Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal
[2009] AATA 635
•26 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 635
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1343
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
MICHAEL de WAAL
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date26 August 2009
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and in place of that decision decides that the respondent was not entitled to an economic strategy payment under s 900 of the Social Security Act 1991 (Cth).
D G Jarvis
(Signed)Deputy President
CATCHWORDS
SOCIAL SECURITY - economic security strategy payment - respondent had been receiving disability support pension - respondent not entitled to pension on 14 October 2008 because of earnings in excess of relevant income test - held that respondent not entitled to economic security strategy payment - decision under review set aside.
STATUTORY INTERPRETATION – amending Act providing for eligibility criteria under three other Acts providing for social welfare benefits – presumption that payment intended that eligibility criteria common to all Acts would be consistent, and amendments should be construed accordingly – use of different words in amending Act did not indicate an intention to change eligibility criteria – meaning of “receive”.
Social Security Act 1991 (Cth), ss 23(2), 23(4), 38B, 39(1A) and 900(2)
Social Security (Administration) Act 1999 (Cth), s 83
Acts Interpretation Act 1901 (Cth), ss 15AA and 15AB
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Taxation v Roger Cook & Associates Pty Ltd (2005) 142 FCR 273
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Secretary, Department of Social Security and Jessup (1999) 17 ALD 62
The Macquarie Dictionary (Revised Third Edition, 2001)
D.C. Pearce and R.S. Geddes, 6th Ed, Statutory Interpretation in Australia LexisNexis Butterworths
REASONS FOR DECISION
26 August 2009 Deputy President D G Jarvis 1. On 14 October 2008 the Prime Minister of Australia, in a joint media release with the Treasurer, announced a $10.4 billion economic security strategy to strengthen the Australian economy in the face of the global financial crisis. The announcement said that one of the key measures included in the strategy was that the Government would deliver a $4.8 billion down payment to Australia’s four million pensioners, carers and seniors to provide them with immediate financial help in the lead-up to comprehensive reform of the pension system.
2. The Parliament subsequently enacted the Social Security & Other Legislation Amendment (Economic Security Strategy) Act 2008 (Cth) (the ESS Act). This Act effects amendments to the social security law, the family assistance law, the veterans’ entitlements law and the tax law to provide for tax free economic security strategy payments (ESS payments). The payments were to be made to people receiving relevant benefits in respect of the day of the announcement, 14 October 2008.
3. The present proceedings relate to the application of the amendments effected by the ESS Act to the respondent, Michael de Waal. He is a 40 year old pensioner who has been receiving the disability support pension (DSP) pursuant to the Social Security Act 1991 (Cth) (the SS Act) with effect from 7 February 2006, pursuant to a determination made in his favour in April 2006. Under amendments effected by the ESS Act a person receiving a DSP was qualified for an ESS payment if he or she was receiving DSP in respect of the eligibility date, 14 October 2008.
4. As it happened, during the 14-day period ended on 27 October 2008 Mr de Waal’s earnings exceeded the relevant income test limit under the SS Act. His rate of DSP in respect of that period, which included 14 October 2008, as calculated in accordance with the SS Act was $0, and so no DSP was paid or payable to him in respect of that period.
Issue before the Tribunal
5. The issue before the tribunal is whether in the above circumstances Mr de Waal is entitled to an ESS payment. This will depend on the proper construction of the ESS Act.
Background
6. The facts are not in dispute. Mr de Waal has at all material time been qualified to receive the DSP. According to the respondent’s statement of facts, issues and contentions, he requires daily support from a carer to ensure that he takes medication to maintain his mental health and that he eats properly, and also to handle his financial affairs. He is a client of a disability employment service provider which enables him to function in the workplace.
7. A payment summary (exhibit R1) covering the period from January 2006 to July 2009 indicates that Mr de Waal received DSP payments at the end of each fortnightly period until the 14-day instalment period ended on 13 October 2008. He received no DSP payment in respect of the 14-day period ended on 27 October 2008, which period included the eligibility date. He also received no DSP payment in respect of the next ensuing 14-day entitlement period, which ended on 10 November 2008. According to the statement of facts, issues and contentions filed on behalf of Mr de Waal, he had been engaged in part-time seasonal work, involving pruning, and he declared earnings for the 14-day period ended 27 October 2008 of an amount that exceeded the income test limit for DSP, and so, as mentioned above, his rate of DSP was reduced to $0 (exhibit A1, T69, page 90). As a result he was not paid DSP in respect of that period. He also declared earnings in excess of the limit for DSP for the next ensuing 14-day period ended 10 November 2008, and again his rate of DSP was $0, and he was not paid DSP in respect of that period.
8. After the two fortnightly periods referred to in the preceding paragraph, Mr de Waal continued to receive DSP (presumably because his declared earnings, if any, were less than the limit) without making any further claim for DSP, and without the Secretary making any further determination to grant him DSP.
9. When he did not receive the ESS payment in respect of 14 October 2008, Mr de Waal contacted Centrelink, and an authorised review officer (ARO) subsequently affirmed the decision not to pay him the ESS payment.
10. Mr de Waal then applied to the Social Security Appeals Tribunal (SSAT) for review of the ARO’s decision. The SSAT set aside the ARO’s decision, and decided that Mr de Waal had been receiving DSP during the relevant period and that he was qualified for the ESS payment. The Secretary has applied to this tribunal for review of the decision of the SSAT.
Legislative Scheme
11. The ESS Act inserted s 900 into the SS Act. This section provides for the qualification to receive an ESS payment. It provides relevantly as follows:
“Qualified if this section applies
(1)A person is qualified for an economic security strategy payment if subsection (2), (3) or (4) applies to the person.
Receipt of certain payments
(2) This subsection applies to a person if:
(a)the person was receiving one of the following payments in respect of 14 October 2008:
…
(ii)a disability support pension;
…
(b)except in the case of carer allowance, the person was receiving that payment because of a claim the person made on or before 14 October 2008.
Note:For receive see subsections 23(2) and (4).”
12. The word “receive” is defined in ss 23(2) and (4) of the SS Act as follows:
“23(1) In this Act, unless the contrary intention appears:
…
receive has the meaning given by subsections (2), (3), (4), (4AA) and (4AB).
…
(2)For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.
(4)For the purposes of this Act, a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later day.”
The expression “social security payment” is defined in s 23(1) in terms that include the DSP.
13. In order to understand the relevance of the definition of “receive”, it is appropriate to refer to the provisions of the Act providing for the provision of benefits, including DSP. Section 11 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) provides in effect that a person who wants to be granted a social security payment or a concession card must make a claim for the payment or card, and under s 16, the claim must be made in writing or in a manner approved by the Secretary. The Secretary is required by s 36 of the Administration Act to either grant or reject the claim. Under s 37(1), the Secretary must determine to grant the claim if he is satisfied that:
“(a) the claimant is qualified for the social security payment; and
(b) the social security payment is payable.”
14. Under s 41 of the Administration Act, a social security payment becomes payable to a person on the person’s “start day” in relation to that payment. By virtue of s 42, the start day is the day worked out in accordance with Schedule 2.
15. Section 117(a) of the SS Act provides in effect that a person’s rate of DSP is worked out using the Pension Rate Calculator at the end of s 1064. Module A provides for the overall rate calculation process, and s 1064-A1 provides as follows:
“The rate of pension is a daily rate. That rate is worked out by dividing the annual rate calculated according to this Rate Calculator by 364 (fortnightly rates are provided for information only).”
The method statements included in the Rate Calculator take into account the assets and income of the person receiving social security payments. The daily rate of pension resulting from the application of the Rate Calculator can vary, depending on the extent of changes (if any) to assets or income.
16. The SS Act provides that social security payments cease to be payable in various circumstances, which may arise due to the application of income or assets tests, or the imposition of a preclusion period. In the case of DSP, one of those circumstances is dealt with in s 98, which provides in effect that DSP is not payable to a person if his or her DSP rate would be nil. A similar provision applies to other social security payments: see for example s 44 in relation to the age pension, s 500I in relation to parenting payment, and s 608 in relation to Newstart allowance.
17. Under s 43(1) of the Administration Act, a social security periodic payment (which by a chain of definitions includes DSP) is to be paid in arrears and by instalments relating to such periods (not exceeding 14 days) as the Secretary determines. Under s 43(2), instalments of a social security periodic payment are to be paid at such times as the Secretary determines. It is common ground that the Secretary has determined that DSP is to be paid in arrears by instalments of 14 days, and that the instalment period that includes 14 October 2008 ended on 27 October 2008. Section 43(3) provides for the method of calculating the periodic payment of social security payments. It provides as follows:
“43(3)Subject to subsection (4), the amount that is to be paid to a person as an instalment of a social security periodic payment in relation to a period is the total of the amounts of the social security periodic payment (calculated by reference to the daily rate of payment applicable to each day) payable to the person for days in that period on which the social security periodic payment was payable to the person.”
18. Section 80 of the Administration Act provides for the cancellation or suspension of a social security payment. Section 80(1) provides as follows:
“80(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.”
19. The Administration Act then recognises the necessary role of computers in s 83, which in Orwellian terms deems the stroke of a computer to constitute a determination by the Secretary in certain circumstances. Section 83(1) provides as follows:
“83(1) If:
(a)payment of a social security payment is based upon data in a computer; and
(b)the rate of the payment is increased or reduced, or the payment is cancelled or suspended, because of the operation of a computer program used under the control of the Secretary; and
(c)the program causes the change for a reason for which the Secretary could make the change by determination;
the change is taken to have been made by the Secretary by determination for that reason.”
Under s 83(2), the deemed determination is taken to have been made on the day on which the computer caused the relevant change to be made. I observe that the changes deemed to have been so determined can be an increase or decrease in the rate of payment, or the cancellation or suspension of the payment.
Parties’ Contentions
20. The departmental advocate representing the Secretary, Ms Welfare, contended that Mr de Waal was not receiving DSP in respect of 14 October 2008 within the meaning of s 23(2) of the SS Act, since the amount of his DSP in respect of the 14-day instalment period that included that day had been reduced to nil, and so DSP was not payable to him with respect to 14 October 2008; and as a result, Mr de Waal was not qualified for an ESS payment pursuant to s 900 of the SS Act.
21. Counsel for the respondent, Mr Roder SC, contended that Mr de Waal was receiving DSP in respect of the entitlement day, 14 October 2008, within the meaning of s 900(2)(a) of the SS Act, even though a periodic instalment was not payable for the instalment period determined by the Secretary which included that day. His submissions were as follows.
(a)The “payment” referred to in s 900(2)(a) is the DSP, and not an instalment of DSP paid in accordance with s 43 of the Administration Act.
(b)Section 43 has the effect that DSP is a unitary payment, which is paid over a period of time by instalments in arrears relating to such periods (not exceeding 14 days) as the Secretary determines, but the duration of the receipt of the payment is for an indefinite period.
(c)A payment of an instalment is distinct from the grant of a claim for DSP or receiving the DSP; the DSP may be “received” under the Act, notwithstanding that there is no amount payable for a particular instalment period determined by the Secretary. The fact that 14 October 2008 fell within an instalment period in respect of which no amount was payable was a consequence of the particular instalment period chosen by the Secretary. It has no effect on the issue of whether Mr de Waal received DSP.
(d)The distinction between the receipt of the benefit and the payment of an instalment is apparent in s 23 of the SS Act. This also envisages a single “payment” which is received over a period of time by multiple instalments. In Mr de Waal’s case, pursuant to s 23(2) he was taken to be receiving the payment from 7 February 2006, and pursuant to s 23(4), he is taken to receive DSP until the date on which the last instalment of the pension was payable; but the last instalment has not yet been paid or become payable, since he has continued to receive DSP without a further claim or grant.
22. Mr Roder further pointed out that in amending other legislation which provides for family assistance, the ESS Act made entitlement to the ESS payment, in the case of a person receiving youth allowance or an ABSTUDY scheme allowance, dependent on payments of an “instalment in respect of a period that included 14 October 2008”. He submitted that this difference in language suggested that the amendments were intended to have a different effect than the amendments to the SS Act.
23. He also contended in the alternative that by virtue of s 38B of the SS Act, Mr de Waal should be treated as having received DSP in respect of a continuous period since 7 February 2006 notwithstanding the 28-day period when he did not receive DSP.
Consideration
24. In considering the competing contentions of the parties as to the proper construction of s 900(2)(a), I must, as French J (as he then was) said succinctly in Commissioner of Taxation v Roger Cook & Associates Pty Ltd (2005) 142 FCR 273 at [12], begin with a consideration of the ordinary meaning of the subsection’s words read in their context and having regard to their apparent purpose. I also refer to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, where Brennan CJ, Dawson, Toohey and Gummow JJ said (omitting citations):
“… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy … .”
25. Section 15AA of the Acts Interpretation Act 1901 (Cth) (Interpretation Act) requires regard to be had to the purpose or object of the Act under consideration. It provides:
“(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
26. The need to interpret legislation to give effect to the intention of Parliament was also referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ said at 384 (omitting citations):
“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
Meaning of “receiving” a payment
27. The scheme of the SS Act and the Administration Act is that entitlement to payments are calculated at a daily rate, and assessed on a continuing basis, taking into account that payments are to be made by fortnightly instalments, in arrears, with the amount of the instalment being calculated at the end of each fortnight, and with the rate of payment being increased or reduced or cancelled or suspended pursuant to s 83 of the Administration Act because of the operation of a computer program. Once the amount of payment for a particular fortnightly instalment period has been calculated, the payment is made in respect of that instalment period, including each day within that period.
28. Other provisions also indicate that entitlement to receive social security payments are to be assessed on an ongoing basis, and by reference to instalment periods. For example, s 1073A(1) deals with situations where a person receives a lump sum payment of employment income that relates to employment for a period greater than a fortnight, or that does not relate to any particular period, and provides for this to be calculated as a fortnightly rate. Similarly, the Rate Calculator at the end of s 1064 provides in Module F for the eventuality that a person receives lump sum payments or redundancy payments on termination of employment, or that leave payments are made in respect of part or all of a leave period, by requiring the relevant payments to be calculated so as to show the deemed payment made in respect of a “payment fortnight”.
29. Further, provision is made in sections such as ss 67 – 69 of the Administration Act for the Secretary to give notice to persons who have applied for or who have received a social security payment or benefit to notify the Secretary about changed circumstances that might affect entitlement to the payment or benefit. In my experience from considering applications for review in this tribunal, the Secretary routinely sends out such notices, and acts on information provided in response to them.
30. Section 900(2)(a) of the SS Act refers to a requirement that the person “was receiving” one of the relevant payments in respect of 14 October 2008, that is, the provision uses the imperfect tense of the word “receive”. Similarly, the definition of “receive” in ss 23(2) and (4) uses the expression “is receiving”, denoting a continuing situation.
31. In interpreting these provisions, it must be borne in mind that ss 23(2) and (4) are deeming provisions. They are necessary because there will inevitably be some delay between the date when a person first becomes entitled to a payment under the Act and when that person receives the first payment; the payment will be back-dated to the start day, being the earliest day on which the payment is payable. Similarly, s 43(1)(b) recognises that instalments of payments are paid in arrears, and so by the deeming provisions of s 23(4), a person is taken to be receiving the payment until the latest day on which it is payable, rather than until the actual date of payment of the last instalment. Section 900(2)(b) addresses the position where a person had made a claim on or before 14 October 2008, but the claim was determined subsequently; by virtue of the definition of “receive” in s 23(2), the person in those circumstances is taken to have been receiving the relevant payment in respect of 14 October 2008.
32. Sections 23(2) and (4) accordingly provide for the duration of the period during which a person is taken to be receiving a payment under the Act. The subsections expressly recognise that payments are to be made by instalments, consistently with s 43 of the Administration Act.
33. Sections 23(2) and (4), in defining the period during which a person is taken to be receiving a payment, are conditional upon the payment being “payable” to the person. Section 98 of the SS Act provides that DSP is not payable to a person if his or her DSP rate would be nil. It follows from the ordinary meaning of the words used in s 900(2)(a), as aided by the interpretation provisions of ss 23(2) and (4), that Mr de Waal was receiving DSP continuously from his start day, that is 7 February 2006, until 13 October 2008. There were then two successive 14-day instalment periods during which his DSP entitlement was reduced to nil as a result of his declared earnings. By virtue of s 98 of the SS Act, DSP was not payable in respect of these two instalment periods, and applying the ordinary meaning of ss 23(2) and (4) of the SS Act, he was not taken to be receiving DSP in respect of those periods. The first of these instalment periods included the eligibility day, 14 October 2008, and accordingly, in my opinion, he did not “receive” DSP in respect of that day.
34. After the hiatus of the two instalment periods, DSP again became payable to Mr de Waal, presumably because his employment earnings reduced or ceased. By virtue of s 83(1) of the Administration Act, the rate of payment was increased by a computer program, and the change was taken to have been made by a determination by the Secretary. Mr de Waal then commenced to receive DSP again within the meaning of s 23(2) on the day after the hiatus, and the end of the next period in which he is to receive DSP will, in accordance with s 23(4), next occur on the latest day on which DSP is payable to him. The fact that payments of Mr de Waal’s DSP resumed after the hiatus of two instalment periods without his making a further claim and receiving a fresh grant does not in my view affect the proper construction of ss 23(2) and (4), or in particular, produce the result that DSP is a unitary payment, as counsel contended.
35. I consider that this interpretation is supported by s 23(4A) of the SS Act. This subsection does not apply to DSP, and apparently for that reason, was mentioned only in passing by each party. However, this section applies where a person is receiving a social security pension or benefit, but ceases to “be receiving” it on and from a “cessation” day because of the employment income of the person or of his or her partner, but would otherwise remain qualified for the relevant pension or benefit. The subsection provides that in these circumstances, the person is taken to be receiving the pension or benefit until (amongst other events) 12 weeks after the end of the instalment period in which the cessation day occurs. The inclusion of this deeming provision indicates that otherwise a person could not be said to have been “receiving” a payment or benefit under the Act after the payment or benefit had ceased to be payable because of employment income, even though the person continued to be qualified for the pension or benefit.
36. In summary, in my opinion, the contention that DSP is a unitary payment is contrary to the ordinary meaning of s 900(2)(a) as interpreted by the reference to the definition in s 23 of the concept of receiving a payment, which definition imports a requirement that the payment is payable, that is, the recipient should be entitled to a payment of DSP with respect to the relevant day.
37. As I have said, the purpose of the definition of “receive” is to define the period within which a person is deemed to be receiving a benefit by reference to entitlement to a payment, notwithstanding the actual date of payment, but where the definition itself uses the word “receiving”, that word should be given its ordinary meaning. The dictionary meaning of the word “receive” was adopted by this tribunal in Re Secretary, Department of Social Security and Jessup (1999) 17 ALD 62 in interpreting a section of the Social Security Act 1947 (Cth) that referred to a person receiving certain benefits under that Act (although that decision did not entail interpreting ss 23(2) or (4) of the current SS Act, or any interpretation provision in the 1947 Act). According to The Macquarie Dictionary (Revised Third Edition, 2001) the primary meaning of the word “receive” is “to take into one’s hand or one’s possession (something offered or delivered)”. Mr de Waal did not “receive” a payment in this sense, because no payment was made to him with respect to 14 October 2008.
Amendments to other legislation effected by ESS Act
38. The ESS Act amended not only the SS Act, but also the Veterans’ Entitlements Act 1986 (Cth) (VE Act) and A New Tax System (Family Assistance) Act 1999 (Cth) (Family Assistance Act) and its associated administration Act. I now consider whether Mr Roder’s contention that the interpretation of s 900(2)(a) is affected because in the context of youth allowance and ABSTUDY scheme allowance, the amending legislation uses different language, in that entitlement to an ESS payment is expressed to refer to an instalment of a relevant allowance “in respect of a period that included 14 October 2008” (see ss 89(5) and 89(6) of the Family Assistance Act).
39. In response to Mr Roder’s argument on this aspect, the Secretary submitted that there are inherent risks in comparing the language used in the amendments to the social security legislation affected by the ESS Act with the language used in the same Act to amend the family assistance law. The Secretary pointed out that there are differences in language throughout the social security legislation compared with the language of the family assistance law. I agree with the Secretary’s submissions. It was of course necessary for the ESS Act, when amending the three Acts providing for payments, to use language that was consistent with the concepts and language provided for in the principal Acts. It was inevitable that different language would be used to effect the requisite amendments to each Act.
40. In support of his argument based on the change of language, Mr Roder referred to the presumption that where the legislature departed from a definite expression in the same Act, its intention was to change the meaning (see D.C. Pearce and R.S. Geddes, 6th Ed, Statutory Interpretation in Australia LexisNexis Butterworths, at [4.6]), but as I have said, that proposition would not apply where the Act being interpreted is an Act to amend other Acts which use different terminology. Further, where the Acts being amended provide for social welfare benefits that are similar or, in some cases, alternative entitlements, and an issue relevant to the potential eligibility for any benefits is common to all such benefits (such as in this case the date of eligibility), a contrary presumption may arise. In such circumstances, I think it reasonable to assume that Parliament intended that the amendments to the relevant Acts would provide the same practical result, and that the amendments effected to each Act should be interpreted accordingly; that is, that in the present context, the same conditions of eligibility would apply in each case. It would be a surprising and I think unintended result if the amendments to the social security law made eligibility dependent merely on continuing qualification for, but not entitlement to, payments with respect to 14 October 2008, but the amendments to the other two Acts made eligibility dependent on the entitlement to or actual payment of the benefits available under those Acts.
41. It is clear from the amendments to the Family Assistance Act that a payment must have been made of the relevant allowance in respect of 14 October 2008. Sections 89(5) and (6) of that Act, which refer to the words “in respect of a period that included 14 October 2008”, expressly require there to have been a payment in respect of that period (see the introductory words of each subsection, and ss 89(5)(c) and 89(6)(e)). Further, it is significant that under s 89(2) of the Family Assistance Act, it is a requirement that the applicable rate of family tax benefit payable under the relevant determination consisted of or included a Part A rate greater than nil, and a similar requirement appears in ss 89(3) and (4). These sections accordingly make eligibility dependent on the allowance in relation to 14 October 2008 being payable, and on an actual payment of an instalment in respect of a period that included 14 October 2008.
42. The parties did not refer to the amendments to the VE Act that were effected by the ESS Act. However, I note that under those amendments, it is a condition of eligibility for the ESS payment that one of certain payments “was payable to the person in respect of 14 October 2008” (see s 118ZZQ(2)(a)). This requirement of payability is also consistent with my interpretation of the eligibility requirement for the ESS payment under s 900(2) of the SS Act.
43. These considerations support my conclusion as to the effect of s 900(2)(a) of the SS Act, since there appears to be no doubt that the effect of the amendments to the Family Assistance Act and the Veterans’ Entitlements Act is that persons who were not entitled to or did not receive payments with respect to 14 October 2008 are not eligible for an ESS payment under the amendments effected to those Acts.
44. I have taken into account that different language was used in Part 19A of the SS Act to provide for eligibility for a one-off payment to carers eligible for carer allowance, and qualification exists if certain conditions are satisfied “in relation to one or more instalments of carer allowance that have been paid to the person” and “the instalment was in respect of a period that included” a nominated day (see for example s 992N(1)). This terminology was repeated when the Act was amended each year to provide for one-off payments. However, there are many other references in the SS Act to a requirement that a person should be “receiving” a social security payment as at a particular date or immediately before a stipulated event: see for example ss 82 and 186 in relation to bereavement payments, s 94A(1)(h) in relation to DSP, ss 665ZC(2)(a), 665ZG(b), 665ZL(b), and 665ZQ(1)(b) in relation to various allowances under the ABSTUDY scheme, s 660YBA(3) in relation to mature age allowance, and s 667(3) in relation to sickness allowance. These sections must be interpreted by reference to the definition of “receive” in ss 23(2) and (4), which in turn require a payment to be “payable”, and by virtue of other provisions, the payment is not “payable” if the rate of pension or allowance is nil.
45. Counsel also referred to s 1188C of the SS Act which again uses a different formula of words, namely whether an instalment of a relevant social security payment “is payable to a person in respect of a payment period or in respect of a pension pay day”. I do not attach any significance to the fact that this form of wording was not used in s 900(2) of the SS Act in relation to qualification for an ESS payment, because on my interpretation of the concept of “receiving” a payment in respect of 14 October 2008, it was also necessary for the payment to have been “payable”.
46. Counsel finally referred to s 1210A of the SS Act. This provides in effect that if a person is qualified for a social security pension or benefit and the pension or benefit in relation to a particular day would be nil, then for the purposes of Part 2A.1 of the SS Act, the person is not to be taken to be receiving the pension or benefit on that day. Part 2A.1 makes provision for persons who qualify for age pension but defer claiming it to be entitled in certain circumstances to receive a single lump-sum pension bonus. It is correct, as counsel submitted, that on the interpretation that I have placed on “receiving” in ss 23(2) and (4), s 1210A(1) would be otiose. I find the section curious, in that the section goes on in subsection (2) to provide in effect that the circumstance that a person is qualified for a social security pension or benefit in relation to a day is not to be taken into account for the purpose of determining the qualification of the person for a concession card or pension if the pension or benefit is not payable to the person in relation to that day. It seems to me that subsection (2) may also be otiose in view of other provisions to the effect that a pension is not payable if the rate of pension would be nil. The draftsman seems to have gone to unusual lengths to ensure that persons in this situation will not be entitled to receive the single lump-sum benefit provided for in Part 2A. In these circumstances, and because this section is confined to the benefit provided for in Part 2A.1, the presence of this section does not alter my conclusion as to the correct construction of s 900(2).
47. Both parties referred to the explanatory memorandum in relation to the Bill for the ESS Act. Resort may be had to extraneous material in the circumstances provided for in s 15AB of the Interpretation Act. In view of my above conclusion as to the meaning of s 900(2)(a), based as it is on the ordinary meaning conveyed by the section and taking into account its context in the SS Act and the purpose underlying the amendment to the social security law effected by that section, I consider that it would not be appropriate to consider the explanatory memorandum: see s 15AB(3) of the Interpretation Act. In any event, if I were to have regard to the explanatory memorandum, it tends to confirm the meaning which I think should be attributed to s 900(2)(b), because it contains the following statement:
“Subsection 900(2) reflects the intention to pay the economic security strategy payment only in circumstances where the triggering social security payment was received by the person in respect of 14 October 2008.”
Whilst this proposition is followed by a reference to the note to the section that directs the reader to the definition of “receive” in ss 23(2) and (4), this definition has the meaning to which I have referred above, and does not have the effect of altering the ordinary meaning of the word “receive”, for the reasons that I have explained above.
Effect of s 38B of Social Security Act
48. As I have said, Mr Roder submitted in the alternative that Mr de Waal was deemed to have received DSP in respect to the continuous period which included the relevant day, even though that day fell within the 28-day hiatus in his payments of DSP.
49. Mr Roder based this alternative argument on s 38B of the SS Act. This section provides relevantly as follows:
“(1)The object of this section is to treat a person in certain circumstances as having received an income support payment in respect of a continuous period even though the person did not actually receive such a payment during a part or parts of the period.
…
(3)Subject to subsection (4), in determining the continuous period in respect of which a person has received income support payments, any period of not longer than 6 weeks in respect of which the person did not receive an income support payment is taken to have been a period in respect of which the person received such a payment.”
Section 38B(4) extends the deemed continuous period of receipt of income support payments notwithstanding a hiatus of up to 13 weeks, where (as was the position of Mr de Waal) payments have been received for at least 12 months.
50. On the face of it, this section supports Mr de Waal’s claim to entitlement to the ESS payment. However, as was pointed out in written submissions made by the Secretary following the conclusion of the hearing, s 38B addresses the question of when a benefit’s recipient is deemed to have received a payment in respect of a “continuous period”, rather than the question raised by s 900(2)(a) of the SS Act, namely whether Mr de Waal was receiving a social security payment in respect of the eligibility date.
51. As the Secretary pointed out, there are a number of provisions in the SS Act where benefits are dependent on a person having received payments in respect of a continuous period. Examples of such provisions include s 82(6) in relation to the qualifications for bereavement payments, the former s 602, which previously relieved persons over 50 from having to comply with the activity test in certain circumstances, s 660YBA(3), which deals with one of the requisite qualifications for mature-age allowance, the various sections in relation to ABSTUDY scheme allowances to which I referred above, and exceptions to provisions excluding multiple entitlements (for example ss 47(4) and 103(4)). The Secretary also drew attention to the absence of any note to s 900 of the SS Act that refers the reader to s 38B for an explanation as to the calculation of continuous period of receipt of income support payments, in contrast with certain other sections that refer to receiving payments for a continuous period. However, as Mr Roder observed, there are many other provisions which refer to receiving benefits during a “continuous period” which do not signpost s 38B.
52. I am mindful that s 39(1A) of the SS Act provides in effect that notes are to be taken to be part of the relevant provisions which immediately precede the notes. However, the SS Act is a very long complex piece of legislation that has been amended many times since it was first enacted. The absence of a note following s 900(2) that refers to s 38B is therefore not in itself significant. What is more significant is that following s 900(2), there is a note referring to the definition of “receive” in ss 23(2) and (4).
53. Further, as also pointed out by the Secretary, the context of the changes effected by the amending Act that introduced s 38B is explained in the explanatory memorandum for the Bill that introduced the amendments, and there is no suggestion that the amendments were to affect the concept of receiving payments provided for in s 23. The history of the amendments to the SS Act that included the insertion of s 38B, as revealed by the explanatory memorandum, indicates that s 38B was included in order to ameliorate the requirement for a continuous period of receipt of income support payments as a condition of the amended eligibility requirements for mature age allowance (as well as, as appears from s 38B(6), the eligibility requirements for certain payments of student and youth assistance).
54. In my opinion s 38B should be interpreted as a provision in aid of interpretation of other provisions in the SS Act that refer to benefits having been received in respect of a continuous period. I think that this conclusion is reinforced by the context in which s 38B appears in the Act, namely as part of a group of sections in Part 1.3 that are aids to interpretation. I do not consider that s 38B has the general effect contended for by counsel, so as to deem Mr de Waal to have received DSP during an instalment period when it was not payable. I therefore consider that s 38B does not assist counsel’s argument. Indeed, in my opinion, s 38B, like s 23(4A), militates against his argument. This is because s 38B assumes that there could be a hiatus in the receipt of income support payments, but notwithstanding this, has the effect of deeming there to be a continuous period during which payments were received. Further, s 38B(6) provides expressly for the circumstances where if a person remains qualified for a payment he or she is deemed to have maintained continuity of payment. There is no such provision in relation to persons receiving other payments, such as (relevantly for present purposes) DSP, and this cannot in my opinion be implied from the terms of s 23.
55. It is very unfortunate for Mr de Waal that the first 14-day instalment period since 7 February 2006 in which he was not entitled to DSP included the relevant eligibility day, namely 14 October 2008. However, it was necessary for the Government to determine eligibility criteria, and inevitably such criteria would exclude some people in an ad hoc way; nevertheless, this circumstance cannot affect the proper interpretation of the legislation.
56. For the above reasons I conclude that Mr de Waal was not receiving DSP in respect of 14 October 2008 within the meaning of s 900(2)(a) of the SS Act, and so was not qualified for an ESS payment.
Decision
57. The tribunal sets aside the decision under review, and in place of that decision decides that the respondent was not entitled to an economic strategy payment under s 900 of the Social Security Act 1991 (Cth).
I certify that the 57 preceding paragraphs are
a true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: …. (L. Staker) …………………… Associate
Date/s of Hearing 22 July 2009
Date of Decision 26 August 2009Date of receipt of final
submissions 19 August 2009
Advocate for the Applicant Ms M Welfare
Centrelink Legal Services
Counsel for the Respondent Mr M Roder SC and Ms M Riley
Solicitor for the Respondent Welfare Rights Centre (SA) Inc
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