Editors --- "Carer allowance rejection: request for review; deemed receipt of notice" [2012] SocSecRpr 22; (2012) 14(3) Social Security Reporter, Article 3

• MIDDLETON and SECRETARY TO THE DFHCSIA
• Background
• Issues
• Discussion
• Formal decision

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Carer allowance rejection: request for review; deemed receipt of notice

MIDDLETON and SECRETARY TO THE DFHCSIA

(2012/569)

Decided: 22nd August 2012 by K. Hogan

Background

Middleton had a son, born 30 March 1989, who had cerebral palsy. She was paid carer allowance in respect of her son until he turned 16 years of age. On 19 April 2005, Middleton applied for carer allowance (caring for a person 16 years or over) in respect of her son.

On 27 May 2005, the claim was rejected on the grounds that the condition of Middleton’s son was not at the level which would qualify her for carer allowance. A notice was issued to Middleton advising her of this decision. That notice was sent to her post office box address. Middleton asserted that she never received this notice, but just assumed that the claim had not been granted.

On 19 April 2011, Middleton again claimed carer allowance in respect of her son, after a Centrelink officer had suggested that she might qualify for the payment. The claim was initially rejected on the basis that Middleton’s answers on the carer questionnaire did not attract sufficient points for her to qualify. Middleton completed a new questionnaire and her claim was granted on 24 June 2011.

Middleton requested that the decision to reject her claim for carer allowance made on 27 May 2005 be set aside and that she be paid arrears of carer allowance from 19 April 2005. Centrelink rejected that application, and Middleton applied to the SSAT for a review of the decision. The SSAT affirmed the decision, and Middleton applied to the AAT for a review of that decision.

Issues

The issue for determination by the AAT was whether Middleton had adduced sufficient evidence to prove the nondelivery of the notice dated 27 May 2005, and thereby set aside the statutory presumption that the notice had been delivered.

Discussion

Section 237 of the Social Security (Administration) Act 1999 Act (the Administration Act) has the effect of deeming that letters sent in the post are deemed to have been delivered in the ordinary course of the post unless the contrary is proved. It provides:

If notice of a decision under the social security law is:

(a) delivered to a person personally; or

(b) left at the address of the place of residence or business of the person last known to the Secretary; or

(c) sent by prepaid post to the postal address of the person last known to the Secretary notice of the decision is taken, for the purposes of the social security law, to have been given to the person.

(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.

(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.

Whilst the AAT accepted the truthfulness of Middleton’s evidence, to the effect that she had not received the notice issued to her in May 2005, the AAT concluded that the fact of non-receipt does not displace the result that delivery of the notice is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.

The AAT found that there was no evidence of non-delivery of the notice, and therefore the AAT was not able to find in favour of Middleton on this point.

By virtue of section 109(2) of the Administration Act, the earliest date a favourable review of the decision in May 2005 could have effect was the date that Middleton sought review of the decision. The AAT found that the earliest date that Middleton sought review of the decision made in May 2005 was when she lodged the further claim for carer allowance on 19 April 2011.

As Middleton had been paid carer allowance from 19 April 2011, there was no additional benefit that could be paid to her in relation to any entitlement she may have had to carer allowance between May 2005 and 19 April 2011. The AAT expressed the opinion that this might be an appropriate matter for consideration of an ex-gratia payment to Middleton.

Formal decision

The AAT affirmed the decision under review. [S.O.]