JONES and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 834

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6020

GENERAL ADMINISTRATIVE DIVISION		)
Re		TRACEY JONES

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date15 October 2010

PlaceSydney

Decision

For the reasons given orally at the conclusion of the hearing held on 14 October 2010, the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 20 November 2009.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service and are furnished to the Applicant and to the Respondent as they are the reasons for the Tribunal’s decision.

...............................[sgd]...................

Ms G Ettinger

Senior Member

CATCHWORDS

Parenting payment – relevance of amendment to legislation in 2006 – Applicant discontinued her parenting payment by applying for carer pension – later was unable to resume with parenting payment as her son had reached the age of eight – previously entitlement extended to a child’s sixteenth birthday - decision under review affirmed. 

Social Security Act 1991

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act

Social Security (Administration) Act 1999

REASONS FOR DECISION

15 October 2010 Ms G Ettinger, Senior Member

BACKGROUND

1.      Ms Jones appeared at the Tribunal accompanied by her mother. The Respondent Department was represented by Mr Bernard Slattery.  I had before me the T- documents, the Respondent’s Statement of Facts and Contentions, and a page from the application Ms Jones made to Centrelink in 2004, after she inquired about carer allowance and payments in order to care for her father who had suffered a massive stroke.

2.      By way of background, I note Ms Jones is a single mother of two boys now aged 12 and eight.  She had been receiving parenting payment since her first son was born in 1998. 

3.      Ms Jones told me that in December 2004 she told Centrelink that her father suffered a massive stroke and that she needed to care for him as there was no one else to do so.  She initially ticked the box on the application form at Centrelink stating that she was claiming carer allowance, and then changed that to carer payment, initialling the change. Ms Jones said she did that on the advice of a Centrelink officer who advised her to claim carer payment.  Mr Slattery tendered the relevant page of the application form corroborating Ms Jones’ evidence.  That was Exhibit R2 before the Tribunal.

4.      What occurred then in 2004, was that Ms Jones’s parenting payment was cancelled, and she received carer payment and allowance, and the annual bonus payments associated with those benefits.

5.      Ms Jones said that in April 2007 the care arrangements for her father changed, and she contacted Centrelink again. She reclaimed parenting payment, which was granted from 3 April 2007, and carer payment was cancelled. She continued to receive carer allowance. However, she had broken the chain, so to speak, and the 2007 application for parenting payment was a new claim, and meant that she was not covered by the transitional arrangements which applied by then.

6.      In August 2009, when Ms Jones had a conversation with a Centrelink officer by phone, she was advised that new legislation had been passed affecting her parenting payment which would cease once her younger child turned eight years of age, rather than the 16 years which applied previously. In fact, on her younger son’s eighth birthday, which was on 13 December 2009, her parenting payment was cancelled. 

7.      This was due to the effect of the new legislation, being the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act.  What it meant in terms of parenting payment was that people who had been receiving parenting payment immediately, and I emphasise immediately, before the legislation came into effect on 1 July 2006 were grandfathered into the scheme, and would receive parenting payment until their children reached the age of 16 years.  Everyone else eligible for parenting payment could receive it only until each child reached the age of eight years.

8.      I noted that in August 2009 Ms Jones contacted Centrelink to dispute the loss of her grandfathered status. The decision was reconsidered, her application was refused in October 2009, and she exercised her right to go to the Social Security Appeals Tribunal, followed by the appeal to this Tribunal. Ms Jones told me that on cancellation of her parenting payment on 13 December 2009, she received Newstart.  She told me that she is working part-time, and paying more tax, and has less money with which to pay her bills. Ms Jones said that, as a result, she has been admitted to hospital a few times, has suffered stress, anxiety and depression, and heart and blood pressure problems. She said that she was unable to work for about three months, and is on medication for her depression.  I noted that, by way of completeness, there is in the T- documents, a letter of Dr Lynette Lee, corroborating the evidence of the Applicant that she suffered chest pain and palpitations in the latter half of 2009.

ISSUE FOR DETERMINATION AND RELEVANT LEGISLATION

9.      What I have to decide today is whether Ms Jones lost her qualification for parenting payment when her younger son turned eight years of age on 13 December 2009.  In doing so, I note the relevant legislation is the Social Security Act 1991 and the Social Security (Administration) Act 1999.  The latter legislation deals with the power of the Secretary to cancel a payment. 

10. Now, the requirements for a person to qualify for parenting payment are set out in section 500 of the Social Security Act. Basically, a person is qualified for parenting payment if the person has at least one PP child, that is, one parenting payment child, which is defined in section 500D and 500F to 500H.

11. Since 1 July 2006 the meaning of the term “parenting payment child” – “PP child” – has been set out in section 500D. So 500D assists with working out who is a PP child. In Ms Jones’s case, her younger son was a PP child pursuant to section 500D(2) until he turned eight; the age limit previously having been 16. So the new section of the Act came into play, and the threshold age for receiving parenting payment now ends at eight years, rather than 16. There is a transitional arrangement pursuant to section 500F, where, if a parent has a PP child, and was receiving parenting payment immediately before 1 July 2006, when the new legislation came into force, then they would continue to receive it until the child reached 16 years of age.

CONSIDERATION OF THE ISSUE AND CONLCUSIONS

12.     I accept Ms Jones’s evidence that, on the advice of Centrelink, she changed from receiving parenting payment to carer allowance and payment in December 2004, with the attendant cancellation of her parenting payment. She says she understands what occurred with the new legislation, and does not dispute the legislation, but submits she relied on the advice of Centrelink. She also understands that, had she remained on parenting payment and taken carer allowance only, as she had first intended, she would not be in the predicament in which she now finds herself.

13.     I accept that is so because she would have had a continuous period of receiving parenting payment, including for the period immediately before the new legislation came into effect on 1 July 2006.  Ms Jones is aggrieved because the bonus payments she received with carer pension and carer allowance do not make up financially for what she has lost.

14.     Mr Slattery submitted, and I accept that in December 2004 when Ms Jones sought financial assistance as a carer for her father, the Centrelink officers, were not to know that the foreshadowed change would first publicly be announced by the government on budget night, which was 10 May 2005.

15.     The Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Bill 2005 was introduced into the House of Representatives on 9 November 2005, and became law on 1 July 2006.  A person’s eligibility under the new law continued to be assessed under the pre-1 July 2006 rules in cases where they were receiving parenting payment at the time of the change.  Such people are covered by the transitional arrangements, and are sometimes referred to by Centrelink as the grandfathered group. Pursuant to section 500F(1), that could only occur where immediately before 1 July 2006 they were already receiving parenting payment in accordance with a determination under section 37.

16.     As Ms Jones was not in receipt of parenting payment immediately before 1 July 2006, she was not covered by the transitional arrangements when she later claimed the payment back in April 2007, and so she was not part of the grandfathered group.

17.     I have carefully considered the legislation and the case law available.  There appears to be no discretion, and no provision for special circumstances to be taken into account which is available in other areas of Social Security law, such as where debts or over-payments occur. Mr Slattery was sympathetic to Ms Jones’s case, but agreed with me that there was no discretion available to the Tribunal in this case. 

18.     So, unfortunately, Ms Jones’s application is unsuccessful and I must affirm the decision under review. 

DECISION

19.     The Tribunal affirms the decision under review. 

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.

Signed: .................................[sgd]....................................................
               Associate

Date of Hearing  14 October 2010
Date of Decision  15 October 2010
Applicant  Self Represented

For the Respondent                 Mr Bernard Slattery