Shantell Taylor and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 751
•31 October 2012
[2012] AATA 751
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2225
Re
Shantell Taylor
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 31 October 2012 Place Melbourne The Tribunal affirms the decision under review.
............................[sgd]............................................
Regina Perton, Member
Social security – single parent payment – youngest child’s 8th birthday – automatic loss of single parent payment – transfer to Newstart allowance – quarantined from transfer if payments commenced before 1 July 2001 – limited discretion available – decision under review affirmed.
Social Security Act 1991 sections 500(1), 500D(2), 500D(3), 500F(1), 500G(4)
Social Security (Administration) Act 1999 sections 13, 37, 152(4)REASONS FOR DECISION
Regina Perton, Member
31 October 2012
Shantell Taylor separated from her then husband in extremely difficult circumstances in early June 2006. At that time, her children were aged four, five, fourteen and sixteen. The nature of the breakup and the family circumstances were such that Ms Taylor decided that she and the children would move out of the family home at the earliest opportunity. At that time Ms Taylor was employed. Over the next few weeks (and beyond) there were many legal issues she was required to deal with. There was also the need to find a new home, move their belongings, settle the children down in the new environment, take care of them physically, psychologically and financially as well as continue to work.
Centrelink records indicate that Ms Taylor contacted Centrelink, which administers social security benefits for the respondent and other agencies, on 11 June 2006. The Centrelink records show that the contact concerned family tax benefit.
Ms Taylor contacted Centrelink again on 27 June 2006. The agency’s records of that contact indicate that information relating to family tax benefit, a change of address and an estimate of income were provided via the internet.
On 1 July 2006 amendments to the Social Security 1991 (the Act) came into force which would result in the loss of single parent payments for recipients on their youngest child’s eighth birthday. The parent would be transferred to Newstart allowance (NSA).
Centrelink records indicate that Ms Taylor contacted the agency about claiming parenting payment (single) (PPS) on 5 July 2006. She subsequently lodged a claim form on 7 July 2006 and payment of PPS commenced as from 5 July 2006.
Following a motor vehicle accident in September 2007 Ms Taylor received compensation payments from the Transport Accident Commission (TAC). In November 2009 Ms Taylor’s youngest child had his eighth birthday. Ms Taylor’s payments changed from PPS to NSA.
Ms Taylor only became aware of the financial impact of the change to NSA in September 2010 when her TAC payments ceased. She sought review of the decision to commence payment of her PPS from 5 July 2006, stating that it should have been payable from late June 2006. This was because people who were receiving PPS before 1 July 2006 were quarantined from the changes to the law that changed eligibility for PPS ceasing when their youngest child turned eight.
On 18 October 2010 an authorised review officer (ARO) of Centrelink affirmed the decision that Ms Taylor was eligible for PPS from 5 July 2006 and not from an earlier date.
On 18 April 2011 Ms Taylor lodged an application with the Social Security Appeals Tribunal (SSAT). On 13 May 2011, the SSAT affirmed Centrelink’s decision. On 7 June 2011 Ms Taylor lodged an application for review with this Tribunal.
The issue for the Tribunal is whether Ms Taylor was entitled to PPS before 1 July 2006 and hence able to avail herself of the transitional provisions quarantining those who were receiving PPS on or before that date from the loss of PPS on their youngest child’s eighth birthday.
RELEVANT LEGISLATION
Section 500(1) of the Act set out the qualifications for receipt of parenting payments as from 1 July 2006. The Act states, among other things, that the person has to have at least one parenting payment child (PP child).
The PP child of a single parent is defined in sections 500D(2) and (3) of the Act:
500D(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.
500D(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
(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).
The relevant transitional arrangements set out in Section 500F, referred to above, state:
500F(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 (or any other 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) a determination under section 80, 81 or 82 of the Administration Act was in force suspending payment of a parenting payment to the person; and
…
(c)the person is not a member of a couple; and
(d)in a case where the child has not turned 8—the person is qualified for parenting payment in relation to the child; and
(e)in a 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;…
…
Section 500G(4) concerns situations where a decision to grant PPS is made after 1 July 2006 but the start date was before 1 July 2006:
500G(4)If:
(a)a determination is made on or after 1 July 2006 under section 37 of the Administration Act granting a claim for a parenting payment to a person; and
(b)the person’s start date in relation to the payment is before 1 July 2006; and
(c)the Secretary has not determined that the parenting payment is to be cancelled with effect from a day before 1 July 2006;
the determination is taken, for the purposes of subparagraph 500F(1)(b)(i) or (2)(b)(i), to have been in force immediately before 1 July 2006.
Section 37 of the Social Security (Administration) Act 1999 (the Administration Act) provides that:
(1)... the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a)the claimant is qualified for the social security payment; and
(b)the social security payment is payable
Section 13 of the Administration Act allows the backdating of a claim for up to 14 days prior to the actual date the claim is received in certain circumstances:
(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.
Section 152(4) of the Administration Act sets out barriers to the effectiveness of changed outcomes where it has been more than 13 weeks between the ARO decision and the application to the SSAT:
(4) If:
(a)a person is given written notice of a decision under the social security law; and
(b)the person applies to the SSAT more than 13 weeks after the notice was given for review of the decision; and
(c)the SSAT varies the decision or sets the decision aside and substitutes a new decision; and
(d)the effect of the decision of the SSAT is:
(i) to grant the person’s claim for a social security payment or a concession card; or
(ii) to direct the making of a payment of a social security payment to the person or the issue of a concession card to the person, as the case may be; or
(iii) to increase the rate of the person’s social security payment;
the social security law has effect as if the decision under review had taken effect on the day on which the application was made to the SSAT for review of that decision.
FROM WHAT DATE WAS MS TAYLOR ENTITLED TO PPS?
In a written statement tendered at the hearing, Ms Taylor described the difficulties she and her children faced in early June 2006. She decided that she needed to move from the family home which she jointly owned with her then husband. She stated that her first contact with Centrelink after the split with her husband was on 11 June 2006 when she unsuccessfully sought an advance payment of family tax benefit (FTB). Her employer subsequently loaned her money which enabled her to rent a home and move from the matrimonial home.
Ms Taylor stated that her next contact with Centrelink was on 27 June 2006. She telephoned to advise of her change of address within 14 days of moving. Ms Taylor stated that during the telephone conversation with a Centrelink officer, she explained the reasons for her move. Ms Taylor indicated that the officer asked if Ms Taylor was still working and she explained that her work hours had changed because the circumstances at the time. Ms Taylor stated that there was some discussion about income support payments but that she had said that she would follow that up in the near future. She had higher priorities and concerns at that time. Ms Taylor stated that if she had been advised of the imminent change in the law on 1 July 2006 she would have made claiming and being granted PPS a priority. She stated that she could have lodged her claim within 14 days of 27 June 2006 and did in fact do so.
Ms Taylor's next contact with Centrelink was on 5 July 2006. She was subsequently granted PPS as from that date after lodging the claim form on 7 July 2006.
Ms Taylor continued working until she had a motor vehicle accident in September 2007. She stated that between June 2006 and the accident, her working hours varied as did her income.
Ms Taylor stated that in about July 2009, she received a letter that her PPS would cease in November 2009 when her youngest child had an eighth birthday and that she would need to apply for NSA. Ms Taylor indicated that she contacted Centrelink in response to the letter and was told there was not a great deal of difference between PPS and NSA.
Ms Taylor stated that she was transferred from PPS to NSA in November 2009. Because she was still in receipt of TAC payments she did not notice the financial impact until September 2010 when the TAC payments stopped. She indicated that that was when she first became aware of the full situation and sought a review by the ARO.
Ms Taylor stated that after receiving the ARO decision, she completed the SSAT application form on 18 November 2010 but did not lodge it. She stated that at that stage she felt it was a lost cause. However she felt strongly the outcome was wrong and always intended to pursue all her appeal options. Ms Taylor stated that at that time she was not well and put the SSAT application to one side. Finding the form sometime later she then lodged it with the SSAT.
In oral evidence, Ms Taylor confirmed and expanded on her written statement, particularly in relation to her circumstances at the time of her contact with Centrelink. Ms Taylor continued to work; however her income was variable not only because she worked different hours in different weeks but also because she received bonuses from time to time. At one stage she was ineligible for PPS for a time because of the timing of the bonus payments.
Ms Taylor said that despite being told that a change to NSA would have little impact it was actually a big change. She described the impact of the cessation of the TAC payments and the realisation that her income was significantly reduced.
Ms Taylor said that she had not applied to the SSAT within 13 weeks because she was quite ill and off work at that time.
Ms Taylor's advocate submitted that the contact of 27 June 2006 could be viewed as pertaining to PPS. Centrelink's advocate disagreed submitting that the provisions of section 13 of the Act could not allow this to happen. There were also issues relating to the transition provisions because of cancellation of PPS for a period of more than 12 weeks. A further issue arose due to the timing of the application to the SSAT which was more than 13 weeks after the ARO decision.
The Tribunal took oral evidence from Andrew Davies who is a Centrelink officer with expertise concerning PPS. The Tribunal went through the Centrelink records of Ms Taylor’s contact with the agency and was provided with explanations of the codes of the entries and related information concerning PPS entitlements.
Centrelink records confirm that Ms Taylor contacted the agency via the internet on 11 June 2006 concerning an advance payment for FTB. She was not eligible as a lump sum advance had already been paid. The next contact on 27 June 2006 was also initiated by Ms Taylor who provided information via the internet about her taxable income and a change in marital status. There is no indication that there was any enquiry on 27 June 2006 concerning PPS.
Ms Taylor’s next contact with Centrelink was via the internet on 3 July 2006 when she updated her family income estimate which differed from that given on 27 June 2006. A file note indicates that:
… Customer contacted Centrelink on – 3 JUL 2006 …
…
Customer recently updated family income estimate submitted online.
Need to contact customer to check that the revised estimate is reasonable because it has been reduced by $10,000 or more and resulted in changed entitlements.
…7 JUL 2006
Tried to phone customer, customer appears to have had changes in her circumstances, customer has had first contact completed.
The first record of Ms Taylor contacting Centrelink about PPS after the separation from her husband was on 5 July 2006 when she telephoned the agency’s call centre. On 7 July 2006 there is a record that Ms Taylor lodged a claim for PPS that day.
The Tribunal must decide if there was any contact with Centrelink concerning a claim for PPS based on the balance of probabilities. The Tribunal is satisfied that the Centrelink records are accurate as far as Ms Taylor’s identified contacts are concerned. Ms Taylor initiated internet contact with Centrelink during June 2006 to advise of address changes and matters concerning FTB. The first recorded contact by telephone concerning PPS was on 5 July 2006 when Ms Taylor rang the agency’s call centre to enquire about making a claim.
As prescribed in sections 13 and 37 of the Administration Act, a written claim can be lodged up to 14 days after contact is made with Centrelink seeking PPS and other benefits. However eligibility for a social security payment cannot be backdated to a date any earlier than the initial contact expressing a wish to lodge a claim. The Tribunal finds that Ms Taylor was not eligible for payment of PPS on a date before 5 July 2006. It is unable to allocate an intention to lodge a PPS claim based on the internet contacts Ms Taylor had with Centrelink during June 2006.
There would have been other difficulties even if the Tribunal could have found a means of backdating the claim to 27 June 2006, namely the cancellation of PPS for more than 12 weeks. There is also the impact of section 152 of the Administration Act concerning the date of lodgement of the SSAT appeal more than 13 weeks after the ARO decision. However these do not require further consideration as the Tribunal has determined that the date of lodgement of the claim for PPS was after 1 July 2006. Ms Taylor is therefore unable to take advantage of the quarantining (or grandfathering which is the term used by Centrelink) provisions concerning loss of PPS once the youngest child had his eighth birthday.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member. .....................[sgd]...................................................
Administrative Assistant - Legal
31 October 2012
Date of hearing 9 August 2012 Counsel for the Applicant Mr C Horn Solicitors for the Applicant Victoria Legal Aid Advocate for the Respondent Mr A Carson Solicitors for the Respondent Legal Division, Department of Human Services
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