Daniell and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 44

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 44

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2901

GENERAL ADMINISTRATIVE DIVISION		)
Re		BETHANY DANIELL

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT and WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott RFD

Date16 January 2008

PlaceBrisbane

Decision I affirm the decision under review.

..................[Sgd].........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – pension education supplement – when applicant became qualified for payment - appropriate date of payment – whether qualified for receipt of payment – applicant undertaking qualifying study – applicant receives a carer payment – whether applicant independent – payments cannot be backdated – payment cannot be made from date of claim – decision under review affirmed

Social Security Act (Administration) Act 1999 (Cth.) – ss41, 42

Social Security Act 1999 (Cth.) -ss1061PA, 1061PL

REASONS FOR DECISION

16 January 2008 Senior Member P McDermott RFD          

INTRODUCTION

1.This is an application by Ms Bethany Daniell to review a decision of the Social Security Appeals Tribunal which affirmed a decision of Centrelink to pay Pensioner Education Supplement (PES) to Ms Daniell from 29 September 2006. Ms Daniell seeks payment of PES from an earlier date. I have to determine from what date PES is payable to Ms Daniell.

ISSUES FOR CONSIDERATION

2.This application raises a number of issues. The first issue that I have to determine is when Ms Daniell became qualified for the payment of PES. The next issue that I have to determine is what is the appropriate start date for payment of PES to Ms Daniell.

BACKGROUND

3.Ms Daniell cares for her mother and her brother. On 26 October 2005 Ms Daniell was granted carer payment in respect of her mother with effect from 27 July 2005.

4.On 29 September 2006 Ms Daniell lodged a claim for PES [T8]. She was granted and paid PES from 29 September 2006. I have no doubt that Ms Daniell, who is a great support to her family, is qualified for the payment of PES. 

5.On 26 October 2006 Ms Daniell requested a review of the decision not to backdate payment of her PES. On that date the original decision-maker affirmed the decision not to backdate payment of PES [T9].

6.On 26 March 2006 Ms Daniell sought a review of the decision by an authorised review officer [T22]. On 20 April 2007 that officer affirmed the decision [T23]. On 16 May 2007 Ms Daniell appealed to the Social Security Appeals Tribunal [T24]. On 27 June 2007 the Social Security Appeals Tribunal affirmed the decision under review [T2]. Ms Daniell seeks a review of that decision by this Tribunal.

CONSIDERATION

7.In determining this application, I have to consider the application of certain provisions in the Social Security Act 1991 and the Social Security (Administration) Act1999. A number of these provisions are “interlocking” and I refer to them in these reasons.

8.In order to qualify for the payment of PES, an applicant must satisfy the requirements of section 1061PA of the Social Security Act1991. Section 1061PA provides as follows:-

“1061PA.
A person is qualified for a pensioner education supplement if the person:
(a)       is undertaking qualifying study (see Subdivision B); and

(b) is receiving a payment attracting pensioner education supplement (see Subdivision C); and

(c)       is of pensioner education supplement age (see Subdivision D); and
(d)       meets the residency requirements under Subdivision E.”

9.I am satisfied that Ms Daniell has been undertaking full time study at a secondary school. She has therefore been undertaking “qualifying study” (see sections 1061PB, 1061PF and 1061PD). I also mention that carer payment is one of the payments which attracts PES (see section 1061PJ). Ms Daniell also meets the necessary residency requirements as she is an Australian resident and is living in Australia (see section 1061PM).

10.It is also necessary for me to refer to section 1061PK of the Social Security Act 1991 which defines when a person is of pensioner education supplement age.  That section provides:-

“1061PK.  For the purposes of this Part, a person is of pensioner education supplement age if the person:

(a) is at least 16 years old; or

(b) is independent and has reached the minimum school leaving age for the State or Territory in which the person is living.”

11.For the purposes of assessing entitlement to PES, a person is regarded as independent only if they meet the requirements of section 1061PL of the Social Security Act 1991. This is evident from subsection 1061PL(1) of that Act which provides that “a person is not to be regarded as independent except as provided by this section”.

12.A person will be regarded as “independent” if they have a dependent child (s1061PL(2)), are an orphan (s1061PL(3)), a refugee (s1061PL(5)), in state care (s1061PL(6)), or if it is unreasonable for the person to live at the home of either or both parents (s1061PL(7)). I am satisfied that none of these provisions apply to the applicant. I mention that during the hearing I ruled that subsection 1061PL(2) had no relevance to this application as the child in question (who for privacy reasons I refer to as “I”) was not a natural or adopted child of Ms Daniell.

13.The only subsection from section 1061PL of the Social Security Act 1991 which is in contention is subsection 1061PL (4) which provides as follows:-

“If parents cannot exercise responsibilities
1061PL.(4)  A person is independent if both of the person's parents are (or, if the person has only one parent, that parent is):

(a) serving a prison sentence of at least 10 years; or
(b) mentally incapacitated and likely to remain so incapacitated for an indefinite period; or
(c) living in a nursing home and likely to remain there for an indefinite period; or
(d) missing;

whether or not the person is dependent, or was last dependent, on someone other than a parent of the person.”

14.During the hearing there was considerable argument over the application of s 1061PL(4) of the Social Security Act. This issue was fairly raised in the Secretary’s Statement of Facts and Contentions of 31 October 2007: contention 23 of the Secretary is that there is no evidence that this subsection applied to Ms Daniell.

15.Ms Daniell, at an earlier telephone directions hearing, appreciated the possible application of subsection 1061PL(4)(b) of the Social Security Act 1991. That is why she requested the production of a report from a Centrelink psychologist. I therefore made a direction for the Secretary to produce that report. The report of the psychologist supported the claim of Ms Daniell’s mother to a disability support pension. The report of the psychologist, which was made with reference to the temporal requirements for the grant of disability support pension, does not address the requirement in subsection 1061PL(4) of the Social Security Act 1991 that Ms Daniell’s mother was “likely to remain so incapacitated for an indefinite period”. I am not prepared, on the state of the evidence before me, to make a finding that Ms Daniell’s mother, who ably presented the case on behalf of her daughter, came within the terms of s 1061PL (4)(b) of the Act.

16.Ms Daniell’s mother gave evidence before me that Ms Daniell was under the care of a psychiatrist in Ballina. Ms Daniell mentioned that she attended that psychiatrist on an annual basis. At the hearing I gave consideration to whether this Tribunal should grant an adjournment in order to obtain a report from the psychiatrist. I came to the conclusion that even if such a report could satisfy the requirements of subsection 1061PL (4) of the Act with respect to Ms Daniell’s mother, there is Ms Daniell’s father to consider. I mention that during the hearing I ruled that subsection1061PL (4)(d) did not apply to Ms Daniell’s father as Ms Daniell has been in contact with her father.

17.I have concluded that Ms Daniell became of pensioner supplement age under s1061PK on the date when she turned 16 years of age. It is necessary for me to mention that the sixteenth birthday of Ms Daniell occurred on 19 July 2006. On that date Ms Daniell, who was enrolled in a qualifying course of study, met the requirements of s1061PA to qualify for PES.

18.Even though I have ruled that Ms Daniell qualified for the payment of PES on 19 July 2006, I next have to consider what is the earliest date under social security law when PES is payable to Ms Daniell. It is necessary for me to refer to the Social Security (Administration) Act 1999.

19.Sections 41 and 42 of the Social Security (Administration) Act 1999 govern when a social security benefit becomes payable to a person. The “start day” for the payment of a benefit is provided for in Schedule 2 to the Administration Act. Clause 3 of Part 2 to Schedule 2 provides that where a person makes a claim, and is qualified for payment on the day on which the claim is made, their start day will be the day on which the claim is made. Ms Daniell first made a claim for PES on 29 September 2006 and was paid PES from that date.

20.Part 3 of Schedule 2 of the Social Security (Administration) Act 1999 enables the backdating of a person’s start day.  Clause 30 provides as follows:-

“30.  If:
(a) a person makes a claim for a pensioner education supplement; and
(b) when the claim is made, the person is qualified for the supplement; and
(c) the claim is made within 4 weeks after the person became qualified for the supplement;
the person's start day in relation to the pensioner education supplement is the day on which the person became qualified for the supplement.”

21.Ms Daniell’s claim was lodged on 29 September 2006. The claim was not made within 4 weeks of the date on which she qualified for PES (viz., 19 July 2006). Clause 30 does not enable the backdating of payment of PES to Ms Daniell prior to her start day of 29 September 2006.

22.I make the comment that if I had ruled that Ms Daniel had been qualified for PES at an earlier date than 19 July 2006, clause 30 does not enable the backdating of PES as no claim was made within 4 weeks of that notional date.

23.I accordingly determine that PES is not payable to Ms Daniel for the period prior to 29 September 2006 which is the date on which she claimed that benefit.

24.Ms Daniell has raised a concern that she was not advised of the availability of PES prior to June 2006 [T19 and T10]. She has made a payment for compensation. I do not have jurisdiction to determine this claim.

DECISION

25.I affirm the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott RFD:

Signed:         .......................[Sgd].........................................................
  E O’Gorman, Associate

Date of Hearing  20 December 2007 
Date of Decision  16 January 2008
Applicant  Ms Daniell, by telephone 
Respondent  Ms K Hamilton, Departmental Advocate