Beltsos-Russo and Secretary, Department of Social Services (Social services second review)

[2023] AATA 3189

Beltsos-Russo and Secretary, Department of Social Services (Social services second review) [2023] AATA 3189 (10 October 2023)

Division:GENERAL DIVISION

File Number:          2022/9811

Re:Asha Beltsos-Russo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:10 October 2023

Place:Melbourne

The decision under review is affirmed.

.................[sgd].......................................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – parenting payment (partnered) – whether Applicant entitled to parenting payment (partnered) at a date prior to date of claim – whether deeming provisions applicable – no deeming provisions apply – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth)

REASONS FOR DECISION

Dr L Bygrave, Member

10 October 2023

1. The Applicant, Ms Asha Beltsos-Russo, lodged a claim for parenting payment (partnered) on 12 January 2021. On 30 March 2021, Services Australia (Centrelink) decided to grant Ms Beltsos-Russo parenting payment (partnered) effective from 12 January 2021.[1]

   [1] Exhibit T-T6.

2. Ms Beltsos-Russo requested Centrelink review the decision on the basis that she sought to be paid parenting payment (partnered) from an earlier date and, on 31 May 2022, an authorised review officer at Centrelink affirmed the decision.[2]

   [2] Exhibit T-T8.

3. Ms Beltsos-Russo subsequently applied to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) for review. The AAT1 affirmed the decision under review on 23 November 2022.[3]

   [3] Exhibit T-T2.

4. On 30 November 2022, Ms Beltsos-Russo emailed the General Division of the Tribunal seeking review of the decision and payment of parenting payment (partnered) prior to 12 January 2021 on the basis that her ‘eligibility for the time period still has not been applied’.[4]

   [4] Exhibit T-T1, 1.

5. The matter was heard in Melbourne on 5 October 2023; the parties attended the hearing and provided submissions by teleconference.

   CONSIDERATION

6. The statutory provisions relevant to this matter are set out in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

   Qualification for parenting payment

7. Section 500 of the Act sets out the qualification criteria for parenting payment, which include (amongst other matters) that the person has at least one ‘PP child’ and is an Australian resident. It is not in dispute – and I accept – that Ms Beltsos-Russo qualified for parenting payment (partnered) at the date of her claim on 12 January 2021.

   Claim for social security payment – start date

8. Sections 11 and 16 of the Administration Act state that a person who wants to be granted a social security payment must make a claim either in writing or in an approved manner. Schedule 2, subclause 3(1) of the Administration Act provides, as a general rule, that if a person claims a payment and is qualified on the day they make their claim, ‘the person’s start date in relation to the payment is the day on which the claim is made’.

9. Ms Beltsos-Russo has been paid parenting payment (partnered) from 12 January 2021, the date she made her claim for parenting payment (partnered) and was qualified for the payment. Therefore, the sole issue for determination by the Tribunal is whether Ms Beltsos-Russo can be granted parenting payment (partnered) from a date prior to 12 January 2021.

   Can Ms Beltsos-Russo be paid parenting payment (partnered) prior to 12 January 2021?

10. Ms Beltsos-Russo submitted that she should be back paid parenting payment (partnered) because she contacted Centrelink by telephone approximately one month after her daughter was born in August 2019 and believed that she had been informed about and had applied for all the payments she was eligible for. However, she did not know about and was not aware she could apply for parenting payment (partnered) until January 2021.  

11. While there is no general discretion in the legislation that allows a person’s entitlement to a social security payment to be backdated to an earlier date, Subdivision B of Division 1, Part 3 of the Administration Act sets out particular cases where a claim is not necessary. Relevantly, sections 12, 13 and 15 of the Administration Act deal with certain cases where a person can be deemed to have made a claim for a social security payment.

12. Subsection 12(1) of the Administration Act sets out that a deemed claim for an income support payment may occur in cases where (amongst other matters) a person either ‘became qualified for the new payment while receiving another income support payment’ or ‘became qualified for the new payment immediately after ceasing to receive another income support payment’.

13. The evidence before the Tribunal shows Ms Beltsos-Russo was not in receipt of another income support payment either on or immediately prior to 12 January 2021. Consistent with Centrelink records, Ms Beltsos-Russo told the Tribunal that she received parental leave pay for 18 weeks after her daughter was born in August 2019 and she has been in receipt of family tax benefit.

14. Section 23 of the Act defines an ‘income support payment’ as including a ‘social security benefit’, a ‘social security pension’ and an ‘income support supplement’. However, neither parental leave pay (which ceased more than 12 months prior to her claim for parenting payment) nor family tax benefit are listed as a social security benefit, a social security pension or an income support supplement under section 23 of the Act.

15. As Ms Beltsos-Russo was not receiving another income support payment on or immediately before 12 January 2021, I find the provisions in section 12 of the Administration Act cannot apply to her situation.

16. Subsections 13(1), (2), (3) and (3A) of the Administration Act set out circumstances where a claim can be deemed to be made where (amongst other matters) a person contacts the Department about a claim for a social security payment and ‘on the day on which the Department is contacted’ is included in ‘a class of persons’ set out in the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018 (Cth) (the Determination). Subsection 13(1) of the Administration Act sets out a timeframe for lodgement of claim from date of contact as ‘within 14 days’, and subsections 13(2), (3) and (3A) outline a timeframe for lodging a claim as ‘more than 14 days, but not more than 13 weeks’ from date of contact.

17. Section 5 of the Determination states the following regarding the application of section 13 of the Administration Act:

    For the purposes of paragraphs 13(1)(aa), (2)(aa), (3)(aa) and (3A)(aa)…of the [Administration] Act, a person is in a class of persons if the person is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is:

    (a) subject to domestic or family violence;

    (b) homeless;

    (c) hospitalised or suffering from a temporary incapacity arising from a medical condition;

    (d) released from prison or psychiatric confinement;

    (e) experiencing high stress associated with a relationship separation;

    (f) a parent of a dependent child born during the relevant period;

    (g) affected by the death during the relevant period of an immediate family member;

    (h) a person who entered Australia during the relevant period as a humanitarian entrant to Australia;

    (i) a person whose usual place of residence is in a remote area, and the person is physically present in the remote area;

    (j) a person whose principal place of residence was lost or sustained major damage during the relevant period as a result of an extreme circumstance, or

    (k) subject to other special circumstances beyond the person’s control.

    [emphasis added]

18. Records show Ms Beltsos-Russo contacted Centrelink by telephone on 2 September 2019 and 11 September 2019 in relation to a claim for family tax benefit and paid parental leave. Ms Beltsos-Russo told the Tribunal that she and her family had difficulties obtaining secure accommodation for approximately six months in 2020 and her relationship with her daughter’s father ended in mid-2021. While I accept Ms Beltsos-Russo experienced difficulties in 2020 and 2021, there is insufficient evidence to show that she meets the requirements of being in a class of persons described in section 5 of the Determination.

19. I further find no evidence that Ms Beltsos-Russo made contact with Centrelink in relation to a claim for a social security payment at any time in the 13 weeks prior to lodging her claim for parenting payment (partnered) on 12 January 2021.

20. As I find Ms Beltsos-Russo is not in ‘a class of persons’ set out in the Determination and did not contact Centrelink at any time in the 13 weeks prior to her claim for parenting payment (partnered), I am satisfied the provisions in section 13 of the Administration Act do not apply.

21. Section 15 of the Administration Act sets out circumstances where (amongst other matters) a person makes an ‘incorrect claim’. Ms Beltsos-Russo has never made an incorrect claim for another payment and therefore, section 15 of the Administration Act cannot apply.

22. For completeness, I have also considered the provisions set out in Division 2 of Part 3 of Schedule 2 to the Administration Act, which list the circumstances where a person’s start date can be backdated. Unfortunately for Ms Beltsos-Russo, none of these circumstances apply to her application for parenting payment (partnered). This is because there is no evidence she made her claim for parenting payment: within 14 days of her partners’ claim; she was not a transferee from another benefit or pension; within five weeks of becoming incapacitated for work; within four weeks after the death of a partner; within four weeks or her daughter becoming her PP child; or within 14 days of making a claim for Australian Government Disaster Relief Payment.

    CONCLUSION

23. For these reasons, I am not satisfied that Ms Beltsos-Russo can be paid parenting payment (partnered) prior to 12 January 2021, which is the date she made her claim for parenting payment (partnered) and was qualified for the payment.

    DECISION

    The decision under review is affirmed.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.....................[sgd]...................................................

Associate

Dated: 10 October 2023

Date of hearing:	5 October 2023
Date final submissions received:	13 September 2023
Applicant:	Self-represented
Advocate for the Joined Party:	Tim de Uray
Solicitors for the Joined Party:	Services Australia