Fayad and Secretary, Department of Employment and Workplace Relations

[2006] AATA 830

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 830

ADMINISTRATIVE APPEALS TRIBUNAL          № V2006/431

GENERAL ADMINISTRATIVE  DIVISION

Re:            NAHLA FAYAD

Applicant

And:         SECRETARY,

DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Mr C. Ermert, Member

Date:29 September 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) C. Ermert

Member

SOCIAL SECURITY – parenting payment single – payment suspended – payment cancelled ‑ debt raised ‑ review of cancellation by Centrelink – review of cancellation by Authorised Review Officer – application for review by Social Security Appeals Tribunal ‑ whether application for review within 13 weeks after the notice of decision - review by SSAT ‑ review of debt by Authorised Review Officer ‑ debt set aside – whether payment of arrears

Social Security (Administration) Act 1999

REASONS FOR DECISION

29 September 2006Mr C. Ermert, Member

INTRODUCTION

1.      Ms Fayad was granted Parenting Payment Single (parenting payment) in May 1996.  In August 2003 Centrelink, the service delivery agent for the Department of Employment and Workplace Relations, suspended and then cancelled the payment on the grounds that Ms Fayad had resumed a marriage-like relationship.  Centrelink also decided that Ms Fayad had been paid $20,037.53 in parenting payments between 2 February 2000 and 27 August 2003 to which she was not entitled.  It therefore raised a debt in that amount against Ms Fayad.  The decision to cancel the payment was affirmed in turn by Centrelink and an Authorised Review Officer (ARO).  On 29 October 2003 Ms Fayad reapplied for parenting payment which was granted with effect from 29 October 2003 and has continued to be paid since.

2.      In September 2005 Ms Fayad received legal advice and sought review of Centrelink’s decision to raise the debt. After considering new evidence provided by Ms Fayad’s legal representative, an ARO set aside the debt and directed that any monies already repaid by Ms Fayad be refunded.  The effect of this decision was to re-instate Ms Fayad’s entitlement to the parenting payment between 2 February 2000 and 27 August 2003.  There remained the issue of the parenting payment that was not paid from the date of its cancellation to the date of its recommencement, being the period from 28 August 2003 to 28 October 2003.

3.      This issue of payment of the benefit in arrears was considered by the Social Security Appeals Tribunal (the SSAT).  In a decision dated 10 April 2006 the SSAT found that, as the period between the notification of the results of the ARO review of the decision to cancel the payment (12 November 2003) and Ms Fayad’s appeal to the SSAT (7 February 2006) was greater than 13 weeks, the date of effect is the day on which the application for review was made.  The Tribunal found further that there is no discretion to enable the payment of the arrears of the parenting payment.

4.      This matter is a review of the SSAT decision made on 10 April 2006.

The Hearing

5.      Ms Fayad appeared in person at the hearing and gave oral evidence, assisted by a friend, Mr R. Klepacki.  The respondent was represented by Ms H. Weston, a solicitor from Phillips Fox.  I had before me the section 37 documents (the T documents).  No additional material was tendered.

THE ISSUES

6.      At the commencement of the hearing the parties agreed that the only issue to be determined in this case was whether there was an entitlement to the payment of the arrears of the parenting payment between 28 August 2003 and 28 October 2003, arising from the favourable review of the decision to cancel Ms Fayad’s parenting payment.

7. Before considering this issue it is first necessary to determine which of the sub-sections of section 109 of the Social Security (Administration) Act 1999 (the Administration Act), that provide for the payments resulting from favourable determinations, applies to the circumstances of this case.

8.      The standard of proof for the consideration of these issues is the balance of probabilities.

Favourable Determinations

9. In order to determine which section of the Administration Act applies in this case I set out the chronology of the relevant events:

·13 October 2003 - Centrelink decision to cancel parenting payment made and notified to Ms Fayad (the original decision and notice)(T9 page 23);

·5 November 2003 – request for review of the decision (T13 page 29);

·12 November 2003 – Centrelink decision affirmed (T14 page 30);

·19 November 2003 – request for review of the decision (T17 page 36);

·17 December 2003 – Centrelink decision reviewed by ARO and affirmed (T21 page 41);

·17 December 2003 – ARO decision notified to Ms Fayad (notice)(T21 page 41);

·22 December 2005 – receipt by Centrelink of request from Ms Fayad’s legal representatives for ARO decision in regard to Centrelink decision (application for review)(T24 page 49);

·24 January 2006 – ARO decision to set aside the cancellation of parenting payment and to cancel the debt (the favourable determination)(T26 page 52);

·7 February 2006 – appeal lodged for SSAT review (T27 page 54);

·10 April 2006 – SSAT decision (T2 page 5); and

·21 April 2006 – SSAT decision dispatched (T2 page 5).

10. Dates of effect resulting from favourable determinations are provided for in section 109 of the Administration Act. Section 109(2) of that Act provides:

(2)       If:

(a)a decision (the original decision ) is made in relation to a person’s social security payment; and

(b)a notice is given to the person informing the person of the original decision; and

(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)the favourable determination is made as a result of the application for review;

the favourable determination takes effect on the day on which the application for review was made.

11.     In this case there was an original decision that affected Ms Fayad’s social security payment.  Ms Fayad was notified of this decision on 13 October 2003.  Subsequent reviews of the original decision were undertaken by Centrelink and an ARO.  Notices of these decisions were provided to Ms Fayad, the latest being the ARO decision on 17 December 2003.  An application for review of the original decision was submitted by Ms Fayad’s legal representatives and received by Centrelink on 22 December 2005.  The submission of the application was made more than 13 weeks after the notice.  The favourable determination was made as a result of this application.

12. As all of the elements of sub-section 109(2) are satisfied the favourable determination must take effect on the day on which the application for review was made, 22 December 2005.

Payment of Arrears

13. The re-instatement of parenting payment with effect from 22 December 2005 has no practical effect, however, as Ms Fayad has been receiving parenting payment continuously from 29 October 2003 as a result of her 12 November 2003 application for parenting payment. This leads to the consideration of the main issue in this case, whether the application of section 109(2) of the Administration Act provides for the payment to Ms Fayad of the arrears of parenting payment for the period between 28 August 2003 and 28 October 2003.

14.     Ms Fayad, assisted by Mr Klepacki, submitted that the delay in applying for a further review of the cancellation decision was because she did not believe she could appeal further.  Ms Fayad said that she had given up hope.  She was a single mother, studying at the time, having problems at work, and suffering from anxiety and panic attacks to the extent of needing professional help.  Ms Fayad had begun repaying the debt, even though she had no income at the time.  Ms Fayad stated that she had contacted Centrelink on many occasions but had received no help.  It was only when she received legal assistance that she was advised to apply for a further review of the decision and it was the review by the ARO as a result of that application that led to the favourable outcome.

15.     Mr Klepacki submitted on behalf of Ms Fayad that the decision to cancel the payment had been found to be wrong and that Ms Fayad had been given bad information by Centrelink staff.  Mr Klepacki submitted further that Ms Fayad was under psychological stress during the period, that she had to go to a psychiatrist and was put under extreme pressure to make decisions.

16.     Miss Weston submitted:

…the difficulty that the applicant faces is the legislation is quite strict in these proceedings and there is no avenue to have discretion. It is apparent that you had anxiety, unfortunately that doesn't come into the legislation … it is the operation of section 109(2) of the Social Security Administration Act that the effect of the favourable decision where a person hasn't applied for review within the 13 weeks of notice of that decision, that the date of effect of a favourable decision will be the date where review was applied for.

And in this case the appeal was lodged with the SSAT on 7 February 2006. The decision that was under internal review in those proceedings was dated 17 December 2003, so clearly that is outside the 13 week rule. And as I said before there is no discretion under section 109 to somehow find special circumstances or some other facility to negate that 13 week rule. (Transcript pages 4 and 5)

17. While Ms Fayad’s circumstances at the time of the cancellation and thereafter were clearly distressing, the wording of sub-section 109(2) is prescriptive in regard to the date of effect of the favourable determination, being the day on which the application for review was made. There is no allowance for the payment to take effect earlier than the day of review. Nor is there any provision in the Administration Act that gives the decision maker discretion to determine an earlier date of effect, even in circumstances such as those described by Ms Fayad. Without recourse to such discretion I must accept the respondent’s submission that the date of effect can not be earlier than the day of application for review of the decision, which in this case is 7 February 2006. That means that there is no provision for the payment of parenting allowance for the period 28 August 2003 to 28 October 2003.

18.     Having regard to the effects of the above determination, I take the opportunity of recording the advice proffered by both Ms Weston and the SSAT that there may be merit in Ms Fayad lodging an application for compensation under the Compensation for Detriment caused by Defective Administration scheme.

DECISION

19.     The Tribunal affirms the reviewable decision of the SSAT dated 10 April 2006.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr C. Ermert, Member

signed:   Olympia Sarrinikolaou

Clerk

Date of Hearing:  8 September 2006

Date of Decision:  29 September 2006
Representative for the applicant:     Self represented
Solicitor for the respondent:            Ms H. Weston, Phillips Fox