Sandra Legro and Secretary, Department of Social Services
[2014] AATA 234
[2014] AATA 234
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5902
Re
Sandra Legro
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 22 April 2014 Place Melbourne The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Regina Perton, Member
Social Security – Parenting payment (single) – s 80 of the Social Security (Administration) Act 1999 – decision under review affirmed
Administrative Appeals Tribunal Act 1975 s 34J
Social Security Act s 500(1), 500D, 500F
Social Security (Administration) Act 1999 s 80, 117, 118
Social Security Legislation Amendment (Fair Incentives to Work) Act 2012 Schedule 1
REASONS FOR DECISION
Regina Perton, Member
22 April 2014
Sandra Legro had been receiving parenting payment (single) (PPS) since 2004 in relation to her youngest child until 1 January 2013. Due to legislative changes that came into effect on that day, she no longer qualified for PPS. On 15 December 2012 Centrelink, which administers PPS on behalf of the respondent, notified Ms Legro that her PPS payments would cease from 1 January 2013. This was because her youngest child was now more than eight years old. Ms Legro’s payment changed to Newstart allowance (NSA) which is considerably less than the PPS.
On 8 January 2013 Ms Legro contacted Centrelink and requested a review of that decision. On 6 September 2013 a Centrelink authorised review officer (ARO) advised Ms Legro that the decision to cease paying PPS was affirmed.
Ms Legro sought review by the Social Security Appeals Tribunal (SSAT) of the ARO’s decision. On 18 October 2013 the SSAT affirmed the ARO’s decision. On 18 November 2013 Ms Legro lodged an application with this Tribunal.
Ms Legro believes that the decision by Centrelink to cancel her PPS was incorrect and that she continues to qualify for the payment. This is because of transitional arrangements that existed prior to 1 January 2013 for those single parents who had started receiving the payment prior to 2006. Under those transitional arrangements, eligibility continued until the relevant child was 18 years of age.
The issue before the Tribunal is whether the decision to cancel Ms Legro’s payment was correct.
Under s 34J of the Administrative Appeals Tribunal Act 1975 and with the consent of the parties the Tribunal has reviewed the SSAT decision on the papers without a hearing taking into account the material lodged by the parties.
LEGISLATION
The legislation relating to entitlement to the payment was significantly amended on 1 January 2013. On 15 December 2012 when Centrelink notified Ms Legro of the proposed cancellation of her payment as from 1 January 2013, section 500(1) of the Social Security Act (the Act) set out the criteria for the payment as follows:
(1) A person is qualified for parenting payment if
(a) the person has at least one PP child (see sections 500D and 500F to 500H)
In December 2012, prior to the legislative changes that came into effect on 1 January 2013, section 500D of the Act defined the term PP child as follows:
(2) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is not a member of a couple; and
(c) the child has not turned 8; and
(d) the person is the principal carer of the child.
(3) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the child has not turned 16; and
(c) the person is the principal carer of the child; and
(ca) the person was the principal carer of the child immediately before 1 July 2011; and
(d) the person is covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F); and
(e) since 1 July 2006, there has not been any continuous period of more than 12 weeks during which the person has not at any time been covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F)
Section 500F of the Act as at December 2012 described which single parents were covered by the parenting transitional arrangement:
Person is not a member of a couple
(1) Subject to subsection (3), a person is covered by the parenting payment transitional arrangement in relation to a child if:
(a) immediately before 1 July 2006, the person was not a member of a couple; and
(b) immediately before 1 July 2006, that child… was a PP child of the person in respect of whom:
(i) a determination under section 37 of the Administration Act was in force granting a claim for a parenting payment to the person; or
(ii) …and
(c) the person is not a member of a couple; and
(d) …and
(e) in the case where the child has turned 8 – the person would be qualified for parenting payment in relation to the child if the child had not turned 8; and
….
Section 500D of the Act was amended by the Social Security Legislation Amendment (Fair Incentives to Work) Act 2012 (the Amending Act). Schedule 1 came into effect on 1 January 2013. Subsection 500D(3) of the Act was repealed and s 500(1) of the Act amended. The revised criteria for the payment (which led to the cancellation of Ms Legro’s PPS) now read as follows:
(1) A person is qualified for parenting payment if:
(a) the person has at least one PP child (see section 500D)
After 1 January 2013, the definition of PP child for a single parent changed to:
(2) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is not a member of a couple; and
(c) the child has not turned 8; and
(d) the person is the principal carer of the child.
The protection accorded to those who had been receiving PPS for children older than eight years was abolished.
Section 80 of the Social Security (Administration) Act 1999 (Administration Act) provides for the cancellation of payments:
(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…
…
the Secretary is to determine that the payment is to be cancelled..
(2) Subsection (1) does not authorise the Secretary to make a determination if:
(a) the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and
(b) the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.
Section 117 of the Administration Act defines adverse determination as meaning a determination under section 80.
Section 118 of the Administration Act provides for general rules surrounding the date of effect of adverse determinations:
(1) The day on which an adverse determination takes effect in relation to a social security payment is worked out:
…
(c) in the case of any other social security payment – in accordance with this section.
…
(13) In any other case, an adverse determination takes effect:
(a) on the day on which it is made; or
(b) if a later day is specified in the determination, on that day.
DOES MS LEGRO SATISFY THE CRITERIA FOR PAYMENT OF PARENTING PAYMENT (SINGLE)?
Prior to 1 January 2013, Ms Legro satisfied the criteria for the payment as she had a PPS child as defined by s 500D (and s 500F to S 500H), due to coverage by a parenting payment transitional arrangement as set out in s 500D(3) of the Act. The changes to the legislation narrowed the definition of a PPS child. It no longer provided for grandfathering due to the now repealed parenting payment transitional arrangement.
The narrowed definition of a PP child contained in s 500D results in a single parent losing the right to PPS after a child’s eighth birthday. There is no exception to this definition. As Ms Legro’s youngest child was already more than eight years old on 1 January 2013, he no longer met the definition of PP child once the Amending Act took effect. As a result Ms Legro no longer satisfied the criteria for PPS under s 500(1)(a) of the Act after 1 January 2013.
In a written submission to the Tribunal received on 27 February 2014 Ms Legro contended that Centrelink’s prospective cancellation of her payment under subsection 80(1) of the Administration Act was incorrect. Ms Legro submitted that the operation of s 80(2) of the Administration Act prevented use of s 80(1) to cancel her PPS as another section of the social security law provided the reason for cancellation of payment.
Ms Legro submitted that the beneficial nature of social security legislation and ambiguity as to the application of s 80 of the Administration Act should result in her continuing to receive PPS.
The Tribunal finds there is no such ambiguity in s 80 of the Administration Act. It does not accept Ms Legro’s argument about s 80. Section 80(2) prevents cancellation under s 80(1) where a payment to a person has been cancelled or suspended by the operation of another provision of the social security law.
Ms Legro’s youngest child no longer met the definition of PP child required to qualify for the payment as from 1 January 2013. Therefore the cancellation of her PPS with effect from 1 January 2013 was correct.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member ...............................[sgd].........................................
Administrative Assistant
Dated 22 April 2014
Date of hearing Heard on the Papers Applicant In person Advocate for the Respondent Mark Hester Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
0
0
0