LOUISE COWLEY and SECRETARY, DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 270
•23 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 270
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5620
GENERAL ADMINISTRATIVE DIVISION ) Re LOUISE COWLEY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date23 April 2009
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
..................[Sgd]......................
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – cancellation of parenting payment – absence from Australia – duration of absence extended due to family member’s health – extension of portability period due to family member’s health – absence of PP child beyond extended portability period – parent no longer qualified for parenting payment – parenting payment cancelled – decision affirmed.
SOCIAL SECURITY – Pensions, Benefits and Allowances – qualification for parenting payment – transitional provisions potentially applicable – parent not covered by transitional provisions for a period of more than 12 weeks because of extended absence from Australia – matter to be determined under amended legislation – parent does not have a PP child – parent not qualified for parenting payment – decision affirmed.
Social Security Act 1991 (Cth), ss 5, 500, 500D, 500F, 1217, 1218C
Social Security (Administration) Act 1999 (Cth), s 80REASONS FOR DECISION
23 April 2009 Mr R G Kenny, Member application
1. Following the birth of her daughter, Leah, on 2 April 1998, Louise Cowley received income support payments in the form of parenting payment under the Social Security Act1991 (“the Act”). On 15 February 2008, a Centrelink officer cancelled that payment with effect from 18 November 2007. On 3 July 2008, a Centrelink officer determined that Ms Cowley was not qualified to receive the parenting payment but was granted newstart allowance. On 3 September 2008, an authorised review officer varied the cancellation decision by amending the date of effect of cancellation to 31 January 2008. The authorised review officer also affirmed the decision in relation to Ms Cowley’s qualification for parenting payment. The Social Security Appeals Tribunal then reviewed the decisions and affirmed them on 29 October 2008.
issues and contentions for determination
2. The qualification requirements for parenting payment are set out in s 500 of the Act. One of these requirements is that a person must have a parenting payment child (“PP child”). Since 1 July 2006, the meaning of the term “PP child” is set out in s 500D of the Act. Where the child is aged less than six years or eight years, the relevant component is s 500D(1) or (2) of the Act, respectively. At all material times, Leah has been older than eight years and, accordingly, falls within s 500D(3) of the Act, which reads:
“500D(3) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the child has not turned 16; and
(c) the person is the principal carer of the child; and
(d)the person is covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F); and
(e)since 1 July 2006, there has not been any continuous period of more than 12 weeks during which the person has not at any time been covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F)”.
3. The meaning of the term “principal carer” is set out in s 5 of the Act. Relevant here is s 5(21) of the Act which reads:
“5(21) If a child:
(a) leaves Australia temporarily; and
(b) continues to be absent from Australia for more than 13 weeks;
a person cannot be the principal carer of the child at any time after the 13 weeks while the child remains absent from Australia unless, at that time:
(c)the child is in the company of a person to whom Division 2 of Part 4.2 applies; and
(d)but for this subsection, the person would be the principal carer of the child; and
(e)the person's portability period (within the meaning of that Division) for a social security payment:
(i)that the person was receiving immediately before the person's absence from Australia; or
(ii) the person's claim for which was granted during the absence;
has not ended”.
4. Transitional provisions under the Act apply where parenting payment was received prior to 1 July 2006. In that regard, s 500F(1) of the Act reads:
“500F When a person is covered by the parenting payment transitional arrangement
500F(1) Person is not a member of a couple
500F(1) Subject to subsection (3), a person is covered by the parenting payment transitional arrangement in relation to a child if:
(a)immediately before 1 July 2006, the person was not a member of a couple; and
(b)immediately before 1 July 2006, that child (or any other child) was a PP child of the person in respect of whom:
(i)a determination under section 37 of the Administration Act was in force granting a claim for a parenting payment to the person; or
(ii)a determination under section 80, 81 or 82 of the Administration Act was in force suspending payment of a parenting payment to the person; and
(c) the person is not a member of a couple; and
(d)in a case where the child has not turned 8–the person is qualified for parenting payment in relation to the child; and
(e)in a case where the child has turned 8–the person would be qualified for parenting payment in relation to the child if the child had not turned 8; and
(f)the person meets any participation requirements that apply to the person under section 500A”.
5. Relevant to the cancellation of Ms Cowley’s parenting payment is s 80 of the Social Security (Administration) Act 1999 (“the Administration Act”) which reads:
“80(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended”.
6. The issues for determination are whether Ms Cowley’s parenting payment should have been cancelled and whether she is presently qualified to receive parenting payment.
evidence
7. In 2007, Ms Cowley and Leah went to Switzerland to visit family members. Ms Cowley left Australia on 18 November 2007. Leah left earlier, with Ms Cowley’s mother, on 25 October 2007. Ms Cowley planned to return to Australia before the end of the school holidays and had a ticket with a return flight for 23 January 2008. Leah was to follow a week later with Ms Cowley’s mother. Whilst away, Ms Cowley’s grandmother, who lived in England, was diagnosed with cancer. For that reason, Ms Cowley delayed her return to Australia by one week. She arrived in Australia on 31 January 2008 but Leah remained in Switzerland with Ms Cowley’s mother. As the condition of her grandmother deteriorated, Ms Cowley again left Australia on 15 February 2008 to be with her. Her grandmother passed away on 26 May 2008 and Ms Cowley and Leah returned to Australia on 26 June 2008.
8. Before Leah left Australia in October 2007, Ms Cowley advised Centrelink of the travel intentions for herself and Leah. She advised that they would return on 26 January 2008. After realising that she would be delayed, Ms Cowley made telephone contact with Centrelink and advised that she would be arriving in Australia a week later than originally intended. She again contacted Centrelink a day or so after she arrived in Australia in January 2008 advising that Leah had not returned. When Ms Cowley returned to Switzerland, she made further contact with Centrelink to provide updated information of her movements.
9. Ms Cowley said that each of the various contacts that she made with Centrelink was with the Biggera Waters office and that, in the contacts from October 2007 until June 2008, she was advised that she would be reinstated to the same status, in relation to parenting payment, that she had before she left Australia. She accepted that she had been told that she would lose payments. However, she understood this to mean that she would receive no parenting payment while she was out of Australia but did not understand that the loss of payments was a reference to future loss after returning. Accordingly, she could not understand why, when she reapplied for parenting payment on 3 July 2008, she was advised that she was no longer qualified to receive it. Ms Cowley was critical of the attitude displayed by some Centrelink officers especially in relation to one phone contact that she had when she was in Switzerland.
submissions
10. Ms Cowley’s father, Mr Robert Cowley, assisted his daughter with her application. In summary, he said that he and Ms Cowley both understood the decision and the basis for it and accepted that, on the strict application of the relevant legislation, Ms Cowley was not qualified for the parenting payment after she arrived back in Australia without Leah in January 2008. He submitted that Ms Cowley had been honest and forthright in all of her dealings with Centrelink. He submitted that the decisions were unfair because of the representations which had been made by Centrelink to Ms Cowley about the effect that her absence from Australia would have on her qualification for the parenting payment. He submitted that Centrelink’s conduct was unconscionable in its unwillingness to accept that there were genuine compassionate grounds for Ms Cowley and Leah delaying their return to Australia. He submitted that there ought be flexibility in Centrelink’s policies such that the circumstances which arose with Ms Cowley could be taken into account.
11. Mr Guthrie, for the respondent, submitted that the legislative provisions in the Act relating to the cancellation of and the qualification for parenting payment had been properly applied in Ms Cowley’s situation. He submitted that the absence from Australia for more than 13 weeks prevented her from remaining qualified. He submitted that the Act did not include any discretion of the kind referred to by Mr Cowley which would allow for an alternative decision to be made. Mr Guthrie advised that Ms Cowley’s allegations had been investigated and that no basis was found for concluding that there had been defective administration. He also advised that her circumstances were being considered in the context of an act of grace payment being made to her. He submitted that neither of these avenues had any prospect of returning Ms Cowley to the status of being qualified for the parenting payment.
consideration
12. As noted above, s 500 of the Act requires that, to qualify for parenting payment, a person must have a PP child which, in Ms Cowley’s case, takes its meaning from s 500D(3) of the Act. This requires her to have been the “principal carer” of Leah. That term is defined in s 5 of the Act and s 5(21) thereof provides that a person cannot be a principal carer of a child who is absent from Australia for more than 13 weeks unless one of the exceptions in ss 5(21)(c), 5(21)(d) or 5(21)(e) of the Act is satisfied.
13. Paragraph 5(21)(e) of the Act refers to the portability period, which is the time during which certain types of payments may continue even though the recipient is absent from Australia. Under s 1217(4) of the Act, this is 13 weeks for parenting payment. There are circumstances listed in s 1218C of the Act which enable this to be extended. These include family illness, hospitalisation or death of a family member. Ms Cowley was granted the benefit of this provision by enabling her to remain in receipt of parenting payment until 30 January 2008. However, when she returned to Australia on that date, without Leah, her circumstances did not comply with paragraph 5(21)(c) of the Act. Accordingly, Ms Cowley was not the principal carer of Leah from 31 January 2008.
14. I am satisfied that Ms Cowley was not qualified for the parenting payment from 31 January 2008 and that, in accordance with s 80 of the Administration Act, parenting payment was no longer payable to her.
15. The present provisions of the Act relating to qualification for parenting payment commenced operation on 1 July 2006. The amending legislation[1] included transitional provisions which entitled those in receipt of parenting payment before 1 July 2006, which included Ms Cowley, to avoid the limitations which the amending legislation introduced. Of potential relevance to Ms Cowley is s 500F(1) of the Act which is set out above. As the requirements of that provision are cumulative, all must be satisfied. In Ms Cowley’s case, s 500F(1)(e) of the Act is not met. Leah had already turned eight but, from 31 January 2008, Ms Cowley would not have been qualified even if Leah had not turned eight. Accordingly, Ms Cowley no longer had transitional status. This status was lost by her for more than 12 weeks and, in accordance with s 500D(3)(e) of the Act, Leah was not a PP child of Ms Cowley. This meant that Ms Cowley’s new claim for income support payments on 3 July 2008 had to be determined in accordance with the provisions as they were applicable since 1 July 2006. Under these, in the case of a person who was not a member of a couple, a PP child had to be under the age of eight years. At that time, Leah was ten years old and Ms Cowley was not qualified for parenting payment. She was, however, granted newstart allowance.
[1] Act No 54 of 2005 (Cth).
16. I have noted the submissions of Mr Cowley. Unfortunately, the matters raised by him do not find a place in the legislative regime under the Act for parenting payment qualification. I accept Ms Cowley’s evidence in relation to her dealings with Centrelink and am satisfied that she tried to ensure that Centrelink was kept informed of her and Leah’s movements. However, the provisions outlined above do not admit of the exercise of a discretion in her favour. While I have noted Mr Guthrie’s submissions in relation to investigations of defective administration and act of grace payments, these are procedures independent of the application of the provisions of the Act and the Administration Act relevant to the determination of Ms Cowley’s application.
decision
17. The Tribunal affirms the decisions under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ...........................[Sgd]................................................
Mátyás Kochárdy, Research AssociateDate of Hearing 12 March 2009
Date of Decision 23 April 2009
Applicant was represented by Mr Cowley, her father
Solicitor for the Respondent Joe Guthrie, Departmental Advocate
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