Rice; Secretary, Department of Family and Community Services - [2002] AATA 954

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 954

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/45

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    MICHELLE RICE
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date1 October 2002
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that Parenting Payment Single was payable only from 8 November 2001.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Parenting Payment – what was correct entitlement at time of lodging claim – whether respondent was entitled to SPP in 1996
Social Security Act 1991 section 905A
Social Security (Administration) Act 1999 sections 11, 13, 14, 15

ORAL REASONS FOR DECISION

1 October 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 14 January 2002, which set aside the decision of an Authorised Review Officer of 12 December 2001, to only pay Parenting Payment from 8 November 2001. The SSAT remitted the matter to Centrelink for reconsideration in accordance with the direction that as the respondent's application for Parenting Allowance, received by Centrelink on 23 September 1996, had not been determined, her entitlement to income support payments, including Parenting Allowance, Sole Parent Pension and Parenting Payment Single, was to be assessed from the date of that claim, 23 September 1996 to 8 November 2001, and subject to her satisfaction of the qualification and payability criteria, she may be entitled to a payment of arrears.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). Mr Underwood represented the applicant (the Department). The respondent, who gave oral evidence, was represented by Mr Goldsworthy.
On 18 September 1996, the respondent attended an interview at the Murray Bridge office of Centrelink, and advised that she had separated from her husband on 17 September 1996. She has two children, Jessie and Tyler, who at that time were aged 7 and 5 respectively. The husband had been at home looking after the children and in receipt of Parenting Allowance, and she was working full-time with Eudunda Farmers, with a gross income of approximately $860.00 per fortnight. She was in receipt of Family Payment, because her husband was in receipt of benefit. She says that during the interview, she was advised to give up full-time work and claim a pension. She told the officer that she did not want to give up work and she was provided with a claim for Parenting Allowance for completion. She was not informed that she might be qualified for payment of Sole Parent Pension as a separated parent. I accept the respondent's evidence that it was her understanding that it was the fact of her working full-time, as opposed to the amount of her income, that precluded her from receiving Sole Parent Pension.
The respondent completed the claim for Parenting Allowance on 23 September 1996. Part 1 of the form contains questions as to marital status in the following terms:
"Your marital status              Single  ÿ
  (e.g. divorced, widowed)
  Member of a couple              ÿ
  (e.g. married, de facto)
  Temporarily Separated         ÿ"

The respondent deleted the word "temporarily" and crossed the adjoining box to indicate that she was "separated". There is no record of the Department making a decision in relation to this claim, but it is not in dispute that as a separated spouse, she was not qualified, as at 24 September 1996, for payment of the allowance.

On 24 September 1996 the respondent completed a Family Payment/Childcare Assistance Request for Income and Asset Details form. The preamble to the form reads as follows:
"Until now you have been getting the maximum rate of Family Payment because either you or your partner have been getting an income support payment such as Pension or Allowance from this Department. You may also have been getting Childcare Assistance at the maximum rate because you received the maximum rate of Family Payment. As the income support payment has now stopped we need to work out whether your current amount of Family Payment and Childcare Assistance needs to change. To help us work this out we need your and your partner's income and assets details.
You should fill in and return this form to Social Security within 14 days to make sure that your entitlements are reassessed from the earliest possible date. If you do not return this form within 14 days your Childcare Assistance will be cancelled. You will then need to lodge a new claim if you still want Childcare Assistance. Childcare Assistance can be granted only from the date you lodge the claim."
The respondent gave evidence, which I accept, that over the following years she continued to be employed and updated her financial information when appropriate. In the year 2001 when she had obtained an assessment of maintenance from the Child Support Agency, she had numerous telephone conversations with the Department regarding adjustments to the rate of payment of Family Payment, in the light of her husband's failure to pay maintenance. I accept her evidence also, that over this period of time she continued in the belief that her full-time employment precluded her from receipt of Sole Parent Pension. It was not until her eleventh contact with the Department, on 8 November 2001, that she became aware that she might qualify for the successor of Sole Parent Pension, namely Parenting Payment at the single rate. She lodged a claim for Parenting Payment on 20 November 2001, and was paid with effect from 8 November 2001, the date of her initial contact. On 28 November 2001 she requested a review of the decision to only pay Parenting Payment from 8 November 2001, and sought arrears. On 12 December 2001 the authorised review officer affirmed the decision, and on 14 January 2002, the SSAT set aside the decision, and remitted the matter to the Department.
The Department contends in relation to the Parenting Allowance entitlement, that in 1996 the qualification criteria included the requirement that the person be a member of a couple, pursuant to section 905A of the Social Security Act 1991 (the Act). As the respondent had no partner at the time of her claim, and despite the lack of a decision at the time, she was not qualified for Parenting Allowance. The claim, if it were to be determined now, would be rejected as no entitlement existed on the date the claim was made. As far as the Department was aware, the respondent remained single in the subsequent period, and so did not become entitled to the payment.
In relation to Sole Parent Pension entitlement, the Department contends that in September 1996 the respondent's income was $860.00 gross per fortnight, which was high enough to preclude payment of Sole Parent Pension. If a claim had been lodged, it would have been rejected. The effect of rejecting a claim is to establish a requirement to lodge a new claim once the person wishes to test eligibility. As no such claim was lodged, there is no power to consider the respondent's entitlement to Sole Parent Pension at a later date, arising from either a decrease in her income, or an increase in the Sole Parent Pension rate, or income thresholds.
The Department contends that in relation to the Parenting Payment entitlement, this payment came into existence on 20 March 1998, at the same time that Parenting Allowance and Sole Parent Pension were abolished. As it did not exist as at 23 September 1996, an entitlement to the payment cannot be made under any legislation in existence at the time. There is no legislation that empowers Parenting Payment entitlement to be considered in the absence of a claim for payment first made on 8 November 2001.
The Department maintains also, that section 15 of the Social Security(Administration) Act 1999 (the Administration Act) allows a claim for a payment for which the person is entitled (the latter claim) to be deemed to have been made at the time of a previous, incorrect, claim (the former claim). However, it only allows the latter claim to be treated as having been lodged at the time of the former claim. It does not confer payability or modify the operation of the law as it existed at the time.
The Department submits that on 20 March 1998, Sole Parent Pension and Parenting Allowance were abolished and Parenting Payment came into existence. When the respondent lodged her claim for Parenting Payment on 8 November 2001, neither Parenting Allowance nor Sole Parent Pension existed by that time, so it was not possible to deem either payment to have been claimed. Parenting Payment did not exist at the time of the Parenting Allowance claim on 23 September 1996, so it is not possible to deem a claim for Parenting Payment to have been made at that time. Deeming a Sole Parent Pension claim to have been in September 1996 would result in the claim being rejected as not payable. Section 11 of the Administration Act requires that a claim be made in order to be granted Sole Parent Pension. To test entitlement, and assuming entitlement arises later, the person must lodge another claim.
The Department submits finally that there is no provision in the Social Security law to allow the Parenting Payment Single claim to be deemed to have been lodged on the date that payment was introduced, being 20 March 1998, or from any time between that date and 8 November 2001. There is no power to allow a person's entitlement to be assessed in the absence of a further claim for a payment to which the person was entitled.
Sections 13, 14 and 15 of the Administration Act, as far as is relevant for the purposes of this review, provide:
"13 Deemed claim—person contacting Department about a claim for a social security payment
(1)       For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(2)       For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)       the Secretary is satisfied that:
(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person's ability to lodge the claim earlier;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
(3)…
14 Deemed claim—person contacting Department about a claim for a concession card
(1)       For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a concession card; and
(b)the person is, on the day on which the Department is contacted, qualified for the concession card; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the concession card within 14 days after he or she contacts the Department;
the person is taken to have made a claim for the concession card on the day on which the Department was contacted.
(2)       For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a concession card; and
(b)the person is, on the day on which the Department is contacted, qualified for the concession card; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the concession card more than 14 days, but not more than 13 weeks, after the Department is contacted; and
(e)       the Secretary is satisfied that:
(i)throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and
(ii)that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person's ability to lodge the claim earlier;
the person is taken to have made a claim for the concession card on the day on which the Department was contacted.
(3)       …
15 Deemed claim—incorrect claim
(1)       For the purposes of the social security law, if:
          (a)       a person makes a claim for a social security payment; and
          (b)       the claim is an incorrect claim; and
(c)the person subsequently makes a claim for another social security payment for which the person is qualified; and
(d)the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made a claim for that other social security payment on the day on which he or she made the incorrect claim.
(2)For the purposes of this section, a claim made by a person is an incorrect claim if:
(a)the claim is for a social security payment, other than a supplementary payment; and
(b)when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.
(3)For the purposes of this section, a claim made by a person is an incorrect claim if:
(a)       the claim is for a supplementary payment; and
(b)when the claim was made, the person was not qualified for the payment claimed but was qualified for another supplementary payment.
(4)For the purposes of this section, a claim made by a person is an incorrect claim if:
(a)the claim is for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment; and
(b)when the claim was made, the person was qualified for a social security payment, other than a supplementary payment.
(5)       In this section:
supplementary payment means:
(a)       carer allowance; or
          (b)       double orphan pension; or
          (c)       education entry payment; or
          (d)       employment entry payment; or
          (e)       *   *   *   *   *
          (f)        *   *   *   *   *
          (g)       *   *   *   *   *
          (h)       *   *   *   *   *
(i)        mobility allowance; or
          (j)        pensioner education supplement.
Subdivision C—Manner of making a claim"
The respondent provided carefully prepared written submissions, in addition to oral submissions, and contends that in 1996 she may have been entitled to Sole Parent Pension. She sought a payment and made a claim. Notwithstanding the incorrect claim made on 23 September 1996, one claim may be treated as another. She satisfies the cumulative pre-condition in that she made a claim for a Social Security payment. That claim was an incorrect claim, and she was subsequently qualified for a claimed Social Security payment. When, in March 1998, Parenting Payment Single came into effect and replaced Sole Parent Pension, the payments were, in essence, the same, and the respondent submits that they should be treated as the same for the purposes of this matter, and that sections 13, 14 and 15 of the Administration Act allow for claims to be deemed from an earlier date. The respondent, having made an incorrect claim in 1996, was entitled to Parenting Payment Single when it came into effect in 1998.
The respondent contends also, that she made an incorrect claim because she was instructed to complete the wrong form. She was subsequently entitled to Sole Parent Pension, and is therefore entitled to arrears. The Sole Parent Pension, which was replaced by Parenting Payment Single in 1998, gives her entitlement to Parenting Payment Single on that date, that is the date it came into effect, and she is therefore entitled to arrears. The intent of the legislation is that if a possible benefit which ought to have been received shall not be excluded by failure of the disadvantage to put in the right claim. To construe section 15 of the Administration Act in a narrowly technical spirit is contrary to its evident purpose.
I have taken into account the respondent's evidence and the parties' submissions. Section 15 of the Administration Act allows a claim for a payment for which a person is entitled to be deemed to have been made at the time of a previous, incorrect, claim, but I accept the Department's submission that it only allows the latter claim to be treated as having been lodged at the time of the former claim. It does not confer eligibility or modify the operation of the law as it existed at the time. When the respondent lodged her claim for Parenting Payment Single, neither Parenting Allowance nor Sole Parent Pension existed by that time, so it was not possible, in my view, to deem either payment to have been claimed. In addition, Parenting Payment Single did not exist at the time of the Parenting Allowance claim, namely 23 September 1996. I do not consider it is possible therefore for a claim for Parenting Payment to be deemed to have been made at that time.
The effect of the SSAT decision is to require the Department to calculate an entitlement to payment of Parenting Allowance, Sole Parent Pension and Parenting Payment Single over the period 23 September 1996 to 8 November 2001. Section 11 of the Administration Act provides that a person who wants to be granted a Social Security payment, or a concession card, must make a claim for payment or the card, in accordance with Division 1 of Part 3 of the Administration Act. If a Sole Parent Pension claim was deemed to have been made in September 1996, this would result in the claim being rejected, because of the level of the respondent's income. It follows, in my view, that if a person considers himself/herself subsequently to be entitled to a benefit, another claim must be lodged. There is no provision in the Social Security legislation for a claim for Parenting Payment Single to be deemed to have been lodged on 20 March 1998 when that payment was introduced.
I consider that the Department's application must succeed. It is clear that the respondent and her two children have suffered financial detriment, as it appears that in the light of her financial circumstances she might have been eligible for payment of Parenting Payment Single from 1 July 2000, had she lodged a fresh claim. The Tribunal however, must apply the legislation, and regretfully I consider that, in accordance with the legislation, the SSAT decision should not be upheld. I was informed at the hearing that the respondent's application to the Secretary for compensation under Compensation for Detriment due to Defective Administration provisions has not been successful. Perhaps in the light of this decision she may decide to renew her application.

For these reasons, the Tribunal sets aside the decision under review and substitutes a decision that Parenting Payment Single was payable only from 8 November 2001.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  1 October 2002
Date of Decision  1 October 2002
Counsel for the Applicant        Mr J Underwood
Solicitor for the Applicant         Centrelink Admin Law Team
Counsel for the Respondent    Mr C Goldsworthy
Solicitor for the Respondent    Welfare Rights