Mulholland and Secretary, Department of Employment and Workplace Relations

[2006] AATA 225

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 225

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/608

GENERAL ADMINISTRATIVE DIVISION		)
Re		BEVERLY MULHOLLAND

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date7 February 2006        

PlaceBrisbane

Decision

For reasons given orally after the hearing, the Tribunal sets aside the decision under review and remits the matter to the respondent for consideration in accordance with the following recommendation:

§  That subject to Mrs Mulholland satisfying Centrelink about the number of hours she worked in the 12 months immediately before 20 September 2003, she should be transferred to partner allowance.

........[Sgd].......

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – application for parenting payment – legislation states no new claims after 20 September 2003 – was applicant eligible prior to the cessation date – matter set aside subject to applicant meeting requirement of working less than 20 hours per week.

Social Security Act 1991 ss 23, 771, 771HA
Social Security (Administration) Act 1999 ss 11, 12, 84

Burgess v Secretary Department of Family and Community Services [2004] FCA 136
Re Baburin and Secretary, Department of Social Security (1992) AAT 7962

WRITTEN REASONS FOR ORAL DECISION

10 March 2006   Ms M J Carstairs, Member

1.      Partner allowance is a social security payment paid to the partner of a person who receives a designated social security payment.  Mr Mulholland, who is a disability support pension recipient, was receiving such a payment.  Mrs Beverly Mulholland therefore was potentially eligible for partner allowance.  However after 20 September 2003 no new claims for partner allowance could be made.  People already receiving partner allowance would continue to do so, unless for some reason they ceased to qualify for it. 

2.      The Mulhollands did not become aware until 2005 that partner allowance was a payment for which Mrs Mulholland may have had an entitlement.  She asked to be paid partner allowance rather than newstart allowance.  The question is: can Mrs Mulholland now be paid partner allowance when no claim was made for it before the allowance was closed off for new claims?

ISSUES

3.      The issues in this matter are as follows:

§  Was Mrs Mulholland qualified for partner allowance before 20 September 2003?

§  Can Mrs Mulholland be paid partner allowance now?

4.      Mr Mulholland, who represented his wife at the hearing, saw the issue as one of a failure of Centrelink’s duty of care, which he said extended to advising the Mulhollands about the possible payments for which Mrs Mulholland was eligible so that she could make a fully informed choice.  I understand Mr Mulholland’s argument, but I do not accept it as correct.  Furthermore, questions about Centrelink’s duty of care come within the ambit of the provisions for the “Scheme for Compensation for Detriment Due to Defective Administration” or other payment schemes if negligence is established.  This Tribunal does not review these matters.

WAS MRS MULHOLLAND QUALIFIED FOR PARTNER ALLOWANCE BEFORE 20 SEPTEMBER 2003?

5.      The qualification provisions for partner allowance are in:

771HA.(1)  Subject to subsections (1A) and (3), and section 771HB, a person is qualified for a partner allowance in respect of a period if:

(a)       throughout the period, the person is a member of a couple; and

(b)       throughout the period, the person's partner is at least 21; and

(c)       the person’s partner is receiving:

(i)youth allowance, austudy payment, newstart allowance, sickness allowance, special benefit, rehabilitation allowance, age pension, disability support pension, mature age allowance, service pension or income support supplement; or

(ii)assistance under the Student Financial Supplement Scheme or an income tested living allowance under an Aboriginal study assistance scheme; and

(d)       throughout the period, the person is an Australian resident; and

(e)       the person was born on or before 1 July 1955; and

(f)the person is not qualified for parenting payment at any time during the period; and

(h)       the person does not have recent workforce experience.

771HA.(1C)  For the purposes of paragraph (1)(h), recent workforce experience is employment of 20 hours or more a week for a total of 13 weeks or more at any time during the 12 months immediately before the day the person lodged the claim for the allowance.

6. Section 771(1) of the Social Security Act1991 (the Act) was introduced by amendments to the Act in 2003, to close off access to partner allowance.  It provided as follows:

In spite of any other provisions of this Act or of the Administration Act, a person is not to be granted a partner allowance under this Part unless:

(a)       the person’s claim for the allowance:

(i)        was lodged before 20 September 2003; or

(ii)is taken, because of the operation of section 12, 13 or 15 of the Administration Act, to have been made before 20 September 2003; and

(b)       the person was qualified for the allowance:

……

(ii)in a case to which subparagraph (a)(ii) applies—on the date the person is taken to have made the claim.

7.      Mrs Mulholland had her own business, a beauty salon, until about June 2002.  This was sold when Mrs Mulholland found the business was too much for her and was unprofitable (T26).  She went to Centrelink, claimed and started receiving newstart allowance.  In the second half of 2002 she obtained some part-time work lecturing and tutoring at the Gold Coast Institute of TAFE, however this work ceased when the TAFE made two full-time appointments.  Mrs Mulholland commenced studies in 2003 to enhance her prospects of employment and became eligible for Austudy (T9). 

8.      Records for Mrs Mulholland’s newstart allowance (T28) note that about July 2002 she was either not working, or working less than fifteen hours per week after being employed full-time in the previous five years.  In a letter dated 25 October 2005, Ms M Lloyd, from the payroll services section of the Gold Coast Institute of TAFE, certified that Mrs Mulholland worked for a total of 115 hours in the period 6 September 2002 to 30 September 2003.  Elsewhere in the documents it was recorded that Mrs Mulholland was earning until December 2002 (T24) but in early 2003 had been told that she was not required at the TAFE after the full-time appointments were made.

9.      Looking at the qualification requirements for partner allowance set out in s771HA, the following conclusions can be made:

§  Mrs Mulholland was a member of a couple.

§  Her partner was over 21.

§  Her partner received disability support pension – a qualifying payment.

§  She was an Australian resident.

§  She was born before 1 July 1955.

§  She was not qualified for parenting payment.

§  It seems that she did not have recent workforce experience (20 hours per week for 13 weeks in the 12 months previous to 20 September 2003) because she worked a total of 115 hours, or about 2 hours per week.

10.     Mrs Mulholland, who did not attend either the Social Security Appeals Tribunal (SSAT) hearing or this hearing, discussed her matter with the Centrelink authorised review officer, and the authorised review officer recorded that she told him that she could not remember the exact details about her work in 2002/2003.  It seems for this reason, the respondent submitted that it remains unclear whether Mrs Mulholland would have qualified at this time (exhibit R2).  It is clearly incumbent on Mrs Mulholland to satisfy Centrelink about matters such as the number of casual hours she worked, if these are in any doubt.

CAN MRS MULHOLLAND BE PAID PARTNER ALLOWANCE NOW?

11.     The legislation applying in this matter is to be found in the Social Security (Administration) Act 1999 (the Administration Act) in conjunction with ss771 and 771HA of the Act which deal with the qualification and time limits for claims for partner allowance.

12. The Administration Act came into effect in 2000 and, amongst other things, covers the general provisions and procedural matters in regard to the different categories of payments made under the Act, including claims for payment such as here, for partner allowance.

13. Section 11 of the Administration Act appears in that Part of the Administration Act that deals with the provision of benefits, is headed General Rule, and provides that a person who wants to be granted a social security payment must make a claim.  The absence of a written claim can defeat what would otherwise be a clear entitlement:  Baburin and Secretary, Department of Social Security (1992) AATA 7962. In enacting s11 of the Administration Act, Parliament highlighted the importance of the formal claim.

14. It is undoubtedly true that when the Mulhollands first learned of the existence of partner allowance in 2005 and wanted to make a new claim for that payment, they were too late. No new claims for partner allowance were allowed after 20 September 2003. So much is made clear by s771(1)(a)(i) of the Act.

15. However, ss771(1)(a)(ii) has the effect that a claim can be deemed as made under other provision of the Administration Act, and taken as made before 20 September 2003.

16. Subdivision B of Division I of Part 3 of the Administration Act, which is headed Cases where claim not necessary, provides for a range of situations where a new claim is not required and will be deemed. Of these provisions, I was satisfied that the only section arising for consideration in the Mulholland case was s12 of the Administration Act. Section 12 provides:

12.(1)  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.

……..

12.(3)The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.

17. Whilst I am not reviewing the reasons adopted by previous decision-makers, I note that the SSAT considered that s12 could not be applied in Mrs Mulholland’s case because the only section that allowed transfers between payments is s84 of the Administration Act. It is not necessary to set out the detail of s84 here. Suffice to say that it does not seem to me that s84 exhausts the powers that the Secretary has to transfer and alter the form and type of benefit payable to an eligible recipient. Indeed it seems to me that the section is not so much a source of a power, as it is a means of clarifiying the consequences of certain kinds of transfers between payments.

18.      I sought the respondent’s further views on this point and on any relevance that the Federal Court decision in Burgess v Secretary, Department of Family and Community Services [2004] FCA 136 might have for Mrs Mulholland’s case. The following extracts are from the respondent’s further submissions at paragraphs 7 - 8 and 10 - 11.

Whilst not discussed in Burgess, the respondent notes that sections 36 and 37 of the Administration Act, although not explicitly mentioning transfer between payments, do confer the power to determine if a payment is to be granted. It may be, therefore, that those sections can be taken to operate in conjunction with section 12 to transfer a person from one payment to another.

The respondent notes that such an interpretation would be consistent with the purpose of the Administration Act as expressed in the second reading speech – “to make it easier for a person to be transferred between income support payments” – and also gives section 12 a wider application than the limitations imposed by section 84.

……

The respondent notes that the application of section 12 depends on a determination by the Secretary that “the person is to be transferred to the other payment” (subsections 12(1)(c) and 12(2)(c)).  The applicability, or otherwise, of section 12 will therefore depend on a consideration of the appropriateness of the transfer, including whether it is retrospective, in the particular circumstances of each individual case.  This should include a consideration of whether the customer was actually qualified and payable in respect of the new social security payment at the relevant time in the past.

The respondent further notes that, in the matter of Burgess, the Federal Court did not determine the retrospectivity issue, nor whether Mr Burgess was qualified for DSP, and instead remitted the matter back to the Tribunal for further consideration.  As noted above, the respondent concedes that it may be possible to retrospectively transfer a customer to another payment with effect from a date in the past, provided that the Secretary has determined that the transfer is to occur, including that the customer was qualified and payable in respect of the payment.

19. Thus, the respondent agrees that s12 of the Administration Act would allow the transfer of Mrs Mulholland to partner allowance if the issues qualification and ability to be paid were satisfied. As I have stated, it seems they are, but Mrs Mulholland may need to confirm further information about casual hours worked in 2002-2003.

20.     The respondent also conceded that the SSAT was incorrect in their conclusion that s771(1)(a)(ii) of the Act prevented transfers that occur after 20 September 2003.  The respondent set out the following on this question at paragraph 14 of submissions: 

“This is because section 12 is expressly mentioned in the above subsection, and reference is made to a claim being taken to have been made under s.12 prior to the close-off date. This position is also indicated by the explanatory memorandum (EM) to the Family and Community Services Legislation Amendment (Australians Working Together and Other 2001 Budget Measures) Act 2003 (‘the AWT Act’). That act inserted section 771 into the Social Security Act 1991, and the explanatory memorandum states that:

The basic effect of new subsection 771(1) is to close off access to partner allowance from 1 July 2003 by creating two requirements in order for a person to be granted that allowance.

Firstly, paragraph 771(1)(a) provides that a person cannot be granted Partner Allowance unless the person’s claim for the allowance is lodged before 01 July 2003 or the person’s claim is taken to have been made before that date due to the operation of sections 12, 13 or 15 of the Administration Act. [Please note that the 1 July 2003 date was later changed to 20 September 2003 by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.]”

21.     The respondent’s main contention is that there are compelling reasons not to accede to Mrs Mulholland’s request for transfer now, including that the request was made more than eighteen months after new claims for partner allowance were closed off, and because of government initiatives encouraging mature age workers to remain active in seeking to be part of the workforce.

22.     I agree that Mrs Mulholland’s request is an unusual one, coming over eighteen months after the cut-off date for new claims.  However there are no time limits imposed on the application or operation of the provision, and it would be unfair to impose them when they otherwise are not provided for.  Having no time limits on the provision allows for cases such as this where Mr and Mrs Mulholland were simply unaware of the existence of the payment.

23. The legislative provision expresses a discretion, such that if certain jurisdictional facts exist, then the power to transfer may be exercised. My findings on those facts (as required by s12 of the Administration Act) at a point of time immediately prior to 20 September 2003 are:

§  Mrs Mulholland was receiving an income support payment (defined in s23 of the Act) namely Austudy ;

§  While receiving Austudy she, more likely than not, became qualified for partner allowance; and

§ A determination could be made apart from s12 that the transfer should occur.

24. I note that the discretion in s12(1)(c) is not expressed with any words of limitation. It may be relevant in particular cases to take into account the factors referred to in the respondent’s submission, including such matters as the Government’s intentions to close off partner allowance, and encourage older workers to remain actively seeking work. However it seems to me that Mrs Mulholland’s own facts must be taken into consideration. She has been actively seeking work or studying to improve her work prospects since she was forced by the closure of her business to take up Centrelink benefits for the first time at the age of fifty-six. She will turn sixty this year. It seems to me that in Mrs Mulholland’s particular case there is no compelling reason not to allow the transfer to occur. This gives effect to the fact that Parliament by enacting s771(1)(a)(ii) of the Act at the same time as closing off new claims, clearly intended that retrospective transfers might still take place.

25.      I accept that Mrs Mulholland has been paid an appropriate payment when she was receiving newstart allowance and when she was receiving Austudy.  However, equally, partner allowance was an appropriate payment and there is no legislative bar to agreeing to her request that she be deemed to have transferred to this payment with effect from 20 September 2003, subject to her satisfying Centrelink on any outstanding matters about her earnings, and hours worked in casual employment.

DECISION

26.     The Tribunal sets aside the decision under review and remits the matter to the respondent for consideration in accordance with the following recommendation:

(a)That subject to Mrs Mulholland satisfying Centrelink about the number of hours she worked in the 12 months immediately before 20 September 2003, she should be transferred to partner allowance.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:    J Lauriston

Administrative Officer

Date/s of Hearing  19 December 2005 and 2 February  2006
Date of Decision  7 February 2006
Date of written reasons             10 March 2006
For the Applicant  Mr B Mulholland
For the Respondent                  Mr J Howard/Ms H Wallis-Dunn, Departmental        Advocates