Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Ors
[2011] AATA 745
•25 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 745
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0306
GENERAL ADMINISTRATIVE DIVISION ) Re CONFIDENTIAL Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS /
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
And CONFIDENTIAL Other Party
DECISION
Tribunal Egon Fice, Senior Member Date25 October 2011
PlaceMelbourne
Decision The Tribunal affirms the decision made by the Social Security Appeals Tribunal dated 15 December 2010. ..........[sgd] Egon Fice.................
Senior Member
SOCIAL SECURITY – Disability Support Pension – Correspondence nominee – Payment nominee – Duty of a nominee to principal
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security (Administration) Act 1999 (Cth) ss 123, 123A, 123B, 123C, 123D, 123E, 123F, 123K, 123O, 179
REASONS FOR DECISION
25 October 2011 Egon Fice, Senior Member 1. The applicant and the other party are the father and mother respectively of a child with a serious disability. The mother and father have been separated since 2002. There has been ongoing conflict in respect of custody and co-parenting issues as well as the future management of the child’s care and his disability support pension.
2. The applicant lodged a form authorising a person or organisation to enquire or act on behalf of another with Centrelink on 15 March 2010. The child was unable to sign that authorisation because of his intellectual disabilities. In those circumstances, another person may sign on the disabled person’s behalf. The authorisation which the applicant sought was what is described as correspondence nominee. Section 123A of the Social Security (Administration) Act 1999 (the Administration Act) defines a correspondence nominee as a person who, by virtue of an appointment in force under s 123C, is the correspondence nominee of another person.
3. Centrelink notified the applicant on 15 March 2010 that his appointment as correspondence nominee had been approved. Centrelink also explained that the arrangement would remain in place until it was cancelled.
4. It appears from the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that the other party also lodged a form entitled Authorising a Person or Organisation to Enquire or Act on your Behalf on about 19 March 2010 as both payment and correspondence nominee. Centrelink’s response of 19 May 2010 indicates that the request lodged by the other party was understood to be only a request to be appointed as payment nominee although it was clearly a request for both nominations. The expression payment nominee is defined in s 123A of the Administration Act as follows:
payment nominee means:
(a)a person who, by virtue of an appointment in force under section 123B, is the payment nominee of another person; or
(b)a person to whom instalments of youth allowance of another person are to be paid in accordance with subsection 45(1).
5. In a letter dated 19 May 2010 Centrelink notified the other party that her request to be appointed payment nominee had been approved and that the arrangement would remain in place until it was cancelled. Centrelink said nothing about her request to be appointed correspondence nominee. On the same date, Centrelink wrote to the child advising him that the correspondence nominee arrangement with the applicant had ended. The letter stated that this was because he had requested that the arrangement be ended. Understandably the applicant, shortly thereafter, sought review of the decision by an ARO. On 25 June 2010 the ARO purportedly reviewed the decision made on 19 May 2010 describing it as an application to be appointed as a payment nominee. Quite clearly, the applicant had made no such application. Nevertheless, the ARO incorrectly stated that the decision not to approve his application to be appointed as a payment nominee was correct.
6. What ensued was a battle between the applicant and the other party lodging nomination application forms purportedly on behalf of the child. In fact, some of the file notes made by Centrelink officers indicate that the applicant, purporting to be the child, contacted Centrelink seeking to have the payment arrangements of the child’s disability support pension altered. One of the file notes states:
Cus called to upgrade from level 1 to higher level of access. Went through the questions and person was unable to answer Medicare number, most recent payment, bank account or other questions. Only able to answer birth cer number and home phone number. Also said had never had a mobile but there is a mobile number in the poi. The person did not sound like a 16 yr old and had a much older voice. Was no happy that this was the cus on the line and am concerned this person will call back with further info later.
7. The problem essentially is that the applicant or the other party are able to simply lodge forms authorising a person to enquire or act on behalf of the child without any input from the child. While of course this is difficult where a child has a mental disability, it certainly creates confusion at the Centrelink case officer level. In my opinion, the process of lodging nomination forms needs to be reviewed; particularly where they are lodged on behalf of mentally disabled persons.
8. On 16 July 2010 Centrelink informed the child that the payment nominee arrangement with the other party had ended because he had requested the arrangement be ended. On 22 July 2010 Centrelink notified the child that the other party had again been appointed payment nominee. On 29 July 2010 the child was advised that the other party payment nominee arrangement had again ended. On 29 July 2010 Centrelink informed the child that the applicant had been appointed his correspondence nominee. On 5 August 2010 the child was notified by Centrelink that the other party had been approved as his correspondence nominee.
9. Finally, on 11 October 2010, an ARO wrote to the applicant stating he had reviewed the Centrelink decision made on 19 May 2010 to end his appointment as correspondence nominee for the child. The ARO noted that the applicant had lodged an appeal with the SSAT and that the SSAT had sought clarification of the decision made by the ARO as set out in his letter of 25 June 2010. The ARO said he had incorrectly stated he was reviewing a decision not to appoint the applicant as payment nominee as he had never applied to be appointed payment nominee. He had applied to be appointed the child’s correspondence nominee. The applicant was subsequently advised by letter dated 19 May 2010 that his appointment as the child’s correspondence nominee had ended. The ARO noted that this was the decision he reviewed and notified the applicant of his decision on 25 June 2010.
10. The above confusion resulted in the SSAT reviewing three decisions, namely:
(a)the decision to revoke the applicant’s appointment as correspondence nominee from 19 May 2010;
(b)the decision to appoint the other party as correspondence and payment nominee from 19 May 2010; and
(c)the decision to reject an application for the applicant to be appointed as payment nominee.
11. In its decision made on 15 December 2010, the SSAT:
(a)set aside the decision revoking the applicant’s appointment as correspondence nominee and instead determined that the applicant remain a correspondence nominee for the child;
(b)decided to vary the decision that the other party be appointed as the correspondence and payment nominee and that the entirety of the child’s social security payments be paid to the other party in her capacity as payment nominee; and
(c)decided to affirm the decision to reject the applicant’s application to be appointed as a payment nominee for the child.
12. The issues in this matter are difficult for me to discern. The applicant lodged with his application for a review by the Tribunal, a rambling and disconnected statement of some 26 pages in length which simply takes issue with the reasons given by the SSAT in its decision of 15 December 2010. I attempted to explain to the applicant that this Tribunal is not concerned with the reasons why the SSAT came to its decision, but rather, its duty is to hear this matter again, as if it were a new application, mindful only of arriving at the correct or preferable decision after consideration of the evidence put before it. Despite this, it remains clear to me that the applicant has not fully understood what was required to persuade me that the decisions made by the SSAT were not either correct or preferable.
13. As best I am able to determine, neither the applicant nor the other party appeared to be concerned by the fact that the SSAT decided they should both be appointed correspondence nominee and that a joint appointment was possible. The principal concern of the applicant was clearly the decision which decided to reject his application to be appointed payment nominee in lieu of the other party. Therefore, I have addressed this as the sole issue before me in this matter.
APPOINTMENT OF PAYMENT NOMINEE
14. At the outset, I should explain that the Administration Act makes it plain that a person may be appointed as a payment nominee and at the same time, the correspondence nominee (s 123D(1)).
15. Section 123B is concerned with the appointment of a payment nominee. It provides:
123B Appointment of payment nominee
Subject to section 123D, the Secretary may, in writing:
(a)appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the social security law; and
(b)direct that the whole or a specified part of a specified relevant payment that is payable to the nominee’s principal, or would, but for subsection 45(1), be so payable, is to be paid to the nominee.
16. Nominee appointments may be revoked in a number of ways. They are set out in s 123E of the Administration Act. Section 123E(1) provides that if a person who is a nominee by virtue of an appointment under s 123B informs the Secretary in writing that the person no longer wishes to be a nominee under that appointment, the Secretary must revoke the appointment. The second process under which a nominee appointment may be suspended or revoked is by Notice given by the Secretary to a person who is the nominee under s 123K of the Administration Act and the person informs the Department that an event or change of circumstances has occurred or is likely to occur; and the event or change of circumstances is likely to have an effect referred to in s 123K(1)(b). In those circumstances, the Secretary may suspend or revoke the appointment by virtue of which the person is a nominee.
17. Section 123K of the Administration Act deals with the notification by a nominee of matters affecting his or her ability to act as nominee. Section 123K(1) provides that the Secretary may give a nominee of a benefit recipient a Notice which requires the nominee to inform the Department (Centrelink) if an event or change of circumstances occurs or if the nominee becomes aware that an event or change of circumstances is likely to occur which is likely to effect the ability of their nominee to act as the payment nominee or correspondence nominee or the ability of the Secretary to give Notices to the nominee under the Act; or the ability of the nominee to comply with Notices given to the nominee by the Secretary under the Administration Act. The nature of the Notice given by the Secretary is set out in s 123K(2) of the Administration Act. Given the provisions in that section, it is clear that the Secretary may seek information from the nominee which must be provided by that person. Non-compliance with the notice may result in the Secretary suspending or revoking the appointment.
18. I should make one matter very clear to the parties before me. The amount paid to the payment nominee is not money paid to that nominee but rather, is a payment made to the nominee on behalf of the person for whom that money is intended. Section 123F(2) of the Administration Act provides:
(2)An amount paid to the payment nominee of a person:
(a)is paid to the payment nominee on behalf of the person; and
(b)is taken, for the purposes of the social security law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.
19. Furthermore, s 123O sets out the duties of a nominee to the principal. It provides:
123O Duty of nominee to principal
(1)It is the duty of a person who is the payment or correspondence nominee of another person at all times to act in the best interests of the principal.
(2)A nominee does not commit a breach of the duty imposed by subsection (1) by doing an act if, when the act is done, there are reasonable grounds for believing that it is in the best interests of the principal that the act be done.
(3)A nominee does not commit a breach of the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.
20. The fact that s 123O(2) refers to a nominee not committing a breach of duty by doing an act if there are reasonable grounds for believing that it is in the best interests of the principal that the act be done, indicates that an objective test will be applied in determining whether a breach of duty has occurred. Therefore, a payment nominee must take care not to impose his or her subjective views about the best interests of the principal when dealing with payments made on the principal’s behalf.
THE CORRECT APPOINTMENT OF PAYMENT NOMINEE
21. 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 viewed 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 the expenditures to be made on behalf of the principal; and
(d)the financial circumstances of the nominee.
22. The applicant and the other party have both, in the past, received monies on behalf of the child. The applicant opened a bank account in his own name and in the child’s name for that purpose. The other party opened an account in her name indicating that it was used solely for the purposes of the child.
23. The applicant provided copies of account statements which were held on behalf of the child. The only problem is that the statements are not continuous. They begin on 4 March 2005 and end on 3 March 2006. I then have accounts commencing on 4 March 2009 which are continuous through to 22 June 2011.
24. The first group of accounts shows very little in the account, the maximum level being about $64. The second lot of accounts which, in bar-chart form, disclose the previous 12 months, show that although there was some $400 in the account between October and February 2008, those monies were withdrawn at the end of February or the beginning of March resulting in an opening balance of $7.61. The balance in the account remained at about that level or slightly higher when, commencing in about March 2010, a number of Centrelink social security payments were paid into the account. As quickly as those monies were deposited, they were also withdrawn leaving a balance of only some $9.91 in August 2010. However, there is a large transfer of $10,000 into the account from a Police Association Co-operative account, which is an account maintained by the other party. Two withdrawals of approximately $4,000 took place at the end of August 2010 resulting in a balance of about $4,000 at the end of September 2010. Most of those monies were withdrawn by December 2010.
25. The applicant said in evidence that some of those monies had been used to build a shed in the backyard for the child to use as his own accommodation when he stayed with his father. Although I asked the applicant to produce photographs of the shed so that I could determine for myself that the claimed expenditure had occurred as the applicant said, he did not do so despite stating that he would have no trouble in supplying that evidence. In an email sent to the Tribunal on 5 July 2011 the applicant confirmed that he had been able to purchase another property and that the settlement date was now expected to be 22 July 2011. He then queried whether the photographs which I had requested were still relevant and required. I had made it plain to the applicant in the course of the hearing that I required evidence to support the statements he made in oral evidence before me. It is difficult for me to understand what the applicant misunderstood about my statement. In fact, I can only draw the conclusion that the absence of those photographs means that they would not have assisted the applicant in demonstrating that he used the child’s money for his benefit.
26. In his oral evidence the applicant also explained that although he was not currently employed, he had now acquired qualifications which would enable him to be appointed to a teaching position. He expected that to occur in the near future and he was actively engaged in discussions with a particular TAFE college. However, although some months have now passed since the hearing of this matter, I have no further evidence indicating that the applicant has in fact obtained employment. That is despite a regular flow of emails from the applicant subsequent to the hearing. The applicant did provide documentary evidence of the purchase of a unit and that he is now the registered proprietor on Title.
27. The other party provided bank account details which were in her name but which she said were for the benefit of the child. There was only one bank statement provided which was the current statement indicating transactions between 20 June 2011 and 4 July 2011. The balance of that account was some $8,200. It is difficult for me to make much of the brief period to which the statement refers. It does disclose a withdrawal of $1,000 on 25 June 2011 and the other party said in her oral evidence that the money was used by the child to purchase an ipad for his birthday. The other party said she also contributed other money towards that purchase. I was provided with a tax invoice/receipt in respect of that purchase which appears to confirm what the other party said.
28. The other party is in steady permanent employment and she provided evidence of her income. On the other hand, the applicant, as far as I am aware, continues to be unemployed and in receipt of some compensation payments due to a motor vehicle accident some time ago. He also receives child support from the other party. The fact that the other party is in steady employment receiving a reasonable income is a significant factor in favour of her being appointed the payment nominee.
29. I also had in evidence a number of accounts indicating payments made for the care and special needs of the child. The vast majority of these were provided by the other party and I accept, given that she has the greater level of care of the child, she incurs the more significant expenditure. That is not to say the applicant has not produced evidence of some expenditure on behalf of the child. He clearly has, although the expenditure incurred by the other party is significantly greater.
30. The percentage of care that each party has appears to have recently altered and I was provided with an Interim Order made by a Federal Magistrate on 24 June 2011 dealing with parenting. It appears that Order, which was made by consent, altered the percentage care for which each parent was responsible which was 45 per cent to the applicant and 55 per cent to the other party. As a result of the Consent Order, it appears that the applicant now has 22 per cent of the care and the other party has 78 per cent. Logically, one would expect the other party to have the greater level of expenditure required to be made on behalf of the child as a consequence of this redistribution of levels of parenting.
31. I have also had the benefit of a report prepared by a social worker commissioned by Centrelink in December 2010. That report indicates that the applicant said he was able to apply for teaching positions at that time although he planned to delay his entry into the workforce. I have no evidence that he has entered the workforce. According to the social worker, the applicant told her he had no savings and that he was in debt. He also told her that although he had set up a bank account for each child and has tried to save for them, he has used the savings to supplement his living expenses. The social worker reported that the other party had a history of managing the necessary expenses associated with the child. She said that from the information given to her, the other party appeared to have a more stable financial situation and a history of efficient management of expenses associated with all three of their children. On the evidence before me, I find the conclusions drawn by the social worker are correct.
32. In my opinion, the objective evidence weighs in favour of the other party being appointed as the payment nominee. While a number of other issues were raised by both parties, directing my attention to the failings and shortcomings of the other, I have disregarded these. That is because there is clearly significant animosity between them and there was no evidence to support those statements. I have decided that the most appropriate way to deal with this matter is to restrict my analysis to the objective evidence that I have before me.
CONCLUSION
33. I have found that the appointment of the other party as the payment nominee for the child was the preferable decision. Therefore, the SSAT decision made on 15 December 2010 rejecting the applicant’s application to be appointed a payment nominee for the child was the correct decision. As for the other two matters determined by the SSAT, I have no basis on which to reject either of those decisions. Accordingly, I affirm all of the decision made by the SSAT on 15 December 2010.
34. The SSAT also made a number of recommendations dealing with what should happen about the payment nominee after the child turns 18. Because what the SSAT said about that was clearly by way of recommendation and not a decision, it is not a matter which I should deal with as the right of review granted by s 179 of the Administration Act is limited to decisions reviewed by the SSAT and nothing further.
I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior MemberSigned: .........[sgd].................................................................
Elise Montalto, AssociateDates of Hearing 30 June 2011
Date of Decision 25 October 2011
Representative for the Applicant Self RepresentedRepresentative for the Respondent Centrelink Program Litigation & Review Branch
Representative for Other Party Self Represented
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