CHRISTINE ROBINSON and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 732

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 732

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4268

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTINE ROBINSON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date24 September 2009

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – parenting payment – qualification for parenting payment – applicant in receipt of parenting payment on 30 June 2006 – changes in legislation regarding qualification criteria introduced on 1 July 2006 – parenting payment transitional arrangement – applicant's parenting payment cancelled in October 2007 – applicant not covered by parenting payment transitional arrangement for continuous period of more than 12 weeks – applicant claimed parenting payment in May 2008 – applicant's claim to be determined under July 2006 statutory provisions – decision under review affirmed

Social Security Act 1991 (Cth), s 23(4), s 23(4A), s 23(4AA), s 500(1), s 500D(2), s 500D(3), s 500F(1), s 500H(1) and s 500I(2)

Social Security (Administration) Act 1999 (Cth), s 80(1)

REASONS FOR DECISION

24 September 2009 Deputy President S D Hotop

Introduction

1.      From 3 July 2000 Christine Robinson (“the applicant”) has received parenting payment (at the single rate) under the Social Security Act 1991 (Cth) (“the Act”), in respect of a child born in September 1995 and, subsequently, also in respect of twin children born in January 2001. She was continuing to receive parenting payment when she commenced employment with the Child Support Agency on 14 June 2007.

2.      On 26 June 2007 the applicant notified Centrelink that she had commenced employment on 14 June 2007 and she subsequently notified Centrelink of her fortnightly income from that employment.

3.      By reason of the applicant’s income, the rate of parenting payment payable to her was nil in the period from 27 June 2007 to 2 October 2007.

4.      On 2 October 2007 an officer of Centrelink cancelled the applicant’s parenting payment and she was notified of that decision by letter of the same date.

5.      That decision was affirmed by a Centrelink Authorised Review Officer (“ARO”) on 1 July 2008 and the ARO’s decision was affirmed by the Social Security Appeals Tribunal (“SSAT”) on 3 September 2008.

6.      On 12 September 2008 the applicant applied to this Tribunal for review of the decision of the ARO as affirmed by the SSAT.

7. In the meantime, the applicant had made a fresh claim for parenting payment on 20 May 2008, seeking to rely on a “grandfathered”, or transitional, status whereby she would retain the eligibility for parenting payment which she had as at 30 June 2006 (that is, immediately prior to the coming into effect on 1 July 2006 of more restrictive statutory provisions in respect of qualification for parenting payment – see ss 500(1) and 500D of the Act set out in paragraph 8 below).

The Relevant Legislation

8. Section 500(1) of the Act provides that a person is qualified for parenting payment if (inter alia):

“ (a)     the person has at least one PP child …”.

Section 500D of the Act relevantly provides:

“ …

500D(2)     A child is a PP child of a person if:

(a)    the child is a child of the person; and

(b)    the person is not a member of a couple; and

(c)    the child has not turned 8; and

(d)    the person is the principal carer of the child.

500D(3)     A child is a PP child of a person if:

(a)    the child is a child of the person; and

(b)    the child has not turned 16; and

(c)    the person is the principal carer of the child; and

(d)    the person is covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F); and

(e)    since 1 July 2006, there has not been any continuous period of more than 12 weeks during which the person has not at any time been covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F).”

Section 500F of the Act relevantly provides:

“500F(1)     Subject to subsection (3), a person is covered by the parenting payment transitional arrangement in relation to a child if:

(a)    immediately before 1 July 2006, the person was not a member of a couple; and

(b)    immediately before 1 July 2006, that child (or any other child) was a PP child of the person in respect of whom:

(i)a determination under section 37 of the Administration Act was in force granting a claim for a parenting payment to the person; or

…

(c)    the person is not a member of a couple; and

(d)    in a case where the child has not turned 8 – the person is qualified for parenting payment in relation to the child; and

(e)    in a case where the child has turned 8 – the person would be qualified for parenting payment in relation to the child if the child had not turned 8; and

…”

Section 500H of the Act relevantly provides:

“500H(1)     A reference in paragraph 500F(1)(d) or (e) … to a person being qualified for parenting payment does not include a reference to a person if:

(a)    the person’s parenting payment has been cancelled; and

(b)    no determination is in force granting another claim for parenting payment to the person.

…”

Subsection 500I(2) of the Act provides:

“ Subject to subsection (3), parenting payment is not payable to a person if the person’s parenting payment rate would be nil.”

9. Section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) relevantly provides:

“80(1)        If the Secretary is satisfied that a social security payment is being, or has been,  paid to a person:

(a)    who is not, or was not, qualified for the payment; or

(b)    to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

…”

10. Section 23 of the Act relevantly provides:

“…

23(4)For the purposes of this Act, a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later day.

23(4A)Despite subsection (4), if:

(a)    a person is receiving a social security pension or social security benefit; and

(b)    the person’s rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in Chapter 3; and

(c)    the person has not reached pension age; and

(d)    the person or the person’s partner earns, derives or receives, or is taken to earn, derive or receive, employment income; and

(e)    the person would, but for this subsection, cease to be receiving the pension or benefit on and from a day (the cessation day):

(i)if paragraph (d) applies to the person – because of the employment income of the person (either alone or in combination with any other ordinary income earned, derived or received, or taken to have been earned, derived or received, by the person) (and after any working credit balance or student income bank balance of the person is reduced to nil); or

(ii) …; and

(f)     but for the employment income, or the combined income, referred to in paragraph (e), the pension or benefit would continue to be payable to the person on and from the cessation day; and

(g)    the person:

(i)…; and

(ii)in any other case—continues to be qualified for the pension or benefit on and from the cessation day;

then, for the purposes only of the provisions of this Act that are specified in subsection (4AA), the person is taken to be receiving the pension or benefit until:

(h)    12 weeks after the end of the instalment period in which the cessation day occurs; or

(i)     the day the person reaches pension age; or

(j)     the day the pension or benefit would cease to be payable to the person for a reason other than the employment income, or the combined income, referred to in paragraph (e); or

(k)    the day the person ceases to be qualified as mentioned in paragraph (g);

whichever happens first.

23(4AA)For the purposes of subsection (4A), the following are the specified provisions of this Act:

(a)    provisions in Chapter 2 that provide for an increase in a person’s rate of payment by an amount to be known as the approved program of work supplement;

(b)    section 1048;

(c)    section 1061PJ;

(d)    section 1061Q;

(e)    point 1067G‑F3;

(f)     1070W (sic);

(g)    1070X (sic);

(h)    provisions within the income test module of a rate calculator in Chapter 3 prescribing the partner income free area or the partner income excess for a person.

…”

The Applicant’s Case

11.     At the hearing the applicant explained that the purpose of her application to this Tribunal (and, indeed, of her applications to the ARO and the SSAT) was to obtain a decision reinstating her pre-July 2006 “grandfathered status” so that she would continue to be eligible to receive parenting payment until her youngest children (namely, twin boys born in January 2001) turn 16.  She claimed that the loss of her “grandfathered status” was due to her acting in reliance on incorrect information provided to her by Centrelink officers in various telephone conversations regarding the effect of the July 2006 legislative changes in eligibility requirements for parenting payment.

12.     The applicant referred, in particular, to a telephone conversation which she had with a Centrelink officer on 18 June 2007, the details of which she set out in a written statement (which she tendered in evidence) as follows:

“ I rang Centrelink on 18 June 2007.  This is the details of the conversation:

·     I spoke with a male Centrelink call centre officer.

·     The conversation went for approximately 10 – 15 minutes.

·     I advised him of my change of employment, and then proceeded to explain that I was required to work fulltime during my probationary period of 6 months.

·     I advised that as soon as my probation was completed I would be going changing (sic) to a part-time agreement.

·     The CSO stated that I would be required to report my income every fortnight for a further six fortnights.  After this period of reporting, my Parenting Payment Single would be suspended.

·     I questioned why my entitlement would be suspended instead of being cancelled.

·     The CSO stated again that my entitlement would only be suspended.

·     I then asked if I had to reapply for Parenting Payment Single once I changed to a part-time agreement.

·     The CSO stated that my Parenting Payment Single would be reinstated provided my income had reduced and that I met all further requirements.

·     I asked, ‘I just have to call, no interview requirements?’.

·     The CSO stated that as my entitlement was granted prior to the new legislation commencing on 1 July 2006, my circumstances were considered under a different rule, which was covered under the Grandfathering provisions of the new legislation.

·     I stated that I had been advised of this provision in another enquiry with Centrelink, however I requested that he explain this further.

·     The CSO stated that the new legislation only allows people in receipt of PPS to receive it until their youngest child turns eight.  However, the Grandfathering allowance ensures that my circumstances are considered under the prior legislative requirements, and this meant that I would be entitled to receive PPS until my youngest child turns sixteen.

·     I stated that I thought the process for reapplication, as he had explained, sounded too simplified.  I paraphrased and confirmed that what he had said was that all I had to do was make a call to Centrelink, advised (sic) of my change in circumstances, and my benefits would be reinstated.

·     The CSO reassured me the process he had advised me of, was correct. …”

The applicant’s statement continued:

“ In summary, I had been advised of exactly how many fortnights I had to keep reporting upon commencement of my full-time work.  I was advised that my Parenting Payment Single would be suspended if my income was over the required threshold for the full six-fortnight period, AND that I could reapply at any time under the same provisions as my original entitlement, once I met the income criteria.

I was never advised that once my Parenting Payment Single had been suspended, that there was an additional requirement of re-applying within another thirteen weeks or my grandfathering entitlements would be cancelled, and any application subsequent to this time would be under the provisions of the new Act.

My understanding is that all that Centrelink required of me was to call them, advise of my change in circumstances (reduction in hours and income), and providing I met eligibility, my Parenting Payment Single would be reinstated under the same provisions of my original application.  What this meant to me is that I would be able to continue to receive Parenting Payment Single until my youngest child/ren turned 16, providing I continued to meet all necessary requirements.

…

The fact that my original application for my Parenting Payment Single was cancelled, is not my complaint.  I am appealing against the loss of my Grandfathering Status, as Centrelink have given wrong information to me.

…

I ask that the Tribunal reinstate my Grandfathering Status, as compensation for Centrelink providing me with wrong information.

…” (original emphasis) (part of Exhibit A1)

The Respondent’s Case

13. The Secretary, Department of Education, Employment and Workplace Relations (“the respondent”) submitted that the decision to cancel the applicant’s parenting payment on 2 October 2007 was in accordance with the relevant provisions of the Act and the Administration Act and with relevant Centrelink policy guidelines. The respondent further submitted that the applicant subsequently lost her “transitional status” in respect of eligibility to receive parenting payment because she did not successfully reclaim parenting payment within 12 weeks of the cancellation of her parenting payment on 2 October 2007.

Analysis

14.     The Tribunal accepts the respondent’s submissions for the following reasons.

15. After the applicant commenced employment with the Child Support Agency on 14 June 2007, the amount of her income from that employment was such that, under the relevant income test in s 1068A of the Act and the rate calculator following that section, the rate of parenting payment payable to her was reduced to nil on 10 July 2007, and that, pursuant to s 500I(2) of the Act, parenting payment was not payable to her, with effect from that date.

16. Because parenting payment was not payable to the applicant from 10 July 2007, her parenting payment was liable to be cancelled under s 80(1) of the Administration Act. Pursuant to s 23(4A) of the Act, however, the applicant qualified for an “employment income nil rate period” of 12 weeks during which she was taken to be receiving parenting payment for the purpose of qualifying for various other benefits referred to in s 23(4AA). Accordingly, the applicant, pursuant to s 23(4A) of the Act, was taken to be receiving parenting payment for 12 weeks from 10 July 2007 to 2 October 2007. The applicant’s parenting payment was cancelled on the expiration of that period on 2 October 2007.

17.     The Guide to Social Security Law, which contains the policy guidelines applied by Centrelink in administering the Act and the Administration Act, states (in section 3.1.12):

“ Duration of employment income nil rate period

An employment income nil rate period starts on the date of effect of the nil rate determination and runs until 6 fortnights after the end of the instalment period in which the nil rate determination happened.  In effect an employment income nil rate period can last up to 6 or 7 fortnights, or until the customer’s social security pension or benefit is reinstated due to a drop in income whichever is the earlier.  If the customer doesn’t have their income support reinstated their payment is cancelled at the end of an employment income nil rate period.”

It is common ground that the applicant’s parenting payment was not reinstated during her “employment income nil rate period” and, accordingly, the decision to cancel her parenting payment at the end of that period was in accordance with the abovementioned policy.

18.     In the Tribunal’s opinion the decision of the Centrelink officer to cancel the applicant’s parenting payment on 2 October 2007 was appropriate.

19. Although the applicant ceased to be “covered by the parenting payment transitional arrangement” (within the meaning of ss 500D(3) and 500F(1) of the Act) when her parenting payment was cancelled on 2 October 2007, she was, pursuant to ss 500D(3), 500F(1) and 500H(1) of the Act, able to make a fresh claim for parenting payment under the “parenting payment transitional arrangement” provided that she did so within 12 weeks of the cancellation of her parenting payment. It is common ground that the applicant did not make a fresh claim for parenting payment until 20 May 2008, some 33 weeks after the cancellation of her parenting payment on 2 October 2007. Accordingly, that claim fell to be determined in accordance with the relevant statutory provisions which came into effect on 1 July 2006 whereby, pursuant to ss 500(1) and 500D(2) of the Act, she would be qualified for parenting payment until her youngest children (twins) turned 8 in January 2009.

Conclusion

20.     The applicant acknowledged that, prior to July 2006, she was aware that changes in the law regarding eligibility for parenting payment were about to be made but that she was not fully aware of the precise details of those changes.  The Tribunal accepts that that was the case (although it notes that Centrelink notified the applicant of details of those changes by letter dated 27 April 2006) and that the applicant contacted Centrelink by telephone on 18 June 2007 seeking information regarding the impact of her employment income on her eligibility to continue to receive parenting payment.  The Tribunal also accepts that, at the end of that telephone contact, the applicant did not have a correct understanding of the effect of the 1 July 2006 statutory changes on her continuing to be qualified for parenting payment under the pre-July 2006 statutory provisions (the “parenting payment transitional arrangement”).  Whether that was because (as the applicant claims) she was given incorrect information by the relevant Centrelink officer, or because she misunderstood correct information which was given to her by the Centrelink officer, the Tribunal cannot say.  In any event, the proper role of the Tribunal is to apply the relevant law to the facts of the applicant’s case in order to reach the correct or preferable decision.  In the applicant’s case, that decision is that:

·     her existing parenting payment was correctly cancelled on 2 October 2007; and

·     the claim for parenting payment which she made on 20 May 2008 fell to be determined in accordance with the relevant statutory provisions which came into effect on 1 July 2006 (see paragraph 19 above).

Decision

21.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ..................[sgd D Brodie]........................

Associate

Date of Hearing  11 August 2009
Date of Decision  24 September 2009
Representative of the Applicant            Self-represented

Representative of the Respondent       Mr P Maishman
  Senior Legal Services Officer
  Centrelink, Perth