Abdalla and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 726

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 726

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1885

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AZIZA ABDALLA

Applicant

And SECRETARTY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

REASONS FOR DECISION

Tribunal Ms A F Cunningham

Date3 October 2011

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY – parenting payment partnered – applicant ceased reporting husband’s income – applicant incorrectly reported husband’s gross income – pension cancelled on basis of failure to report – no discretion to pay arrears as applicant had not sought a review within the relevant period – decision under review affirmed

Social Security (Administration) Act 1999, ss 85, 109

WRITTEN REASONS FOR ORAL DECISION

19 October 2011   Ms A F Cunningham          

1.        The applicant, Aziza Abdalla, was originally granted parenting payment (partnered) on 5 December 2005.  Mrs Abdalla was required to report the family’s income each fortnight and if she failed to report, no payment would be made.  Mrs Abdalla, who was not in paid employment, reported the income of her husband who worked as a taxi driver. 

2.        For the fortnights ending 30 October 2008 and 13 November 2008, the income reported exceeded the threshold and her parenting payment was not paid.  The amounts reported are recorded by Centrelink as $2557.80 for the fortnight ending 13 November 2008 and $1597.15 for the fortnight ending 30 October 2008.  The previous amounts reported were $1268.00 and some lesser amounts.  It was Mrs Abdalla’s evidence that these amounts represented her husband’s gross takings and not the net amount upon which his income tax was calculated.  Mrs Abdalla reported the gross income of her husband, as she understood that this was what was required. 

3.        Mrs Abdalla maintained that the situation was not properly explained to her by Centrelink officers.  She was unaware that she was only required to report her husband’s net income until a friend explained this in around August 2010, when she lodged a new application for parenting payment (partnered) which was subsequently granted.  In the meantime, Mrs Abdalla was receiving Family Tax Benefit, for which a higher income threshold is imposed.  Mrs Abdalla is claiming that she has been underpaid parenting payment (partnered) and that it was wrongfully cancelled on the basis of her reporting too high an income, whereas had she reported the net income of her husband, she would have continued to be paid parenting payment. 

4.        Mrs Abdalla stopped reporting because she understood her husband’s income was above the threshold.  There was no dispute about the material facts as outlined above.  The issue for the Tribunal is whether there is any discretion to pay Mrs Abdalla any arrears of parenting payment if indeed she was underpaid parenting payment, and if it was incorrectly cancelled.  The parenting payment was cancelled because Mrs Abdalla failed to continue to report the family’s income.  Mrs Abdalla does not dispute having received two letters from Centrelink explaining the basis upon which her parenting payment was cancelled. 

5.        The relevant legislation is contained in the Social Security (Administration) Act 1999 (the Administration Act). Section 85 of this Act allows for a reconsideration of a decision to cancel a parenting payment where the Secretary considers that the social security payment was payable. This may have been the case, although the tribunal has no reliable evidence concerning Mrs Abdalla’s eligibility during the relevant period. Section 109 of the Administration Act provides that the reconsideration which is called a favourable determination, can only be made where an applicant has applied for a review within 13 weeks after a notice of cancellation was received. 

6.        There is no evidence before me that Mrs Abdalla sought a review within the 13 weeks.  I have examined the records of the conversations between Mrs Abdalla and Centrelink, none of which concern the parenting payment pension.  Mrs Abdalla does not contend that she sought review of the decision to cancel her parenting payment because she was not aware until she reclaimed parenting payment in August 2010 after discussing the issue with her friend, that she was actually entitled to the payment.  Mrs Abdalla may well have been entitled to parenting payment from the date of cancellation in November 2008 until August 2010, when she made her further application, however, I have no satisfactory evidence that she was. 

7.        There is nothing in the applicable legislation that allows me to reconsider Centrelink’s decision to cancel the parenting payment.  For these reasons, the decision under review is affirmed.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham

Signed: R Hunt - Associate

Date/s of Hearing  3 October 2011
Date of Written Reasons          
for Oral Decision  19 October 2011
Counsel for the Applicant         Applicant on her own behalf
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Program Litigation and Review Branch