McShane and Secretary, Department of Family and Community Services

[2000] AATA 190

DECISION AND REASONS FOR DECISION [2000] AATA 190

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  T1999/33

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      VERONICA JOAN McSHANE    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date10 March 2000

PlaceHobart

Decision      The decision under review is affirmed.             
  [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Social Security – parenting payment (partner) – application for payment of arrears – whether previous claim for family payment amounts to a "critical claim" for family payment for purposes of s.500K(3) of the Act.
Social Security Act 1991 – 500J, 500K(3)
Secretary, Department of Social Security v Cooper (1991) 21 ALD 155
Re Secretary, Department of Social Security and Hissey (AAT 9042, 8 October 1993)
Scott v Secretary, Department of Social Security, Federal Court, 16 December 1999,666/1996

REASONS FOR DECISION

10 March 2000        Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by an authorised review officer on 17 August 1998 which affirmed a decision of a Commonwealth Service Delivery Agency (Centrelink) delegate of the Secretary, Department of Social Security on 21 July 1998 to grant parenting payment (partner) from 2 July 1998 and not to pay arrears prior to that date.   This decision was affirmed by the Social Security Appeals Tribunal  (SSAT) on 5 February 1999.

2. Both parties agreed to this Tribunal deciding the application on the basis of the material before it which consisted of the T documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, statements of facts and contentions and a witness statement prepared by the applicant dated 11 August 1999.

3. The issue to be decided is whether the applicant is entitled to be paid parenting payment (partner) from 5 February 1998 until 1 July 1998.   The respondent accepted the following facts as set out in the applicant's statement of facts and contentions and the Tribunal finds the following:
   (a)      On 7 January 1998 the applicant gave birth to a child.

(b)On 5 February 1998 the applicant lodged a claim for family payment with Centrelink which was paid to her with effect from 15 January 1998.

(c)This claim was made on a Centrelink form entitled "Claim for Family Payment, Maternity Allowance, Family Tax Payment and Childcare Assistance".   This form was given to the applicant whilst she was in hospital for the birth of her daughter.

(d)Had the applicant claimed parenting payment (partner) at the same time it would have been paid as she was otherwise entitled to payment.

(e)On 26 June 1998 the applicant lodged a claim for parenting payment (partner) and this was paid from 2 July 1998 being the first pay day after the claim was lodged.

1. The applicant contends that pursuant to the provisions of s.500K(3) of the Social Security Act 1991 ("the Act") qualification for payment of her parenting payment (partner) is deemed as being the date of her initial claim for family payment.

2. The respondent submits that the applicant's initial claim for family payment is not a claim within the meaning of sub-section (a)(i) of s.500K(3) nor does it fall within the provisions of sub-section (a)(ii) and supports the decision of the SSAT.

3. The provisions of s.500J of the Act provide:

   "Parenting payment is not payable to a person before the person's provisional commencement day (identified under section 500K).

1. As a general rule the provisional "commencement day" is defined in s.500K as "the day on which the person claims parenting payment".   Sub-section (2) of s.500K provides that if a person claims parenting payment within 4 weeks of being qualified, the provisional commencement day is the day on which he or she became qualified.

2. It is the provisions of sub-section (3) that are relied upon by the applicant as her claim for parenting payment (partner) was not made until 2 July 1998 as she was unaware of her entitlement to this benefit. It is conceded however that she would have been entitled to payment at the time when she made her claim for family payment. Section 500K(3) provides:

   "Initial incorrect or inappropriate claim followed by claim for parenting payment.
   If:
   (a)       a person makes a claim (in this subsection called the "initial claim") for:

   (i)        a social security or service pension or a social security benefit; or
             (ia)      (Repealed by No. 45 of 1998), s3 and Sch 9(151), (226).)

   (ii)a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to parenting payment; and

   (b)on the day on which the person makes the initial claim, the person is qualified for parenting payment; and

   (c)the person subsequently makes a claim for parenting payment; and

   (d)the Secretary is satisfied that it is reasonable for this subsection to apply to the person;

   the person's provisional commencement day is the day on which the person made the initial claim."

1. In the submissions lodged on behalf of the applicant it was contended that the provisions of the Act should be interpreted consistently with its scope and purpose being as the applicant contends "to make payments to a parent of a child in certain circumstances and to assist, inter alia, in the costs of bringing up children". It was submitted "that the intent of the legislation, in the applicant's case, was to pay her parenting payment (partner) on the birth of her child, subject to a proper claim". Further, that the applicant had reasonably assumed that the claim form she lodged with Centrelink on 5 February 1998 "related to all Centrelink benefits or payments to which she was entitled following the birth of her daughter".

2. The applicant relied on the line of reasoning in the decision of the Federal Court, in Secretary, Department of Social Security v Cooper (1991) 21 ALD 155, in contending that a claim for family payment is similar in character to a parenting payment.

3. In Re Cooper the full Court found that the decision of the Administrative Appeals Tribunal to treat the lodgment of a review form for continuation of handicapped child's allowance should be treated as a claim for invalid pension pursuant to the provisions of s.159 of the Social Security Act 1947. It was contended that the relevant provisions of the Act should be interpreted beneficially so as to not exclude a benefit to which an applicant would otherwise have been entitled. Reference is made to a passage of the Full Court at page 160 where it said in relation to ss.158 and 159 of the 1947 Act:

   "Its language should be applied, in accordance with the obvious intent, so that, if possible, a benefit which ought to have been received shall not be excluded by the failure of a disadvantaged person to put in the "right" claim in a technical sense.   To construe the words of the subsection in a narrowly technical spirit would be quite perversely contrary to its evident purpose.   It is intended to overcome technicality and to have as broad an operation as its language will allow."

1. It is noted that the Federal Court was at that point considering whether the review form could be treated as a claim form and found that it could. The Federal Court then went on to decide that the two types of payments namely, a handicapped child's allowance and an invalid pension were "similar in character" within the meaning of s.159(5).

2. Whilst this Tribunal agrees that where possible the provisions of the Act should be interpreted beneficially, nevertheless, where the meaning of the section is clear there can obviously be only one correct interpretation.

3. The respondent contends that the circumstances of the present case do not meet the provisions of sub-section 3(a) in that firstly, the applicant's claim for a family payment is not either a social security or service pension or a social security benefit within the meaning of the Act, nor is it a pension, allowance, benefit or other payment under another Act or a program administered by the Commonwealth in accordance with the provisions of sub-section (a)(ii). A social security pension, a service pension and a social security benefit are each defined in s.23(1) of the Act. A family payment is defined under s.23(1) as a Social Security payment and thus does not fall within the provisions of sub-section (a)(i) of s.500K(3). It was further contended by the respondent that neither can a family payment be deemed a pension, allowance, benefit or other payment under another Act or under a program administered by the Commonwealth in accordance with the provisions of sub-section (a)(ii) because it is a payment under the 1991 Act.

4. The Tribunal in the decision of Secretary, Department of Social Security and Hissey (1993) (Unreported 8 October 1993 – AAT Decision No. 9042) was similarly required to decide whether a claim for child disability allowance by the applicant met the provisions of s.100(2) of the Act to enable payment of a disability support pension to be backdated.

5. The provisions of s.100 of the Act relating to a disability support pension are similar in nature to the provisions of s.500K(3). Sub-section (2) reads:

   "(2)     If:
             (a)       a person makes a claim (in this subsection called "initial claim") for:

   (i)a social security or service pension, a social security benefit or a parenting payment; or

   (ii)a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a disability support pension; and

   (b)on the day on which the person makes the initial claim, the person is qualified for a disability support pension; and

   (c)the person subsequently makes a claim for a disability support pension; and

   (d)the Secretary, is satisfied that it is reasonable for this subsection to apply to the person;

   the person's provisional commencement day is the day on which the person made the initial claim."

6. The Tribunal found in Hissey 's case that the terms, social security or service pension and social security benefit as defined in s.23 of the Act do not include child disability allowance and thus a claim for child disability allowance does not fall within the provisions of s.100(2)(a)(i ) of the Act. Nor could the Tribunal conclude that the claim met the provisions of s.100(2)(a)(ii) and accepted the applicant's submissions that the term "another Act" means an Act other than the social security legislation and that the reference to "a program administered by the Commonwealth, that is similar in character to a disability support pension" refers to administrative rather than legislative provisions which means that child disability allowance is again excluded.

7. In comparing the provisions of s.100(2) of the Act to the relevant section in Cooper's case being s.159 of the 1947 Act, the Tribunal remarked "Although pursuant to Cooper (supra), it is clear that an initial claim for a CDA under the 1947 Act would be treated as a claim for DSP, the Act under which this application is to be decided does not allow the same line of reasoning to be pursued. It appears that the new legislation was specifically structured so that the decision of the Federal Court in Cooper (supra) would be rendered nugatory in relation to the type of claim before this Tribunal."

8. In Scott v Secretary, Department of Social Security  (16 December 1999), 666/1996, Heerey J noted at page 5, "The AAT in Hissey discusses the legislative history and suggests that s.100 was introduced in its present form partly to overcome the result of Cooper" and referred to the Report of the Secretary of the Department, 1991 at 73 where it was stated that "The power under the Act to treat a claim or a form for one type of payment for another is considerably broader than the Department realised according to the Full Court in Cooper. The decision ran counter to all the legal advice the Department had received for a considerable period. Amendments to the Act to overcome potential administrative difficulties raised by the decision are under consideration."

9. In Scott's case the Court found that as the claim for special benefit fell within the definition of a social security benefit, the provisions of s.100(2)(a)(i) were met and thus an initial claim was deemed to have been made in the circumstances of that case.

10. However in the present it is clear that a family payment is neither a social security or service pension, nor is it a social security benefit within the meaning of the Act, but it is a social security payment within the meaning of the Act and thus cannot fall within the provisions of sub-section (a)(ii) as a payment under another Act.   This Tribunal agrees with the finding of the Tribunal in Re Hissey that "a program administered by the Commonwealth" refers to administrative rather than legislative programs and would thus exclude the family payment.

11. The Tribunal having found that the circumstances of the applicant's claim failed to meet the provisions of s.500K(3) which would enable back payment of the applicant's claim for parenting payment (partner) to the date of her claim for family payment, must accordingly affirm the decision under review. This means that the appeal is not successful.

    I certify that the  21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member) 

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  Application decided on the papers.
    Date of Decision   10 March 2000