Minh Tam Pham and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 839
•27 November 2012
[2012] AATA 839
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/4239
2012/1895
Re
Minh Tam PHAM
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Regina Perton, Member Date 27 November 2012 Place Melbourne The Tribunal affirms the decisions under review.
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Regina Perton, Member
SOCIAL SECURITY – youth allowance – cancellation due to respondent’s findings regarding relationship status of applicant’s parents – fresh application for youth allowance – start date –
impact of application to Social Security Appeals Tribunal more than 13 weeks after decision by authorised review officer
Social Security Act 1991 ss 556, 1067G
Social Security (Administration) Act 1999 ss 4(3), 13, 41, 80(1), 152(4)
REASONS FOR DECISION
Regina Perton, Member
27 November 2012
Mr Minh Tam Pham is now a tertiary student. In 2007, when he was 16 years old, he commenced receiving youth allowance in relation to his secondary studies. On 24 December 2009 Centrelink, which administers youth allowance on behalf of the respondent, cancelled Mr Pham’s youth allowance on the basis that he had not provided requested information about his parents’ income. The decision to cancel was reviewed by an authorised review officer of Centrelink (ARO) on 22 January 2010 and by the Social Security Appeals Tribunal (SSAT) on 29 August 2011 and affirmed by both.
On 4 October 2011 Mr Pham applied to this Tribunal (AAT file 2011/4239) in relation to the cancellation of his youth allowance. The hearing of Mr Pham’s application was deferred as there was an outstanding matter before the Tribunal lodged by his mother that was likely to impact on Mr Pham’s application. The relevant issue in his mother’s case was whether she should be considered to be single, as she had claimed, or partnered, in the period leading up to the cancellation of Mr Pham’s youth allowance.
On 10 May 2012 Mr Pham lodged another application for review with this Tribunal (AAT file 2012/1895). On 25 March 2010 Mr Pham applied for, and was granted youth allowance, from that date. He believes that he is entitled to payment from the date his previous payments stopped, namely 26 December 2009, rather than from 25 March 2010. In other words, he is seeking payment for the approximately three months in which he did not receive youth allowance. Mr Pham sought review of the decision concerning the start date on 24 January 2011. On 17 February 2011 an ARO affirmed the decision that the start date was 25 March 2010. Mr Pham applied to the SSAT for review more than a year later, namely 13 March 2012. On 16 April 2012, the SSAT affirmed the decision.
The issues before the Tribunal are:
·whether the cancellation of youth allowance in December 2009 was valid
·Whether the start date of youth allowance can be backdated from 25 March to cover the period since the cancellation
CANCELLATION OF YOUTH ALLOWANCE
The eligibility of a person aged for youth allowance who lives at home is affected by the income of his parent(s). In Mr Pham’s initial application for youth allowance lodged shortly after his 16th birthday, his mother is described as the person with primary care and responsibility for him. Her marital status is given as separated with the date of separation being 10 August 1993. Mr Pham authorised his mother to act on his behalf in dealings with Centrelink.
Mr Pham’s mother had been in receipt of a social security benefit for many years. Following an investigation, Centrelink formed the view that his mother had been living as a member of a couple with Mr Pham’s father during the period in which Mr Pham was being paid youth allowance.
On 23 December 2009 Centrelink sent a notice to Mr Pham by mail advising him that his youth allowance was being cancelled:
Our records show we do not have details of your parent’s income and assets, and as a result a decision has been made to cancel your Youth Allowance from 26 December 2009.
On 30 December 2009 Centrelink was provided with a form in which Mr Pham’s mother provided details of her income which consisted of a carer payment. There were no details of Mr Pham’s father’s income.
On 14 January 2010 Mr Pham sought review of the decision to cancel his youth allowance. On 22 January 2012 an ARO affirmed the decision. The ARO set out the legislative provisions concerning the way parental income tests are calculated for youth allowance, namely based on the previous tax year. He went on to state:
In your case, you have provided income details for your mother and income details for your father have not been provided.
Although I cannot disclose details due to privacy provisions, a finding from an investigation into living arrangements for your mother means that your eligibility for Youth Allowance cannot be assessed solely on your mother’s income. Your eligibility for Youth Allowance also needs to be assessed on your father's income. Depending on the amount of income, you may not be eligible for Youth Allowance, however your eligibility can only be assessed if your father's income details are provided.
As your eligibility for Youth Allowance cannot be established without information about your father's income and assets, I have found that the decision to cancel your Youth Allowance is correct.
On 5 February 2010 Mr Pham applied to the SSAT. The SSAT made its decision to affirm the cancellation of youth allowance on 29 August 2011 following a hearing attended by Mr Pham and his mother. In the meantime, Mr Pham had reapplied for and been granted youth allowance with a three month gap between the two sets of payments.
Centrelink had cancelled Mr Pham’s mother’s social security benefits and imposed debts following its decision that she was partnered rather than single. The decision concerning her status was heard by the SSAT on the same day as her son’s SSAT case concerning the cancellation. Mr Pham confirmed to the Tribunal that he was aware of his mother’s situation and that he had attended her SSAT hearing. The SSAT affirmed the finding that Mr Pham’s mother was a member of a couple with his father. Following that decision, the SSAT determined that the decision to cancel Mr Pham’s youth allowance was correct.
Mr Pham’s mother lodged an application for review with this Tribunal in early October 2011 on the same day as Mr Pham. The Tribunal determined that the sensible course of action was for the mother’s case to be heard before Mr Pham’s as the outcome in her matter would affect his application. Mr Pham’s mother’s matter was listed for hearing in early August 2012. His mother withdrew her application for review before it was finally determined by the Tribunal.
The withdrawal of his mother’s application to this Tribunal results in the SSAT’s decision, which found his mother and father where a couple, being the relevant decision with which to assess the cancellation of Mr Pham’s youth allowance.
Section 556 of the Social Security Act 1991 (the Act) provides that a person’s rate of youth allowance is to be calculated in accordance with the youth allowance rate calculator found at section 1067G of the Act. The provisions concerning calculation of income are complex. However, in essence, where a person’s primary carer (Mr Pham’s mother) is a member of a couple with the other parent, as in this case, the income of both parents is taken into account in determining the amount of youth allowance, if any, is payable.
Section 80(1) of the Social Security (Administration) Act 1999 (the Administration Act) is relevant in this matter:
(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.
Following its investigations and subsequent decision that Mr Pham’s parents were members of a couple as defined in s 4(3) of the Act until at least December 2009, his father’s income in the previous tax year was relevant to Mr Pham’s eligibility for youth allowance as at late December 2009. It was therefore appropriate for Centrelink to require Mr Pham to provide details of his father’s income and assets as well as an accurate account of his mother’s assets and income. He did not do so. His inability to provide the relevant information is not surprising given his reliance on his mother who was challenging Centrelink’s assertions concerning her relationship with Mr Pham’s father and her income and assets. However, regardless of his reason for not providing all the relevant information, Mr Pham was required to do so to enable Centrelink to determine his eligibility. The Tribunal finds that it was appropriate to cancel Mr Pham’s youth allowance as from 26 December 2009.
Mr Pham has expressed concerns about the timing of the cancellation and the reasons for it, stating that he was advised by an officer that the cancellation was about preventing an overpayment rather than a cancellation on the stated grounds in the written decision. Regardless of those recorded comments, the cancellation for failure to provide accurate information about his parents’ income was appropriate.
START DATE FOR YOUTH ALLOWANCE CLAIM OF 25 MARCH 2010
Mr Pham submitted that he was not advised by Centrelink until 25 March 2010 that he could reapply for youth allowance. He said that if he had known he was eligible to do so at an earlier date, he would have done so. The Tribunal accepts Mr Pham’s assertion.
Section 41 of the Administration Act states that a payment is not payable until a person’s start date. The start date is generally the date of claim or, if contact is made with Centrelink and the claim lodged within 14 days of that contact, the date of that contact (section 13 of the Administration Act).
Even if the Tribunal were able to deem one of Mr Pham’s contacts with Centrelink concerning cancellation of his youth allowance as also being about a fresh application, there is an insuperable barrier to making a positive decision about that. That is because of the timing of his application to the SSAT.
Centrelink notified Mr Pham on 15 April 2010 that he was granted youth allowance as from 25 March 2010. He sought review of the start date decision with an ARO on 24 January 2011. On 17 February 2011, an ARO notified Mr Pham that the start date remained 25 March 2010. The ARO’s letter advised of possible adverse consequences, even if there was a positive outcome at the SSAT, if an appeal was not lodged with the SSAT within 13 weeks. Mr Pham’s application for review to the SSAT was not made until 13 March 2012, more than a year after the ARO’s decision.
Section 152(4) of the Administration Act states:
(4) If:
(a) a person is given written notice of a decision under the social security law; and
(b) the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c) the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d) the effect of the decision of the SSAT is:
(i) to grant the person's claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person's social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
The impact of s 152(4) being applied to Mr Pham’s case would result in the start date of Mr Pham’s youth allowance being 13 March 2012 which is clearly of no assistance to Mr Pham. The Tribunal finds that the start date for Mr Pham’s youth allowance claim of 25 March 2010 remains that date.
The Tribunal can appreciate that Mr Pham feels frustrated at the situation that he has found himself in through no fault of his own making. The legislation and fact situations he has faced are complex. However, the Tribunal is not able to overlook legislative requirements in relation to receipt of social security benefits.
DECISIONS
The Tribunal affirms the decisions under review.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision of
Regina Perton, Member...............................[sgd]..........................................
Administrative Assistant - Legal
Dated 27 November 2012
Date of hearing 27 September 2012 Applicant In person Advocate for the Respondent Mr A Carson Solicitors for the Respondent Department of Human Services Legal Branch
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