Noonan and Secretary, Department of Social Services (Social services second review)
[2016] AATA 803
•13 October 2016
Noonan and Secretary, Department of Social Services (Social services second review) [2016] AATA 803 (13 October 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5226
Re
Ali Noonan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Teresa Nicoletti, Senior Member
Date 13 October 2016 Place Sydney The decision under review is affirmed.
................................[sgd]........................................
Dr Teresa Nicoletti, Senior Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – applicant appointed as correspondence and payment nominee for son – son cancelled applicant’s appointment as correspondence and payment nominee – whether nominee arrangement was correctly cancelled by the Department – whether applicant entitled to son’s youth allowance payments prior to cancellation as nominee – appointment as nominee doesn’t entitle applicant to receive son’s payments for own benefit – decision affirmed
LEGISLATION
Social Security (Administration Act) 1999 (Cth) ss 44, 45, 123B, 123C, 123D, 123F
REASONS FOR DECISION
Dr Teresa Nicoletti, Senior Member
13 October 2016
FACTS
On 22 December 2014, Mr Raza Noonan applied for Youth Allowance.
On 31 December 2014, Mr Ali Noonan, the father of Mr Raza Noonan, was appointed as both a correspondence nominee and a payment nominee for his son.
On 17 January 2015, Mr Raza Noonan’s claim for Youth Allowance was rejected on the basis that his Family Actual Means details had not been provided.
At Mr Raza Noonan’s request, on 2 May 2015, the payment and correspondence nominee arrangement was cancelled. At that time, no Centrelink payments had yet been made in respect of Mr Raza Noonan.
On 8 May 2015, Mr Raza Noonan’s claim for Youth Allowance was granted, and payment was made directly to him in arrears from 22 December 2014.
On 2 June 2015, Mr Ali Noonan requested an internal review of the decision by Centrelink to pay.
On 2 June 2015, the Original Decision Maker affirmed the decision under review.
On 9 June 2015, the Applicant requested a review of the Original Decision Maker’s decision by an Authorised Review Officer.
On 16 June 2015, the Authorised Review Officer affirmed the decision under review.
On 29 June 2015, Mr Ali Noonan requested a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).
On 11 September 2015, the AAT1 affirmed the decision under review.
On 29 September 2015, Mr Ali Noonan lodged an application for a review of the decision of the AAT1 by the Administrative Appeals Tribunal (“Tribunal”).
ISSUES
The issues that the Tribunal must consider in this application are whether:
(a)the nominee arrangement between the Respondent and his son, Mr Raza Noonan, was correctly cancelled by the Department on 2 May 2015; and
(b)all or part of Mr Raza Noonan’s entitlements to Youth Allowance for the period 22 December 2014 to 2 May 2015 should be paid to the Applicant.
RELEVANT LEGISLATION
The relevant legislation is contained within the Social Security (Administration) Act 1999 (“Administration Act”).
Section 44 of the Administration Act provides:
(1)Subject to section 45, instalments of a person’s social security periodic payment are to be paid to that person
(2)If, by virtue of a determination under subsection 46(2), a person’s special employment advance is to be paid by instalments, the instalments are to be paid to that person.
(3)This section has effect subject to Part 3A.
Section 45 of the Administration Act provides:
(1)Subject to subsection (2), instalments of youth allowance of a person who is under 18 years of age and is not independent are to be paid on behalf of the person:
(a) if the person has only one living parent – to that parent; or
(b) if the person has more than one living parent – to the parent nominated in writing by the person to the Secretary.
(2)The Secretary may direct that the whole or a part of the instalments of youth allowance of a person referred to in subsection (1) is to be paid to the person.
(3)If the Secretary gives a direction under subsection (2), the instalments are to be paid in accordance with the direction.
(4)This section has effect subject to Part 3A.
Section 123B of the Administration Act provides guidance as to when a payment nominee can be appointed:
Subject to section 123D, the Secretary may, in writing:
(a) appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the social security law; and
(b) direct that the whole or a specified part of a specified relevant payment that is payable to the nominee’s principal, or would, but for subsection 45(1), be so payable, is to be paid to the nominee.
Section 123C of the Administration Act provides guidance as to when a correspondence nominee can be appointed:
Subject to section 123D, the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the social security law.
Section 123D of the Administration Act provides the conditions for appointing a nominee:
(1)A person may be appointed as the payment nominee and the correspondence nominee of the same person.
(2)The Secretary must not appoint a nominee for a person (the proposed principal) under section 123B or 123C except:
(a) with the written consent of the person to be appointed; and
(b) after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.
(3)The Secretary must cause a copy of appointment under section 123B or 123C to be given to:
(a) the nominee; and
(b) the principal.
(4)The Secretary must not appoint a payment nominee for a person who is the holder of a concession card but is not receiving a social security payment.
Section 123F of the Administration Act provides instructions regarding payment by instalments to a nominee:
(1)If:
(a) a person has a payment nominee; and
(b) the whole or part of a relevant payment is payable to the person, or would, but for subsection 45(1), be so payable; and
(c) the Secretary has given a direction in relation to the relevant payment under section 123B;
the relevant payment is to be paid in accordance with the direction.
(2)An amount paid to the payment nominee of a person:
(a) is paid to the payment nominee on behalf of the person; and
(b) is taken, for the purposes of the social security law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.
(3)An amount that is to be paid to the payment nominee of a person must be paid to the credit of a bank account nominated and maintained by the nominee.
(4)The Secretary may direct that the whole or a part of an amount that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an amount to which the direction relates is to be paid in accordance with the direction.
(5)Subsection (3) and (4) do not apply in the case of a person who is a payment nominee by virtue of paragraph (b) of the definition of payment nominee in section 123A.
CONSIDERATION
Mr Ali Noonan contends that he is entitled to be paid Mr Raza Noonan’s Youth Allowance for the period from 22 December 2014 to 2 May 2015 because he was the payment nominee for Mr Raza Noonan during this period. Mr Ali Noonan stated that he accepted that from 2 May 2015 onwards his son should receive the Youth Allowance payments, but that from 22 December 2014 until 2 May 2015, he (Mr Ali Noonan) was the nominee for payments and for information. It was for this reason that Mr Ali Noonan contended payment should have been made to his bank account.
The Respondent submits that the Youth Allowance payments for the relevant period were correctly paid to Mr Raza Noonan because Mr Ali Noonan was not a payment nominee for Mr Raza Noonan when the payments were made. The Respondent relies on subsection 123F(1) of the Administration Act, which provides that a relevant payment is to be paid only if a person has a payment nominee, the whole or part of the payment is payable to the person, or would be but for subsection 45(1), and the Secretary has given a direction under section 123B of the Administration Act.
The Respondent contends that subsection 45(1) does not apply in this case, as Mr Raza Noonan turned 18 years of age on 12 March 2015 and was independent at some stage after he cancelled the payment nominee arrangement with the Applicant, and prior to receiving Youth Allowance in arrears. Accordingly, the Respondent contends that Mr Raza Noonan’s payments of Youth Allowance were not required to be paid to a living parent.
The Respondent contends that the payments of Youth Allowance arrears were correctly paid to Mr Raza Noonan directly. Whilst it may be the case that Mr Raza Noonan was eligible for Youth Allowance payments from 22 December 2014, the payment was not able to be made to him until he had provided all of the relevant information required by the Department to qualify him for payment. All such relevant information was provided by Mr Raza Noonan on or before 8 May 2015, and therefore payment was effective from that date.
Noting paragraph 24 above, because the correspondence and payment nominee arrangement with Mr Ali Noonan ceased on 2 May 2015, payment was paid directly to Mr Raza Noonan, including payment in arrears from 22 December 2014.
I note that Mr Ali Noonan’s contention was that he had financially supported his son during the period that he was the payment nominee, and he did so on the basis that his son would repay him from the youth allowance payments when they came through. Mr Ali Noonan alleged that as soon as Mr Raza Noonan became aware that he would receive a lump sum payment that included payment in arrears from 22 December 2014, he cancelled the payment nominee arrangement.
I accept as true that Mr Ali Noonan financially supported his son during the period from 22 December 2014 until 2 May 2015. However, the Tribunal cannot make a decision in the context of an arrangement or understanding that Mr Ali Noonan may have had with his son. That is a matter for Mr Ali Noonan to resolve with his son.
There is no provision in the legislation for Centrelink to pay Youth Allowance in arrears from 22 December 2014 until 2 May 2015 to Mr Ali Noonan, because those payments were provided for the benefit of Mr Raza Noonan, not for Mr Ali Noonan, notwithstanding that Mr Ali Noonan was the payment nominee during that period. The fact that a person is appointed a payment nominee doesn’t entitle them to receive those payments for their own benefit; it only provides for them to receive payment on behalf of an applicant for Youth Allowance, for the benefit of that applicant. This is made clear under section 123F of the Act.
Accordingly, given that the payment nominee arrangement between Mr Ali Noonan and Mr Raza Noonan ceased on 2 May 2015, it is my view that the payment of Youth Allowance to Mr Raza Noonan which included payment in arrears from 22 December 2014 to 2 May 2015 was correctly made.
It follows, therefore, that I have decided that Mr Ali Noonan is not entitled to be paid the Youth Allowance payments pertaining to Mr Raza Noonan for the period from 22 December 2014 to 2 May 2015.
DECISION
The decision under review is affirmed.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr Teresa Nicoletti, Senior Member ...................................[sgd].....................................
Associate
Dated 13 October 2016
Date(s) of hearing 28 April 2016 Date final submissions received 10 May 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Remedies
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