CLMY and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1220

CLMY and Secretary, Department of Social Services (Social services second review) [2017] AATA 1220 (18 July 2017)

Division:GENERAL DIVISION

File Number(s):  2016/6387

Re:CLMY  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndJCFN

OTHER PARTY

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:18 July 2017

Date of written reasons:        4 August 2017

Place:Brisbane

I affirm the decision under review.

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Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – appointment of payment nominee and correspondence nominee – revocation of appointment – relevance of percentage of care – decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Ors [2011] AATA 745

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

4 August 2017

INTRODUCTION

1. The applicant seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (the “AAT1”) on 11 November 2016 to revoke the applicant’s appointment as nominee for his child, affirming a decision of the respondent made on 26 April 2016.

2. I must decide whether it is in the child’s best interests that the applicant’s appointment as nominee is terminated and the other party is appointed as nominee instead.

   BACKGROUND

3. The background to this matter is not controversial.  The applicant and other party are the separated parents of their child. There are family law orders that were made by His Honour Judge Jarrett in the Federal Circuit Court of Australia in February 2014 that provide that each party has equal shared parental responsibility. There is no dispute here about what the relevant care percentages are under that order. Essentially the applicant has care of the child for 43% of the time and the other party has care of the child for 57% of the time.

4. In regard to the appointment of nominees, the applicant submitted a form on 8 February 2016.[1] This particular form[2] shows that initially the form was completed as an application for both a payment and correspondence nominee. That is how the form was initially completed because the box has been ticked at the payment and correspondence section. However that tick was crossed out and the applicant has ticked the box to be a correspondence nominee. It is important to stress from the outset that the applicant did not apply to be payment nominee for his child.

   [1] Exhibit A, T-documents, T6 at pp.45-46

   [2] Ibid at p.46

5. The other party lodged a form for her appointment as both payment and correspondence nominee.[3] After that form was lodged a departmental social worker contacted the applicant, the other party, the principal from the Calamvale State Special School, and the doctor from the Shailer Park Medical Centre to assist in determining who would be nominee for the child. The report states that social workers conducted phone interviews with the child’s parents and relevant third parties, the principal from Calamvale State School and the child’s primary treating general practitioner.[4]

   [3] Exhibit A, T-documents, T7 at pp.47-48

   [4] Exhibit A, T-documents, T9 at pp.51-53

6. Based on the information provided from all sources, it appears that the primary carer for the child is the child’s mother, the other party. It appears that she carries the weight of the financial management for the child as well as the support and follow up of medical providers in relation to the child’s health needs.

7. The social worker considered reports that both parents are able to communicate effectively and that the applicant is an active participant in the child’s life. The evidence suggests that the other party is the child’s primary carer and as such the social worker recommended that the nominee for both payment and correspondence be the other party.[5]

   [5] Exhibit A, T-documents, T9 at pp.51-53

8. The report of the social worker also mentioned how the other party was the primary carer for the child having 57% care and the applicant having 43% care.[6]

   [6] Ibid at p.52

9. On 26 April 2016 a decision was made to appoint the other party as the payment and correspondence nominee.

10. One matter of concern in the process was that there was no notification of this decision to the applicant. That is something that I will address later in these reasons. The applicant lodged a request to review the decision on 8 June 2016.[7] He wanted the decision varied to change the “nominated representative”.[8] That application dated 8 June 2016 does not actually expressly state that the applicant sought to be the payment nominee. He lodged various documents in support. It is, however, apparent from the accompanying material to the application that the applicant wanted to be the payment nominee because in the application form where it enabled him to outline the recommended outcome sought, the applicant stated “I become [the child’s] nominated representative with assurances that I will… manage [the child’s] payments to ensure he has equitable access to his financial support across environments”.[9] A fair reading of that application for review is that the applicant wanted to be a payment nominee.

    [7] Exhibit A, T-documents, T11 at pp.55-60

    [8] Ibid at p. 55

    [9] Ibid at p. 59

11. An Authorised Review Officer (the “ARO”) at Centrelink affirmed the original decision on 14 June 2016.[10] In making that decision the ARO outlined his discussions with the applicant. The ARO acknowledged that “as discussed with you in our conversations, the issue at hand is quite subjective and also very emotive, as the parties concerned are both seeking to have responsibility for [the child], who is a young man in receipt of a Disability Support Pension, with regards to social security related matters”.[11] It would seem, from the material before me, that the reason why the child is actually in receipt of the Disability Support Pension is because of the initiative of the applicant who made the original application for disability support pension for his child.

    [10] Exhibit A, T-documents, T12 at pp. 61-63

    [11] Exhibit A, T-documents, T12 at p. 62.

12. On 9 August 2016 the applicant then submitted an application to AAT1 to review the decision of the ARO who affirmed the decision under review.[12]

    [12] Exhibit A, T-documents, T13 at p.67.

13. On 11 November 2016 the AAT1 affirmed the decision under review. I should point out that it is stated in that decision (at [2]) that the Tribunal is reviewing a decision of the Department “to revoke [the applicant’s] appointment as payment nominee for his [child]”.[13] This is not the case as the applicant had never been appointed as the payment nominee.

    [13] Exhibit A, T-documents, T3 at p.9.

14. On 24 November 2016, the applicant applied to the General Division of the AAT for further review of the decision to revoke his appointment as nominee.[14] On 5 January 2017 the other party was joined as a party to this review because this decision affects her interests.

    [14] Exhibit A, T-documents, T2.

    EVIDENCE

15. In evidence before the Tribunal are the T-documents which are Exhibit A. The applicant made a statement and filed documentation on two occasions on 27 February 2017 and 29 March 2017. Those documents, including the statement, are Exhibit B. The other party filed an affidavit including annexures filed 27 February 2017 and a statement filed 5 April 2017 which are Exhibit C. Exhibit D was the Respondent’s Statement of Facts, Issues and Contentions. I made that an exhibit because there is some material that is attached to that statement which are the extracts from the Child Support Register where the applicant is the payer and the other party is the payee, and the change of assessment decision of the Child Support Registrar Delegate dated 16 May 2014.

16. The applicant filed submissions dated 18 May 2017 which are Exhibit E. I allowed the applicant to file further material after the part hearing of this matter, on the first day, because the applicant made references to matters that were not specified in his original documentation. It was only fair to allow him to file additional submissions. Exhibit F is an additional statement filed by the other party on 25 May 2017. The Secretary filed additional submissions on 26 May 2017 which are Exhibit G. Attachment 1 to that exhibit is the computer entry of the decision.

    RELEVANT LEGISLATION

17. The legislation that I am administering is the Social Security Act 1991 (Cth) (the “SSA”), Social Security (Administration) Act 1999 (Cth) (the “SSAA”) as well as the Acts Interpretation Act 1901 (Cth) (the “AIA”).

18. The legislation relating to the appointment of nominees is extracted in the T-documents. Division 4 of Part 3A of the SSAA is headed “Nominees” and contains provisions relating to nominees. The correspondence nominee is a person who is referred to in section 123C of the Act. A payment nominee is a person who is appointed under section 123B of the Act and paid the whole or part of the social security benefit, see section 123B(b). It is important to realise a person who is payment or correspondence nominee has obligations that are akin to equitable or fiduciary obligations that trustees have. Under section 123O of the SSAA it is the duty of the payment or correspondence nominee to act in the best interests of the person who is the principal.

19. The appointment of a correspondence nominee is referred to in section 123C of the Act which provides that the Secretary may in writing appoint a person to be the correspondence nominee of another person for the purposes of the social security law. Section 123D provides that a person can be appointed both as the payment nominee and correspondence nominee.

20. Under section 123E(9) of the SSAA, the Secretary must cause a copy of a revocation of an appointment to be given to the nominee.

    CONSIDERATION

21. The power to revoke the applicant as the correspondence nominee is derived from the AIA. This is recognised within section 123P of the SSAA. The decision to revoke the appointment of the applicant is a decision that was made under section 33(4) of the AIA. That has some consequences.

22. One of the matters I want to talk about now relates to the issue that the applicant raised, in that he did not receive the notice in writing of the revocation of his appointment. Subsection 9 of section 123E of the SSAA provides that the Secretary must cause a copy of the revocation of an appointment to be given to the nominee and the principal. That certainly has not happened here. What one of the matters I might consider is whether in fact the terms of subsection 9 of section 123E actually did apply to this situation. Because when you look at the section as a whole, it talks about how appointments can be revoked. In revoking the appointment of the applicant as correspondence nominee, it does not appear to be the case that any provision in section 123E subsections (1)-(8) was invoked. Subsection (9) appears to relate to where there has been action taken to revoke an appointment under section 123E, rather than the AIA, which is the case here.

23. Where the appointment was revoked under the AIA, I think that in all fairness to the applicant that he should have been given written notice of that fact. I think it is only good administration that he should have been informed in writing; this would accord with “standards of good government”.[15] I certainly do not think it is fair that he found out in some other way. It appears from telephone contact made on 29 April 2016[16] that the applicant was then aware of the decision, as it is recorded that he wished to dispute the decision.

    [15] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 22

    [16] Exhibit A, T-documents, T14 at p. 92

24. I also think that it was unsatisfactory that a letter was not provided to the applicant because the decision of 26 April 2016 should have been properly notified. However I do accept that there was a computer entry of the decision that is ‘attachment 1’ to Exhibit G.

25. I must consider whether in this merits review proceeding we can examine or entertain an application for the applicant to be appointed as a payment nominee, when in fact he had never originally made an application as such to the Department. I believe I can but it is certainly an unusual situation.

26. In merits review the appropriate decision must be made by this Tribunal in that respect. The decision I must examine is that of the 26 April 2016 that revoked the appointment of the applicant as payment nominee for the child. The applicant had not, prior to that decision, sought appointment as payment nominee. One of the decisions that is often cited in cases of this nature is the decision in Re Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Ors (“Re Confidential”).[17] In that decision a number of considerations are set out that are relevant in making an assessment for a person to be appointed as a payment nominee.

    [17] Re Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Ors [2011] AATA 745.

27. At [21] of those reasons Senior Member Fice said:

    “there are a number of relevant factors which should be taken into account in determining which person should be appointed payment nominee. In essence factors should be taken into account which will ensure that the person nominated will, at all times, act in the best interests of the principal when view objectively, not viewed from his or her personal perspective. The issues which I consider relevant in making this assessment are

    a)        evidence of sound decisions regarding financial management;

    b)        past conduct in dealing with the principal’s finances;

    c)        the person most likely to be responsible for the majority of expenditures to   be made on behalf of the principal; and

    d)        the financial circumstances of the nominee.”

28. The applicant considers he is best able to manage finances. He is presently employed as a senior executive officer. There was some suggestion in the papers that he was unemployed but I accept his assurances that he is in a senior administrative position. It appears the applicant has been a project manager and in that role he managed large amounts of funds.

29. I must focus on what I think is the whole situation that is outlined before me. The other party’s residence is close to the school which is attended by the child and she works 10 minutes away from the school. The applicant’s work is a 45 minute drive from the child’s school. The General Practitioner where the child attends for medical appointments is now some distance from the new home of the applicant. The applicant told AAT1 some aspects concerning his change of address. He said if his child was with him and needed medical care, he now attended a new GP in the area where he lived.[18] He said the GP the family attended in the past was a 45 minute drive from his new place, that is 15 minutes further beyond the previous matrimonial home.[19]

    [18] Exhibit A, T-documents, T3 at p.10

    [19] Ibid

30. One of the considerations in Re Confidential[20] that I think is important here is, who is the person who is most likely to be responsible for the majority expenditure to be made on behalf of the principal? In my view that person is the other party, who has more care of the child than the applicant.

    [20] Re Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Ors [2011] AATA 745

31. One of the matters that I want to refer to is the submission that was lodged by the applicant on 18 May 2017. It appears to reflect what he said in earlier submissions. He believes that he has a right to have a share of the social security benefit that is in proportion to the amount of care that he has of the child under the family law order. At [45][21] he states:

    “I am committed to doing the best for my [child] so, given [the other party] will not budge from 30% or distribute [the child’s] benefits more equitably, I sought a review of Centrelink’s decision to make her the nominee and subsequently submitted applications to AAT”.

    [21] Exhibit E, Submissions of the Applicant at p.10.

32. One of the issues before me is that there is no real cogent evidence that the other party actually misapplies funds. I have looked at paragraph 50[22] of the applicant submissions where he states:

    “[The other party’s] statements have been riddled with false and inaccurate claims - my submission of 27 March 2017 provided evidence that 39 of her statements and claims were false and a further 21 instances where statements were misleading and/ or communication/ intent has been misrepresented.”

    [22] Ibid at p.11

33. There are some statements in the applicant’s submissions dated 18 May 2017 which suggest that there has been a misapplication of funds.[23] No such allegations were actually put to the other party by the applicant in the hearing.

    [23] Exhibit E, Statement of the applicant at p.11

34. During these proceedings I have advised both parties that if they want to put something that is adverse to a person’s interests, then that should be done at a hearing. There are a lot of allegations here, however both the applicant and the other party have not by cross examination sought to impugn the credibility of the other. They have both been present in person at each hearing of the matter.

35. I think the important matter to stress is that the rights of the applicant do not end with my decision. The applicant states[24]:

    “I have very real concerns that if the Decision Maker opts to affirm the decision and keep [the other party] as the nominee without a firm commitment that she’ll make [the child’s] benefits available for use in my care she’ll renege and either cease transferring [the child’s] benefits or decrease the amount”.

    [24] Ibid at [51]

36. It appears to me that the real purpose of this proceeding is actually to get the other party to pay more than 30% of the social security benefit to the applicant. In some respects, that might be considered to be an ulterior purpose.

37. If it is the case that there has been any misapplication of funds, then certainly the applicant does have remedies. As I mentioned earlier, one of the key provisions that are important here is section 123O of the SSAA which requires the payment or correspondence nominee to at all times act in the best interests of the principal.

38. In these circumstances I think the appropriate course of action is to affirm the decision under review. As I say, my decision is not necessarily the end of the matter. If there is any evidence concerning the misapplication of any of the social security benefit, then that is something that could be raised with the Department of Social Services. The Secretary can give the payment nominee a notice which requires that person to give a statement giving particulars of the disposal by the nominee of money paid under social security law.[25]

    [25] See SSAA, section 123L.

39. Both the other party and the applicant have been assessed by the ARO to be suitable persons to be payment nominee or correspondence nominee. My decision is made on the basis that the applicant does not have as much care of the child as the other party.

    CONCLUSION

40. It is in my decision that the other party, who has the higher percentage of care, should have control of the finances to be used for the purposes of care of the child.

    DECISION

41. I affirm the decision under review.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 4 August 2017

Date(s) of hearing:	11 and 19 May 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services
Other Party:	In person