allowance.
2. Mrs Minas first contacted Centrelink on 30 December 2008 and lodged an application for Carer Allowance on 2 January 2009. Her application was refused on the ground that Alanna’s disability was not so severe as to qualify for the Allowance.
3. Mrs Minas asked Centrelink to reconsider its decision. On the basis of further medical evidence about Alanna’s disability, on 10 March 2009 Centrelink granted Mrs Minas a Carer Allowance with effect from 12 November 2008.
4. Mrs Minas asked Centrelink to reconsider the date from which it had granted the Carer Allowance. As a result, Centrelink determined that payment should be backdated to 7 October 2008, being 12 weeks before the first date on which Mrs Minas contacted Centrelink about the Allowance.
5. On 18 May 2009 the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision that the earliest date from which Mrs Minas could be paid the Allowance was 7 October 2008. Mrs Minas seeks review of the SSAT’s decision.
   
6. The parties have agreed that this review should be determined without a hearing. I am satisfied that the issues for determination can be adequately determined in their absence on the basis of the documents before me. The documents comprise Mrs Minas’ application for review, documents filed by Centrelink in accordance with s 37 of the Administrative Appeals Tribunal Act 1975, and a statement of facts and contentions filed by Centrelink.

The issue

7. There is no issue that Mrs Minas has been entitled to the Carer Allowance from 7 October 2008. The only issue is whether she can be paid from an earlier date.

Start date for Carer Allowance

8. Entitlement to Carer Allowance is governed by the Social Security Act 1991 (the Act) and the Social Security Act (Administration) 1991 (the Administration Act).
9. The general rule is that, if a person qualifies for a social security payment, the start day is the day on which she or he makes a claim for the payment: clause 3(1) of Part 2 of Schedule 2 of the Administration Act.
10. If a person contacts Centrelink about a payment, and then lodges a claim within 14 days, payment can commence from the date on which she or he first contacted Centrelink: s 13 of the Administration Act.

Can Carer Allowance be backdated

11. Carer Allowance may be backdated to a date earlier than when the claim was lodged. If a person who is qualified for Carer Allowance for a disabled child makes a claim within 12 weeks after the day on which she or he became qualified for the Allowance, the start day is the day on which she or he became qualified: clause 16 (1), Part 3, Schedule 2 of the Administration Act.
12. If a person is qualified for Carer Allowance for a disabled child and makes a claim more than 12 weeks after the day on which she or he qualified for the Allowance, the start day is the first day of the period of 12 weeks ending immediately before the day on which the claim was made: clause 16 (2), Part 3, Schedule 2 of the Administration Act.

Mrs Minas’ claim

13. Mrs Minas first contacted Centrelink about Carer Allowance for Alanna on 30 December 2008. She lodged her claim on 2 January 2009. This means that she is taken to have lodged her claim on 30 December 2008.
14. Mrs Minas does not claim to have contacted Centrelink before 30 December 2008. She was not even aware, until shortly before that date that she could apply for the Allowance.
15. The earliest date from which Mrs Minas can be paid Carer Allowance is 7 October 2008, which is 12 weeks before 30 December 2008.

Conclusion

16. Alanna is now nearly ten years old and I can well understand that Mr and Mrs Minas are aggrieved at not knowing they could have applied for Carer Allowance sooner. Medical reports on the file support their claim that they knew from the day Alanna was born that she had been injured during birth. They had to see numerous doctors and health care professionals over the years. Mr Minas has not been able to work at different times because he had to be at home to help his wife with Alanna. They have struggled at times and the Allowance would have been a help. Mrs Minas only found out about the Carer Allowance by chance in 2008 when she visited a Centrelink or Medicare office.
17. Unfortunately for Mr and Mrs Minas, the only circumstances in which payment of Carer Allowance can be backdated are those set out above. There is no other provision in the legislation that allows backdating. There is no provision for hardship or special circumstances. The Tribunal only has the powers in the legislation. The decision under review must be affirmed.
    

I certify that the 17 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey

Signed: .[sgd]...............................................................................

Diana Weston Associate

Date of Hearing: 11 January 2010

Date of Decision: 2 February 2010

Applicant: Self-represented

Solicitor for the Respondent: Pankaj Sharma, Centrelink