Kennington and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 862
•25 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 862
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1453
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINA KENNINGTON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date25 September 2008
Place Perth
Decision 1. The decision of the Social Security Appeals Tribunal made 4 March 2008 is set aside.
2. The matter is remitted to Centrelink to determine the amount of Disability Support pension payable to Ms Kennington in accordance with these reasons.
……….[sgd Mr J W Constance]............
J.W. Constance, Senior Member
CATCHWORDS
SOCIAL SECURITY – Appeal from Social Security Appeals Tribunal – Cessation of Disability Support pension – Applicant’s husband in receipt of periodic compensation payments - whether requirements of subsection 1174(1) of Act satisfied –decision of Social Security Appeals Tribunal set aside.
Social Security Act 1991 (Cth) ss 17, 198, 1167, 1169, 1173, 1174. 1184K
Re Nicholls and Secretary, Department Family and Community Services (2003) 74 ALD 299
REASONS FOR DECISION
INTRODUCTION
3. Ms Kennington is seeking a review of a decision to cease payment of a Disability Support pension which she had received for many years. Centrelink stopped paying the pension because Ms Kennington's husband was receiving compensation payments following his being injured at work. The Social Security Appeals Tribunal affirmed Centrelink’s decision to stop payment and to recover from Ms Kennington $387.43, being the amount of pension said to have been overpaid.
4. Under the Social Security Act 1991 (Cth) the rate at which a Disability Support pension is paid to a recipient is affected by the income of the partner of the recipient. For this reason a Disability Support pension is referred to as a “compensation affected payment”.[1] It means that it is necessary to consider Mr Kennington’s situation in determining Ms Kennington’s entitlements.
[1] See definition in section 17 of the Act.
5. For the reasons which follow the decision under review will be set aside.
FACTS
6. Unless stated otherwise findings of fact are based on the evidence of Ms Kennington. As to findings based on documents a reference to a document with a “T” prefix is a reference to a document which is part of exhibit T1. I am satisfied of the facts found on the balance of probabilities.
7. In May 1998 Ms Kennington was granted a Disability Support pension. She continued to receive this pension until 11 December 2007.
8. On 27 November 2007 Ms Kennington notified Centrelink that her husband had been injured at work and was receiving fortnightly compensation payments in lieu of wages.
9. On 18 December 2007 the Secretary determined that Mr Kennington’s compensation payments were of such an amount as to reduce Ms Kennington's pension entitlement to nil in the period 16 November 2007 to 11 December 2007. This is referred to as “the compensation period.” It was also decided that Ms Kennington had been overpaid for this period. On 17 January 2008 this decision was affirmed by an Authorised Review Officer, save that the amount of overpayment was reduced to $387.43.
10. The following further facts are agreed:
·Mr Kennington was receiving periodic compensation payments during the whole of the period 16 November 2007 to 11 December 2007;
·Mr Kennington was a member of a couple with Ms Kennington during the whole of this period;
·Mr Kennington was not qualified for, and receiving, a compensation affected payment at any time during the period;
·Ms Kennington was receiving a compensation affected payment during the whole of the period.
On the basis of the documents in exhibit T1 and the evidence of Ms Kennington I am satisfied of the facts agreed.
THE ISSUE
11. The issue for determination is whether Centrelink was correct in ceasing to make pension payments to Ms Kennington based on her husband’s receipt of compensation payments during the period 16 November 2007 to 11 December 2007. To determine this issue it is necessary to determine whether the requirements of subsection 1174(1) of the Act have been met. This subsection deals with the effect of the receipt of periodic compensation payments by a person (in this case Mr Kennington) on the rate of payment of a Disability Support pension being received by that person’s partner (in this case, Ms Kennington).
ADDITIONAL EVIDENCE
12. As the Secretary was not in a position to fully address the above issue at the hearing I gave the parties the opportunity to make further submissions in writing before I made a decision. Both parties took this opportunity. Attached to the Secretary’s submissions were four documents not previously tendered in evidence. As Ms Kennington did not raise any objection to these documents in her submission I have taken them into evidence and considered them in reaching my decision.
THE ARGUMENT ON BEHALF OF THE SECRETARY
13. The Secretary argues that subsection 1174(1) of the Act applies to Ms Kennington with the effect being that she was not entitled to any pension during the compensation period. Under the Act the amount of pension payable to Ms Kennington is affected by the amount of her ordinary income during the period in question.
14. Under subsection 1174(1) part of the compensation payments received by the partner of a pension recipient can be treated as ordinary income of the recipient for the purpose of calculating the recipient’s pension entitlement. The subsection provides as follows:
(1) If:
(a) a person receives periodic compensation payments; and
(b) the person is a member of a couple; and
(c) the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and
(d) the person is qualified for a compensation affected payment in relation to a day or days in the periodic payments period but, solely because of the operation of this Part, does not, or would not, receive the payment; and
(e) the person’s partner receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;
the amount (if any) by which the daily rate of periodic compensation payable to the person exceeds the daily rate of the compensation affected payment for which the person is qualified in relation to a day or days in the periodic payments period (the excess amount) is to be treated as ordinary income of the person’s partner for the purpose of the calculation of the amount of the compensation affected payment referred to in paragraph (e).
15. On the basis of the facts set out in paragraph 8 of these reasons the requirements of paragraphs (a), (b), (c) and (e) are met in this case. This is not in dispute.
16. The Secretary argues that (subject to considering, if necessary, whether there are special circumstances in this case) the only question remaining is whether Mr Kennington met the requirements of paragraph (d). In this regard the Secretary says that Mr Kennington was qualified for three separate compensation affected payments in accordance with subparagraph (d), namely a sickness allowance,[2] a newstart allowance,[3] and a carer allowance.[4]
[2] S.666.
[3] S.593(1).
[4] S.198.
17. As to the sickness allowance and the newstart allowance, the Secretary argues that all requirements of subsection 1174(1)(d) have been met. This argument is put as follows:
Mr Kennington applied for Newstart Allowance (NSA) on 6 September 2007, but failed to supply documents, including the claim for NSA, as it appears he had recently obtained employment with his current employer…It could be argued that but for Mr Kennington’s workplace injury sustained on 16 November 2007, he would have continued to work, or he would have been able to work and thus may have been eligible for SKA or NSA in the period in which he received ‘compensation periodic payments’.[5]
[5] Secretary’s Submissions5/8/08 para.4.23.
18. In relation to the carer’s payment the Secretary argues:
On 18 March 2008 Mr Kennington lodged an application form for Claim for Carer Allowance and/or Carer Payment – Caring for a Person 16 and attachments… As all aspects of the claim form was [sic] completed Mr Kennington’s eligibility and payability of carer payment was able to be determined.
…
The Secretary contends that as carer payment is an [sic] compensation affected payment and that it has been determined that Mr Kennington is qualified for carer payment and that payment was payable, except for the fact that he was in receipt of compensation affected payments all paragraphs, including paragraph (d) of subsection 1174(1) of the Act has been satisfied.[6]
[6] Secretary’s Submissions5/8/08 paras.4.35, 4.38.
CONSIDERATION OF THE ISSUE
19. In determining an issue such as this it is imperative that the wording of the relevant provisions is considered carefully. Subsection 1174(1)(d) imposes a number of distinct requirements before it can be said to have been met. These are:
· that the person (in this case Mr Kennington) is qualified for a compensation affected payment in relation to a day or days in the periodic payments period;
· that the person does not, or would not, receive the compensation affected payment solely (emphasis added) because of the operation of Part 3.14 of the Act.
20. This analysis of the requirements of subsection 1174(1)(d) is supported by the Tribunal’s decision in Re Nicholls and Secretary, Department Family and Community Services (2003) 74 ALD 299.
Was Mr Kennington qualified for a compensation affected payment in relation to a day or days in the periodic payments period?
21. It is important to note that this subparagraph (d) requires that the person is qualified for a compensation affected payment at the relevant time. A finding in these terms is necessary for the section to apply. It is not necessary that the person actually be receiving such a payment.
22. The expression “compensation affected payment” is defined in subsection 17(1) of the Act and includes “a social security benefit” and “a carer payment”. I am satisfied that each of the three payments referred to by the Secretary are within the definition of compensation affected payments.
23. It is then necessary to consider whether Mr Kennington was qualified for one or more of the payments in relation to a day or days in the periodic payments period. The expression “periodic payments period” is also defined in subsection 17(1), the relevant part of which is:
…the period to which a periodic compensation payment, or a series of periodic compensation payments, relates …
24. On the evidence before me the period to which Mr Kennington’s periodic compensation payments relate is the period 16 November 2007 to 11 December 2007 being the period for which the Secretary has determined that Ms Kennington's disability pension has been affected.
25. Turning to the compensation affected payment being the sickness allowance relied upon by the Secretary, again it is necessary to look carefully at the requirements to be met before a person is qualified for such a payment. These are contained in section 666 of the Act and are set out in twelve paragraphs and subparagraphs.
26. Without considering all of the requirements there is no evidence upon which I can be satisfied that Mr Kennington’s incapacity was or was likely to be of a temporary nature as assessed on any day during the periodic payments period. As a result I cannot be satisfied that Mr Kennington met the requirement of subsection 666(1)(c).
27. Further, I am not satisfied that Mr Kennington met any of the requirements of subparagraph (ca) which refers to the availability of ongoing employment or commitment to resuming study.
28. For the reasons stated I am not satisfied that Mr Kennington qualified for a sickness allowance in relation to any day during the periodic compensation period.
29. The requirements for qualification for the newstart allowance are set out in section 593 and include the need to satisfy an activity test. This test is not required in certain circumstances set out in section 603. I am satisfied on the evidence of Ms Kennington that Mr Kennington was employed during the periodic compensation period although he was on sick leave and on this basis alone I am satisfied that he was not qualified for newstart allowance during the relevant period.
30. The Secretary has argued also that Mr Kennington would have been exempt from the activity test, but this has not been established on the evidence before me. I am not satisfied that Mr Kennington’s incapacity was, or was likely to be, temporary.[7] Also I am not satisfied that a medical report which complies with the section has been supplies.[8]
[7] See subparagraph (c).
[8] See subparagraph (e).
31. For these reasons I am not satisfied that Mr Kennington qualified for a newstart allowance in relation to any day during the periodic compensation period.
32. Consideration of the proposition put by the Secretary in support of his argument in fact confirms the conclusion I have reached. In paragraph 4.23 of his submissions Counsel states:
It could be argued that but for Mr Kennington’s workplace injury …he would have continued to work, or he would have been able to work and thus may have been eligible [emphasis added} for SKA [sickness allowance] or NSA [newstart allowance] in the period in which he received ‘compensation periodic payments’.
This argument fails to recognize the need to establish what section 1174(1)(d) requires, namely that Mr Kennington was qualified for the payment on a day or days in the relevant period.
33. The third possible compensation affected payment on which the Secretary seeks to rely to bring Mr Kennington within subsection 1174(1)(d) is the carer’s payment. The qualifications are set out in subsection 198(2). Among the many requirements to qualify for a carer’s payment is that the carer must personally provide constant care for a disabled person. I am not satisfied on the evidence that Mr Kennington met this requirement on any day during the relevant period. The Secretary seeks to rely on evidence of an application for carer allowance on 18 March 2008. This is not evidence of Mr Kennington’s qualification for such an allowance on any day during the periodic compensation period.
Had Mr Kennington qualified for a compensation affected payment in the relevant period would he have not received the payment solely because of the operation of Part 3.14 of the Act?
34. In view of the conclusions I have reached in the preceding paragraphs it is not necessary that I consider this question. However, in case I am wrong in my earlier conclusions I will do so.
35. Again it is essential to look carefully at the wording of the provisions of the Part to determine which, if any, of those provisions would have operated to have prevented Mr Kennington receiving a payment for which he was otherwise qualified..
36. Division 1 of Part 3.14 contains a number of provisions which deal with the application of the Part. They do not of themselves operate to prevent receipt of payment.
37. Division 2 deals with the enforcement of compensation rights. Within this Division there is one section (s.1167) which does provide for non-payment of compensation affected payments in circumstances where a recipient or a recipient’s partner fails to comply with the Secretary’s requirement to claim or obtain compensation.
38. Division 3 deals with the effect of the receipt of compensation by the recipient of a compensation affected payment or by the partner of the recipient. Within this Division there are three sections which provide for non-payment or reduction of a compensation affected payment. These are:
· section 1169 (compensation affected payment not payable during lump sum preclusion period);
· section 1173 (effect of periodic compensation payments on rate of person’s compensation affected payment);
· section 1174 (effect of periodic compensation payments on rate of partner’s compensation affected payment) which is the section under consideration.
39. Divisions 4, 5 and 6 make provision for the recovery of overpayments and do not contain provisions which prevent payment to a person otherwise qualified for payment.
40. Having considered the above sections and the evidence in this matter there is no provision in Part 3.14 which would have been the sole cause of Mr Kennington not receiving a compensation payment had he been qualified for it. On this basis the requirements of subsection 1174(1)(d) would not have been met in relation to Mr Kennington. Consequently section 1174 would not have operated to reduce Ms Kennington's entitlement to her disability support pension during the period under consideration.
CONSIDERATION OF SECTION 1184K
41. Section 1184K of the Act gives the Secretary and this Tribunal power to disregard part or all of a compensation payment in applying the provisions of Part3.14 if it is thought appropriate to do so in the special circumstances of the case. In view of the conclusions I have set out in these reasons it is unnecessary to consider whether any such special circumstances exist in this matter.
DECISION
42. The decision of the Social Security Appeals Tribunal made 4 March 2008 is set aside.
43. The matter is remitted to Centrelink to determine the amount of Disability Support pension payable to Ms Kennington in accordance with these reasons.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: ................[sgd Mr P Horobin]....................
Peter Horobin
AssociateDate of Hearing 15 July 2008
Date of Decision 25 September 2008
Representative for the Applicant Self Represented
Representative for the Respondent Aaron HoltCentrelink Legal Services Branch
0
0
0