Herbst and Secretary, Department of Education, Employment and Workplace Relations and Anor
[2010] AATA 416
•7 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 416
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0964
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES HERBST Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
And
NERIANE HERBST
Other Party
DECISION
Tribunal M J Carstairs, Senior Member Date 7 June 2010
Place Brisbane
Decision
The Tribunal sets aside the decision under review that entitled Neriane Herbst to be paid parenting payment on her claim dated 18 August 2009. The Tribunal substitutes the decision that James Herbst was entitled to be paid parenting payment on his claim dated 13 August 2009.
....................[Sgd]...................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Parenting payment – Equal care of the children – Which parent in greater need – Income potential – Actual income – Application of the Guide – Decision set aside and substituted.
Social Security Act 1991 (Cth), ss 5(18), 500, 500D
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461
Vidler v Secretary, Department of Social Security and Another (1995) 61 FCR 370
REASONS FOR DECISION
7 June 2010 M J Carstairs, Senior Member 1. On 5 February 2010, the Social Security Appeals Tribunal set aside a Centrelink decision about which of two parents—James Herbst or Neriane Herbst—should be paid parenting payment for their children. Some payments relating to shared care of children can be apportioned between people based upon their respective percentages of care. Parenting payment, however, cannot be shared.
2. Mr Herbst had been paid parenting payment since his claim of 13 August 2009. The Social Security Appeals Tribunal, however, decided that Neriane Herbst was the one who should receive the parenting payment. Not surprisingly, Mr Herbst was not happy with this outcome and sought further review with this Tribunal.
BACKGROUND
3. Mr and Mrs Herbst separated in April 2009. They have reached an agreement that they will share the care of the four children of the marriage on a 50/50 basis, week about. Neither party suggests that the care is other than equal between them.
4. Mr and Mrs Herbst each claimed parenting payment in August 2009, Mr Herbst slightly ahead of Mrs Herbst. Centrelink accepted Mr Herbst’s claim for payment on 3 September 2009 and rejected Mrs Herbst’s claim a few days later.
THE LEGISLATION AND CENTRELINK POLICY
5. Section 5(18) of the Social Security Act 1991 (“the Act”) provides that only one person can be the principal carer for a particular child. The Act goes on to provide that if two or more persons are the principal carers for a child, the Secretary is to make a written determination specifying one of the adults as the “principal carer”. Only the “principal carer” can receive parenting payment.[1]
[1] Sections 500 and 500D of the Act.
6. When Centrelink’s decision to reject Mrs Herbst’s application for parenting payment was reviewed, at Mrs Herbst’s request, both the authorised review officer and the Social Security Appeals Tribunal took the view that it was appropriate to apply Centrelink policy as set out at Chapter 1.1.P.416 of the Guide to Social Security Law (“the Guide”). The evident purpose of the Guide is to assist with achieving consistency in outcomes in this difficult area of decision-making.
7. In that regard, the words of Gyles J in Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461 at 467 [17]-[18] are apposite:
… the Secretary, and the tribunals on appeal, have the invidious task of choosing between those persons in circumstances where the legislation does not provide a criterion or criteria.
… If there is any relevant government policy guidance, then appropriate regard should be paid to it. It is, in circumstances such as the present, a matter for decision by the AAT, as it has the ultimate say on the merits of the decision.
8. Generally speaking, the practice of Centrelink when faced with difficult cases of this kind is to pay to the parent who makes a claim (in those cases where the other parent does not); and, where each parent claims, to pay the parent who would receive the higher rate of parenting payment, if that becomes clear based upon evidence about income and assets. In other words, this policy attempts to reflect aspects of relative “need.”
9. What the Guide says at Chapter 1.1.P.416 is as follows:
A decision maker MUST take into account the following factors when deciding which carer is in most need of a favourable determination:
·whether one carer already qualifies as principal carer of another child (see below for further detail on determinations involving more than one child),
·whether only one carer would be eligible for PP,
·which carer would receive the higher rate of payment,
·any other sources of income the carers may have, whether actual or potential, including both employment and investment income,
Note: If either carer has income that fluctuates, the assessment officer may need to look at average income levels over an extended period of time, such as 12 weeks, and
·the asset levels of each carer.
The following factors MAY be taken into consideration by the decision maker, if further information is required to make the determination:
·the expenses of each carer, …
·workforce experience, education levels and future employment prospects of each carer,
·the duration that each carer has been on income support and their principal carer status during this time. If there are no substantial differences between the parties, then generally the determination should be favoured which maintains the 'status quo', and
·any other factors considered relevant by the decision maker.
10. A recent Full Federal Court case, Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115, affirmed the importance of applying policy in administrative decision making. The Court said at 120-121 [40]-[44]:
The seminal authority on the entitlement of an administrative decision-maker to take into account a statement of governmental policy is the decision of the Full Court in Drake , in particular the joint judgment of Bowen CJ and Deane J at 590-591.
For present purposes, four relevant propositions emerge from their Honours’ consideration of that question. The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account "government policy ". Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy , it is entitled to treat the policy as a relevant consideration.
Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of "government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
... it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion
11. The respondent in this instance took the position that the Social Security Appeals Tribunal incorrectly decided the matter. In most instances the Secretary adopts what the Federal Court in Vidler v Secretary, Department of Social Security and Another (1995) 61 FCR 370 referred to as a “neutral” approach. In this case, the Secretary took a more active approach, having identified factual errors and possible misapplication by the Social Security Appeals Tribunal of Centrelink policy as expressed in the Guide. The Federal Court in Vidler endorsed the respondent taking a more active role in appropriate cases, recognising the respondent’s interest in matters of practice and procedure and in the correct administration of the Act.
12. Of course in this case, both the Social Security Appeals Tribunal and the authorised review officer took into account the relevant policy—but different emphases produced different outcomes. However Mr McQuinlan, who appeared for the respondent, correctly observed that when the Social Security Appeals Tribunal came to apply the policy, it gave undue emphasis to “income potential”. This was a matter which the Guide referred to as one that a decision maker “may” take into account. On the other hand, the Social Security Appeals Tribunal overstated Mr Herbst’s actual income level, a factor the Guide states “must” be taken into account.
13. Mrs Herbst, both in her written submission[2] and her oral submissions to the Tribunal, agreed with the emphasis placed by the Social Security Appeals Tribunal upon her and Mr Herbst’s respective potential to earn income. She referred to Mr Herbst’s qualifications as being greater than her own, and suggested that he has a number of potential sources of income, including self-employment. She seemed to imply that he may not have fully disclosed his income.
[2] Exhibit 4.
14. Mr Herbst submitted a letter from the Social Security Appeals Tribunal acknowledging an error in its decision,[3] in that it had referred to what was in fact his fortnightly income as being his weekly income. The Social Security Appeals Tribunal also recorded Mr Herbst’s taxable income for the 2008/09 tax year as being $55,000, when it was in fact $46,686.[4]
[3] Exhibit 10.
[4] Exhibit 9.
WHO SHOULD BE PAID PARENTING PAYMENT?
15. It is not the role of this Tribunal to examine the reasons for decision of the authorised review officer or the Social Security Appeals Tribunal. This Tribunal’s role is to make the decision afresh, based on the evidence before it. However in this instance it is important to acknowledge that some relevant matters, particularly about the financial position of each parent, were misstated during the review. The financial position of Mr and Mrs Herbst clearly was a matter that had to be taken into account in accordance with the Guide in order to properly decide “which carer is in most need of a favourable determination”.
16. Taking into account the evidence as it now stands, and the matters to be addressed under the Guide, I am satisfied on the following:
§ had one carer already qualified as principal carer?
i.Clearly that question has to be answered “yes”, in favour of Mr Herbst.
The effect of the Social Security Appeals Tribunal decision was that Mr Herbst would face a debt with respect to the parenting payment already made to him from August 2009. This was a relevant consideration that ought to have been taken into account.
§ which carer would receive the higher rate of payment?
i.At the time of his claim, Mr Herbst’s average weekly earnings were $537.14 and Mrs Herbst’s average weekly earnings were $792.72.
ii.Both parents had no assets of note; both had similar outlays on rent, Mr Herbst’s being slightly higher.
iii.The evidence showed that Mr Herbst had been paid parenting payments totalling some $7,642 between September 2009 and May 2010. On the other hand, Mrs Herbst’s total payments for the period from August 2009 to June 2010 amounted to some $3,636 only.
17. In this case both parents necessarily would be income-tested, not asset-tested, to determine their respective Centrelink entitlements. I was satisfied that at the time of the respective claims (in 2009) and at the time of the hearing, Mr Herbst was the parent who would receive the higher Centrelink payment, based on their respective income receipts.
18. The Guide states that other factors may be taken into account if further information is required in order to make a determination. I do not see this as being a case where other factors need to be taken into account, because the question of who was in the greater need is answered by the difference in the parties’ respective earnings at all relevant times, as was evident from the time of their claims and continuing to the date of the hearing.
DECISION
19. The Tribunal sets aside the decision under review that entitled Neriane Herbst to be paid parenting payment on her claim dated 18 August 2009. The Tribunal substitutes the decision that James Herbs was entitled to be paid parenting payment on his claim dated 13 August 2009.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.
Signed: ........................[Sgd]..............................
Mátyás Kochárdy, AssociateDate of Hearing 2 June 2010
Date of Decision 7 June 2010
The Applicant was self-represented
Advocate for the Respondent Mr R McQuinlan (Centrelink Advocacy Branch)
The Other Party was self-represented
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