Hiral Bhavsar and Secretary, Department of Education, Employment and Workplace Relations

[2012] AATA 248

[2012] AATA  248

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4496
Re	Hiral Bhavsar
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	30 April 2012
Place	Sydney

The Tribunal affirms the decisions under review.

........[Sgd]................................................................

Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – parenting payment partnered – family tax benefit – overpayment payment – cancellation – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 500, 1068B

Social Security (Administration) Act 1999 (Cth), s 109

REASONS FOR DECISION

Ms N Bell, Senior Member

30 April 2012

1. Mrs Bhavsar had been in receipt of parenting payment partnered since July 2009. On 13 November 2009, she and her husband provided Centrelink with the tax returns for their company Maruti Food Chain Pty Ltd for the 2008/2009 financial year. The returns showed an assessable income of $32,364 each for that year. On the basis of this actual income, Centrelink cancelled Mrs Bhavsar’s parenting payment because her income for 2008/2009 was above the allowable limit for receipt of the payment. In May 2010, Centrelink raised an overpayment of parenting payment for July to November 2009 and it was repaid by Mrs Bhavsar.

2. In February 2011 Mrs Bhavsar claimed parenting payment again and it was granted from 1 February 2011.

3. In March 2011 Mrs Bhavsar requested a review of the decision to raise an overpayment. An Authorised Review Officer set aside the decision because the debt had been calculated on the basis of an estimate from Mr and Mrs Bhavsar’s 2008/2009 tax returns and their actual income had been considerably less. In June 2011 Mrs Bhavsar requested a review of Centrelink’s decision to cancel Mrs Bhavsar’s parenting payment in November 2009 and Centrelink’s decision to grant her later claim only from 1 February 2011. Both decisions were affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal.

4. Mrs Bhavsar contends that in November 2009 she should have been advised by a Centrelink officer that it was open to her to have her parenting payment assessed by reference to her and her husband’s current diminished income. She also contended that in November 2009 she had requested a review of the decision to cancel her payment. In relation to the decision to grant her payment from 1 February 2011, she maintained she should be paid from an earlier date and should, in effect have been paid parenting payment continuously from July 2009.

   ISSUES

5. The issues for me to consider are:

   (i)Whether Mrs Bhavsar’s parenting payment was correctly cancelled from November 2009; and

   (ii)Whether she should be paid parenting payment from a date earlier than 1 February 2011.

   WAS THE PAYMENT CORRECTLY CANCELLED IN NOVEMBER 2009?

6. The rate of parenting payment payable to a person is based, in part, on the person’s income and that of their partner. The information available to Centrelink when Mrs Bhavsar’s payment was cancelled on 27 November 2009, was that Mr and Mrs Bhavsar each had an income of more than $32,000 for the 2008/2009 year. This placed Mrs Bhavsar above the income limit for receipt of the payment and the cancellation of her parenting payment was correctly made on the basis of the information made available to Centrelink at the time.

   SHOULD PARENTING PAYMENT BE PAID FROM A DATE EARLIER THAN 1 FEBRUARY 2011?

7. Mrs Bhavsar claims that she, or her husband on her behalf, requested a review of the decision to cancel when they attended the Centrelink office on 30 November 2009. Centrelink records show that on that occasion Mr and Mrs Bhavsar provided an updated income estimate for the purpose of payment of family tax benefit. The income estimate given was $34,000 each. There is no record in Centrelink’s documents and electronic records of a request by Mr or Mrs Bhavsar for a review of the decision to cancel parenting payment.

8. Mrs Bhavsar contends that when, on 13 November 2009, she was told by a Centrelink officer that her and her husband’s income was too high in the 2008/2009 year for her to be paid parenting payment, she was advised to come back when she has her next financial year’s tax returns and claim again. She says she was given no information about the option of providing current financial reports in order to show a significant decrease in income.

9. Mr Bhavsar was adamant that he and his wife had requested a review of the cancellation decision at their second visit in November. However, he later queried how people who had never previously dealt with the social security system would be able to differentiate between the processes concerning parenting payment and family tax benefit. The Centrelink file note of the Bhavsars’ visit on 30 November refers only to family tax benefit.

10. I cannot be satisfied that Mrs and Mr Bhavsar requested a review of the decision to cancel parenting payment prior to June 2011. Recollections of unfamiliar processes can be unreliable. In the absence of Centrelink records or other documentation of the contended request for review, I cannot be satisfied that it was made.

11. Section 109(2) of the Social Security (Administration) Act1999 (Cth) provides that if a person requests a review of a decision more than 13 weeks after the date the decision was made and, on review, a favourable determination is made, then that favourable determination can only take effect from the date the review was requested.

12. The first recorded request for review of the November 2009 cancellation decision is 15 June 2011, the first date Mrs Bhavsar contacted Centrelink to query the cancellation. This is the earliest date that a favourable decision could take effect.

13. However, Mrs Bhavsar commenced to be paid parenting payment again on 1 February 2011 after making a further claim. Mrs Bhavsar could not be paid earlier than 1 February 2011.

14. There is an aspect of this application that cannot be addressed by the provisions of the legislation. Mrs and Mr Bhavsar say they were given no information about the possibility of submitting proof of decreased income to Centrelink so that their current circumstances could be taken into account and Mrs Bhavsar could test her eligibility to receive parenting payment on the basis of a significantly lower income. They say the officer they spoke to told them they should return when they have their 2009/2010 tax returns and provide them to Centrelink. They say they did not question this advice. I find this plausible and persuasive.

15. There is no dispute that in the 2009/2010 tax year the Bhavsars’ income decreased significantly. Mr and Mrs Bhavsar say that by November 2009 they knew their income was decreasing but they thought that when they submitted their 2009/2010 tax returns, Centrelink would make an adjustment and pay them arrears.

16. Mr and Mrs Bhavsar have shown themselves to be reliable and timely in their provision of financial information to Centrelink. They say that if they had been made aware of the possibility of submitting updated financial information that showed their current income then they would have done so because they were in financial hardship and needed all the financial assistance they could get. I find this to be likely. They say they did not understand the difference between parenting payment and family tax benefit and, during the period Mrs Bhavsar did not receive parenting payment they were unaware they were not receiving the payment they were entitled to receive, given their decreased income, until they discussed it with their friends. They say that whenever they spoke to Centrelink they were referring to the payments as a whole and did not distinguish between the two payments. They say that they did not request a review of the decision to cancel parenting payment soon after the decision was made because they thought there would be no point given the advice they received from the Centrelink officer.

17. It appears that the combination of the Bhavsars’ lack of experience with the social security system, the Bhavsars’ lack of understanding of the distinction between parenting payment and family tax benefit and the possibly incomplete information given to them by a Centrelink officer worked to prevent their receiving their full entitlements according to their combined income. Care is needed, when dealing with clients who are new to the system of pensions and benefits, to ensure that relevant information is provided to them about their entitlements in terms that are understandable to them.

18. I have been advised by the Secretary that Mrs Bhavsar has made a claim for compensation for defective administration. I have also been advised that no action has been taken to investigate her claim because of a preference to first see the outcome of this application. I recommend that Mrs Bhavsar’s claim for compensation be attended to without delay and that serious consideration be given to the effect in these circumstances of any incomplete advice or information that was provided to her.

    DECISION

19. The Tribunal affirms the decisions under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

.........[Sgd]...............................................................

Associate

Dated  30 April 2012

Date of hearing	7 March 2012
Date final submissions received	18 April 2012
Applicant	In person
Advocate for the Applicant	Mr J Bhavsar
Solicitors for the Respondent	Ms S Forrester , Centrelink Program Litigation and Review Branch