Bennett and Secretary, Department of Employment and Workplace Relations
[2008] AATA 309
•15 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 309
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3746
GENERAL ADMINISTRATIVE DIVISION ) Re Stephanie Bennett Applicant
And
Secretary, Department of Employment and Workplace Relations
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date15 April 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
.......[Sgd Mr A Sweidan]........
Senior Member
CATCHWORDS
Social Security – Parenting Payment – whether applicant covered by Parenting Payment Transitional Arrangement
LEGISLATION
Social Security Act 1991 ss18, 500(1)(a), 500D(2), 500D(3), 500F(1), 500H(1)
Social Security (Administration) Act 1999 s68(2), s80(1)
REASONS FOR DECISION
15 April 2008 Mr A Sweidan, Senior Member DECISION UNDER REVIEW
1. The applicant has sought a review of the Social Security Appeals Tribunal (SSAT) decision made on 26 July 2007 that affirmed the decision made by a Centrelink Authorised Review Officer (ARO) on 11 June 2007 that Mrs Bennett is not qualified for Parenting Payment with effect from 29 June 2007.
ISSUES FOR THE TRIBUNAL
2. Whether Mrs Bennett is covered by the Parenting Payment Transitional Arrangement.
3. Whether Mrs Bennett ceased to be qualified for Parenting Payment with effect from 29 June 2007.
FACTS
4. The relevant facts, which are not in dispute, are as follows:
5. On 3 September 2004 Mrs Bennett lodged a Claim for Parenting Payment form at the Spearwood offices of Centrelink.
6. On 6 September 2004 Centrelink gave Mrs Bennett written notice that her claim for Parenting Payment had been granted with effect from 23 August 2007. This notice also set out Mrs Bennett’s rights and obligations in relation to Parenting Payment and included the following information:
You must tell us if any of these things happen or are likely to happen: you marry or start living with someone of the opposite sex as if you are married . . . .
If you think our decision is wrong, please phone us or come in and see us . . . . Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you may only get back payment from the date you ask.
7. On 12 May 2006 Centrelink gave Mrs Bennett written notice of changes to Parenting Payment to come into effect from 1 July 2006. This notice was part of a nation-wide mail out to Centrelink customers who may have been affected by the Welfare to Work changes of 1 July 2006. Together with the notice was a fact sheet that included the following information:
Under the new system, you will be able to go off Parenting Payment for up to 12 consecutive weeks and still be eligible to receive the same type of Parenting Payment again without having to reapply. But if you go off payment for more than 12 weeks, or your circumstances change, you may have to reapply under new eligibility rules.
8. On 30 June 2006 Centrelink gave Mrs Bennett written notice of her reporting requirements for Parenting Payments. This notice also set out Mrs Bennett’s rights and obligations in relation to Parenting Payment and included the following information:
If you think our decision is wrong, phone us or come and see us . . . . Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you may only get back payment from the date you ask.
What you must report for each Centrelink Reporting Period . . . . your marital status changes, for example you marry, separate, become widowed, reconcile with a former partner or live with a new partner . . . .
9. On 10 July 2006 Mrs Bennett telephoned Centrelink and advised that she had become partnered on 1 July 2006.
10. On 10 July 2006 Centrelink gave Mrs Bennett written notice of the decision to cancel her Parenting Payment. This notice included the following information:
If you think our decision is wrong, phone us or come and see us. We will check the facts and explain the decision. If you still do not agree, you can ask for one of our Authorised Review Officers (ARO) to look at it. The ARO is an officer who has no previous involvement in your case, and if the decision is wrong, the ARO can correct it. The ARO can also tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree. Both the ARO review and SSAT appeal are free. Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you may only get back payment from the date you ask.
11. On 25 October 2006 Mrs Bennett telephoned Centrelink and advised of her proposed separation from her partner.
12. On 25 October 2006 Centrelink mailed to Mrs Bennett a Parenting Payment Change of Marital Status (SC280) form and a Separation Details (Mod S) form.
13. On 27 October 2006 Mrs Bennett telephoned Centrelink in order to claim Parenting Payment.
14. On 2 November 2006 Centrelink received from Mrs Bennett a completed SC280 form in which she advised that she had separated from her former partner on 27 October 2006.
15. On 9 November 2006 Mrs Bennett lodged a completed Customer Declaration form for Parenting Payment at the Spearwood offices of Centrelink.
16. On 9 November 2006 Centrelink gave Mrs Bennett written notice of the decision to grant her Parenting Payment with effect from 3 November 2006. This notice included the following information:
If you think our decision is wrong, phone us or come in to see us. We will check the facts and explain the decision. If you still do not agree, you can ask for one of our Authorised Review Officers (ARO) to look at it. The ARO is a Centrelink officer who has no previous involvement in your case, and if the decision is wrong, the ARO can correct it. The ARO can also tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree. Both the ARO review and the SSAT appeal are free. Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you can only get back payment from the date you ask.
17. Due to a computer system problem, Centrelink had been unable to grant Parenting Payment to Mrs Bennett from the date she became qualified, 27 October 2007. Upon granting her claim for Parenting Payment, the responsible Centrelink officer requested the problem be corrected, noting on the New Claim Action Sheet that the matter had been “sent to SSG for limiting date - should be: 27/10/06”.
18. On 20 December 2006 Centrelink gave Mrs Bennett written notice of the decision to grant her Parenting Payment with effect from 27 October 2006. This notice included the following information:
If you are not satisfied with this decision you can ask for an Authorised Review Officer (ARO) to review it . . . . If you want the decision to be reviewed by an ARO it is important that you contact me on (08)92360155 as soon as possible. If you do not request a review within 13 weeks of receiving this letter, and the ARO changes the decision, you might not receive your full entitlement.
19. On 29 January 2007 Centrelink gave Mrs Bennett written notice that she would cease to be qualified for Parenting Payment when her youngest child turned 8 on 29 June 2007.
20. On 27 March 2007 Mrs Bennett wrote to Centrelink attaching a letter dated 12 February 2007. In the letter of 12 February 2007 Mrs Bennett had requested that Centrelink consider whether she could continue to receive Parenting Payment until her youngest child turned 16.
21. On 11 May 2007 Mrs Bennett attended an interview at the Cannington offices of Centrelink at which it was confirmed to her that she would cease to be qualified for Parenting Payment when her youngest child turned 8.
22. On 18 May 2007 Centrelink received from Mrs Bennett a letter by which she requested a review of the decision that she would cease to be qualified for Parenting Payment when her youngest child turned 8 on 29 June 2007. In this letter Mrs Bennett stated her belief that Centrelink had a duty of care to inform her, when she advised Centrelink on 10 July 2006 that she had become partnered, of the legislative changes that were introduced with effect from 1 July 2006, and that it had failed in this duty of care.
23. On 18 May 2007 a Centrelink Original Decision Maker (ODM) review concluded that the decision that Mrs Bennett would cease to be qualified for Parenting Payment on 29 June 2007 was correct. Mrs Bennett was given written notice of the result of this review on 18 May 2007, and also advised that, as she had requested, the decision had been referred to an ARO for reconsideration.
24. On 30 May 2007 Mrs Bennett provided additional information to the Centrelink ARO.
25. On 11 June 2007 a Centrelink ARO reviewed and affirmed the decision that Mrs Bennett’s Parenting Payment had been correctly cancelled on 10 July 2006, with the effect that she would cease to be qualified for Parenting Payment from 29 June 2007.
26. On 5 July 2007 Centrelink gave Mrs Bennett written notice of the decision to cancel her Parenting Payment as her youngest child had turned 8.
27. The SSAT reviewed and affirmed the decision on 5 July 2007. The SSAT found that Mrs Bennett’s Parenting Payment had been correctly cancelled with effect from 1 July 2006 and correctly regranted from 27 October 2006. The SSAT concluded that, because the period between 1 July 2006 and 27 October 2006 was greater than 12 weeks, Mrs Bennett was not covered by the Parenting Payment Transitional Arrangement, with the result that she ceased to be qualified for Parenting Payment on 29 June 2007.
TRIBUNAL’S FINDINGS
28. The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
29. Section 18 of the Act specifies that a person can be paid Parenting Payment as a single person (pension PP) or as a partnered person (benefit PP).
30. At all times that she has been paid Parenting Payment, Mrs Bennett has been paid Parenting Payment as a single person (pension PP).
31. Subsection 500(1)(a) of the Act relevantly provides that a person must have at least one PP child in order to qualify for Parenting Payment.
32. Subsection 500D(2) of the Act relevantly provides that a child of a single person is a PP child of that person if the child has not turned 8.
33. Until 29 June 2007, Mrs Bennett had one child who had not turned 8 and, therefore, had one PP child.
34. Subsection 500D(3) of the Act relevantly provides that a child is a PP child of a person if:
·the child has not turned 16
·the person is covered by the Parenting Payment Transitional Arrangement
·since 1 July 2006 there have not been any continuous periods of more than 12 weeks during which the person has not been covered by the Parenting Payment Transitional Arrangement
·Subsection 500F(1) of the Act relevantly provides that, in relation to a child, a person is covered by the Parenting Payment Transitional Arrangement if:
·the person is not and immediately before 1 July 2006 was not a member of a couple
·the child is and immediately before 1 July 2006 was a PP child of the person
·the child has not turned 8 and the person is qualified for Parenting Payment in relation to the child
·the child has turned 8 and the person would be qualified for Parenting Payment in relation to the child if the child had not turned 8
35. The Tribunal notes that a person who was qualified for Parenting Payment as a single person immediately before 1 July 2006 ceases to be covered by the Parenting Payment Transitional Arrangement during any period from 1 July 2006 for which they qualify for Parenting Payment as a partnered person.
36. Subsection 500H(1) of the Act specifies that, under section 500F(1), a person is not qualified for Parenting Payment in relation to a child if the person’s Parenting Payment has been cancelled and there is no determination granting another claim for Parenting Payment to the person.
37. Subsection 68(2) of the Administration Act relevantly provides that a person may be given a notice that requires them to inform Centrelink if a specified event or change of circumstances occurs.
38. Subsection 80(1) of the Administration Act relevantly provides that, if a person is not qualified for a Centrelink payment, that payment is to be cancelled.
39. The Tribunal finds that Mrs Bennett ceased to be qualified for Parenting Payment with effect from 1 July 2006 and that a determination cancelling her Parenting Payment was made on 10 July 2006.
40. The Tribunal finds that Mrs Bennett ceased to be covered by the Parenting Payment Transitional Arrangement when her Parenting Payment was cancelled with effect from 1 July 2006.
41. The Tribunal finds that Mrs Bennett was qualified for Parenting Payment from 27 October 2006, the date in respect of which a determination granting her claim for Parenting Payment was made.
42. The Tribunal finds that Mrs Bennett was not qualified for Parenting Payment during the period 1 July 2006 to 26 October 2006.
43. The Tribunal finds, therefore, that Mrs Bennett was not covered by the Parenting Payment Transitional Arrangement during the period 1 July 2006 to 26 October 2006, inclusive, and that this is a period of 16 weeks and 6 days.
44. This is a continuous period of more than 12 weeks.
45. The Tribunal is of the view that, as Mrs Bennett was not covered by the Parenting Payment Transitional Arrangement during a continuous period of more than 12 weeks, her qualification for Parenting Payment under subsection 500(1)(a) of the Act is determined by reference to subsection 500D(2) of the Act, which defines a PP child as a child who has not turned 8.
46. Further the Tribunal finds that Mrs Bennett ceased to qualify for Parenting Payment from 29 June 2007, the date on which her youngest child turned 8, and the date on which she no longer had at least one PP child.
47. The Tribunal notes the decision in Makris and Secretary, Department of Family and Community Services [2005] AATA 375 where, after rejecting “the submission that Centrelink has a general duty of care to welfare recipients” or that it “is in some manner or form a legal, financial or other adviser to a welfare beneficiary” (at paragraph 7), the Tribunal went on to find (at paragraph 8):
This matter however raises different questions . . . . Some amendments effected by the Act were to take effect from 20 September 2003. In these circumstances the staff of Centrelink as part of their duties should have been well aware of the proposed amendments and when they were to take effect, so that when the Applicant contacted Centrelink on 2 December 2003 requesting a “portability letter”, they failed in their duty to him by not advising of the changes in the law brought about by the 2003 amending act.
48. The Tribunal is of the view that the facts in this matter are distinguishable from those in Makris in that Mrs Bennett telephoned Centrelink on 10 July 2006 to advise, in compliance with the obligations placed on her under subsection 68(2) of the Administration Act, of a change in her circumstances affecting her qualification for Parenting Payment.
49. The Tribunal is of the view that, by its written notice and accompanying fact sheet of 12 May 2006, Centrelink did inform Mrs Bennett of the changes of law to take effect from 1 July 2006.
50. The Tribunal has also had regard to the Federal Court Decision in Scott and Secretary, Department of Social Security (1999) 57 ALD 627 where the Court found (at paragraph 51) that there is no “common law duty of care under which the department has obligations to inform persons in the position of Mr and Mrs Scott of potential benefits under the Act.”
DECISION
51. The Tribunal affirms the Social Security Appeals Tribunal decision of 26 July 2007 that Mrs Bennett is not qualified for Parenting Payment with effect from 29 June 2007.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed:.........(Sgd E Jordan).............................................
AssociateDate of Hearing 17 December (heard on the papers)
Date of Decision 15 April 2008
Solicitor for the Applicant Self-representedCounsel for the Respondent Mr Richard Wright
Legal Services Officer
Legal Services Branch Centrelink
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