Puga and Secretary, Department of Employment and Workplace Relations
[2006] AATA 181
•2 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 181
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/1280
GENERAL ADMINISTRATIVE DIVISION ) Re MANUEL PUGA Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr I R Way, Member Date2 March 2006
PlaceSydney
Decision The decision under review is affirmed. [SGD] Mr I R Way
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment (single) – payment of arrears – Applicant lodged claim – claim rejected – Applicant did not appeal until after 13 weeks – decision affirmed
Social Security (Administration) Act 1999 – section 107
REASONS FOR DECISION
2 March 2006 Mr I R Way, Member 1. This is an application by Mr Manuel Puga (“the Applicant”) for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 19 September 2005 regarding the payment of arrears of parenting payment (single) (“PPS”). The SSAT affirmed a decision of an Authorised Review Officer (“ARO”), dated 22 February 2005, not to pay Mr Puga arrears of PPS for the period 25 September 2003 to 20 February 2005 (“the payment period”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T17) and a bundle of electronic file notes from Mr Puga’s Centrelink file (Exhibit R1).
3. The Applicant was self-represented and gave oral evidence. Mr A Duri represented the Secretary, Department of Employment and Workplace Relations (“the Respondent”).
background
4. There is no dispute about the background facts in this matter and in view of this and on the material before it the Tribunal finds as follows:
(a)Mr Puga was born on 23 August 1969 and married on 23 July 1993. He has two children by this marriage;
(b)Mr Puga and Mrs Puga separated on 2 July 2003 and were finally divorced in February 2005;
(c)On 25 September 2003, Mr Puga lodged a claim for PPS in respect of his two children;
(d)On 13 October 2003, Centrelink determined to reject Mr Puga’s claim for PPS and notice of this decision was conveyed to the Applicant by letter from Centrelink dated 23 October 2003. This letter stated that Mr Puga’s claim had been rejected because he did not have a dependent child in his care, control and custody;
(e)On 21 February 2005, the Applicant sought a review of the decision of Centrelink conveyed to the Applicant on 23 October 2003;
(f)The Applicant made no attempt to contact Centrelink between 23 October 2003 and 21 February 2005.
issues and legislative framework
5. The central issue in this matter is whether the Applicant sought a review of the decision rejecting his PPS any earlier than 21 February 2005.
6. This matter is to be determined within the provisions of the Social Security (Administration) Act 1999 (“the Act”).
7. Section 107(3) of the Act provides:
“If:
(a)a decision (the original decision) is made rejecting a person's claim for a social security payment or concession card; and
(b)the person is given a notice informing him or her of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.”
8. The Tribunal notes that the SSAT, in its reasons for decision, has made the following comments (T2/6):
“…
DISCUSSION OF EVIDENCE:
18.The tribunal noted that Centrelink records dated 25 September and 13 October 2003 indicated that both Mr Puga and his solicitor were advised that he could not be granted parenting payment until the custody dispute involving his children was resolved. Clearly this advice was incorrect. Given that Mr Puga was the primary carer of his children from 2 July 2003, with the exception of a 3 week period from 27 August 2003, his claim for parenting payment should not have been rejected on this basis. The documents provided to the tribunal also indicate that Centrelink failed to advise Mr Puga that he could, in the alternative, claim newstart allowance.”
9. The SSAT also saw fit to attach to its decision a detailed suggestion that a payment under the Compensation for Detriment caused by Defective Administration (“CDDA”) scheme be made to Mr Puga.
10. A copy of the SSAT’s suggestion is set out below (T2/8):
“SUGGESTION THAT A PAYMENT UNDER THE COMPENSATION FOR DETRIMENT CAUSE BY DEFECTIVE ADMINISTRATION SCHEME BE ISSUED TO MR PUGA
27.Mr Puga lodged a claim for parenting payment on 25 September 2003. At that time he was the primary carer for his two children. Mr Puga was advised orally on 25 September 2003 that his claim for parenting payment would be rejected because the custody dispute had not yet been “resolved”. A Centrelink document of the same date notes that his claim for family tax benefit was rejected “as per court order”. However, there were no orders made in relation to the care of Mr Puga’s children until 14 November 2003.
28.This advice was repeated on 13 October 2003 when Mr Puga’s solicitor, Ms Jacquelyn Evans, telephoned Centrelink. The record of the conversation notes that “Centrelink cannot pay when there is a dispute for the custody of the children. Solicitor asked how this can be resolved. Advised either through court or a private arrangement between the two parties. Solicitor understood.”
29.Mr Puga understood from this advice that he was not eligible for parenting payment until the final Family Court orders were made. Given the Centrelink records of September and October 2003, this understanding was not unreasonable. The fact that he contacted Centrelink in February 2005 as soon as the custody dispute was finalised supports his evidence in this regard. Clearly, the advice given by Centrelink to Mr Puga and Ms Evans was both misleading and incorrect.
30.The tribunal is not aware of Mr Puga’s income from employment (or from other sources) during the period in question. However, it is likely that Mr Puga has suffered economic loss as a result of Centrelink’s actions and therefore suggests that Centrelink consider making a payment to Mr Puga under the Compensation for Detriment caused by Defective Administration scheme. The amount of Mr Puga’s economic loss is the amount of parenting payment that he would have been entitled to receive for the period 25 September 2003 to 20 February 2005. In order to calculate this figure Centrelink must ascertain Mr Puga’s income for the relevant period. In this regard, the tribunal understands that Mr Puga has recently lodged tax returns with the Australian Taxation Office for the 03/04 and 04/05 financial years.”
11. The Tribunal is mindful that questions in respect of the application of the CDDA scheme are not ones that are within the jurisdiction of the AAT and that the correct avenue for consideration of such questions is through the Commonwealth Ombudsman. The Tribunal notes that Mr Puga has made initial contact with the Ombudsman about compensation under the CDDA scheme, but is waiting for the outcome of this review before taking any further action.
applicant’s evidence and submissions
12. Mr Puga made a detailed statement about the circumstances of his claim in a letter dated 20 July 2005 (T14). In his oral evidence, Mr Puga highlighted what he saw as the most significant aspects of what he had said in that letter.
13. Mr Puga told the Tribunal that after making his claim for PPS on 25 September 2003, he was contacted by Centrelink in early October 2003, at which time he was told that his claim had been rejected because Centrelink had a court order from his wife giving her custody of the children. He said he requested an interview, and on 13 October 2003 this took place with a Centrelink officer. His two children were with him at the interview. He said he was told that his payments would be suspended until further notice.
14. The Tribunal notes the Centrelink file note in respect of the rejection of Mr Puga’s claim for PPS on 13 October 2003 (T 3/15), as follows:
“Txt: ftb rejected as per court order dtd 260903
as per court order, mother crn 20635443l will have full custody of children elena and bernardo until matter is settled in the fam court as per phone conversation with a/n on the 101003, he has stated that he and ex-ptr are due to appear in court on the 141003 for custody over the children. Have advised cust that until the matter resolved, I would have to reject his claim. cust understood and said that as soon as custody is resolved, he will have his solicitor fax over the court order.
FTB rejected as per s21(1) FAA99
claim for PPS will also be rejected”
15. Mr Puga told the Tribunal that an interim court order was made on 14 November 2003, which in effect gave him custody of the children and that he received the final court order in February 2005 (T16). Mr Puga said he did not have a copy of the interim court order and Mr Duri said that a copy of this order was not on the Applicant’s Centrelink file. The Tribunal notes that there is a file note on Mrs Puga’s Centrelink file (T3/17) which refers to the interim order of 14 November 2003.
16. Mr Puga said he had legal representation during the court proceedings about custody of his children (Dooley & Associates) and he thought that his solicitor had faxed a copy of the interim court order to Centrelink. He said he did not have a copy of this fax and he was not able to provide any evidence from his solicitors (who no longer act for him) to prove they had sent Centrelink any information about the interim court order. The Tribunal notes that Centrelink approached Dooley & Associates on 14 July 2005 about Mr Puga’s circumstances, however, the question as to whether they had notified Centrelink in 2003 about the interim court order was not raised. Mr Duri said that there was no record on Mr Puga’s Centrelink file of a fax from Dooley & Associates in respect of Mr Puga’s interim court order.
17. In answer to questions from Mr Duri, Mr Puga said he could recall receiving a letter from Centrelink, dated 23 October 2003, which notified him that his claim for PPS had been rejected and that he had made no contact with Centrelink at all between the time of receiving this letter and lodging his claim for PPS in February 2005.
18. The Tribunal notes that Centrelink’s letter of 23 October 2003 includes the statement (at T8/34):
“Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any change to that decision, or any backpayment can only take effect from the date you ask.”
19. Mr Puga submitted that Centrelink had made their decision to reject his initial claim for PPS on the false understanding that an application by his wife for custody of the children was a court order to that effect, and any attempt he made to see and discuss the so-called order at the time was rejected. He submitted that at the time his claim was rejected he was not at all familiar with Centrelink procedures or the law relating to PPS and he accepted that the matter was in Centrelink’s hands until further notice from them and he should await further instructions from Centrelink. He said he took this to mean that nothing would happen until there was evidence from the Family Law Court that the children were in his custody and when he had this evidence in February 2005 he approached Centrelink to progress his initial claim made in 2003.
respondent’s submissions
20. Mr Duri, in his Statement of Facts and Contentions, stated that the Secretary concedes that Mr Puga, in hindsight, was qualified for parenting payment from the time of his original claim on 25 September 2003.
21. However, it was submitted that arrears of PPS are not payable to Mr Puga because, pursuant to section 107(3) of the Act, Mr Puga was given a notice of the decision to reject his claim on 23 October 2003 and because he did not apply to the Secretary for a review of that decision until February 2005, the decision to grant his claim must take effect on the day on which the application for review was made.
22. It was therefore submitted that the decision under review should be affirmed.
23. Although the question of payment of compensation to Mr Puga under the CDDA scheme is not a matter for resolution by this Tribunal, nevertheless, in view of the unusual circumstances of this case, the Tribunal asked Mr Duri whether the delegate had taken into account the suggestion made by the SSAT. Mr Duri said that the delegate, at the time of making his decision, had not seen the SSAT comments. Mr Duri assured the Tribunal that the delegate will reconsider Mr Puga’s case taking into account the SSAT comments and these reasons for decision.
consideration
24. The Tribunal is satisfied that Mr Puga was given notice on 23 October 2003 of the decision to reject his claim for PPS and that this notice clearly set out that unless he asked for this decision to be reviewed within 13 weeks any back-payment would only take effect from the date he asked for a review. On Mr Puga’s own evidence he received the letter from Centrelink but did nothing about it until 21 February 2005 and therefore the Tribunal is satisfied that pursuant to section 107(3) of the Act, Centrelink’s decision not to pay Mr Puga arrears of PPS for the payment period is correct.
25. The Tribunal therefore must affirm the decision under review.
26. Having said that there are a number of aspects of this case that warrant comment by the Tribunal.
27. At the outset, it is clear that the Centrelink officer who made the initial decision to reject Mr Puga’s claim thought there was a court order in existence giving Mrs Puga custody of the children. Such a court order did not exist, there being only an application from Mrs Puga to the court for custody of her children, and Mr Puga at the time of his claim did have custody of the children. The SSAT is correct in stating that Mr Puga’s initial claim for PPS should not have been rejected and that the advice that PPS could not be granted until the custody dispute was resolved was incorrect.
28. The Tribunal has made the point that questions in respect of the application of the CDDA scheme are not matters that fall within its jurisdiction. However, in view of the circumstances of this matter and the fact that the SSAT saw fit to make a suggestion in respect of a compensation payment to Mr Puga, the Tribunal feels constrained to comment on the SSAT’s suggestion. On the evidence and presentation of Mr Puga, the Tribunal accepts the SSAT comment that it was not unreasonable for Mr Puga to understand from the advice he received from Centrelink that he was not eligible for PPS until final Family Court orders were made. The Tribunal, as stated above, also agrees with the SSAT in respect of the other comments made by the SSAT in the suggestion appended to its reasons for decision. In accepting the SSAT’s comments, the Tribunal is mindful that while Mr Puga presented as a reasonably intelligent person he also, at the time of his initial application, was quite unfamiliar with Centrelink procedures and the law in respect of payment of PPS and that he had some expectation that his solicitor was looking after his interests in these respects. Regrettably, the role played by the Applicant’s solicitor in this unhappy affair is not at all clear. Finally, it should be said that despite the confusing circumstances surrounding Mr Puga’s initial claim, and his understanding of his position at the time, he must bear some responsibility for failing to make a timely response to Centrelink’s letter of 23 October 2003 rejecting his claim.
29. The Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member.
Signed: A. Garcia
AssociateDate of Hearing 7 February 2006
Date of Decision 2 March 2006
Representative for the Applicant self representedAdvocate for the Respondent Mr A Duri
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