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

Henry and Secretary, Department of Social Services (Social services second review) [2019] AATA 4775 (18 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1582
Re:Phillip Henry
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:18 November 2019
Place:Sydney

The decision of the Social Services & Child Support Division dated 26 February 2019 is affirmed.
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Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY - parenting payment (partnered) - partner's income above allowable limit - employment income and deemed income - coding error resulted in approval - payment later cancelled - whether decision to cancel payment was correct - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 500, 500I, 503, 1068B-A2
Social Security (Administration) Act 1999
CASES
Cameron and Secretary, Department of Social Services [2017] AATA 2586
Krause and Secretary, Department of Social Services [2015] AATA 854
SECONDARY MATERIALS
A Guide to Australian Government Payments (20 March 2018 to 30 June 2018)
REASONS FOR DECISION
Mr S Evans, Member
18 November 2019
OVERVIEW

Phillip Henry (“the applicant”) lodged a claim for parenting payment (partnered) (“PPP”) on 5 April 2018 which was granted from 12 April 2018. On 19 July 2018 the applicant’s PPP was cancelled after Mr Henry informed the Department of Social Services (“the respondent” or “Centrelink”) that his wife was employed and earning $1,840 per fortnight. The decision to cancel Mr Henry’s PPP was affirmed by an Authorised Review Officer (“ARO”) on 20 November 2018.
Mr Henry has appealed to the Tribunal to review the decision of the Social Services & Child Support Division of the Tribunal (“AAT1”) to uphold the decision of the respondent to cancel his PPP.
The matter was heard on 24 September 2019. Mr Henry gave evidence via telephone. Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the applicant.
For reasons I will explain, the decision under review is affirmed.
LEGISLATION AND POLICY
Eligibility for PPP is determined by the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).
Section 500 of the Act outlines the requirements to qualify for parenting payment. Subdivision B – General principles relating to payability includes section 500I which states that parenting payment is not payable to a person if the person’s parenting payment rate would be nil. Division 4 – Rate of parenting payment determines how to work out a person’s parenting payment rate.
503How to work out a person’s parenting payment rate
A person’s parenting payment rate is worked out using:
(a)if the person is not a member of a couple—the Pension PP (Single) Rate Calculator at the end of section 1068A (see Part 3.6A); or
(b)if the person is a member of a couple—the Benefit PP (Partnered) Rate Calculator at the end of section 1068B (see Part 3.6A).
S 1068B-A2 provides a method for calculating the fortnightly rate of benefit (partnered). It is complicated and it would be unhelpful to reproduce it in full here. Of relevance to this matter step 5 requires that having calculated the maximum payment rate “apply the income test using Module D… to work out the person’s income reduction”.
Module D calculates the effect of income on maximum payment rate and includes instructions on working out the ‘partner income free area’, which is the maximum amount of ordinary income the person’s partner can have without affecting the person’s rate.
The respondent has provided the Tribunal with an extract from ‘A Guide to Australian Government Payments (20 March 2018 to 30 June 2018)’ (“the Guide”). The Guide helpfully provides in plain English the eligibility and thresholds that applied during the period in question.
Parenting Payment
…
Basic rates
Single parents: up to $762.40* per fortnight.
*A Pension Supplement …amount is included in this fortnightly rate. For those under age pension age, it is currently $23.40. A higher Pension Supplement amount may be paid if the person has reached age pension age.
Partnered parents: up to $492.40 per fortnight (up to $590.40 per fortnight if separated by illness or respite care couple, or partner in prison).
…
Income Test
…
Partnered parents
Partner is not a pensioner
For maximum payment, the recipient’s income must be no more than $104 per fortnight and the partner’s income must be no more than $964 per fortnight.
Recipient’s income reduces the rate by 50 cents for each dollar between $104 and $254, and by 60 cents for each dollar above $254 per fortnight.
Partner’s income up to $964 per fortnight has no effect. Income over this amount reduces the rate by 60 cents for each extra dollar.
A part payment may be available provided all of the following conditions are met:
recipient’s income must be less than $963.50 per fortnight, and
partner’s income must be less than $1,798.50 per fortnight, and
the combined income of the couple must be less than $1,927.50 per fortnight.
These conditions are a guide only. Some recipients who meet these conditions will not be eligible for a payment. Income cut-outs may be higher if the recipient's partner is also receiving an income support payment. Eligibility can only be confirmed following a full assessment of a couple’s income under the relevant income test.
…
BACKGROUND AND EVIDENCE
Based on the documentation before the Tribunal, it appears that Mr Henry first applied for PPP on 3 January 2018. He completed an online application. The application was submitted successfully and Mr Henry was granted PPP for a period 8 January 2018 through 12 February 2018.
A further online PPP application form with a ‘claim creation date’ of 5 February 2018 and ‘claim submission date’ of 5 April 2018 is also before the Tribunal. Similarly, a letter from Centrelink to Mr Henry regarding his eligibility for a payment and concession card also dated 5 April 2018 is in evidence.[1]
[1] T-documents, p. 58
Mr Henry contends that on 5 February 2018 he contacted Centrelink via telephone and informed the officer that he had not received confirmation of his PPP application. Mr Henry says that he was put through to the Centrelink ‘IT Department’ but no explanation was provided as to why his PPP application had not been processed. In his application for review to AAT1 Mr Henry contends that he was told by a Centrelink adviser “I cannot give you an explanation as to why it [the application] is not showing in our system and best advice I will Cancel [sic] your latest attempt … and restart a new application on line [sic]”. [2]
[2] T-documents, p. 97
The respondent has no record of telephone contact with Mr Henry on 5 February 2018 but there is evidence that his record was accessed by call centre staff on 6 February and 25 February 2018. No further information is available in relation to the purpose or nature of the access.
By April 2018 Mr Henry had not received confirmation of his 5 February PPP application so he called Centrelink and was advised to visit his local Centrelink service centre, which he did. At the service centre he explained to Centrelink staff that he had applied for PPP several times and he could not understand why he had not received confirmation or why his application was not showing on Centrelink’s systems.
On 13 April 2018 Mr Henry lodged with Centrelink Mrs Henry’s payslip dated 5 April 2018 from the air conditioning company where she worked.[3] The payslip confirmed her gross fortnightly income of $1840.00. Mr Henry was told by Centrelink staff that his application was ‘in the system’ on 20 April 2018.
[3] T-documents, p. 60
PPP is granted and Centrelink’s coding error
On 18 July 2018 the applicant’s PPP was granted from 12 April 2018. He was paid $161.56 for the period 12 April 2018 to 9 July 2018 and this was confirmed in a letter to the Applicant on 18 July 2018.[4]
[4] T-documents, p. 82
On 19 July 2018, Mr Henry confirmed with Centrelink that Mrs Henry was employed with an air conditioning company. Using the payslip Mr Henry had submitted calculations were based on Mrs Henry earning $1,840 per fortnight. Consequently the decision to grant Mr Henry PPP was ‘corrected’ and his PPP claim rejected on the grounds that Mr Henry and his wife’s combined income was above the allowable limit.[5]
[5] T-documents, p. 85
A Centrelink electronic document dated 18 July 2018 records the following :
…
Customer contacted [Centrelink Service Centre]… regarding General Enquiry for Parenting Payment.
…
Start date for payment: 05/04/2018
…
CUS has been advised/reminded of the general notification provisions advised to claim ftb online…
ANNOTATE BY [officer one]… ON 18 JULY 2018
customer phoned to confirm if partner is still working
was advised that she ceased work jan 2018
ANNOTATE BY … [officer two] on 19 JUL 2018
Debt raised $3337.23 for period 12APR-9JULY18
Payslips were lodged for ptr and cus advised she has been working there since January 2018 [6]
[6] T-documents, p. 110
A Centrelink electronic document dated 19 July 2018 created by officer two (mentioned above) records:
Outcome of claim: Reject
Reason for the decision: Ptr income was not coded within grant of new claim – but looking at annotation on grant doc, cus was called regarding earnings and [officer one] was told ptr ceased work in Jan 2018. Upon talking to cus tonight, he advised ptr started the job in Jan 2018
PPP/REJ-INC after these were coded correctly. Debt raised for period customer was granted for. [7]
[7] T-documents, p. 111
At the hearing, it was accepted by the respondent that Mrs Henry’s income was not included in the initial decision to grant Mr Henry PPP due to a ‘coding error’ by staff. The Centrelink records indicate it was recorded that Mrs Henry had ceased working in January, and when another officer called Mrs Henry to verify this they were informed that she had been working from January.
Should Mr Henry’s PPP have been cancelled
The applicant contends that Centrelink made an error in calculating his combined income. He contends that the payslip with his wife’s total earnings listed as $1,840.00 for the fortnightly pay period 24/3/2018 - 06/04/2018 was submitted by him, but that his wife’s employer had made an error. His wife’s actual total earnings for that period were $1,760.00. Centrelink, Mr Henry contends, was informed of this error and should not have cancelled his PPP.
It appears to be after the cancellation of his PPP that Mr Henry provided payslips for Mrs Henry from January, March and July confirming fortnightly incomes of $1760, $1760 and $1798 respectively.[8]
[8] T-documents, p. 87-89
Following an internal review, an Authorised Review Officer (“ARO”) wrote to Mr Henry on 20 November 2018 confirming that Mrs Henry’s income was not considered when PPP was granted on 18 July. The ARO wrote:
You lodged a claim for Parenting Payment (Partnered) on 5 April 2018. The maximum basic rate of Parenting Payment (Partnered) payable to you as at 5 April 2018 was $492.80 per fortnight. As per the applicable income test at the time, your partner’s income had to be less than $1,798.50 per fortnight for you to be entitled to a part payment of Parenting Payment (Partnered). As your partner’s income was over the allowable limit of $1798.50 per fortnight, your claim for Parenting Payment (Partnered) was rejected.
I note that this claim was initially assessed on 18 July 2018. Your partner’s income from employment was not recorded in assessing this claim. As a result, you were granted Parenting Payment (partnered) and a payment of $3,337.23 was sent to your account for the period 12 April 2018 to 9 July 2018. However, this error was corrected the following day. You were notified via a letter dated 19 July 2018 regarding rejection of your claim for Parenting Payment (Partnered) due to your partner’s income. [9]
[9] T-documents, pp. 92 – 95
Based on the documentation before the Tribunal, I find the information contained in the ARO’s letter to the applicant to be an accurate account of events described.
The ARO’s notes from November 2018 shed some light on the issue of confusion about the threshold:
‘Mr Henry’s wife…said that she does not receive $1840 in hand. I advised that for social security purposes, it is the gross income that is considered. [Mr Henry’s wife] said that she has since spoken to her employer and there has been a reduction in her pay by $80 per fortnight. She said she has provided her latest payslip to confirm this. I advised that the most recent payslip she had provided is for the period 14/7/18 to 27/7/18 and it shows the gross earnings of $1798.00 pf. I advised that when considering income, it is the income from all sources that is taken into account. In her case, in addition to the employment income deemed income from financial investments is also taken into account. I advised that she also has a deemed income of $10.44pf from savings. Therefore her assessable income is $1808.44pf which is again over the allowable limit for the partner’s income.[10]
[10] T-documents, pp. 90 – 91
The Tribunal concludes that it was reasonable for Centrelink to calculate Mrs Henry’s income based on the payslip they had been provided and was on file. Mr Henry contends that a mistake was made, however based on the ARO notes it appears that Mrs Henry may have sought reduce her income in order to bring it under the PPP threshold as she understood it. There is obviously a difference.
Subsequent to the cancellation on 19 July 2018, Mr Henry provided Centrelink with the additional payslips for Mrs Henry. The expectation being that these payslips would demonstrate Mrs Henry’s income was below the threshold.
However, in addition to earned income, the applicant received deemed income of $10.45 per fortnight which is calculated as 1.75% of the applicant’s total savings divided by 26 fortnights. His wife’s deemed income from savings was calculated at $10.44 per fortnight.
The ARO notes indicate an income threshold of $1,777.00 was being applied:
I also explained [to Mr Henry] the partner income cut off limit in the period 1/1/18 to 19/3/18 was $1777.00. As [Mrs Henry’s] gross income was $1,760+10.44 (from deemed income), her income was only $7 less than the cut off limit which means he [Mr Henry] would have received only approx. $4-5 per fortnight at most. [11]
[11] Ibid.
In the ARO’s letter to Mr Henry dated 20 November 2018 the officer writes:
Section 1068B of the Act sets out how to calculate the rate of Parenting Payment for a person who is a member of a couple. The rate of payment is determined by the application of an income tested both the person and the person’s partner. Module D of this section sets out the relevant income tests. As at 5 April 2018, the rate of Parenting Payment (Partnered) was reduced to nil if the person had an income of $964 per fortnight. The income of the person’s partner did not cause a reduction in rate until it exceeded $964 per fortnight. After this, there was a reduction of 60% of the excess amount. The Parenting Payment (Partnered) was not payable if the partner’s income was above $1798.50 per fortnight. [12]
[12] T-documents, pp. 92-95
The thresholds above are correct. Indeed, Mr Henry did not take issue with the calculation association with the income test and has not identified any errors in the calculations.
OTHER ISSUES
Compensation
Mr Henry submits that he should be compensated ‘for the time and effort taken on the phone’ and ‘hours on end’ at the Centrelink service centre. He also submits that he was informed that he was eligible for PPP by Centrelink staff and that as a consequence he ‘turned down’ employment opportunities during that period. He was, he claims, misled by Centrelink as to his eligibility for PPP. He told the Tribunal that this understanding dated back to a conversation that was had in December 2017 and that he had confirmed his eligibility with Centrelink on three occasions.[13] No evidence is before the Tribunal which corroborates that Mr Henry was provided this advice or, if it was, provides context to the circumstances in which it was provided.
[13] T-documents, p. 5
Mr Henry wrote in his application for review by the Tribunal[14] that he has struggled financially and that to ‘keep within the threshold I stayed unemployed for my sons [sic] full time care’.[15] He writes that at ‘no time prior to last years [sic] application did it ever get brought to our attention that we were not compliant or not entitled to the one off payment.’[16]
[14] Ibid.
[15] Ibid.
[16] Ibid.
The ARO’s letter to Mr Henry dated 20 November 2018 advises that ‘If you [Mr Henry] believe that you were given incorrect advice by the department and it has caused you financial loss, you may be able to claim compensation from the department under the Compensation for Detriment caused by Defective Administration Scheme (the CDDA scheme)’.[17] For the simple reason that there is no provision in the Act that would allow the Tribunal to consider a question of compensation and any other avenue of relief is outside the Tribunal’s jurisdiction, this is appropriate advice.
[17] T-documents, p. 94
Payment for the period covered by the ‘cancelled’ PPP application
Mr Henry contends that he should be paid PPP from the date of his second application which he says was 12 February 2018. This application is recorded as being created on 5 February and submitted on 5 April 2018, but Mr Henry is of the view that the delay is essentially attributable to an IT issue that ‘could not be resolved’.
In Cameron and Secretary, Department of Social Services [2017] AATA 2586,

Senior Member Davies considered whether an effective claim had been made in circumstances where the Applicant endeavoured to lodge her claim form online, but contended that a computer glitch prevented her from doing so. Senior Member Davies stated:
39The Guide requires the claim to be lodged in the form and manner required by the Secretary. The Encyclopaedic Australian Legal Dictionary defines "lodge" as meaning:
"Deliver and place a document or thing into the possession of a person in relation to an official procedure. Lodgement requires a degree of physical acceptance by the person to whom the thing is given and is more than the mere placing or depositing of the object with that person; Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339; (1988) 19 FCR 477; 83 ALR 449.
…The recipient has a discretion as to whether or not to effect the lodgement. If the document does not comply within internal guidelines or procedures prescribed for lodgement (if any), then the document will not have been lodged even though it may be in the recipient's possession or physical control".
40Whilst I accept that the Applicant believes that when she created the FTB claim online on 29 October 2015 that as she said in her evidence she "had done the form correctly and submitted it correctly", there is no evidence of any computer glitch in the Department which affected the submission of the claim.
41I am satisfied that on the evidence before me the Applicant failed to lodge the FTB claim online on 29 October 2015 in the manner and form required by the Secretary and that it was not lodged correctly until it was submitted by the Applicant on 7 October 2016.
In Krause and Secretary, Department of Social Services [2015] AATA 854, Deputy President Hack dismissed an application pursuant to s 42B of the Administrative Tribunals Act 1975 (Cth) in circumstances where the Applicant sought a decision that her claim for paid parental leave was made on a date earlier than the date which she made an effective claim (due to special circumstances). Deputy President Hack stated:
2The application by Ms Krause seeks to review the decision of the Social Security Appeals Tribunal made on 1 June 2015 affirming the Departmental decision to pay Ms Krause parental leave pay with effect from 16 January 2015, the date on which the claim was lodged and not an earlier date, in particular the date of birth of the child of 29 November 2014.
….
5The result is that the start date for Ms Krause’s PPL period is the day the claim was made.
6There are, as the Social Security Appeals Tribunal correctly identified, no mechanisms in the Act for altering that start date, whether in exceptional circumstances or otherwise.

The Tribunal notes that beyond the gap between the ‘claim generation’ and ‘claim submission’ dates, there is a lack of corroborating evidence that a technical issue on Centrelink’s part, coupled with advice from Centrelink, caused the delay in submitting the application. Even if were, regardless of the difficulties the applicant faced with the website, there is no provision within the Act or the Rules that empowers the Tribunal to determine that the PPP start day is earlier than 12 April 2018.
CONCLUSION
Mr Henry appealed to the Tribunal citing a number of issues and errors regarding his application for PPP and interactions with Centrelink over a period of time. When considering them together, it may appear that material mistakes were made.
There is no doubt that the ‘coding error’ which resulted in Mr Henry being paid PPP and it being cancelled the following day, was inconvenient to the applicant.
However, having very carefully considered the information before the Tribunal, I find that Mr Henry’s PPP was correctly cancelled on 19 July 2018 because his partner’s income exceeded the allowable limit.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

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Associate
Dated: 18 November 2019

Date(s) of hearing: 24 September 2019

Applicant: By telephone

Solicitors for the Respondent: Ms T Hibberd - Department of Human Services

[2019] AATA 4775

18 November 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Jurisdiction

Date(s) of hearing:	24 September 2019
Applicant:	By telephone
Solicitors for the Respondent:	Ms T Hibberd - Department of Human Services