Abordo and Department of Education, Employment and Workplace Relations

[2007] AATA 2082

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION 2007 [AATA] 2082

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1465

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROSARIO ABORDO

Applicant

And DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date21 December 2007

PlaceSydney

Decision The decision under review is affirmed.

...............................................

Ms N Bell         
  Senior Member

Social Security – parenting payment – member of a Couple – Legislative Amendments – not a Member of a Couple – Change in Definition of a Parenting Payment Child – Decision Under Review Affirmed

Social Security Act 1991

REASONS FOR DECISION

Ms N Bell                

1.      Mrs Abordo gave birth to her son, John Charles Abordo on 1 November 1992. After some time together, Mrs Abordo separated from her husband, Mr Acon on 12 March 2006. Shortly after the separation, Mrs Abordo applied for parenting payment (single).  She was granted this payment with the date of effect being 20 March 2006.

2.      Mrs Abordo’s parenting payment (single) was cancelled from 3 November 2006 because Mr Acon requested that his and Mrs Abordo’s records be linked as they were planning on reconciling.

3.      On 22 November 2006, Mrs Abordo lodged a parenting payment – Change of Marital Status Becoming Partnered form. Two days later, on 24 November 2006, she lodged a claim for parenting payment (partnered). Centrelink decided to reject Mrs Abordo’s claim for parenting payment (partnered) on the same day.

4.      Mr Acon made submissions, by telephone, on Mrs Abordo’s behalf.

Issues

5.      Because Mrs Abordo applied for a parenting payment (partnered) on 22 November 2006 her claim falls under the amendments to the Social Security Act 1991 introduced on 1 July 2006. One of the amendments was a change in definition of a “parenting payment child”. If the person claiming the pension is a member of a couple, the child must be under the age of six. Mrs Abordo’s son was 14 at the time of application and therefore did not qualify as a parenting payment child.

6.      However, transitional provisions were also introduced on 1 July 2006 to cover those people already in receipt of a parenting payment on that date.  The combined effect of those provisions (s 500D and s 500F) is that if:

1)    the person’s marital status remained the same (apart from a change in status of no more than 12 weeks) from immediately before 1 July 2006; and

2)    the child is under the age of 16 years; and

3)    parenting payment was being paid in respect of the child immediately before 1 July 2006,

then parenting payment may continue to be paid to the person until the child is 16 years old.

7.      The Explanatory Memorandum, referring to this continuity of entitlement, says:

In order to retain the transitional statues, a person must not change his or her relationship status, nor have had their payments cancelled. A person will lose their transitional status if for more than 12 continuous weeks they are not covered by the transitional arrangements.

8.      Therefore the central issue in this application is whether Mrs Abordo was covered by the transitional provisions as at 24 November 2006, the date of her claim for parenting payment (partnered).

Is Mrs Abordo Covered by the transitional provisions in the Social Security Act 1991?

9.      The transitional provisions allow for continuation of entitlement for some people who were receiving parenting payment (single) prior to 1 July 2006. Prior to 1 July 2006 Mrs Abordo was receiving parenting payment (single) and was not a member of a couple. In order to be covered by the transitional provisions, Mrs Abordo needed to remain single after 1 July 2006. Mrs Abordo did not remain single after 1 July 2006 as she reconciled with Mr Acon. Therefore the transitional provisions do not apply to Mrs Abordo.

10.     This result follows from the application of section 500F(1) and (2), a copy of which is annexed to these reasons.  In particular, sections 500F(1)(a) and (c) and 500F(2)(a) and (c) require continuity of marital status.

11.     I note Mr Acon’s submission that this detail of the transitional provisions was not publicised and his evidence that neither he nor Mrs Abordo was aware of the need to maintain continuity of marital status in order to maintain continuity of entitlement.  He considers that unfair.

12.     However, the provisions confer no discretion on the decision maker and it is clear that Mrs Abordo’s marital circumstances changed after 1 July 2006.  It follows that she is not covered by the transitional provisions and that she is not qualified to receive the payment.

Decision

13.     The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell

Signed:         ..............[Sanjiv Shah]...................
  Associate

Date of Hearing  16 November 2007
Date of Decision  21 December 2007

Solicitor for the Respondent     Ms Andrea Garcia