Editors --- "Bereavement allowance; whether compensation affected payment" [2006] SocSecRpr 17; (2006) 8(2) Social Security Reporter, Article 6

• SECRETARY TO THE DFaCS and RORKE
• Background
• Legislation
• The issue
• Discussion
• Formal decision

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Bereavement allowance; whether compensation affected payment

SECRETARY TO THE DFaCS and RORKE

(2006/138)

Decided: 20th February 2006 by R. Perton

Background

Rorke was injured in a motor vehicle accident in December 2001. She had been in receipt of carer payment since 16 May 2001 for care she provided to her mother. Rorke’s mother died on17 June 2002, and Rorke received a bereavement payment of $2112.60.

On 19 May 2005, Rorke settled a compensation claim relating to the motor vehicle accident. Centrelink calculated a preclusion period in relation to this lump sum settlement, which ran from 7 December 2001 to 4 July 2002, and sought to recover a charge of$8443.44. This charge included the bereavement payment of $2112.60.

The SSAT determined that the bereavement payment was not a compensation affected payment and therefore was not to be included in the amount recoverable from Rorke. This decision was appealed to the AAT.

Legislation

The relevant provisions are contained in the Social Security Act 1991 (‘the Act’). Of particular relevance are the following sections:

235.(1) If:

(a) a person is receiving carer payment because he or she ordinarily cares for a care receiver or care receivers; and

(b) the person is caring for the care receiver or care receivers or has temporarily ceased to care for the care receiver or care receivers; and

(c) the care receiver or any of the care receivers dies; and

(d) the care receiver who dies is not the person’s partner; and

(e) because of the death, the person would, apart from this subsection, cease to be qualified for the carer payment;

the person remains qualified for the carer payment during the bereavement period as if the death had not occurred.

236A.(1) A lump sum is payable to a person under this section if:

(a) the person remains qualified for carer payment because subsection 235(1) or (1A) applies; and

(b) immediately before the death of the person mentioned in that subsection, the person who died was not a member of a couple, or was a member of a couple and his or her partner:

(i) was not receiving asocial security pension; and

(ii) was not receiving asocial security benefit; and

(iii) was not receiving a service pension or income support supplement.

The issue

The issue before the AAT was whether the bereavement payment was a discrete payment or whether it was part of carer payment and therefore a ‘compensation affected payment’.

Discussion

The AAT found that the bereavement payment was not a discrete payment but rather was a payment of carer payment. The AAT noted that bereavement payment is not payable unless the person would have continued as the carer of the deceased person if they had still been alive.

As the bereavement payment made to Rorke constituted carer payment, which is a compensation affected payment, the amount of the bereavement payment was a recoverable amount under the provisions of Part 3.14 of the Act.

Formal decision

The AAT set aside the decision under review and found that the lump sum bereavement payment of $2112.60 was a compensation affected payment.

[S.O.]