Martin and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 95
•5 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 95
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600383
GENERAL ADMINISTRATIVE DIVISION ) Re RAVINDRANATH MARTIN Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Date 5 February 2008
PlacePerth
Decision The Tribunal: 1. Sets aside the decisions, of the Social Security Appeals Tribunal made on 18 October 2006 and the Respondent made on 21 August and 1 September 2006, that the start date of the Applicant’s parenting payment is 5 July 2006;
2. Substitutes a decision that:
(a) the Applicant is the person in relation to whom Layla Gill-Martin is to be the PP child, with effect from 26 June 2006; and
(b) the start date of the Applicant’s parenting payment is 26 June 2006;
3. Remits the matter to the Respondent with a direction that the Respondent is to:
(a) give a copy of this determination to Caroline Gill; and
(b) make any adjustment to the Applicant’s social security payment required to give effect to this determination.
…......[Sgd Ms LR Tovey]........
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – effective start date
Social Security Act1991 (Cth), ss. 5, 23, 500, 500D, 500E.
Social Security Administration Act 1999 (Cth), ss. 11, 12, 13, 16, 42, Schedule 2 items 3 and 26.
Burgess v Secretary, Department of Family and Community Services [2004] FCA 136
Re Halime and Secretary, Department of Employment and Workplace Relations [2007] AATA 1345
Re McAlister and Secretary, Department of Family and Community Services (2005) 86 ALD 681
Re Mulholland and Secretary, Department of Employment and Workplace Relations [2006] AATA 225
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461
Secretary, Department of Social Security v Lowe (1999) 92 FCR 26
Vidler v Secretary, Department of Social Security (1995) 61 FCR 370
REASONS FOR DECISION
5 February 2008 Ms LR Tovey, Member 1. This is an application by Mr Ravindranath Martin (“the Applicant”) for a review of the decision of the Social Security Appeals Tribunal (“the SSAT”) made on 18 October 2006. The SSAT affirmed the decision of a delegate of the Secretary, Department of Employment and Workplace Relations (“the Secretary”) made on 1 September 2006 to pay the Applicant parenting payment from 5 July 2006 and not from an earlier date.
FACTS
2. The Applicant is the father of Layla Gill-Martin, who was born in April 2002. At the beginning of June 2006 he was in receipt of newstart allowance and family tax benefits for an agreed 20% shared care of Layla. The Applicant had been living in New South Wales since February of that year. While he had contact with his daughter, and she visited him for a period, Layla lived principally with her mother, Caroline Gill, in Perth over this time. The Applicant and Ms Gill separated in about 2004.
3. The Applicant gave evidence, which I accept, that he returned to Perth on 23 June 2006. Between 23 and 26 June 2006 he had discussions with Ms Gill about Layla’s care arrangements and, on 26 June 2006, the Applicant and Ms Gill agreed that they would each have 50% care of Layla. Layla stayed with the Applicant for the first week after this agreement was reached, with her mother for the second week and after that the Applicant and Ms Gill had the care of Layla for half a week each. It was agreed on 26 June 2006 that the Applicant would seek parenting payment on the basis that he was Layla’s primary carer.
4. For the purposes of maintaining his newstart allowance, the Applicant was required to attend a Centrelink office on 29 June 2006. The Applicant thought that this was the opportunity to make a claim for parenting payment. The Applicant was also keen to get to a storage facility in Fremantle to obtain some documents he required to prepare for a job interview on the following day. He needed to use public transport to get to the facility by the close of business on the day of his Centrelink interview.
5. The Applicant’s evidence, which I accept, was that on 29 June 2006 he waited in a queue for about 45 minutes before getting to the reception desk at Centrelink’s Fremantle office. When he got to the desk, which was manned by Ms Jessup, he said “I have to lodge my form and I want to go – I have two issues to deal with and I want to go onto parenting payment”. The Applicant was told that his request would take longer than just handing over the form, and that he would have to undergo an assessment for “mutual obligation” with a Centrelink officer.
6. After further waiting, the Applicant was interviewed by another Centrelink officer, Ms Jones. She arranged for the Applicant to complete two forms – an Application for Payment Form for Newstart Allowance and a Preparing for Work Agreement. This was the first Preparing for Work Agreement which Ms Jones had done and she was having some difficulty with the computer. She required the assistance of another Centrelink officer to complete the form.
7. The Applicant gave evidence, which I accept, that during his interview with Ms Jones, he indicated that he wanted “to go on a parenting payment”. The Applicant indicated to Ms Jones that he thought the process of completing what he referred to as a “mutual obligation work agreement” was a waste of time, given that he was going on a parenting payment. However, Ms Jones indicated to the Applicant that he needed to complete the form to receive newstart allowance for the past two weeks in which the Applicant had been looking for work.
8. On 29 June 2006 the Applicant signed an Application for Payment Form for Newstart Allowance and a Preparing for Work Agreement.
9. Part of the Agreement provided that the Applicant would start part-time work by 31 July 2006 and do at least 130 hours of part time work in the period from 19 June 2006 to 18 December 2006. It was also agreed that the Applicant would make 4 job search contacts each fortnight from 29 June 2006 to 21 September 2006. The Applicant’s evidence, which I again accept, was that Ms Jones adjusted the initial requirements proposed, by reducing his obligations to account for his increased parental responsibility.
10. The application form, signed by the Applicant on 29 June 2006, asked the Applicant to indicate whether a number of things happened during the period 16-29 June 2006. One of those events was that a child under 16 came into his care. The Applicant ticked the box on the form that indicated than none of those things happened or changed. I do not consider this answer to be inconsistent with the Applicant’s evidence as to the changed shared care arrangements in relation to Layla on 26 June 2006. Layla was already in the Applicant’s care prior to 16 June 2006. The arrangement on 26 June 2006 did not alter that circumstance, but merely provided for a change in the degree of responsibility of the Applicant and Ms Gill in respect of a child who remained to the shared care of both parents.
11. In finding the above facts I have taken account of the evidence of Ms Jessup and Ms Jones.
12. Understandably, Ms Jessup could not recall the events of 29 June 2006. Given that, I did not find her evidence to be of assistance in resolving the matter.
13. Ms Jones did recall some aspects of her contact with the Applicant on 29 June 2006. She recalled seeing the Applicant and having to action “an activity agreement, or a mutual obligation, I can’t quite remember which one”. She recalled that it was a busy day and that she was having problems with the computer system, and it took a “little while” to complete the task. She said that the Applicant appeared agitated and it seemed like he was in a hurry to get out of the office. Otherwise she could not recall details of the conversation she had with the Applicant which, given the passage of time and the number of customers with which Ms Jones is required to deal, is again understandable.
14. Ms Jones gave evidence that parenting payment was one her areas of expertise. She said that her practice in a case where a person said that they wanted to go on a parenting payment would be to record the date of the contact on Centrelink’s computer system and issued a letter and claim forms which the customer would have 14 days to complete. As she could not recall the details of her contact with the Applicant on 29 June 2006, she could not say what occurred on that particular occasion.
15. Having regard to the evidence of the Applicant, Ms Jessup and Ms Jones, I find that the Applicant did indicate to both Ms Jessup and Ms Jones that he wished to claim parenting payment. I consider it probable that Ms Jessup did not make a record of this request because she was referring the Applicant to Ms Jones. I find that Ms Jones was somewhat distracted and flustered due to the unfamiliarity of the task she was performing, her difficulties with the computer system, the busy state of the office and the agitation of the Applicant. I consider it probable that this led her either not to comprehend, or not to properly record, the Applicant’s request to claim parenting payment, which was made at that time.
16. I find from the evidence of the Applicant and the computer record of Centrelink (T4) that the Applicant again attended Centrelink’s Fremantle office on 30 June 2006 and requested a print out of the shared care arrangements for Layla since 2004.
17. Centrelink computer records (T5 and T6) indicate that on 5 July 2006 the Applicant contacted Centrelink's call centre regarding a general inquiry for newstart allowance, in the course of which he indicated that he wished to claim parenting payment. There was some discussion of the manner in which the application should be made and, while the Centrelink officer was making inquiries away from the phone, the phone disconnected. The Applicant subsequently attended the counter at Centrelink’s Fremantle office and reiterated his request. He indicated at that time that he had taken 50% care of his child on 26 June 2006, and requested that the payment be backdated.
18. On the same day the Applicant lodged with Centrelink a form entitled “Details of Your Child’s Care Arrangements”. The form was signed by the Applicant on 5 July 2006 and by Ms Gill on 4 July 2006. The form indicates that the Applicant and Ms Gill were each sharing 50% care of Layla and that the arrangement started on 26 June 2006. That is consistent with the Applicant’s evidence as to the date of the arrangement.
19. The Secretary also sought to rely on Centrelink records as to requests made by Ms Gill in relation to parenting payment. The records indicate that Ms Gill contacted Centrelink Fremantle on 5 July 2006 and that “cus has cancelled payment as father of child will be claiming PPS”. The Secretary sought to rely on the use of the future tense in this record as supporting the proposition that the arrangement for shared care took effect only from 5 July 2006.
20. Ms Gill was not called to give evidence before me, and the matters referred to in the previous paragraph were not put to the Applicant in the course of his evidence before me. The terms in which the record is made are equivocal, and there is no evidence as to the extent to which the record reflects the language used by Ms Gill when she spoke to Centrelink. I do not regard the record referred to by the Secretary as providing a basis on which I should reject the Applicant’s evidence that the changed arrangements for the shared care of Layla were made on 26 June 2006.
21. Also on 5 July 2006 the Applicant completed a form entitled “Newborn / Child Claim for Family Assistance and Medicare”.
22. On 7 July 2006 Centrelink wrote to the Applicant indicating that:
“This letter is to advise you of the decision made about your share of Family Tax Benefit.
After reviewing your care arrangements to Layla, your share of Family Tax Benefit has been assessed at 50% from 26 June 2006. You will shortly receive a notice advising you of your new rate of Family Tax Benefits and your obligations.
This decision is made under the Family Assistance Act 1999 section 59”.
23. On 10 July 2006 Centrelink wrote to the Applicant advising that his Newstart Allowance had been cancelled with effect from 5 July 2006 “because you may be eligible to receive another payment which is more appropriate to your circumstances”. On the same day a letter was sent requesting the Applicant to provide a new estimate of his total family income.
24. The Applicant provided the requested information by telephone on 10 July 2006. On 11 July 2006 a further letter requesting certain “verification documents” by 25 July 2006 was sent to the Applicant, and he was advised that he would receive parenting payment with effect from 5 July 2006.
25. Also on 11 July 2006 the Applicant lodged a signed “Customer Declaration Form Parenting Payment - single”, which was the form for claiming parenting payment. While the date on the form appears to be 17 July 2006, and at one point the Secretary submitted this was the lodgment date, in the end it was common ground between the parties, and I accept, that the form was lodged with Centrelink on 11 July 2006.
26. Centrelink computer records (T30) indicate that on 14 July 2006 the Applicant attended at Centrelink’s Fremantle office At that time he requested forms to appeal against the decision as to the date his parenting payment was to commence. He provided a signed statement to Centrelink in the following terms:
“I have recently moved back to Western Australia to take over the primary care of my daughter Layla. I arrived on the 23rd of June and organised suitable accommodation by the 26th June. On this date I began primary care of Layla and have done so since.
I arranged shared care of my daughter to begin on the 26th of June. It took a week to organise the appropriate form to be completed by Layla’s mother …
I brought the completed shared care form into Centrelink at the first opportunity which was the 5th of July and arranged the interviews to receive PPS.
I am requesting PPS be backdated to 26/06/06 when I began primary care…”
27. On 17 July 2006 Ms Gill is recorded as contacting Centrelink in Fremantle wanting to know the procedure to re-claim PPS. She is recorded as having been told that the Applicant’s claim for PPS would not be backdated to prior to 1 July 2006 as the claim was made on 5 July 2006.
28. On 21 August 2006 a Centrelink officer reconsidered and confirmed the decision to commence parenting payment from 5 July 2006, on the basis that there was no record of a request prior to 5 July 2006.
29. The Applicant then sought a further review by an Authorised Review Officer (ARO) of the Secretary. The ARO accepted that the Applicant’s shared care of Layla increased to 50% from 26 June 2006 and that Layla became the Applicant’s “Parenting Payment child” on that date. However, in the absence of any evidence of the Applicant indicating his intention to claim parenting payment on 29 or 30 June 2006, the ARO concluded that the payment could only be backdated to 5 July 2006. The ARO therefore confirmed the decision under his review on 1 September 2006.
30. The Applicant sought a further review of the decision by the SSAT which, on 18 October 2006 affirmed the decision under its review. On 6 November 2006 the Applicant sought a further review of the decision by this Tribunal.
LEGISLATIVE BACKGROUND
31. Provision for parenting payment is made by part 5.10 of the Social Security Act 1991 (Cth) (“the Act”). The provisions in relation to qualification for parenting payment were relevantly amended by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) (Consequential Amendments) Act 2006 (Cth) (“the 2006 Amendment Act”), which took effect on 1 July 2006. As the parties are in dispute as to whether the start date of the Applicant’s parenting payment is before or after 1 July 2006, it is necessary to consider the provisions as they stood before and after the 2006 Amendment Act.
Parenting Payment Provisions – pre 1 July 2006
32. Prior to 1 July 2006 s. 500(1) of the Act provided:
“A person is qualified for parenting payment if:
(a) the person has at least one PP child (see sections 500D to 500H); and
(b) the person is an Australian resident; and
(c) the person satisfies any requirement to enter into a participation agreement that applies to the person under Division 2; and
(d) at least one of the following conditions is satisfied:
(i) the person is not a member of a couple and the person was not a lone parent at the start of the person’s current period as an Australian resident (see subsections (2) and (3));
(ii) the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;
(iii) the person has a qualifying residence exemption for parenting payment.”
33. Prior to 1 July 2006, s. 500D(1) of the Act provided:
“A PP child of a person is a child who:
(a) is a dependent child of the person; and
(b) has not turned 16.”
34. Subject to various exceptions which are not relevant, s. 5(2) of the Act relevantly provided that a young person who has not turned 16 is a dependant child of an adult if:
“the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult’s care”
35. Section 500E(1) and (2) of the Act provided:
“(1)A child can be a PP child of only one person at a time.
(2)If the Secretary is satisfied that, but for this section, a child would be a PP child of 2 or more persons (adults), the Secretary must:
(a) make a written determination specifying one of them as the person in relation to whom the child is to be a PP child; and
(b) give each adult who has claimed parenting payment a copy of the determination.”
Parenting Payment Provisions – post 1 July 2006
36.The only relevant amendment to s. 500(1) of the Act, as it stood after 1 July 2006, was to substitute a reference to “sections 500D and 500F to 500H”. That was consequential upon the amendment of the definitions relating to a “PP child”.
37. On and from 1 July 2006 s. 500D(2) of the Act provided that:
“A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is not a member of a couple; and
(c) the child has not turned 8; and
(d) the person is the principal carer of the child.”
38. Section 5(15) of the Act provided that
“A person is the principal carer of a child if:
(a) the child is a dependent child of the person; and
(b) the child has not turned 16.”
39. The definition of “dependant child” in s. 5(2) of the Act was not materially altered.
40. Section 5(18) of the Act now provides that only one person at a time can be the principal carer of a child.
41. Section 5(19) of the Act provides that:
“If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must:
(a) make a written determination specifying one of the adults as the principal carer of the child; and
(b) give a copy of the determination to each adult.”
The Administration Act
42. Section 11 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides:
“Subject to subsection (2) and Subdivision B, a person who wants to be granted:
(a) a social security payment; or
(b) a concession card;
must make a claim for the payment or card in accordance with this Division.”
43. Parenting payment is a “social security payment” for these purposes: see s. 23 of the Act (definitions of “social security payment” and “social security pension”) read with s. 18 of the Act (definition of “pension PP (single)”). Section 16(1) of the Administration Act requires that a claim either be in writing or in a form approved by the Secretary.
44. The exception in s. 11(2) of the Administration Act is not presently relevant, however Subdivision B of the Administration Act contains a number of exceptions to the requirement that a person make a claim for a payment.
45. Section 12 (1) of the Administration Act provided, prior to amendment on 1 January 2008:
“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.”
46. Section 12, as it stood prior to 1 January 2008, was repealed and substituted by item 47 of Schedule 1 to the Social Security Amendment (2007 Measures No. 2) Act 2007 (Cth) (“the 2007 Amendment Act”). Section 12 now provides for the Secretary to make a determination as to an applicant’s deemed claim date up to 13 weeks prior to the determination. However, item 48(2) of Schedule 1 to the 2007 Amendment Act provides that the provisions of s. 12 of the Administration Act, as they stood prior to amendment, remain applicable in this review.
47. Section 13(1) of the Administration Act provides:
“For the purposes of the social security law, if:
(a) the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b) the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d) the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.”
48. Section 42 of the Administration Act provides that a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2 to that Act. Schedule 2 provides for a number of start days in respect of a payment, depending on the kind of payment. Item 2 of Schedule 2 to the Administration Act provides for the earliest available date to be effective.
49. Item 3 of Schedule 2 to the Administration Act provides for the general rule in relation to the start date of social security payments in the following terms:
“If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person’s start day in relation to the payment is the day on which the claim is made.”
50. Part 3 of Schedule 2 to the Administration Act contains a number of provisions for the backdating of payments. In relation to parenting payment, clause 29 of Schedule 2 provides:
“If:
(a) a person has a PP child; and
(b) the person makes a claim for parenting payment within 4 weeks after the day on which the child became a PP child of the person;
the person’s start day in relation to the parenting payment is the first day on which the person was qualified for the payment in the period starting on the day on which the child became a dependent child of the person and ending on the day on which the claim was made.”
ISSUES
51. Against the above factual and legislative background, the issue for my determination is the appropriate start date of the Applicant’s parenting payment, in particular whether it is 5 July 2006 as determined by the Secretary or 26 or 29 June 2006 as alternatively contended by the Applicant.
CONSIDERATION OF THE ISSUES
52. I note that the motivation of the Applicant for seeking this review is not primarily to receive any difference in past payments to which he would be entitled if the start date for his payment was prior to 5 July 2006. Rather, his concern appears to be with his ability to take advantage of transitional arrangements which are contained in s. 500F and following provisions of the Act. Those transitional arrangements affect the “participation requirements” he may required to undertake pursuant to provisions introduced by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) (“the 2005 Amendment Act”). The Applicant seeks to be in a position to obtain the benefit of these transitional arrangements so that he can provide a better quality of care to his daughter.
53. The Secretary points to the object of the 2005 Amendment Act to increase workforce participation for parents and reduce welfare dependency. The Secretary submits, in effect, that the provisions for determining an earlier claim date should not be engaged for the purpose of providing a means for a person to maintain what the Secretary refers to as welfare dependency. It is submitted that this “would be repugnant to the legislative intention of the purpose of income support” reflected in the 2005 Amendment Act.
54. I agree that it would not be proper to exercise any discretionary power for the purpose of circumventing the requirements introduced by the 2005 Amendment Act. While avoiding the effect of those provisions may be the main practical consequence of a decision in the Applicant’s favour from the Applicant’s perspective, it is not a matter that I regard as relevant to my determination. My task is to consider the effect of the provisions of the Act and Administration Act, and where those Acts contain provisions for the exercise of a discretion to exercise that discretion in a manner that accords with the objects and purpose of the legislation.
Section 13 of the Administration Act
55. Item 3 of Schedule 2 to the Act provides for the general rule that the start date in relation to a payment is the date on which the claim was made. In the present case the written claim for parenting payment was made on 11 July 2006. The condition for the operation of that provision is that the Applicant was qualified for the payment on the date on which the claim was made. There is no dispute that the Applicant was qualified for parenting payment on 11 July 2006.
56. Therefore, putting aside the exception contained in clause 29 of Schedule 2 for the moment, the Applicant’s start date will be 11 July 2006 unless his application is taken to have been made at some earlier date by reason of the provisions of ss. 12 or 13 of the Administration Act and the Applicant was qualified for parenting payment on that earlier date.
57. The Secretary’s decision as to the Applicant’s start date was based on the provisions of s. 13(1) of the Administration Act. The Secretary accepts that:
(a)The Department was contacted by the Applicant in relation to his claim for parenting payment on 5 July 2006: s. 13(1)(a);
(b)The Applicant was qualified for parenting payment on 5 July 2006: s. 13(1)(b);
(c)The Secretary gave the Applicant written notice acknowledging that the Department had been contacted in relation to the claim on 5 July 2006: s. 13(1)(c); and
(d)The Applicant lodged a claim for parenting payment on 11 July 2006, within 14 days of the contact on 5 July 2006: s. 13(1)(d).
58. Those conditions all having been satisfied, section 13 provides that the claim for parenting payment is taken to have been lodged on 5 July 2006 and, the Applicant being qualified for parenting payment on that date, the start date for his parenting payment is 5 July 2006.
59. The Applicant seeks to rely on the provisions of s. 13 of the Administration Act in relation to his contact with Centrelink on 29 June 2006, at which time I have found that the Applicant indicated to Centrelink that he wanted to claim parenting payment. The difficulty faced by the Applicant is that s. 13(1)(c) of the Administration Act requires that the Secretary has given written notice acknowledging the contact. The Secretary has not given written notice acknowledging the contact on 29 June 2006. That is not the fault of the Applicant. In my view, the reason for the absence of notice is that the relevant Centrelink officers failed to properly record the request. However, the consequence of the failure of the Secretary to give notice is that s. 13 of the Administration Act cannot operate to deem the claim to have been made on 29 June 2006, or any other time prior to 5 July 2006.
Section 12 of the Administration Act
60. It is then necessary to consider whether s. 12 of the Administration Act operates to deem the Applicant’s claim to have been made prior to 5 July 2006. For the following reasons I consider that s. 12 does require that the Applicant be taken to have made a claim on 26 June 2006, when he became qualified for parenting payment.
61. It is clear that the Applicant satisfied the first requirement in s. 12(1)(a) of the Administration Act. At all times prior to 5 July 2006 he was receiving newstart allowance. Newstart allowance is a type of "income support payment": see paragraph (a) of the definition of that term, read with paragraph (a) of the definition of "social security benefit", in s. 23(1) of the Act.
62. I am also satisfied that the last requirement, in s. 12(1)(c) of the Administration Act, is satisfied in the present case. On 10 July 2006 the Secretary cancelled the Applicant's newstart allowance, with effect from 5 July 2006, on the ground that "another payment is more appropriate". Parenting payment at the single rate was commenced with effect from the same day. In my view this amounts to a determination by the Secretary that the Applicant should be transferred to parenting payment.
63. The question for resolution is then when the Applicant became qualified for parenting payment. In my view there are two grounds on which I should find that the Applicant became qualified for a parenting payment on 26 June 2006.
64. Firstly, the Secretary accepts that the Applicant was qualified for parenting payment on 5 July 2006. On the facts I have found there was no material difference between the circumstances of the Applicant on 26 June and 5 July 2006. It follows that the Applicant must have been qualified for parenting payment on both dates.
65. Secondly, and in any event, the evidence before me satisfies me that the Applicant was qualified for a parenting payment on 26 June 2006. In considering that question, it is necessary to have regard to the provisions of the Act as they stood prior to 1 July 2006.
66. The first requirement, in s. 500(1)(a) of the Act, is that the Applicant had at least one PP child. Layla was on 26 June 2006 a dependant child of the Applicant, as the Applicant was, jointly with Ms Gill, legally responsible for the day to day care, welfare and development of Layla, and Layla was in the Applicant’s shared care: Secretary, Department of Social Security v Lowe (1999) 92 FCR 26. Layla had not turned 16 at that date.
67. A complication is that Ms Gill also appears to have met the criteria for Layla to be her PP child. Section 500E(1) of the Act provides that Layla can be the PP child of only one person at a time. In those circumstances s. 500E(2) of the Act requires the Secretary to make a written determination as to the person in relation to whom Layla is to be a PP child. There is no evidence of such a determination having been made before me, although the evidence that Ms Gill was receiving parenting payment prior to July 2006 suggests that such a determination may have been made in her favour when those payments commenced.
68. In my view, it was open to the Secretary, in dealing with the Applicant’s application for parenting payment, to make a determination that Layla was to be the PP child of the Applicant from a date which preceded the written application. That was what the Secretary did when determining that the Applicant was qualified for parenting payment on 5 July 2006. It is, in my view, open to me to make such a determination with effect from an earlier date if I consider it to be warranted.
69. In Vidler v Secretary, Department of Social Security (1995) 61 FCR 370 O’Loughlin J recognised, in relation to a statutory predecessor of s. 500E(2) of the Act, that:
“If there is competition between the parents of a young child for the pension and as a matter of law and fact, both parents meet the several tests laid down in the legislation, the Secretary (or on review the Tribunal) must choose (upon the premise that both parents satisfy all tests) the one who will be awarded the pension.”
The Full Federal Court in Lowe cited the decision in Vidler with approval.
70. The manner in which the Tribunal was to determine the question of whose PP child a child should be was considered by Gyles J in Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461 at 467, [17]-[18] in relation to the predecessor to s. 500E(2) of the Act. Gyles J stated:
“Section 251(2) only comes into play in circumstances where, having regard to the criteria in s 250, the Secretary is satisfied that the young person would be an SPP child of two or more persons. That is the agreed situation here. In those circumstances, the Secretary, and the Tribunals on appeal, have the invidious task of choosing between those persons in circumstances where the legislation does not provide a criterion or criteria.
This is a discretion constrained only by the purposes of the Act and the provisions of it relating to Sole Parent Pensions: O'Sullivan v Farrer (1989) 168 CLR 210 at 216. The section does not oblige the decision-maker to take any particular matter into account, and only prohibits taking into account those matters which are not relevant to the purposes of the Act. Within those very broad limits, it is a matter for the exercise of discretion by the decision-maker which cannot be controlled by a court dealing with errors of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 per Mason J. Thus it is that one decision-maker might prefer the apparent objectivity of deciding on the basis of hours of custody, another might also take into account qualitative factors and yet another might also take into account the financial circumstances of the parties. If there is any relevant government policy guidance, then appropriate regard should be paid to it. It is, in circumstances such as the present, a matter for decision by the Administrative Appeals Tribunal, as it has the ultimate say on the merits of the decision. “
71. In my view it is appropriate to determine that Layla was the PP child of the Applicant from 26 June 2006. The Applicant had and exercised an equal responsibility for the care of Layla from that date. It was agreed between the Applicant and Ms Gill that, from that date, the Applicant would claim parenting payment. There is no evidence to suggest that the position of the Applicant and Ms Gill was otherwise relevantly different. In those circumstances it is appropriate to give effect to that arrangement. If this were not the case, the Applicant would not have been entitled to parenting payment at all.
72. In reaching that conclusion I have had regard to the Guide to Social Security Law. It recognises that it will generally be appropriate to decide that the person providing the greater degree of care is the principal carer under the current provisions of the Act. As I have noted, after 26 June 2006 the Applicant and Ms Gill exercised equally responsibility for Layla’s care. The Guide also refers to matters relating to the different needs of the competing parties, but there is no evidence in the present case of any material difference between the positions of the Applicant and Ms Gill.
73. It may be open to debate as to whether the source of my power to determine that Layla is the PP child of the Applicant is s. 500E(2) of the Act, as it stood prior to 1 July 2006, or s. 5(19) of the Act, as it stood after 1 July 2006. However, as the power is conferred by those provisions in materially the same terms, it is unnecessary to resolve this question.
74. The second requirement, in s. 500(1)(b) of the Act, is that the Applicant be an Australian resident. I am satisfied that the Application has been an Australian resident at all material times.
75. The third requirement, in s. 500(1)(c) of the Act, is that the Applicant satisfies any requirement to enter into a participation agreement. The Applicant could not have been subject to any such requirement as Layla has been under 13 years of age at all relevant times: see s. 501A(1)(b) of the Act, as it stood prior to 1 July 2006
76. I am also of the view that the Applicant has established that he meets the fourth requirement in s. 500(1)(d)(ii) of the Act, in that he has been in Australia for more than 104 weeks as an Australian resident.
77. For these reasons, I am satisfied that the Applicant became qualified for parenting payment on 26 June 2006, which satisfies the requirement in s. 12(1)(b) of the Administration Act.
78. It follows that the requirements of s. 12(1) of the Administration Act are all satisfied, so that the Applicant is taken to have made the claim for parenting payment on day on which he became qualified for that payment. That date, as I have found, was 26 June 2006. The Applicant’s start date for parenting payment is therefore 26 June 2006, in accordance with item 3 of Schedule 2 to the Administration Act.
79. The approach I have taken in relation to s. 12 of the Administration Act is consistent with that taken by Wilcox J in Burgess v Secretary, Department of Family and Community Services [2004] FCA 136. Burgess has been followed by the Tribunal in Re McAlister and Secretary, Department of Family and Community Services (2005) 86 ALD 681, Re Mulholland and Secretary, Department of Employment and Workplace Relations [2006] AATA 225 and Re Halime and Secretary, Department of Employment and Workplace Relations [2007] AATA 1345.
80. The Secretary’s submissions suggested that the approach in Burgess was inconsistent with the earlier decision of the Full Federal Court in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117. In that case Davies and Gummow JJ said in relation to a statutory predecessor to s. 16(1) of the Administration Act (at 124):
“In our view, the requirement in s 159(1) of the Social Security Act that a claim shall be made in writing is of central importance to the administration of the legislation and the subsection cannot, consistently with the scope and object of the statute, be read as if a claim for a pension is sufficiently made if made orally at an office of the Department to an officer of the Department. The requirement that claims shall be made in writing is not to be characterised as a ‘mere matter of machinery for carrying out the undoubted purposes of the Act’ “
81. However, the provisions considered by the Court in Formosa were not qualified by a provision such as s. 12 of the Administration Act. I do not consider the approach taken by the majority of the Court in Formosa to be inconsistent with that of Wilcox J in Burgess.
82. The Secretary also contends that s. 12 should be confined in its operation to those cases of aged and infirm persons whose failing capacities are the ground of its operation and a likely cause of non-compliance. It is submitted that s. 12 of the Administration Act is to be read in the context of ss. 12A to 12D of the Act, and the ejusdem generis maxim applied. I do not agree. Firstly, there are a number of matters dealt with in the later provisions which do not fall within the genus suggested by the Secretary, such as one-off payments to carers. Secondly, s. 12 appears to me to be a separate provision with an operation that stands independently of subsequent provisions. Sections 12A to 12D of the Administration Act provide for the circumstances when no claim is required. In contrast, s. 12 of the Administration Act provides for the circumstances in which a claim is deemed to have been made. Further, in my view the Secretary’s submission finds no foothold in the language of s. 12 itself. Unlike the current provision, s.12 as it stood prior to 1 January 2008 did not confer a discretion on the Secretary to determine that a claim be backdated. Rather s. 12 itself deems an application to have been made when certain criteria are satisfied. Those criteria may involve the exercise of a discretion of the Secretary in relation to the transfer of benefits and the identification of the person in relation to whom a child is a PP child. However, once the criteria are satisfied no further action is required of the Secretary beyond recognising the legal effect of s. 12 of the Administration Act.
83. For the above reasons, I find that the effect of item 3 of Schedule 2 to the Administration Act, read with s. 12 of that Act, is that the start day of the Applicant’s parenting payment is 26 June 2006.
Other Matters
84. This conclusion makes it unnecessary for me to consider the effect of item 29 of Schedule 2 to the Administration Act. On the most generous view of that provision, it would not provide an earlier start date for the Applicant’s parenting payment than 26 June 2006.
85. Section 500E(2)(b) of the Act required that a determination under that section be given to each adult who has claimed parenting payment. Section 5(19)(b) of the Act makes the same provision after 1 July 2006. While Ms Gill did not make a competing claim for parenting payment, she may technically fall within the terms of this provision by virtue of the claim which activated her parenting payment prior to 26 June 2006. For this reason, it is appropriate that a copy of this decision be given to her by the Secretary.
DECISION
86. For the above reasons, the Tribunal:
(a)Sets aside the decisions, of the SSAT made on 18 October 2006 and the Secretary made on 21 August and 1 September 2006, that the start date of the Applicant’s parenting payment is 5 July 2006;
(b)Substitutes a decision that:
(i)the Applicant is the person in relation to whom Layla is to be the PP child, with effect from 26 June 2006; and
(ii)the start date of the Applicant’s parenting payment is 26 June 2006;
(c)Remits the matter to the Secretary with a direction that the Secretary is to:
(i)give a copy of this determination to Ms Gill; and
(ii)make any adjustment to the Applicant’s social security payments required to give effect to this determination.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed:………………[Ms C Skinner]........................
AssociateDate of Hearing: 28 June 2007
Date of Last Written Submissions 19 November 2007
Date of Decision 5 February 2008
Representative for the Applicant In Person
Representative for the Respondent Mr A Holt
Solicitors for the Respondent Centrelink Legal Services Branch
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