Pianta and Secretary, Department of Employment and Workplace Relations

[2006] AATA 741

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 741

ADMINISTRATIVE APPEALS TRIBUNAL
   No Q2006/130

GENERAL ADMINISTRATIVE DIVISION
Re	SAMANTHA PIANTA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORLKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date30 August 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – parenting payment – over statement of income - claim for arrears – limitation on payment of arrears - hearing in the absence of the parties - decision affirmed

Social Security Act1991 s 1068A
Social Security (Administration) Act1999 ss 109, 129, 154
Administrative Appeals Tribunal Act 1975 s34J

REASONS FOR DECISION

30 August 2006  Mr RG Kenny, Member

Application

1.      Samantha Pianta (the applicant) has worked as a taxi driver since October 2000. During that period, she was in receipt of parenting payment which is a form of income support payable under the Social Security Act 1991 (the Act).  In accordance with the requirements under that Act, she regularly advised Centrelink of her income but, in doing so, she overstated her earnings because she included her GST component.  As the rate of parenting payment was dependent upon her income levels, she was underpaid by Centrelink.  When Ms Pianta became aware of this, she notified Centrelink and requested that the payment be adjusted and that she be paid arrears from 11 October 2000 when she commenced work.  A Centrelink delegate, on behalf of the respondent, made the adjustment to the rate of payment but, on 10 March 2005, determined that the relevant legislation precluded the payment of arrears before 14 September 2004.  That decision was affirmed by an authorised review officer on 6 April 2005 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 25 January 2006.  On 23 February 2006, Ms Pianta sought review of the decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2. Section 34J of the Administrative Appeals Tribunal Act 1975 makes provision for a matter to be determined without a hearing if it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties and the parties consent to the review being determined without a hearing.

3.      Both parties have consented to the matter being dealt with in their absence and I am satisfied that it is appropriate to proceed in that manner by considering the material provided to the Tribunal.

Consideration

4.      It is not in dispute in this matter and I am reasonably satisfied that Ms Pianta was paid less than the full entitlement of parenting payment in the period from October 2000 until December 2004.  During that time, she regularly declared her income, including the GST component.  She also received regular notices from Centrelink which advised her of the amount of income that was being utilised by its officers to calculate the level of her parenting payment.  It was not until late in 2004 that Ms Pianta realised that she was overstating her income and, accordingly, she advised a Centrelink officer of this on 14 December 2004. 

5. Subsection 129(1) of the Social Security (Administration) Act 1999 (the Administration Act) makes provision for a person affected by a decision of an officer under the social security law to apply for a review of that decision. The notification by Ms Pianta on 14 December 2004 meets that requirement. In the result, Centrelink make a decision favourable to her by amending her rate of payment. The provisions in Part 3 Division 9 of the Administration Act set out the means of determining the date of effect of any such favourable determination. I am satisfied that those provisions do not enable arrears to be paid from any earlier date than that which was identified in the decision under review and which falls 13 weeks before Ms Pianta advised Centrelink of the incorrect income levels.

6. Ms Pianta submitted that she has been denied her full entitlements of parenting payment and that it is unfair for her not to receive the full measure of payments in arrears. While I accept that Ms Pianta has been underpaid, the capacity for her situation to be remedied is to be determined by the legislation which both establishes the pension entitlement and lays down the procedures for implementing the payment regimen. This includes provisions which impose certain limitations on the payment of arrears. The application of those provisions in Part 3 Division 9 of the Administration Act preclude payment of arrears any earlier than 14 September 2004.

Decision

7.The decision under review is affirmed. 

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Philip Richardson

Legal Research Officer

The matter was heard on the papers
Date of Decision            30 August 2006