Konstandinos Gaitanis and Secretary, Department of Employment

[2015] AATA 736

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/3917
General Division  )

Re: Konstandinos Gaitanis
Applicant

And: Secretary, Department of Social Services
Respondent

And: Glykeria Gaitanis
Other Party

DIRECTION

TRIBUNAL:              Egon Fice, Senior Member

DATE:   15 October 2015

PLACE:                    Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. Delete the words Secretary, Department of Employment on the first and second pages of the decision and replace them with Secretary, Department of Social Services. 

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

Egon Fice, Senior Member

Gaitanis and Secretary, Department of Social Services (Social services second review) [2015] AATA 736 (15 October 2015)

Division	General Division
File Number(s)	2015/3917
Re	Konstandinos Gaitanis
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

Decision

Tribunal	Egon Fice, Senior Member
Date	18 September 2015
Date of written reasons	22 September 2015
Place	Melbourne

The application is dismissed on the ground set out in section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Egon Fice, Senior Member

Catchwords

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – Procedure and evidence – Parties – Person whose interests are affected by decision – Social welfare – Parenting payment – Qualification – Principal carer – No application made by applicant for parenting payment – Application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 27, 37, 42A

Social Security Act 1991 (Cth) ss 5, 500D

Social Security (Administration) Act 1999 (Cth) s 11

REASONS FOR DECISION

Egon Fice, Senior Member

22 September 2015

1. This matter is concerned with two decisions made by the Administrative Appeals Tribunal (AAT) – Social Services & Child Support Division (first tier reviewer) on 30 June 2015.  The two decisions are linked.  The applications were brought by Ms Glykeria Gaitanis,   Mr Gaitanis’ estranged wife.  Between 1 July 2010 and 11 October 2011 Ms Gaitanis received the parenting payment (single) in relation to her son who she claimed was in her care for that period.  However, on 9 October 2013 a Department of Human Services (Centrelink) officer determined Ms Gaitanis was not entitled to receive that payment and decided to raise and recover a debt of $16,185.25 on the ground that she had ceased to be the principal carer of her son.

2. Ms Gaitanis sought a review of that decision by the first tier reviewer (then known as the Social Security Appeals Tribunal). The first decision related to the question regarding whether Ms Gaitanis or Mr Gaitanis, who had separated, was the principal carer. The first tier reviewer permitted Mr Gaitanis to be joined as a third party to that proceeding. The respondent to the proceeding was the Secretary, Department of Employment (the Secretary). Having found that Ms Gaitanis was the principal carer for the purposes of s. 500D of the Social Security Act 1991 (Social Security Act), the first tier reviewer proceeded to make the second decision which was that Ms Gaitanis had not incurred a debt in respect of her receiving the parenting payment between 1 July 2010 and             11 October 2011.  Mr Gaitanis was not a party to the second proceeding.

3. On 3 August 2015 Mr Gaitanis lodged an application for a Second Review of Decision by the General Division of the AAT (the Tribunal).  The Secretary notified the Tribunal that it had formed the view that Mr Gaitanis was not a party whose interests were affected by the first tier review decision.

4. Although the Tribunal attempted to contact Mr Gaitanis by telephone, he was not able to be reached.  Being satisfied that appropriate notice was sent to Mr Gaitanis to the correct address given to the Tribunal for correspondence, I proceeded to hear the Secretary’s application.  After hearing submissions made by Ms A Bramley, Senior Government Lawyer, acting for the Secretary, I reached the conclusion that the Tribunal does not have jurisdiction to hear Mr Gaitanis’ application.  My reasons follow.

5. Although the first tier reviewer permitted the joinder of Mr Gaitanis as a party to that proceeding, she gave no reasons for doing so. The reviewer appears to have assumed that Mr Gaitanis had an interest because he disputed that Ms Gaitanis was the principal carer of their son during the relevant period. The problem, as Ms Bramley pointed out, is that Mr Gaitanis did not make an application for parenting payment in respect of the relevant period. It is elementary that before a social security payment can be paid, a person seeking that payment must make a claim (see s.11 of the Social Security (Administration) Act 1999). 

6. Had he done so, then plainly Mr Gaitanis would have had an interest and a right to be joined as a party to that proceeding. That is because s. 5 (18) of the Social Security Act provides that only one person at a time can be the principal carer of a particular child. Furthermore, s. 5 (19) provides that if the Secretary is satisfied that two or more persons would be the principal carer of the same child, the secretary must make a written determination specifying one of the adults as the principal carer of the child. Plainly, the adult claiming to also be the principal carer would be a person aggrieved by such a decision.

7. However, because Ms Gaitanis brought the first tier review application for the purpose of having Centrelink’s decision regarding her right to parenting payment overturned so as to extinguish the debt she owed to the Commonwealth, in order to succeed, she needed to establish that she was the principal carer of the child.  Rather than proceeding as if there were two discrete applications before her, the first tier reviewer ought to have simply treated her application as a single application.  Upon making a determination dealing with whether Ms Gaitanis was the principal carer of the child during the relevant period, the reviewer should then have proceeded to a finding regarding the debt owed to the Commonwealth.  Mr Gaitanis could only have been a person interested in that application if he had also claimed the parenting payment for the period in question.

8. The documents lodged under s. 37 of the Administrative Appeals TribunalAct1975 (AAT Act) disclose that Mr Gaitanis was receiving parenting payment up until 2 February 2005 when his then earnings precluded further payment.  He subsequently received newstart allowance from 13 May 2011.  He did not lodge another application for the parenting payment.  For that reason, Mr Gaitanis is not a person whose interests could have been affected by either decision made by the first tier reviewer.  It necessarily follows that       Mr Gaitanis is not a person who may apply to the Tribunal for a Second Review because he is not a person whose interests are affected by the decision he seeks to have reviewed   (s. 27 of the AAT Act).

   Conclusion

9. I have found that Mr Gaitanis is not a person whose interests are affected by the decision made by the first tier reviewer which he seeks to have reviewed by the Tribunal.  He is not a person who may apply to the Tribunal for review of that decision even though he was joined as a party to the first tier review.  I can find no basis in law for that joinder.

10. Therefore, I dismiss this application without proceeding to review on the ground set out in s. 42A(4) the AAT Act.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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

Associate

Dated 22 September 2015

Date of hearing	18 September 2015
Advocate for the Respondent	Ms A Bramley
Solicitors for the Respondent	Department of Human Services