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

[2023] AATA 2913

Gallo and Secretary, Department of Social Services (Social services second review) [2023] AATA 2913 (11 September 2023)

Division:GENERAL DIVISION

File Number:          2023/3440

Re:Omar Gallo

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:11 September 2023

Place:Melbourne

The First Review decision dated 21 April 2023 is set aside. In its place, the Tribunal substitutes a decision that the Applicant is deemed to have been eligible for payment of parenting payment single from 10 June 2022 with an effective starting date of 17 June 2022.

................................[SGD]........................................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – where the Applicant applied for child care subsidy and family tax benefit for three dependent children – where the Applicant then applied for JobSeeker Payment and Disability Support Pension – where the Applicant then applied for parenting payment single – where it is not in contest that the Applicant has sole care for three minor children – where authorised review officer decided claim for JobSeeker Payment should have been claim for parenting payment single – where Applicant sought First Review of that decision – where First Review decided Applicant’s start date for parenting payment single should be from when he applied for family tax benefit – where Applicant sought Second Review – family tax benefit plainly not a social security payment or ‘similar in nature’ to a social security payment – decision under review set aside and new decision substituted

Legislation

A New Tax System (Family Assistance) Act 1999
Social Security Act 1947
Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Secretary to Department of Family and Community Services and Valori; Re: [2002] AATA 252

Rummeny and Secretary, Department of Family and Community Services; Re: [2003] AATA 803

Secondary Materials

Guides to Social Policy Law – Social Security Guide, 8.1.1.1.75 9 Version 1.311 – Released 4 September 2023

REASONS FOR DECISION

Senior Member D. J. Morris

11 September 2023

1. Mr Omar Gallo, the Applicant in this matter, is aggrieved by a decision of the Social Services and Child Support Division (‘First Review’) of this Tribunal which on 21 April 2023 decided the Applicant was eligible to be paid parenting payment single (‘PPS’) from 22 February 2022, and to be actually paid from 29 February 2022 owing to the ordinary waiting period.

2. He has sought a Second Review by the General Division of the Tribunal.

3. A hearing was held by telephone on 4 September 2023. The Applicant represented himself. The Respondent was represented by Ms Kathryn Lieschke, a seconded lawyer from Services Australia.

4. The Tribunal admitted the following documents into evidence:

   (a)An email from the Applicant dated 6 July 2023 (Exhibit A1);

   (b)First Review decision dated 21 April 2023 (Exhibit A2);

   (c)Application for review dated 12 May 2023 (Exhibit A3);

   (d)Volume of documents submitted under section 37 of the Administrative Appeals TribunalAct 1975 (‘T’ documents), lodged 16 June 2023 (Exhibit R1); and

   (e)Supplementary ‘T’ documents lodged 31 August 2023 (Exhibit R2).

5. The Tribunal also took into account a Statement of Facts, Issues and Contentions lodged by the Respondent.

   Common ground

6. It was not in contest between the parties that the Applicant came into full-time care of three minor children from on or around 26 December 2021. Mr Gallo said he started receiving Childcare Subsidy for the three children from 19 December 2021. 

7. The question before the Tribunal is: what is the correct date for the Applicant to receive and be paid PPS in respect of the three children in his care.

   Chronology

8. On 22 February 2022 Mr Gallo lodged a claim for Childcare Subsidy for the three children and Family Tax Benefit (FTB) for all three children (TD, p 46-52).

9. On 10 June 2022 the Applicant lodged a claim for JobSeeker Payment (JSP) and Disability Support Pension (DSP) (TD, p 53-60). His application for DSP was rejected on 20 June 2022 (TD, p 61).

10. On 14 July 2022 Mr Gallo lodged a claim for PPS (TD, p 66-71).

11. The Respondent accepted that the Applicant was not in receipt of an income support payment prior to his claims for JSP, DSP and PPS.

12. Mr Gallo’s claim for PPS was granted on 16 July 2022 with a payment date from 21 July 2022 (TD, 74).

13. Mr Gallo requested a review of this decision by an authorised review officer (ARO) in the Respondent’s Department, being an officer who was not involved in the original decision.

14. On 20 October 2022, the ARO wrote to Mr Gallo to advise him of the outcome of the review. The ARO decided that he was satisfied that the Applicant met the criteria for what is called the ‘inappropriate claim’ provision under the Social Security (Administration) Act 1999 (‘the Administration Act’) and that the PPS should be assessed from 10 June 2022, with a payment date of 17 June 2022 (TD, 77).

15. Section 15(1) of the Administration Act provides that if a person makes an incorrect claim and the person subsequently makes a claim for a social security payment for which the person is qualified and the Secretary is satisfied that it is reasonable that subsection 15(1) be applied, then the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.

16. The ARO found that Mr Gallo submitted a claim for FTB on 22 February 2022 and JSP on 10 June 2022 and on 14 July 2022 a claim for PPS. The ARO further found that the Applicant was not a vulnerable claimant within the meaning of the Administration Act.

17. The ARO noted that in his discussion with Mr Gallo, the Applicant said that he should have been told when he claimed FTB that he could submit a claim for PPS and that therefore his PPS claim should be backdated to 22 February 2022, i.e. the day he submitted his claim for FTB.

    First Review decision

18. It was made clear at the hearing that this is not a review of the First Review decision, but a de novo review of the original decision. It was explained to the Applicant that he should be aware that, although he achieved a measure of success at First Review, the outcome of this hearing might place him in a more detrimental position. The Applicant said he understood that.

19. Because the First Review set aside the original decision and substituted a fresh decision, it is necessary to make some observations about the First Review decision.

20. The First Review decided that FTB is a payment that is ‘similar in character’ to PPS. In support of this approach, the decision quoted an earlier Tribunal decision, Re: Rummeny and Secretary, Department of Family and Community Services [2003] AATA 803 (‘Rummeny’). The First Review then listed some similarities between FTB and PPS.

21. Regrettably, in relying on Rummeny, the First Review Member led himself into error. Plainly, FTB is not a social security payment. FTB is a potential entitlement payable to eligible parents under A New Tax System (Family Assistance) Act 1999.  It is not part of the regime of social security payments available under the Social Security Act 1991, noting that the term ‘social security payment’ is exhaustively defined in s 23(1) of the Social Security Act 1991. The problem that occurs when a decision like Rummeny, which was egregiously wrong, is relied upon, is that it leads to a compounding of a misapplication of the law.

22. The Respondent helpfully referred in submissions to an earlier Tribunal decision than Rummeny, Re: Secretary, Department of Family and Community Services and Valori [2002] AATA 252 (‘Valori’). In Valori, the Tribunal engaged in a comprehensive analysis of the application of section 15 of the Administration Act and relevantly said, at [38]:

    Family tax benefit and similar payments (such as for child care) are paid to people on low to middle incomes to help them meet the cost of raising dependent children and young adults. (M Raper, The Independent Social Security Handbook 4^th ed, Pluto Press Australia, 2001). These payments are different from income support payments such as parenting payment. The difference in the income support nature of a parenting payment, as against family tax benefit, is reflected in the choice that can be made in the case of the latter to have the payment paid fortnightly or at the end of the tax year. Parenting payment is paid to the person, it is not merely an allowance for children. It is paid to only one person in relation to a child whereas family tax benefit can be a shared payment. Its attachment to the person and its nature as income support is reflected also in the fact that if the person receives compensation moneys the payment is affected whereas family payments are not affected by the receipt of compensation, as they are payments for children. Family tax benefits are not asset tested and the rates of payment are dependent on the age of the dependent child, which points to the focus of the payment being on identified requirements of children for different levels of support at different ages. There are many differences of detail in the rates and the way that the payments are calculated.

    Consideration

23. The Tribunal agrees with the analysis in Valori, which is supported by the provisions of the applicable law. FTB is not a social security payment; it is more aptly described as a family assistance payment, and cannot be taken to be a payment that is ‘similar in character’ to a social security payment within the meaning of that term in section 15(4) of the Administration Act.

24. This interpretation is reinforced by the references in the Social Security Guide (‘Guide’), which is the Department’s guide to officers and the public about how various provisions of the governing legislation should be interpreted. Naturally, where there is an inconsistency between the Guide and the law, the latter must prevail.  However, it is relevant that in part 8.1.1.75 under the general heading ‘Inappropriate claims’, the Guide states:

    For the purposes of SS(Admin) Act section 15, a payment other than under the social security law that is considered to be ‘similar in nature’ to a social security payment includes

    DVA pensions

    Exceptional circumstances relief payments

    Disaster recovery allowance (1.2.6.40)

25. Unfortunately, as can be seen, the Guide uses the woolly word ‘includes’, so that the three listed payments cannot be taken to cover the field, but it is relevant that neither FTB nor Child Support Payments are listed in 8.1.1.75 of the Guide.

26. Mr Gallo made submissions that the Respondent’s Department should have told him that he was eligible for PPS from the time Centrelink first became aware that he was the sole carer of his three children.

27. The Tribunal is not unsympathetic to the personal circumstances of Mr Gallo, who made submissions, which are accepted, that as a pedestrian he was hit by a car in June 2019 and sustained traumatic neurological injuries, including what has become an acquired brain injury. He said that he had endeavoured to return to work on restricted hours, but had suffered immobilising seizures and had to give up trying to find work.

28. However, the Tribunal also notes that the evidence shows that the Applicant was capable of lodging successive on-line applications for different benefits – JSP, DSP and PPS – and so cannot be regarded as a person in the category of being incapable of making a social security payment claim (nor, for completeness, did the Applicant himself make a claim that he was in that category). The Tribunal also notes that he made very articulate and comprehensive oral submissions during the hearing.

29. The Applicant told the Tribunal “I understand I could have chased this”, and then expanded on other relevant factors at play including his acquired brain injury, difficulties in settling care of the children with his former wife, and other Court matters. The Tribunal accepts his evidence.

30. However, in this case, there is no provision for the payment of PPS to be deemed to have been lodged from an earlier date than 10 June 2022, which is the date Mr Gallo lodged his JSP claim. The provisions in section 15 of the Administration Act are designed to be beneficial to an applicant who has, either inadvertently, or because of lack of information, made a claim for an incorrect payment. As is set out in Valori, the provisions in s 15 have a long legislative history and are based on similar ‘deeming’ provisions set out in the Social Security Act 1947, when the then Director-General of Social Security was given certain discretionary powers in such cases. But these deeming provisions relate to when a person applies for a social security payment, or one of the three stipulated in the Guide as being ‘similar in nature’ to a social security payment.

31. The fact remains that there is no evidence of any earlier claim by the Applicant for a social security payment that predated the JSP application on 10 June 2022. While the legislative scheme has certain deeming provisions, these cannot extend to encompass what a person might have done had he or she made an earlier claim. There is no general duty on the Respondent to advise a person that they may be entitled to a particular benefit; indeed it would be an impossible task to do so, given that potential social security claimants face changing circumstances such as income, care of children, health conditions or other factors personal to them that may affect their eligibility for a social security payment at a particular point in time. In addition, there is no discretionary power residing in the Respondent, or in the Tribunal standing in his shoes, to backdate a payment to an earlier date such as, in the Applicant’s contention, when he became the sole carer of the three children in December 2021.

32. While I accept this outcome will be disappointing to the Applicant, I must apply the law as it stands. The correct and preferable decision is that the earliest eligibility that can be deemed for Mr Gallo to receive PPS is 10 June 2022 with an effective payment date of 17 June 2022.

    DECISION

33. The First Review decision dated 21 April 2023 is set aside. In its place, the Tribunal substitutes a decision that the Applicant is deemed to have been eligible for payment of parenting payment single from 10 June 2022 with an effective starting date of 17 June 2022.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate

Dated: 11 September 2023

Date of hearing:	4 September 2023
Applicant:	Self-Represented
Representative of the Respondent:	Ms Kathryn Lieschke