Michelle Threadgold and Secretary, Department of Social Services
[2014] AATA 654
•9 September 2014
[2014] AATA 654
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5987
Re
Michelle Threadgold
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 9 September 2014 Place Hobart The decision under review is affirmed.
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Ms A F Cunningham (Senior Member)
CATCHWORDS
Social Security - arrears of parenting payment - failure to seek review of cancellation decision - decision under review affirmed
LEGISLATION
Social Security (Administration Act) 1999
Social Security Act 1991
Administrative Appeals Tribunal Act 1975
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
The applicant, Michelle Threadgold has appealed against a decision of the Social Security Appeals Tribunal dated 23 October 2013 which affirmed a decision not to pay arrears of parenting payment from 15 May 2012 to 16 December 2012.
The hearing was conducted by telephone link between the Hobart Registry and Launceston. Ms Threadgold appeared on her own behalf in Launceston and gave oral evidence. Mr Sparkes appeared on behalf of the Secretary. No evidence was called on behalf of the respondent and the T documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Ms Threadgold maintained that because she was qualified to receive parenting payment during the relevant period she should be paid any arrears from the date of cancellation being 15 May 2012. Ms Threadgold had been in receipt of parenting payment at the single rate prior to 15 May 2012. She said that it was around this time that she became partnered and advised Centrelink accordingly. Ms Threadgold acknowledged that she had not provided Centrelink with any details about her partner. She recalled having received a letter from Centrelink in July 2012 advising that her parenting payment had been cancelled with effect from 14 May 2012 because she had not provided the requested details.
Mr Sparkes contended that because Ms Threadgold had not requested a review of the decision to cancel her parenting payment nor had she made any application prior to 17 December 2012 for payment of parenting payment, she was not entitled to payment of arrears during this period.
Ms Threadgold explained that this had been a difficult period for her and that she had unsuccessfully tried to get her partner to complete a Centrelink form. Her partner had been recently released from prison and was in receipt of DSP on account of a mental disability. Ms Threadgold asked the Tribunal to take these circumstances into account in considering her application for review.
The question to the Tribunal to determine is whether Ms Threadgold can be paid arrears of parenting payment for the period 15 May 2012 to 16 December 2012.
LEGISLATION
The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security(Administration) Act 1999 (the Administration Act).
Section 109 (2) of the Administration Act relevantly provides :
…
(2) If:
(a)a decision (the original decision) is made in relation to a person’s social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
The favourable determination takes effect on the day on which the application for review was made.”
Section 41 of the Administration Act provides that a social security payment becomes payable to a person on the person’s “start day”. “Start day” is defined in Schedule 2 as the day on which a claim for a social security payment is made and on the date when the person is qualified for the payment.. A person may become qualified for payment within 13 weeks after the day on which the claim is made.
CONSIDERATION
On 5 July 2012 Ms Threadgold was advised in writing that her parenting payment had been cancelled with effect from 14 May 2012 as she had not provided the requested details of her partner. Ms Threadgold does not disputing having received the letter and agrees that she did not provide the requested details. Nor is it contended that at any time prior to 17 December 2012 Ms Threadgold asked for the decision to cancel her parenting payment to be reviewed.
Ms Threadgold contacted Centrelink on 17 December 2012 about claiming parenting payment and the payment was granted with effect from that date. At this time she asked for a review of the decision notified to her on 5 July 2012 to cancel parenting payment from 15 May 2012. The decision was affirmed by an Authorised Review Officer and by the Social Security Appeals Tribunal on 23 October 2013.
Ms Threadgold’s parenting payment single was cancelled as from 15 May 2012 because she was no longer eligible to receive parenting payment at the single rate having become partnered around that date. The written notice sent to her on 5 July 2012 advised Ms Threadgold of the reasons for cancellation and of her appeal rights. Ms Threadgold does not dispute having received the written notice.
The was no evidence that Ms Threadgold contested the cancellation decision until 17 December 2012 which was well outside the 13 weeks provided for in subsection 109 (2) of the Administration Act. The only means by which arrears of parenting payment could be paid would be following a successful review of the decision to cancel payment.
As no application for review was made within the permitted timeframe, Ms Threadgold’s social security payment was cancelled in accordance with the provisions of section 80 of the Administration Act on the basis that she was no longer qualified for parenting payment at the single rate.
Whether or not the decision to cancel was the correct decision is not a matter for this Tribunal to determine. The issue to the Tribunal is whether Ms Threadgold can be paid arrears of parenting payment between 15 May 2012 and 16 December 2012. The first date on which Ms Threadgold sought review of the decision to cancel her parenting payment was 17 December 2012. Subsection 109 (2) of the Administration Act provides that the earliest date from which payments could be made upon a favourable determination is the date upon which the application for review was made. This could not have occurred before 17 December 2012 when Ms Threadgold was re-granted parenting payment. Even if the decision to cancel Ms Threadgold’s parenting payment was made incorrectly, because she did not contact Centrelink or seek a review of the decision until 17 December 2012, the earliest date from which she could be paid parenting payment was in fact 17 December 2012.
The law does not permit any other outcome and for these reasons I determine to affirm the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 27 August 2014 Applicant In person Solicitors for the Respondent Mr Brian Sparkes, Program Litigation and Review Branch
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