DONNA PHILP and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 857

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 857

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1333

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DONNA PHILP

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date6 November 2009

PlaceBrisbane

Decision

The Tribunal:

1.    sets aside the decision under review as it relates to the period 22 January to 22 September 2003 and remits the matter to Centrelink for re-consideration with the directions that:

a)    Centrelink recalculate the parenting payments made to Mrs Philp on the basis of her request for review first made on 5 September 2003; and

b)    subject to whether Mrs Philp was duly notified of a decision made at or about August 2003 with respect to payment of arrears from 16 April 2003 to 22 July 2003, Centrelink is to recalculate arrears of parenting payment, if any, in that period.

2.    sets aside the decision under review as it relates to the period 20 September 2005 to 8 January 2007 and remits the matter for reconsideration with the directions that:

a)    subject to whether or not Mrs Philp was duly notified of a decision following a parenting payment review conducted in January 2006, Centrelink is to re-calculate her rate of parenting payment referable to that period; and

b)    Centrelink is to re-examine Mrs Philp’s entitlements to arrears, if any, referable to a notice of decision dated 11 December 2006, she having requested a review within 13 weeks of the notice. 

In all other respects the Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – parenting payment – calculation of rate – notice of decisions about rate of payment - whether applicant sought review within 13 weeks of notice – decisions set aside and remitted with directions

Social Security (Administration) Act 1999 (Cth), s109

Re Frost and Secretary, Department of Social Security (1995) AATA 10360
Austin v Secretary, Department of Family and Community Services (1999) 57 ALD 330

Department of Family and Community Services v Rogers (2000) 104 FCR 272

Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457

Re Secretary, Department of Families, Community Services and Indigenous Affairs and Walshe [2007] 46 AAR 362

Re QX06/16 and Secretary, Department of Employment and Workplace Relations [2007] AATA 1761

REASONS FOR DECISION

6 November 2009 M J Carstairs, Senior Member

1.      Over a number of years, Donna Philp’s parenting payments (partnered) from Centrelink were calculated taking into account her husband’s wages from casual employment with the Queensland Government.  Mr Philp’s income was highly variable, and was further complicated by his wage cycle not mirroring Centrelink payment cycles. 

2.      Mrs Philp therefore faced problems when reporting her husband’s income, upon which Centrelink determined her entitlements to parenting payment.  As a consequence it was likely that she would be overpaid at certain times and be underpaid at others. 

3.      Mr and Mrs Philp took a previous application to the Tribunal with respect to a debt Centrelink raised in 2006.  This was the subject matter of the Tribunal decision in Re QX06/16 and Secretary, Department of Employment and Workplace Relations [2007] AATA 1761.  The debt was for the period 23 September 2003 to 19 September 2005 (the “debt period”).  Mrs Philp’s present application concerns periods when she believes that she was underpaid parenting payment.    

ISSUES

4.      The question before me is whether Mrs Philp was entitled to arrears for possible underpayments of parenting payment in periods falling on either side of the debt period, namely:

§  22 January to 22 September 2003 (the “first arrears period”), and

§  20 September 2005 to 8 January 2007 (the “second arrears period”).

5.      Mr Philp, who represented Mrs Philp at the hearing, believes that there are systemic problems with the way Centrelink calculates income.  He has what could be described as an unduly keen interest in Centrelink’s income calculation processes and he has written at some length about injustices he sees in the legislation[1]. For instance, he regards as unfair that Centrelink is not constrained by time limits when it comes to raising debts, but when a recipient is underpaid, the legislation prevents redress unless the recipient acts promptly by seeking review within 13 weeks.

[1]        Exhibit A2, p 41.

6.      These broader issues, of course, fall outside the ambit of the review before me.  However I would make the general observation that it is true that the legislation evinces an intention to protect Commonwealth outlays by ensuring that there are not too many constraints placed on the task of recovering overpaid moneys.  Equally the legislation intends that if an individual is concerned about their payments, he or she should act promptly.  To allow otherwise would lead to great administrative inconvenience, possibly tying up Centrelink resources long after the relevant records were easy to obtain. 

7.      There are no time limits for requesting review under the legislation; however, there are strict time limits for which a favourable decision will be applied if the person is successful in that review.  These time limits depend upon whether a person has been given notice of a decision and if so, whether they have sought review within 13 weeks[2]. The main exception is where no notice of the decision has been given. This is outlined in s 109 of the Social Security (Administration) Act 1999.The nub of the matter before me comes down to whether Mr and Mrs Philp requested review(s) within the time limitation.  Unless Mrs Philp sought review of her parenting payments in a timely way during or soon after the first and second arrears periods, she cannot obtain arrears now.

[2]        Re Secretary Department of Families, Community Services and Indigenous Affairs and

Walshe [2007] 46 AAR 362.

8.      The President of the Tribunal, Downes J confirmed earlier decisions of the Federal Court[3] in Re Secretary Department of Families, Community Services and Indigenous Affairs and Walshe [2007] 46 AAR 362 by pointing out that much depends on what constitutes a notice of decision. In Walshe, the Tribunal had several forms of Centrelink notices and discussed the requirements for a proper notice of decision.  

[3]        Austin v Secretary Department of Family and Community Services (1999) 92 FCR

138; Department of Family and Community Services v Rogers (2000) 104 FCR 272.

BACKGROUND

9.      Member Kenny, in Re QX06/16, discussed how the debt arose, and made reference to the reconciliation problem that existed between Mr Philp’s wages cycle and Centrelink payments cycles.  Nevertheless, he affirmed the debt decision, accepting Centrelink’s most recent calculations of the amount.  In that regard the debt was recalculated a number of times, increasing significantly from $449 at the start of the review to finally settle at some $1,046.  There were no grounds for waiver, despite Mrs Philp’s honest efforts to accurately report their income. 

10.     Member Kenny also noted that until about September 2003, Mrs Philp routinely reported their income by producing Mr Philp’s payslips. But then Centrelink changed the reporting system; thereafter Mrs Philp was required to estimate her husband’s income.  Centrelink then refused to take fortnightly payslips. 

11.      One consequence of the Tribunal having made a decision about the debt in Re QX06/16 is that the debt period cannot be re-considered.  There is a practical reason for this: any arrears owing to Mrs Philp within the debt period were taken into account when Centrelink recalculated the debt, as the re-calculation process captures all relevant information, both of underpayments and overpayments. Another reason is that in Re QX06/16 the Tribunal decided, and thereby finalised the matter, and a Tribunal cannot reconsider its own decisions: Re Michael and Secretary Department of Employment, Science and Training (2006) 90 ALD 457.

12.     Accordingly, any issue of arrears is confined to the first and second arrears periods.

QUANTUM OF UNDERPAYMENT

13.     Centrelink agrees that Mrs Philp probably was underpaid in the order of:

§  $527.61 for the first arrears period; and

§  $67.87 for the second arrears period.

14.     Mr Philp first suggested that they might have been underpaid about $880 between 22 January 2003 and 8 January 2007[4].  I understand his present position[5] to be that they may have been underpaid some $999 in the first arrears period and $888 in the second arrears period.  I do not propose to comment further on the calculations Mr Philp says he carried out manually, or consider the issues that he wishes to ventilate about the Centrelink processes generally.  If there are instances where arrears may be considered or re-considered, this exercise is best left to Centrelink’s automated systems, in my view.

[4]        T18, p 125.

[5]        Exhibit A6.

THE FIRST ARREARS PERIOD

15.     Centrelink’s case, with respect to the first arrears period, is that Mrs Philp did not seek any review at the relevant time, so no arrears are now payable for that period.  Mr Philp submitted that far from that being the case he and his wife have been asking for a review since 2003, and not simply from 2007.

16.     It is appropriate to examine the notices that were sent to Mrs Philp in the first arrears period.  There were eight such notices.  I was satisfied that all eight notices[6] satisfied the test of being adequate notices of decision, taking into account the observations of the President in Walshe that the test of adequacy is objective, and that a notice should alert to the fact of the decision having been made, as well as its contents. 

[6]        T21; 12 February 2003, 2 April 2003, 15 April 2003, 26 May 2003, 27 June 2003, 30 June

2003, 1 August 2003 and 19 September 2003.

17.     Turning then to whether Mrs Philp sought review within 13 weeks of a decision, I am inclined to agree with Mr Philp that he and his wife have indeed agitated the matter of their payments for the first arrears period (during, and soon after the first arrears period) sufficiently that Centrelink should have been aware that they were seeking review. This was more plainly so after Centrelink introduced the system requiring claimants to estimate income in September 2003. 

18.     In that regard I note the following contacts from September 2003:

§  On 5 September 2003, Mrs Philp telephoned Centrelink and discussed, amongst other things “reporting requirements for PPP” (parenting payment partnered);

§  On 19 September 2003, Mrs Philp attended in person at the Centrelink office and discussed the new reporting system.  A Centrelink electronic file note of that date recorded Mrs Philp discussing their income reporting problems; 

§  Mr and Mrs Philp continued to report earnings, but on 3 November 2003 another electronic file note recorded that Mrs Philp attempted to lodge a payslip.  “Cus advised that she wants to report via old payslips, I advised cus that she will need to report for the days that are requested.  I took payslip at customer requests and cus requested that I also copy one for her and stamp it.  I did so however I wrote on her payslip “not processed”.  Cus was informed that payment will not be sent of (stimmed) based on payslip. Cus informed that she will return tomorrow to discuss”.

19.     There is no indication that Mrs Philp did return the next day.  In his “Applicant’s Statements and Perspectives”[7], Mr Philp stated that Centrelink suspended their payments on 3 November 2003.  Mr Philp attended Centrelink on 17 November to discuss “reporting requirements”, the electronic file note at that date recording the content of the encounter as follows[8]:

“cust concerned that if he does not provide payslips he will be in trouble – advised that cust could be chosen for a random review and would then be required to provide proof of income…cust concerned that due to be casual he could not provide accurate income estimate”.

[7]        Exhibit A2.

[8]        T20, p 151; T26, p 380.

20.     In the context of Mrs Philp agitating her concerns about the calculation of her rate for some months, it is a simple step to appreciate that these contacts were review requests.  As is now widely recognised in decisions of this Tribunal, a broad view ought to be taken of what constitutes an application for review, particularly in this jurisdiction[9].  Accordingly, taking the first request as being on 5 September 2003 that request was within 13 weeks of the notice of decision that was issued on 30 June 2003.

[9]        Re Frost and Secretary Department of Social Security (1995) AATA 10360; Austin v

21.     There is one earlier point of time in the first arrears period that is relevant in the context of review.  On 11 July 2003, Mrs Philp lodged a “Parenting Payment re-claim” form, followed by a request for review of a decision rejecting her claim for parenting payment.  It seems that Mrs Philp had been sent a letter dated 27 June 2003[10]; and parenting payment was reinstated about that time.  There may have been some mix-up, as Centrelink was requiring Mrs Philp to complete details about a change in her marital status, when there had been no change. 

[10]        T8 – see her reference therein to a letter of that date.

22.     The documents indicate that Centrelink completed an arrears calculation process at this time relating to the period 16 April 2003 to 22 July 2003[11].   However, there was no evidence before me to suggest that Mrs Philp was notified of this decision – that is, there was no letter amongst the documents about this calculation of her arrears in 2003.  It may be that Mrs Philp was notified of a decision (calculating an amount of arrears).  If so, then she needed to have applied for review within 13 weeks if she was unhappy with the calculation.  However, if she was not so notified, then she is entitled to have arrears for the period 16 April 2003 to 22 July 2003 examined now, to confirm whether the calculations then done were correct.  So I would remit the question regarding that part of the second period of arrears on that provisional basis: that Centrelink confirm whether or not Mrs Philp was sent a notice relating to the April to July arrears decision. 

[11]        T9, p 29.

23.     I am satisfied that Mrs Philp did not make any prior request for review, before the requests referred to on 11 July 2003, and about 5 September 2003.  The effect of this with respect to the first arrears period is that Centrelink can assess whether Mrs Philp has any entitlement to arrears of parenting payment from April 2003 to September 2003, but no earlier.   

24.     Accordingly,  I would set aside the decision under review as it relates to the first arrears period and remit the matter to Centrelink for re-consideration with the direction that Centrelink recalculate Mrs Philp’s payments taking into account her requests for review as evidenced by contacts with Centrelink commencing on 5 September 2003; and, subject to whether Mrs Philp was duly notified of the decision made with respect to a payment of arrears for the period 16 April 2003 to 22 July 2003, Centrelink is to re-check that calculation.

THE SECOND ARREARS PERIOD

25.     For this period Centrelink also issued eight notices of decision each of which, I was satisfied, was an adequate notice[12].

[12]        T21: 17 October 2005, 9 January 2006, 3 April 2006, 26 June 2006, 5 September 2006, 18

September 2006, 11 December 2006, 22 December 2006.

26.     The second arrears period coincided in large part with Mrs Philp’s previous application to Tribunal which was on foot for over a year.  The second arrears period runs from the end of September 2005 to early January 2007; the previous Tribunal application was lodged in June 2006 and hearings occurred on 24 October 2006 and 2 August 2007.  Mr Philp told me, and I accept that it was in the course of the review of the debt period that he came to fully understand that the legislation provided strict limitations with reference to arrears payments but treated the raising of debts differently. 

27.     It seems to me tolerably clear that in the course of the last review, Mr and Mrs Philp were seeking to agitate the question of arrears outside of the debt period.  It was explained to Mr Philp that this was not relevant to the debt period and could not be taken into account with reference to calculating the debt.  This was later confirmed in discussions between the authorised review officer, Mr S Smith, and Mr W Barnett, who had been involved with the recalculation processes that took place when the debt period was previously under review by the Tribunal[13]. Mr Barnett had discussed with Mr Philp that underpayments either side of the debt period could not be included in re-calculations. 

[13]        T16, p 111.

28.     It seems clear to me that Mr Philp, amongst other things, was making Centrelink aware at this time that he wanted the question of arrears examined. 

29.     What should be made of this?  In my view it is important, once again, not to take a restricted view of a relevant review request.  Mr Philp had made quite evident in the course of review of the debt period that he was concerned with the overall calculation of their parenting payments, whether they were underpaid or overpaid.  I note in that regard that he staunchly insists that he and his wife have never wanted more than their legal entitlements, and accepted the increased amounts of their debt over the course of the last review at the Tribunal.  Some debt recalculations were taken past the end of the debt period, indeed to as late as 9 January 2006[14]. 

[14]        T26.  See also T16 at p 111.

30.     The decision as it stands with reference to the second period of arrears is that there was no relevant request for review.  That is plainly wrong.  Mrs Philp is entitled to have her letter of 20 February 2007 treated as a request for review; it being made within 13 weeks of the then most recent notice of decision, which was dated 11 December 2006.  In that letter Mrs Philp requested review of the pay periods from 25 July 2006 to 25 December 2006[15].   Her request for review was answered by a decision that there had been “no decision made under the social security law” and hence she was not entitled to a review[16]. 

[15]        T13.

[16]        Decision of authorised review officer dated 27 March 2007.

31. That decision (made by an authorised review officer) was later overridden by Mr Smith’s review dated 19 December 2007. When Mr Smith examined the matter he noted Mrs Philp’s review request of 20 February 2007, and commented that “there is potential for some of this underpayment to be received (sic) under s 109”. Mr Smith indicated taking account of the date of Mrs Philp’s request for review that Centrelink could reconsider her entitlements at least to the date of the last relevant notice of decision, which was dated 11 December 2006[17]. 

[17]        T16, p 111.

32.     I agree with Mr Smith’s conclusions in that regard.  Mrs Philp had not sought review within 13 weeks of the date of the previous notice of decision (one dated 5 September 2006[18]).   

[18]        T21.

33.     However, on 12 January 2006 Mrs Philp had completed a “Parenting Payment (Partnered) Rolling Random Sample Review”, and lodged payslips referrable to periods ending 27 November, 11 and 25 December 2005[19].  This, however, was a Centrelink initiated review.  There was no documentary evidence that she was sent a notice of a decision as a result of that review.  It would follow that, if she was not notified at the time, she would be entitled to arrears if there were any further arrears payable with reference to that part of the second arrears period.  That, of course, would only have effect until the date of the next decision made with reference to her parenting payment.     

[19]        T11.

34.     In summary, then, with respect to the second arrears period I would again set aside the decision and remit it for reconsideration with the direction that Centrelink is to examine Mrs Philp’s entitlements, if any, to arrears based upon the notice of decision dated 11 December 2006, she having requested a review within 13 weeks of the decision;  and, subject to Centrelink undertaking a check of whether Mrs Philp was given a  notice of decision after the review conducted in January 2006, that Mrs Philp’s rate of parenting payment can be re-assessed at that time.

DECISION

35.     The Tribunal:

1.  sets aside the decision under review as it relates to the period 22 January to 22 September 2003 and remits the matter to Centrelink for re-consideration with the directions that:

a)    Centrelink recalculate the parenting payments made to Mrs Philp on the basis of her request for review first made on 5 September 2003; and

b)    subject to whether Mrs Philp was duly notified of a decision made at or about August 2003 with respect to payment of arrears from 16 April 2003 to 22 July 2003, Centrelink is to recalculate arrears of parenting payment, if any, in that period.

2.  sets aside the decision under review as it relates to the period 20 September 2005 to 8 January 2007 and remits the matter for reconsideration with the directions that:

a)    subject to whether or not Mrs Philp was duly notified of a decision following a parenting payment review conducted in January 2006, Centrelink is to re-calculate her rate of parenting payment referable to that period; and

b)    Centrelink is to re-examine Mrs Philp’s entitlements to arrears, if any, referable to a notice of decision dated 11 December 2006, she having requested a review within 13 weeks of the notice. 

In all other respects the Tribunal affirms the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed: ................[sgd]..............................................................
  Emily Clarke, Associate

Date of Hearing  23 June 2009
Date of Decision  6 November 2009
The Applicant was self-represented
Advocate for the Respondent   Ms J Forsyth

          Secretary Department of Family and Community Services (1999) 57 ALD 330.