Clint Law and Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 844

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 844

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1516

GENERAL ADMINISTRATIVE DIVISION		)
Re		Clint Law

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date29 October 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY - parenting payment - same-sex relationship - member of a couple - applicant became member of a couple for social security payments when same-sex relationships recognised in Commonwealth law - effect of welfare to work legislation on parenting payment - applicant unable to obtain benefit of transitional arrangements - whether discretion available - decision under review affirmed

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005, s 500

Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008

Social Security Act 1991, s 4

REASONS FOR DECISION

29 October 2010	Senior Member Jill Toohey
Introduction

1.      This matter concerns the effect of changes to social security legislation, in particular the recognition of same-sex relationships, on the applicant’s eligibility for parenting payment.

2.      The applicant, Clint Law, is the father of an 11-year old boy, Lachlan, for whom he is the primary carer.  In February 2000, Mr Law was granted parenting payment at the rate for a single person.  He seeks review of a decision by the Social Security Appeals Tribunal (SSAT), which affirmed a decision by Centrelink, to cancel his parenting payment.

Background

3.      In 2001, Mr Law commenced a relationship with Troy Clayton.  At that time, same-sex relationships were not recognised for the purposes of social security law and so the relationship had no bearing in Mr Law’s entitlement to parenting payment at the single rate.  Had the relationship been recognised, Mr Law would have been a member of a couple for the purpose of social security payments and only eligible for payment at the lower, partnered rate.

4.      On 1 July 2009, the Federal Government enacted the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (the Same-Sex Relationships Act).  The general purpose of this legislation was to eliminate discrimination against same-sex couples in a wide range of areas including social security, taxation, Medicare, veteran’s affairs, workers’ compensation, educational assistance, superannuation, family law and child support.

5.      The Same-Sex Relationships Act amended the definition of member of a couple in the Social Security Act 1991[1] (the Social Security Act) so that it applied equally to same-sex and different-sex couples. The effect was that Mr Law became a member of a couple for the purposes of parenting payment and was no longer entitled to payment at the single rate. 

[1] s 4 (2)

6.      In the meantime, on 1 July 2006, the Government had enacted the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (the Welfare to Work Act) which amended the Social Security Act with the aim of increasing workforce participation and reducing reliance on social security payments.

7. The Welfare to Work Act reduced the age up to which parenting payment could be received for a child. Previously, subject to meeting other criteria, payment could continue until a child turned 16. From 1 July 2006, payment stopped when a child turned six if the parent was a member of a couple, and when the child turned eight if the parent was not a member of a couple.[2] 

[2] s 500D

8. The Welfare to Work Act contained a transitional provision[3] which had the effect of preserving pre-1 July 2006 entitlements to parenting payment of certain people so long as they continued to meet certain criteria. 

[3] s 500F: “the parenting payment transitional arrangement”.

9.      The transitional provision meant that a person who was a member of a couple, and who had a child under six when the legislation commenced, could continue to receive parenting payment until the child turned 16 so long as he or she continued to be a member of a couple.  A person who was not a member of a couple, and who had a child under eight when the legislation commenced, could continue to receive parenting payment until the child reached 16 years of age so long as he or she continued to be not a member of a couple.[4] 

[4] s 500F(1)(a) and (c)

Cancellation of Mr Law’s parenting payment

10. Prior to the Welfare to Work Act coming into effect, Mr Law could not be a member of a couple for the purpose of the transitional provision because same-sex relationships were not recognised. However, he had the benefit of the transitional provision, as it applied to a person who was not a member of a couple, and would have been eligible for parenting payment for his son until he turned 16, subject to meeting the other criteria for payment.

11.     Mr Law retained that benefit until the Same-Sex Relationships Act came into effect.  At that point, he became a member of a couple and lost the benefit of the transitional provision. 

12.     Lachlan was ten years old when the Same-Sex Relationships Act came into effect on 1 July 2009 and was too old for Mr Law to qualify for parenting payment.[5]  Consequently, Centrelink cancelled Mr Law’s parenting payment as of 1 July 2009.

[5] s 500D(1)

13.     Mr Law had notified Centrelink of his relationship with Mr Clayton before the Same-Sex Relationship Act commenced.  He was aware that an effect of the legislation was that he could no longer receive social security payments at the single rate.  However, he says, he was not made aware that he would lose the benefit of parenting payment.    

14.     Mr Law sought review of Centrelink’s decision by the SSAT.  On 12 March 2010, the SSAT affirmed Centrelink’s decision.  In the written reasons for its decision, the SSAT said Mr Law gave his evidence in a credible, clear and consistent way.  It was evidently sympathetic to his situation but concluded it was bound to apply the law and had no discretion to vary Centrelink’s decision.

15.     Mr Law now seeks review of the SSAT’s decision.

Mr Law’s submissions

16.     Mr Law does not dispute the principles underpinning the Same-Sex Relationships Act, and he acknowledges there was a benefit in not being recognised as a member of a couple previously, because he was paid at the single rate regardless of Mr Clayton’s income and assets, and any benefit of pooling their resources as a couple. However, he is aggrieved by the way in which, combined with the Welfare to Work Act, the legislation has adversely affected him.

17. Mr Law says had his relationship been recognised in July 2006 when the Welfare to Work Act came into effect, he would have been a member of a couple; he would have had the benefit of the transitional provision and still be entitled to parenting payment.

18. Further, he says, he was given incorrect advice by Centrelink staff who were not prepared for the new legislation and failed to give him accurate advice about its effect on his entitlements. In particular, he says, no one advised him about the effect of the transitional provision in the Welfare to Work Act and that he would lose his parenting payment completely together with the benefits of his pensioner benefit card.

19.     Mr Law and Mr Clayton have recently separated.  The separation is evidently difficult and Mr Law finds himself in very difficult financial circumstances.  He says had he known that he would lose his parenting payment and other benefits, he could have planned ahead and taken steps to protect himself and his son, and he would have made some different decisions.  

20.     I have no reason to doubt Mr Law’s claim that he was not given full and accurate advice but there is insufficient evidence about any conversations he had with Centrelink or about any advice he was given and so I make no finding about this. 

Consideration

21. The legislation as it applies to Mr Law is clear. When his relationship was recognised by virtue of the Same-Sex Relationships Act, he became a member of a couple for the purposes of the Social Security Act. Once he was no longer a member of a couple, his status changed and he lost the benefit of the transitional provision. There is no provision by which a person who was in a same-sex relationship before 1 July 2006 could receive retrospective recognition as a member of a couple.

22.     It is clear that Parliament knew, before the Same-Sex Relationships Act came into effect, that it would cause hardship to some people.  The report of the inquiry by the Senate Standing Committee on Legal and Constitutional Affairs into the proposed legislation[6] shows that the Committee received many submissions about the potential adverse financial implications for same-sex couples receiving social security payments. 

[6] Inquiry of the Senate Standing Committee on Legal and Constitutional Affairs into the Same-Sex (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008

23.     The Committee expressly acknowledged that the practical impact of the legislation would be financial hardship for some same-sex couples.  However, while it sympathised with people in that situation, it considered the reforms were “long overdue” and it did not wish “to prolong discrimination against same-sex couples and their families in Commonwealth laws.”[7]

[7] Inquiry of the Senate Standing Committee on Legal and Constitutional Affairs into the Same-Sex (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008, at 3.123

Is there a discretion

24. There is no relevant discretion in the Same-Sex Relationships Act. The only discretion that might be available to Mr Law would be that in s 24(1) of the Social Security Act which enables the Secretary to determine, where there is a special reason in the particular case, that a person is not be treated as a member of a couple.

25.     Mr Law does not ask to be treated as if he was not a member of a couple.  He acknowledges that, while he was in the relationship with Mr Clayton, they had the benefit of pooling their resources. 

26.     In any event, I am not satisfied that there is a special reason in Mr Law’s case.  He is one of the many people who Parliament recognised could be adversely affected financially by the recognition of same-sex relationships.  It is reasonable to conclude that Parliament recognised that one of those disadvantages would be that some people would lose the benefit of the Welfare to Work transitional provisions.  It nevertheless enacted a law of general application because it considered the disadvantages to some were outweighed by the benefits of recognition generally.   There is nothing unusual, out of the ordinary or different about his particular case which would mean the discretion to treat him as if he were not a member of  a couple should be exercised in his favour.

27. Even if Mr Law was given incorrect or incomplete advice by Centrelink staff, I do not think that would amount to a special reason as contemplated by s 24(1). It would be open to him to make a claim for compensation for defective administration but that is not something this tribunal can deal with.

28.     I affirm the decision under review.

I certify that the 28 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ..............................[sgd]..................................................
           Diana Weston  Associate

Date of Hearing  22 October 2010

Date of Decision  29 October 2010

ApplicantSelf-represented

Representative for the Respondent               Jennifer Maclean, Centrelink Advocacy Branch