Layden and Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 1057

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1057

ADMINISTRATIVE APPEALS TRIBUNAL      )         No 2010/3729

)          

GENERAL ADMINISTRATIVE DIVISION		)         DIANNE LAYDEN
Re

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date 22 December 2010

PlaceCanberra

Decision  The decision under review, to cancel Mrs Dianne Layden’s Partner Allowance, is affirmed.

.

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

Professor RM Creyke, Senior Member

CATCHWORDS

SOCIAL SECURITY – partner allowance – whether partner allowance should have been cancelled where 12 weeks nil assessment period – incorrect advice – decision under review affirmed

Social Security Act 1991 (Cth) ss 23(4A), 771HA, 771HC

Social Security (Administration) Act 1991 (Cth) s 80

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93

REASONS FOR DECISION

22 December 2010

Professor RM Creyke, Senior Member

1.       Ms Dianne Layden commenced receiving partner allowance on 29 August 2003.  Her husband was in receipt of a disability support pension.

2.      Mrs Layden has part-time employment and does some voluntary work.  In late 2009 her husband also obtained employment. As a consequence, the joint income of the couple exceeded the allowable limit for any payment.

3.      As this situation continued for a period greater than 12 weeks, Centrelink cancelled Mrs Layden’s partner allowance on 26 May 2010.

4.      Mrs Layden sought review of the decision and on 25 June 2010 an Authorised Review Officer affirmed the decision.

5.      Mrs Layden sought review by the Social Security Appeals Tribunal which, on  5 August 2010, affirmed the decision.  On 1 September 2010, Mrs Layden sought further review by the Tribunal.  The matter was heard in Canberra on 20 December 2010.

Legislation

6.      The relevant legislation is found in the Social Security Act 1991 (Cth) (Act) and the Social Security (Administration) Act 1999 (Cth). Section 771HA of the Act provides the qualifications for partner allowance. Section 771HC(1) of the Act provides that no partner allowance is payable if the allowance rate as assessed in accordance with the income and assets provisions of the Act is Nil. If the assessed allowance remains as Nil for 12 weeks (section 23(4A) of the Act), the partner allowance is to be cancelled (Social Security (Administration) Act 1991 (Cth) section 80).

Issues

7.      The only issue is whether the decision to cancel partner allowance was correct.

Background

8.      Mr and Mrs Layden are married and live in Crookwell, NSW.  Mrs Layden is 59 years of age.  Mr Layden is in receipt of disability support pension. It is accordingly their combined income and assets that are relevant in assessing her entitlement to partner pension.

9.      In 2003 when she applied for partner allowance, in response to the question ‘Have you worked 20 hours or more a week in the last months?’ Mrs Layden said  she had worked 6 hours a week at Crookwell Library, 4 hours a week at the South Region Community College, and as an examination supervisor at Mulwaree High School. Partner allowance was granted from 29 August 2003.

10.      At the same time, Mrs Layden was advised that the law had changed. As a consequence no new claims for partner allowance were available.  Further, if her partner allowance ceased for any reason she would not be permitted to reclaim partner allowance, and she would need to qualify for another type of payment.

11.     As required, Mrs Layden, continued to advise Centrelink, Goulburn of her earnings.  Mr Layden also advised Centrelink of his earnings from employment. At one point Mrs Layden’s partner allowance was cancelled in error.  However, when she advised Centrelink of the error the payment was reinstated.

12.     In September 2009 Mr and Mrs Layden specifically enquired of Centrelink, Goulburn what would be the effect on Mrs Layden’s partner allowance and Mr Layden’s disability support pension if he took up a short term work opportunity.  Mrs Layden said they did this because she knew that if circumstances change for pension and allowance recipients, they must notify Centrelink.

13.     Mrs Layden said that a Ms Baird, a Customer Service Adviser at Centrelink Goulburn, advised that if Mr Layden worked more than 30 hours a week for two weeks his pension would be cancelled unless he applied for Return to Work status.  That Return to Work classification meant he could work for up to two years without losing the disability support pension, although the pension would be means tested.  At the same time, the advice was that Mrs Layden could remain on partner allowance for the same period (up to two years) but would receive no payment when the couple’s  income and assets in combination exceeded the limit.

14.     Mrs Layden relied on that information. It suited the couple’s circumstances, since the two year period would not conclude till September 2011 when Mr Layden will turn 65. Mrs Layden said at the hearing that had she known the correct position they would have changed their plans when Mr Layden was offered work.  As she said, they were not informed by Ms Baird about the possibility of cancellation of partner allowance if Mrs Layden’s assessment for at least a 12 week period would be Nil. The letter from the Authorised Review Officer dated 25 June 2010 apologised for this lack of information.

15.     Mrs Layden said she requested that the information be confirmed in writing. In response Centrelink provided a letter on 11 September 2009 containing a print out of the policy on partner allowance.  That policy was, however, not accurate since it related to the position where both members of a couple are on partner allowance, not, as in the Laydens’ case,  where one partner is on a disability support pension. Mrs Layden did not contact Centrelink again to question that policy advice. Rather,  she relied on the oral advice she had been given that there would be no effect on her eligibility for partner allowance for a two year period. 

16.     On 18 March 2010, as a consequence of Mr Layden’s earnings, their combined income exceeded the allowable limit for earnings for a couple, and Mrs Layden’s partner allowance was assessed as Nil for the period commencing 3 March 2010. 

17.     That position continued for the next six fortnights, that is twelve weeks. On 26 May 2010, the system automatically cancelled Mrs Layden’s partner allowance. On 25 May 2010 Mrs Layden was advised that her partner allowance had been cancelled.  When she phoned to seek the reason for the cancellation she was told that as she had not received partner allowance for a 12 week period, she was no longer eligible for partner allowance, and it was cancelled accordingly. When she requested reinstatement of the allowance this was refused. Centrelink telephoned her two days later to confirm the decision and Mrs Layden was advised to apply for a newstart allowance.

18.     Mrs Layden complained about the decision because she said she had been advised by a Centrelink officer that even if her husband returned to work this would not affect her partner allowance for two years. Since she now has to apply for newstart allowance Mrs Layden is now subject to the activity test. She has lost the opportunity to receive a pension without having to indicate that she has met the activity test; the requirement to obtain 30 hours of paid and/or unpaid work every fortnight and meet the minimum number of attempts per fortnight to obtain work. 

19.     Mrs Layden’s says that for her to meet the activity test is difficult given her age, her health (she has arthritis), and the limited employment opportunities available in Crookwell. Further, she was advised that the voluntary work she undertakes with the Historical Society and the Picnic Race Club would not qualify as it was not ‘meaningful’. 

20.     Mrs Layden admitted at the hearing that subsequently she has been advised that her work with the Historical Society may qualify because the organisation is registered with Centrelink for this purpose and that her work on a committee of the Crookwell Hospital, another registered body, may also be recognised for this purpose. 

21.      Later when she rang to register for newstart allowance, Mrs Layden was told that she was required to look for fulltime work for at least 30 hours a week, a different amount of work to the information she was initially given.  Her historical record indicates she would have difficulty meeting that target. Mrs Layden was also advised that she would be exempted from this requirement while her review applications were in progress. Later she was told that this too was incorrect information.

22.     Mrs Layden was also concerned, given this history, that original documents she had been required to send Centrelink might be lost, and that an error which showed her income for 14 hours work as $675,045 would not be corrected as she had asked. These errors, although understandably unsettling, have no bearing on the issue of Mrs Layden’s eligibility for partner allowance.

23.     Mrs Layden is now receiving newstart allowance and payments have been back paid to the period when the couple’s combined income did not exceed the allowable limit. So, she has not suffered any financial loss as a consequence of the change. She also has a medical certificate to say she is not capable of working more than 16 hours a fortnight. Following a Job Capacity Assessment interview, she has been advised that the assessor agrees that her work capacity is between 16 and 22 hours a fortnight.  She is waiting for the letter to confirm this advice. As Mrs Layden is over 55 years of age, the Centrelink advocate confirmed at the hearing that this would reduce the amount of hours Mrs Layden would be required to work per fortnight. 

Consideration

24.     Mrs Layden contends that her partner allowance should not have been cancelled since she was reassured by the officer to whom she spoke in Centrelink, Goulburn that their benefits would not be affected for a period of two years if Mr Layden went back to work.

25.     In response, Centrelink has advised that the information was provided as general advice only and since it failed to take account of the couple’s specific circumstances it was only partially correct. Mrs Layden conceded at the hearing that in September 2009 when she enquired at Centrelink, Goulburn she did not know how much Mr Layden would be earning or for how long he would be working.  His work is seasonal, and he does not know more than a week in advance how long it will last or whether it will be full-time. At the time she sought the information from Centrelink Mr Layden’s relevant work had not yet commenced and Mrs Layden she could not have provided these specific details.. At the same time, she said she was not asked about such details and was not aware of their significance.

26.     In  response to the suggestion that the information provided by Centrelink was only incomplete, Mrs Layden said the information was both incomplete and incorrect. She conceded that  the information was incomplete to the extent that she was not advised of the effect on partner allowance of a 12 week nil assessment period. Mrs Layden said the advice was also incorrect, since the information she was provided in writing only related to the situation where both members of a couple are on partner allowance.  This did not apply to their circumstances as Centrelink, because of its records of Mr Layden’s disability support pension, should have known.

27. On the facts as given in evidence, the Tribunal finds that for the period 3 March 2010 to 26 May 2010, Mr Layden’s earning exceeded the threshold for payment of any benefit. That period was at least 12 weeks in length. That means, under section 80 of the Social Security (Administration) Act 1999 (Cth), that the Secretary was entitled to cancel the partner allowance.

28.     The advice given to Mrs Layden on which she relied was only partially correct, since it did not take into account the actual circumstances which arose when Mr Layden began his short term employment. That information was not available to Centrelink at the time of Mr and Mrs Layden’s enquiries. Despite the partial information which misled Mrs Layden, the cancellation decision was correct. In any event, Centrelink is not prevented by incorrect advice of its officers from correctly applying the law.[1]

[1] Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93.

29.     As a consequence, Mrs Layden must reapply for any suitable pension or benefit.  Available allowances and benefits do not include partner allowance since, with limited exceptions, no claims for partner allowance may be made after 20 September 2003. Mrs Layden has already applied, and qualified for newstart allowance.

30.     Mrs Layden was misadvised. This Tribunal, however, is able to take into account only whether she qualified for partner allowance at the relevant time.  It is not able to exercise a discretion to change a decision which has been made in accordance with the Act where, as here, no discretion is available under the Act.

31.     Mrs Layden was advised that at the hearing of the Commonwealth government’s discretionary compensation mechanisms and she was provided with the documentation concerning such payments. However, on the evidence provided she has not suffered any financial loss, meaning none of these schemes are available.

32.     The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.

Signed:  .....................[sgd].................................
  C. Baillie, Associate

Date of Hearing  20 December 2010
Date of Decision  22 December 2010

Solicitor for the Applicant               Ms Glenda Heggen, Centrelink Advocacy Branch

Solicitor for the Respondent          Self represented