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

[2011] AATA 750

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2011] AATA 750

ADMINISTRATIVE APPEALS TRIBUNAL      )          

)          No 2011/1661

GENERAL ADMINISTRATIVE DIVISION		)
Re		LRKR

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date26 October 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

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

Mr R P Handley
  Deputy President

CATCHWORDS

SOCIAL SECURITY – parenting payment single – eligibility – application of parenting payment transitional arrangement – claim must be in writing – no determination in force granting parenting payment prior to 1 July 2006 – decision under review affirmed

RELEVANT ACTS

Social Security Act 1991: ss 500, 500D, 500F

Social Security (Administration) Act 1999: ss 12, 13, 16, 23, 37

CITATIONS

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; (1988) 15 ALD 657; (1988) 81 ALR 687; (1988) 9 AAR 260

Re Martin and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 95

REASONS FOR DECISION

26 October 2011 Mr R P Handley, Deputy President

1.LRKR has applied for the review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 30 March 2011 which affirmed decisions of Centrelink dated 4 February 2011 to grant her claim for parenting payment single (PPS) from 7 August 2006 and to cancel her PPS in November 2008.

BACKGROUND

2.LRKR has two children born, respectively, in 1997 and 2000.  She states that she and her former husband separated in April 2006 although he continued to live separately in the same house until he moved out on 2 July 2006.  She states that she phoned Centrelink towards the end of April 2006 to inquire whether she could claim any social security benefits.  The Centrelink officer who took the call asked for her customer reference number but because she did not have this with her she told the officer to treat her call as a general enquiry.  LRKR says she was advised that she would normally have to wait until her husband moved out of the house before she could be paid parenting payment.  She was not advised of the possibility of being paid PPS as separated under one roof and she was not invited to make a claim for PPS.  Centrelink has no record of this telephone contact.

3.After LRKR’s husband moved out on 2 July 2006, LRKR states that she was too busy to contact Centrelink because of the school holidays and because she was preparing to resume work after three years out of the workforce.  Eventually, she went into a Centrelink office on 7 August 2006 and said she wanted to claim parenting payment.  She states she was not asked about when she separated from her husband nor advised about claiming PPS while separated under one roof. 

4.On 21 August 2006, LRKR lodged a claim for PPS.  This claim was rejected on the basis that her income exceeded the allowable limit.  On 31 October 2006, LRKR made a further claim for PPS which was approved for payment at a reduced rate because of her income, with payments dating from an earlier phone call LRKR made to Centrelink on 23 October 2006.

5.In November 2008, LRKR’s PPS was cancelled because her youngest child had turned eight.

6.In November 2010, LRKR contacted Centrelink requesting a review of the decision to cancel her PPS.  On 18 November 2010, she lodged a completed form entitled ‘Relationship Details – Separated under one roof’ and asked to have PPS backdated to April 2006.  On 25 November 2010, a Centrelink officer decided that she should not be receive back payments of PPS.  The officer incorrectly referred to the decision as one affirming a decision made on 1 April 2006 to not pay her PPS.  The officer gave as the reason for the decision that LRKR had not lodged an application for review within 13 weeks. 

7.On 4 February 2011, an authorised review officer made two review decisions.  The first review decision was to set aside the original decision to reject LRKR’s application for parenting payment made on 21 August 2006 and to substitute a decision that LRKR should have been paid PPS from 7 August 2006 and was therefore entitled to arrears of PPS for the period 7 August 2006 to 22 October 2006.  The second review decision was to affirm the decision to cancel LRKR’s PPS in November 2008.

8.On 15 February 2011, LRKR applied to the SSAT for a review of the decisions to grant her PPS from 7 August 2006 and not a date earlier, and to cancel her PPS in November 2008.

9.On 30 March 2011, the SSAT affirmed the decisions under review and, on 5 May 2011, LRKR applied to the Tribunal for a review of the decision of the SSAT.  LRKR also applied for compensation under the ‘Compensation for Detriment caused by Defective Administration’ (CDDA) scheme but her claim was refused.  She sought a review of this decision by the Commonwealth Ombudsman but the Ombudsman was not satisfied there were grounds for the payment of compensation under the scheme.

RELEVANT LEGISLATION

10.Section 500 of the Social Security Act 1991 (the Act) provides relevantly that a person is qualified for parenting payment if “the person has at least one PP child (see sections 500D and 500F to 500H)”. With effect from 1 July 2006, amendments were made to the Act whereby PPS was no longer ordinarily payable once the child turned eight, rather than 16 which was previously the case. However, s 500D(3)(d) allowed an exception if, relevantly, “the person is covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F)”. In such cases, PPS continues to be payable until the child turns 16.

11.Subject to an exception which is not relevant in this case, a person is covered by the parenting payment transitional arrangement in relation to a child if, immediately before 1 July 2006 the person was not a member of a couple and the child was a PP child of the person in respect of whom pursuant to s 500F(1)(b)(i) “a determination under section 37 of the Social Security (Administration) Act 1999 (the Administration Act) was in force granting a claim for a parenting payment to the person”.

12.A determination is made under s 37 of the Administration Act where the Secretary is satisfied that the claimant satisfies the qualification and payability criteria. In LRKR’s case, such a determination was not made before 1 July 2006.

13.The issue for me to decide is whether such a determination should have been made before 1 July 2006 so that (1) the transitional arrangement would apply with the result that LRKR would be eligible to be paid PPS until her younger child turns 16, and (2) LRKR would be entitled be paid arrears of PPS to April 2006.

Discussion

14.LRKR says that when she telephoned Centrelink in April 2006, it was clear that her marriage had broken down.  She and her husband were barely ever communicating: he would leave early and come home late and sleep in a separate room.  At that time, she had taken three years off to look after their children and so was not working.  It appears that the Centrelink officer to whom LRKR spoke was located at a call centre.  When the officer asked her for her customer reference number, because LRKR did not have this with her, she told the officer to treat her call as a general enquiry.  When LRKR explained her situation, the officer told her that she would normally have to wait until her husband had moved out of the home before being eligible for parenting payment.  She says she was not informed of eligibility requirements for a parenting payment single as separated under one roof or that she could make a claim to test her eligibility.

15.LRKR contends that she was misinformed about her entitlements: that Centrelink failed in their duty of care towards her with the result that she has suffered significant financial hardship.  At that time, she believed she had been given the correct information and because she then had other matters to deal with relating to the breakdown of her marriage and caring for her children, she did not pursue the issue.

16.After her husband moved out on 2 July 2006, LRKR was dealing with the school holidays and preparing to go back to work.  She went back to work after the holidays, working four hours a day and 20 hours a week.  Towards the end of July 2006, LRKR phoned Centrelink about claiming PPS and was told that she would have to go into a Centrelink office to complete a claim form, which she did about a week later.  She did not at that time mention the phone call she had made to Centrelink in April 2006.

17.The Department states that notwithstanding any contact LRKR may have had with a Centrelink officer by phone in April 2006, s 16 of the Administration Act requires that a claim for a social security or family assistance payment must be in writing in accordance with a form approved by the Secretary of the Department: Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 (Formosa), at 124 [37]. However, pursuant to s 13(1) of the Administration Act, where a person contacts Centrelink in relation to a claim for a social security payment and subsequently lodges a claim for the social security payment within 14 days of the earlier contact, the person is taken to have made the claim on the day on which the person contacted Centrelink. It is this provision that allowed the authorised review officer to backdate payments to 7 August 2006.

18.The Department contends that in any event LRKR cannot benefit from the transitional arrangement because no determination had been made under s 37 of the Administration Act before 1 July 2006 that LRKR was qualified for payment of PPS and that PPS was payable.

19.LRKR referred me to the Tribunal decision in ReMartin and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 95. In that case, the Tribunal applied s 12 of the Administration Act then in effect in deeming the applicant to have made a claim on 26 June 2006. Unfortunately for LRKR, s 12 is not applicable in her case. Prior to its amendment on 1 January 2008, s 12(1) stated:

Subject to subsection (3), if:

(a)       a person is receiving an income support payment; and

(b)while receiving the payment, the person becomes qualified for another income support payment (the other payment); and

(c)the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.

20.‘Income support payment’ is defined in s 23(1) of the Act as meaning:

(a)  a social security benefit; or

(aa)  a job search allowance; or

(b)  a social security pension; or

(c)  a youth training allowance; or

(d)  a service pension; or

(e)  income support supplement.

21.At the relevant time in April 2006, LRKR was receiving family tax benefits for her children but none of the above income support payments. I note in particular, that ‘social security benefit’ is also defined in s 23(1) of the Act as including a number of allowances and payments but not family tax benefits. Similarly, none of the other payments are defined in such a way to include family tax benefits. Thus, LRKR is unable to rely on s 12.

22.I am not unsympathetic to the case put by LRKR, given, as she states, that she was not aware of the relevant law in April 2006 and her reliance on what I accept was advice she received from a Centrelink Call Centre officer as a result of which she assumed she was not then eligible for PPS.  Notwithstanding this, the relevant legislative provisions only permit the deeming of the making of a claim before the date on which the actual claim was lodged in certain very limited circumstances. 

23.The first point to note is that, as Mr Slattery, for the Secretary, stated, and as the Full Federal Court in Formosa recognised, s 16 of the Administration Act requires that a claim for a social security or family assistance payment must be in writing in accordance with a form approved by the Secretary. LRKR did not lodge such a claim until 21 August 2006. However, because she was issued with a claim form by Centrelink on 7 August 2006 when she contacted Centrelink about making a claim for PPS, and because on 7 August 2006 she was qualified for PPS and she subsequently lodged her claim within 14 days of 7 August, s 13(1) of the Administration Act provided for the claim to have been deemed to be made on 7 August. It was for this reason that the Authorised Review Officer concluded that she should be paid arrears of PPS from 7 August 2006 to 22 October 2006.

24.LRKR contends that she should be deemed to have made a claim in April 2006 when she first contacted Centrelink and was given inaccurate advice. However, there is no applicable exception to the general rule requiring that a claim must in writing on an approved form which would permit the deeming of the making of a claim at that time. The exceptions provided for in s 13 of the Administration Act do not apply because at the time she made contact with Centrelink in April 2006 she was not issued with a written notice by the Secretary (Centrelink) acknowledging that the Department had been contacted in relation to the making of the claim, which is a requirement for each of the exceptions.

25.There was also no determination in force granting PPS to LRKR before 1 July 2006 that would have brought her within the parenting payment transitional arrangement provided for in s 500F of the Act.

26.Whilst I sympathise with LRKR’s predicament and the effect that this outcome has on her in so far as she will not continue to be entitled to payment of PPS until her younger child reaches the age of 16, I regret that the law does not in my view permit a different outcome.

Decision

27.The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:..............[sgd].................................................................
  Associate

Date of Hearing  19 October 2011
Date of Decision  26 October 2011
Representative for the Applicant               Self-represented

Representative for the Respondent          B Slattery, Department of Human Services Legal Service Division