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

[2010] AATA 310

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 310

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5039

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JENNY LI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal M. D. Allen, Senior Member

Date14 April 2010

PlaceSydney

Decision

The decision under review is SET ASIDE and is REMITTED to the Respondent for recalculation of the debt in accordance with these reasons for decision.

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

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY:  Whether Applicant entitled to Parenting Payment Partnered - Decision under review is set aside and remitted to Respondent for recalculation of debt on the basis that for part of the period under review she was entitled to Parenting Payment Single.. 

LEGISLATION

Social Security Act (1991) Sections 1223 (1), 1236, 1237(AAD)

Family Law Act (1975) section 48

REASONS FOR DECISION

14 April 2010 M. D. Allen, Senior Member          

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ............[sgd]…...............................................
  K. Lynch, Associate

Date of Hearing  14 April 2010
Date of Decision  14 April 2010
Representative for the Applicant           Ms J Li (self)

Representative for the Respondent      Mr K Bullock
  Centrelink Advocacy Branch

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:    By application made 22 October 2009, the Applicant seeks review of a decision by the Social Security Appeals Tribunal (“SSAT”) that determined, inter alia, that she was not entitled to Parenting Payment Partnered for the period 2 April 2008 to 21 April 2009. 

The Applicant married a Mr Liu in China on 13 September 2004.  At that time she was, herself, single but with two daughters.  On the Applicant’s evidence, Mr Liu came to Australia in May 2006 and lived with the Applicant and her daughters.  They lived in what was described by the Applicant as, “my home”, which was subject to a mortgage.

In March 2008, Mr Liu left Australia in order to return to China, allegedly to care for his aged mother.  At that time the Applicant was working in a factory.  She was also in receipt of Parenting Payment Partnered and a reason for granting that payment was that her husband, under the terms of his visa, was not permitted to work in Australia. 

Mr Liu returned to Australia in December 2008, and according to the Applicant, when he first came back he went to live with a friend.  He then stayed with the Applicant for about half a month, and in February 2008 they decided to divorce. 

The grounds of the divorce were pursuant to section 48 of the Family LawAct (1975), namely, that the court was satisfied that the parties had separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

The decree absolute is stated to take effect from 3 May 2009. I draw the inference that there was sufficient material before the Federal Magistrates Court to satisfy that court that the provisions of section 48 of the Family Law Act (1975) had been met.  Therefore, I consider that the Applicant, when she made her statement to Centrelink on 6 May 2009 that she had separated from her husband on 31 March 2008, was recounting the correct facts of the relationship between her and her former husband.  It may well be, and I do not consider I am required to make a definitive ruling on this matter, that at the time the applicant’s former husband was in China she did not regard the consortium vitae as having been destroyed, so that any statement to Centrelink regarding the continuing existence of the marriage was not wilfully false.

Notwithstanding that, however, it is quite clear now that the Applicant and her husband, from the period 31 March 2008 until the time they filed for the divorce, were living separately and apart and, thus, she was not entitled to the payment of Parenting Payment Partnered.  Section 1223 of the Social Security Act (1991) (“the Act”) states in subsection 1:

“If a social security payment is made and the person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit, the amount of the payment is a debt due to the Commonwealth by the person, and the debt is taken to arise when the person obtains the benefit of the payment.”

Therefore, it is quite clear that the Applicant is obliged to repay the amount of Parenting Payment Partnered received by her in the period from 31 March 2008 to 21 April 2009. 

There are various provisions of the Act which allow for the waiver of a debt.  Suffice it to say I am satisfied the debt did not arise due to administrative error. 

In addition, I see no special circumstances in this matter which would permit a waiver due to the provisions of section 1237(AAD) of the Act. 

Section 1236 of the Act also provides for writing off of a debt, however, the Applicant is in receipt of social security benefits and the provision arises to make repayment from those benefits.  There is provision in subsection 1236(1)(c) to write off the debt if the Applicant is in severe financial hardship.  To show severe financial hardship, an Applicant does not have to be in abject penury, but the word “severe” qualifies the term “financial hardship” so that her circumstances must be such as to be more than the straightened circumstances which generally afflict most beneficiaries of social security payments.  I see no such evidence in this matter.

There remains the question of what I would no doubt inaccurately term a “set off”.  In this matter, if the applicant had advised Centrelink of her changed marital status at the commencement of the separation period, she would still have been entitled to Parenting Payment.  However, that payment was, or would have been, qualified by the requirement of the Applicant to have to undertake activities in seeking to obtain work.  Of course, at this stage it is impossible for the Applicant to meet that criteria except for a period of six months when she was in work.  It seems to me, therefore, that the Applicant should be entitled to a credit in relation to the period that she was fulfilling, in fact, the criteria for the payment of parenting payment.

The net effect of the decision of the tribunal is that in the gravamen of the decision under review, namely, that the Applicant was not entitled to Parenting Payment Partnered in the period 31 March 2008 to 21 April 2009 is the correct decision.  However, the amount due to be refunded to the Commonwealth must be offset by the sum which would have been paid to the Applicant for the time she fulfilled the criteria for Parenting Payment Single.  The decision of the Tribunal will be, therefore, that the decision under review is SET ASIDE and this matter REMITTED to the Respondent for recalculation of the debt in accordance with these reasons for decision.

END OF EXTRACT