Peric and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 314

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 314

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2009/5886

GENERAL ADMINISTRATIVE DIVISION		)
Re		NATASHA PERIC

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Regina Perton, Member

Date12 May 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

................[signed].................

Member

SOCIAL SECURITY – parenting payment – exemption from workplace participation activities – transitional arrangements – three children with disabilities – youngest attained seven years – lack of evidence regarding children’s needs during school day – decision under review affirmed.

Social Security Act 1991 ss 500A, 500D, 502F

Guide to Social Security Law 3.5.1.260, 3.5.1.280

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Peric v Centrelink [2010] FCA 543

REASONS FOR DECISION

12 May 2011 Ms Regina Perton, Member

1.       Natasha Peric is the mother of four children.  Her children were born in November 1992, January 1995, August 1997 and November 1998.  Miss Peric had been receiving parenting payment since July 1995 and carer allowance from February 2009.

2.       The Social Security Act 1991 (the Act) imposes a requirement on recipients of parenting payment to undertake compulsory workplace participation activities once the youngest child is of a certain age.  For persons like Miss Peric, who were receiving parenting payment immediately before 1 July 2006, the Act imposed part-time participation activities from when the youngest child turned seven or 1 July 2007, whichever occurred later.  Miss Peric initially met exemption criteria for persons with four or more children aged between six and 15 years.  However, after her eldest child exceeded the age range, Centrelink decided on 20 February 2009 that she was required to undertake workplace participation activities.

3.       Miss Peric sought exemption from the participation activities on the basis that the care required by her three youngest children who suffer from disabilities and her husband who was unwell meant that she was not in a position to undertake such activities.  On 27 March 2009 Centrelink advised Miss Peric that she would not be exempted.  The manager of the Centrelink office with which she dealt advised her that as there was no evidence that she was required to attend her children’s school during school hours due to the nature of their disabilities, she was not exempt.  However, Centrelink reduced the level of activities she was required to undertake as she received carer allowance in relation to one or more children.

4.       Miss Peric sought a review of Centrelink’s decision.  On 3 July 2009 a Centrelink authorised review officer (ARO) decided to affirm Centrelink’s original decision.  Miss Peric then sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  On 12 November 2009 the SSAT affirmed the ARO’s decision.  Miss Peric lodged an application for review of the SSAT decision with this Tribunal on 10 December 2009.  On 16 February 2010, this Tribunal, differently constituted, affirmed the decision under review in Miss Peric’s absence.

5.       On 31 May 2010 the Federal Court of Australia found that the address to which the Tribunal had sent the notice of hearing had been misspelled.  Therefore, Miss Peric may not have received notice of the Tribunal hearing and hence did not have an opportunity to present evidence.  The Court remitted the application to the Tribunal for rehearing and re-determination (Peric v Centrelink [2010] FCA 543).

6.       There is no dispute that Miss Peric qualified for parenting payment and carer allowance.  The issue in dispute is whether she was eligible for exemption from the participation requirements.

RELEVANT LEGISLATION

7.       The legislation applicable to this application is the legislation that was in existence prior to 1 July 2010, when amendments were made to the exemption provisions regarding compulsory participation for those receiving parenting payment.

8. Section 500F of the Act applied participation requirements on members of a couple receiving parenting payment as described in paragraph 2 above. The participation requirements are set out in s 500A.

9.       There are exemptions from participation requirements.  Section 502D is specifically aimed at persons with disabled children:

(1)A person is covered by a participation exemption under this Division in respect of a period that the Secretary determines under this section in relation to the person.

(2)The Secretary may make a determination under this section in relation to the person if the Secretary is satisfied that the person is the principal carer of one or more children:

(a)who suffer from a physical, intellectual or psychiatric disability or illness; and

(b)whose care needs are such that the person should, for the period specified in the determination, not be required to meet participation requirements.

Note:     For principal carer see subsections 5(15) to (24).

(3)The Secretary must make a determination under this section in relation to the person if the Secretary is satisfied that the person is the principal carer of one or more children, and that:

(a)       the person is a registered and active foster carer; or

(bthe person is a home educator of that child, or one or more of those children; or

(c)the person is a distance educator of that child, or one or more of those children; or

(d)under a family law order that the person is complying with, a child, of whom the person is a relative (other than a parent), is to live with the person.

Note 1:   For principal carer see subsections 5(15) to (24).

Note 2:   For registered and active foster carer see section 5B.

Note 3:   For home educator see section 5C.

Note 4:   For distance educator see section 5D.

Note 5:   For family law order see subsection 23(1).

Note 6:   For relative (other than a parent) see section 5E.

(3A)The Secretary must make a determination under this section in relation to the person if the Secretary is satisfied that the person is the principal carer of 4 or more children.

Note:     For principal carer see subsections 5(15) to (24).

(4)The Secretary may make a determination under this section in relation to the person if the Secretary is satisfied that:

(a)the person is a person included in a class of persons specified under subsection (5); and

(b)the person’s circumstances are such that the person should not be required to meet any of the participation requirements.

(5)The Secretary may, by legislative instrument, specify classes of persons in respect of whom determinations under this section may be made.

(6)The period that the Secretary determines under this section must be the lesser of:

(a)       the period that the Secretary considers to be appropriate; or

(b)       12 months.

(7)Any such period may be followed by one or more other periods (not exceeding 12 months) determined under this section in relation to the person.

(8)The Secretary may revoke a determination under this section in relation to a person if the Secretary is satisfied that the grounds on which the determination was made no longer exist.

(9)Subsection (8) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a determination under this section.

10.     The Guide to Social Security Law contains the policy guidelines for determination of exemptions:

3.5.1.260 Participation Requirements Exemption in Special Family Circumstances - Overview (PP)

Summary

…PP recipients who are subject to mandatory participation requirements can be either considered for an exemption from all participation requirements (on a short or long-term basis) or have reduced job search requirements and negotiate flexible arrangements to meet other participation requirements. 

Introduction

Under the Welfare to Work budget measures, part-time participation requirements will be applied to PP recipients in the following categories:

·     PP recipients grandfathered by means of the transitional arrangements. For this group participation requirements will become mandatory after a 12 month 'grace period'. For individual PP recipients in this group, mandatory participation requirements will therefore be applied from 1 July 2007 if their youngest child is at least 7 years old, or when their youngest child turns 7, whichever is the later date,

…

Types of exemption

There are 2 types of exemption from participation requirements for PP recipients due to special family circumstances:

·     exemptions granted on an automatic basis, and

·     exemptions assessed and granted on a case-by-case basis.

For both exemption types, PP recipients are required to provide documentation which substantiates the existence and nature of the special family circumstances. In the case of automatic exemptions, once adequate verification is provided, an exemption must be immediately granted. The only discretion is setting the duration of exemption.

Automatic exemptions

There are a number of special family circumstances where an automatic exemption can be applied:

·     if the PP recipient is an active and registered foster carer,

·     if the PP recipient is providing home schooling for one or more of the children for whom they are the principal carer,

·     if the PP recipient is providing or suitably assisting and supervising distance education for one or more of the children for whom they are the principal carer, or secondary pupil children for whom they are the main supporter,

·     if the PP recipient is caring for a large family (i.e. is the principal carer of at least one child between 6 and 15 years inclusive and a total of 4 or more children and secondary pupil child(ren) all aged between 6 and 18 inclusive), or

·     if the PP recipient is a relative but not a parent of a child and the child is living with the PP recipient in accordance with a document prepared or accepted by a state or territory authority that has responsibility for the wellbeing of children.

Exemptions for all other special family circumstances are to be considered on a case-by-case basis.

Case-by-case exemptions

A further step is required for the assessment of case-by-case exemptions. Once the existence and nature of a special family circumstance is verified, consideration must be given to the practical impact of this circumstance upon the parent’s capacity to undertake part-time paid employment of 15 hours a week. In making this determination primary regard must be given to the extent to which the PP recipient’s child(ren) is/are able to attend school, and if necessary, outside school hours care, without the PP recipient being constantly at hand or on-call. Supporting statements of the THP and/or school (wherever information from these sources is appropriate) should be considered.

3.5.1.280 Participation Requirements Exemption in Special Family Circumstances - Case-by-Case (PP)

…

Case-by-case exemptions

There are a range of special family circumstances where a temporary exemption will be considered on a case-by-case basis. These include, but are not limited to:

·     caring for a dependent child with a disability,

·     involvement in informal kinship or family care arrangements,

·     being subject to domestic violence,

·     extremely high stress due to recent relationship breakdown,

·     the death of an immediate family member,

·     a dependent child having a temporary illness or injury requiring full-time parental care,

·     caring for a frail aged or disabled adult family member,

·     caring for a youngest child aged 6 but who has not yet commenced school. 

Case-by-case exemptions for these circumstances should be considered, assessed and granted as described below.

PP recipient caring for a child with a disability

A PP recipient caring for at least one dependent child who suffers from a physical, intellectual or psychiatric disability or illness may apply for an exemption from participation requirements. To be granted an exemption, it has to be determined that the care needs of that child(ren) are such that, as a result, the PP recipient does not have capacity to undertake 15 hours of paid part-time work a week. A determination should give regard to:

·     the extent to which the child is able to attend school without the PP recipient being constantly at hand or on call, and

·     a statement from the school (where appropriate) and/or assessment of a THP stating that the principal carer needs to be always available to care for the child(ren) with a disability. 

Where PP recipients applying for this exemption are in receipt of CA (child), the delegate should consider this as sufficient verification that the child(ren) concerned has/have a disability. However, whether PP recipients are in receipt of CA (child) or not, the assessment of a THP is still required in order to determine the functional impact of the child’s care needs upon the PP recipient’s available time and therefore capacity to undertake 15 hours a week of part-time work. In addition to the assessment of a THP, a statement from the child(ren)’s school is only required if the child(ren) are attending school at the time the exemption is sought.

Note: A THP is a qualified medical practitioner and would generally be the person who has the most knowledge of the child's medical condition. This may be the general practitioner or a medical specialist who has been treating the child.

…

DOES MISS PERIC QUALIFY FOR THE EXEMPTION?

11.     Centrelink records show that one of Miss Peric’s sons suffers from developmental delay of moderate severity.  Another suffers from spina bifida and a deformity of his legs.  Her younger daughter suffers from intellectual disability of moderate severity.  The three children attend mainstream schools.  Their doctor’s reports indicate that the children are able to attend to their own personal care and hygiene needs, dress themselves and remain at school for a normal school day without parental care.

12.     Miss Peric indicated that when her children needed to attend medical appointments, she would drive them, rather than her husband whose health was poor.  She said that she was on stand-by if required to go to the school when her children needed her because of their disabilities.  She did not provide any evidence as to when that last happened or how often it happened.

13.     Miss Peric stated that the doctor’s reports on the three children given to Centrelink provided sufficient information for her to be granted an exemption.  She refused to obtain reports from the children’s school, despite several suggestions by the Centrelink advocate and the Tribunal that she would be granted an exemption if she obtained such reports indicating that she needed to be on stand-by during school hours.

14.     Miss Peric stated that she did not have a telephone.  She telephoned the Tribunal from a public phone.  She said that she was not in a position to attend the hearing in person.  She refused the Tribunal’s offer to telephone her at a nearby venue or someone else’s home.  Miss Peric did not answer the question of how the school contacted her if her attendance was required during school hours due to the children’s needs.

15.     The Tribunal is satisfied that Miss Peric is the principal carer of three children under 16 years of age who have ongoing physical and/or intellectual disabilities.  She is qualified for, and receives, carer allowance in respect of the children.  The children’s doctor, Dr R Megally, has provided reports to Centrelink.  His reports indicate that the children manage their own personal and hygiene needs.  The reports do not provide any information as to whether Miss Peric is required to attend the mainstream school, which the children attend full-time during the day, or to be on standby to do so.

16.     The Tribunal has no independent information about the frequency or timing of any medical appointment that would have an impact on the level of care needed for the treatment of the children or that would prevent Miss Peric from being able to undertake workplace participation activities for 15 hours per week.

17.     Based on the evidence presented, the Tribunal is not satisfied that the children’s care needs were such that Miss Peric would have been unable to undertake 15 hours of part-time work or alternative activities acceptable to Centrelink.  Had Miss Peric provided evidence from the school that the children’s needs were such that she was required to be available during the school day, she would have qualified for exemption. 

18.     The Tribunal is satisfied that it is appropriate to follow the policy as set out in the Guide to Social Security Law requiring independent evidence of the children’s needs while at school.  While the Tribunal is not bound by the policy, it has been held that it should take government policy into account unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634).

19.     Miss Peric did not claim to meet any of the other possible criteria for exemption.  On considering the various criteria, the Tribunal does not find that she meets any of them.  The Tribunal is therefore not satisfied that Miss Peric meets the criteria for exemption that were contained in the Act as it was before 1 July 2010.

PROCEDURAL MATTERS

20.     The provisions concerning exemption in the Act were amended as from 1 July 2010.  Following the remittal, the matter was listed for a fresh hearing before the current Tribunal on 6 July 2010.  A few days before the hearing, on 29 June 2010, a Centrelink advocate wrote to Miss Peric advising her of the amended legislation.  He pointed to a revised exemption provision, section 502D(3A), which might allow an exemption from workplace participation activities for someone in Miss Peric’s situation.

21.     At the hearing, the Tribunal adjourned the matter so that the advocate could seek instructions as to whether Centrelink still wished to insist on Miss Peric undertaking workplace participation activities in light of the amendment.  The Tribunal had granted a stay in the implementation of the decision (with the respondent’s consent) on 22 December 2009, which remained in place at that time.

22.     Centrelink sent a written offer of settlement to Miss Peric on 16 July 2010.  By mid-August 2010, the Tribunal had not received confirmation of a settlement so the matter was re-listed for a directions hearing by telephone on 25 August 2010.  A note on the file stated that if the parties resolved the matter by that date, the directions hearing would be cancelled.  Due to difficulties with the pay telephone Miss Peric was using, her call to the Tribunal was a few minutes late, by which time the Centrelink advocate had finished his conversation with the Tribunal.  The Tribunal was unable to contact him again when Miss Peric got through to the Tribunal.  The matter was eventually re-scheduled for hearing on 22 November 2010.

23. By letter dated 29 October 2010, Centrelink sought dismissal of Miss Peric’s application as being a frivolous application pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975, on the basis of her failure to sign the settlement.  Centrelink submitted that Miss Peric would be unable to achieve a better outcome than that offered to her in July 2010.

24.     At the hearing on 22 November 2010, Miss Peric said that she had submitted further medical reports to Centrelink that should have been taken into account.  Miss Peric was adamant that they were relevant to the proceedings before the Tribunal.  The Tribunal agreed to defer its decision to allow those reports to be presented.  On 24 December 2010 the Centrelink advocate advised that enquiries had indicated that further medical reports from Dr Megally had been lodged with Centrelink between 22 October 2008 and 13 September 2010.  However, Centrelink had been unable to locate those reports.  On 7 January 2011 Centrelink sent copies of reports concerning two of the children dated 21 October 2008 and 27 August 2010 respectively.  Centrelink submitted that those reports provided insufficient evidence for the Tribunal to determine the matter in favour of Miss Peric.  The Tribunal sent copies of Centrelink’s letters to Miss Peric on 19 January 2011.  She was invited to provide further information or comment and offered the opportunity for a further hearing should she wish.  Miss Peric did not reply to the Tribunal’s letter.

25.     On 1 April 2011 the Australian Government Solicitor (AGS), who acts for Centrelink, wrote to the Tribunal to advise that Miss Peric had made an application to the Federal Court.  The Tribunal was informed that the Court had held a directions hearing that day and had adjourned the matter pending the Tribunal’s decision.  AGS confirmed that Miss Peric was not intending to lodge any further material with the Tribunal.  The Tribunal has not been served with any documentation concerning the appeal beyond the letter from AGS.

DECISION

26.     The Tribunal affirms the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

Ms Regina Perton, Member

Signed: ……………...……[signed]…..…………..………..…………

Associate  Grace Horzitski

Dates of hearing:  6 July 2010, 22 November 2010

Date of last submission:                7 January 2011

Date of decision:  12 May 2011

Advocate for the applicant:           Self-represented
Advocate for the respondent:       Mr T Noonan, Centrelink Legal Services
Solicitor for the respondent:          Ms P Heffernan, Australian Government Solicitor