Waldron and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 440

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

No: 2007/4960

General Administrative Division

Re: CATHRYN WALDRON
Applicant

And: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent

DIRECTION

TRIBUNAL:             Mr S E Frost Member

DATE:                      29 May 2008

PLACE:                   Sydney

WHEREAS:

1.   The Tribunal released written reasons for decision in this matter, dated 27 May 2008.

2.   It has come to the Tribunal’s attention that there was an error in the decision.

3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975 (the Act).

NOW THE TRIBUNAL THEREFORE DIRECTS that the Registrar, pursuant to section 43AA(1) of the Act, alter the text of the decision as follows:

The words “Date 27 May 2008” of the decision be replaced with “Date 14 May 2008”.

.................................[sgd]..................................

Mr S E Frost Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 440

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4960

GENERAL ADMINISTRATIVE DIVISION		)
Re		CATHRYN WALDRON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost Member

Date27 May 2008

PlaceNowra

Decision For the reasons given orally at the hearing of this matter the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 5 September 2007 as varied on 5 February 2008 pursuant to section 180 of the Social Security (Administration) Act 1999.

..................[sgd].........................

Mr S E Frost Member

CATCHWORDS

Social Security – parenting payment partnered rate – claim for arrears - pure administrative error – request for review of decision not made within 13 weeks – decision under review affirmed – recommendation that claim for compensation be accepted.

Social Security Administration Act 1999, section 109

REASONS FOR DECISION

27 May 2008 Mr S E Frost           

1.    At the conclusion of the hearing of the above matter the terms of the decision intended to be made and my reasons were stated orally. The Secretary, pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, has requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2.    The oral reasons for decision were transcribed by Auscript, the Commonwealth Reporting Service. What follow are the reasons as transcribed, corrected where necessary for obvious errors.

3.    The decision under review in this case is the decision not to pay arrears of parenting payment at the partnered rate (“PPP”) from any date earlier than 23 March 2007. The Social Security Appeals Tribunal affirmed that decision on 5 September 2007 and since then there has been a minor adjustment such that a further payment was made for a period during November 2006.

4.    A hearing took place this morning in which the Secretary was represented by Ms Glenda Heggen from Centrelink Legal Services. Mrs Waldron represented herself and she was assisted by her husband, Steven.

5. The evidence in the case consists of the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (“the section 37 documents”) which consist of documents numbered T1 to T52 with page numbers from 1 to 157. I have also had regard to the Secretary’s statement of facts and contentions filed with the Tribunal on 17 March 2008.

6.    The background facts are quite straightforward and are not disputed. Mrs Waldron lodged a claim for PPP in May 2006. The claim was granted on 7 June 2006. As is customary in cases like this, Mrs Waldron was required by Centrelink to provide details of her income and also her husband’s income over the phone on a fortnightly basis. This is because the rate of the PPP payable is sensitive to the amount of income earned by the claimant or her partner.

7.    In simple terms, subject no doubt to upper and lower income levels and maximum PPP entitlement, the more income you earn the less PPP you are entitled to. So, it is critical that the income information that Centrelink is given and on which it calculates the rate of PPP payable, is accurate.

8. In due course, over a substantial period of time and on a reasonably regular basis, Centrelink sent to Mrs Waldron letters, which I would describe as form letters, which contained information that was specific to Mrs Waldron’s circumstances. Examples of such letters are included in the section 37 documents at T16, T17 and T18. Mrs Waldron accepts that she received these and other such letters and she stated that she “possibly” or “probably” read them or if she didn’t then her husband probably did. Not surprisingly, she has no specific recollection of receiving them or of reading them in their entirety but nothing much turns on that. I infer that she received them and that the information contained in them was properly notified to her. There is no real dispute there either.

9.    The dispute that has arisen comes from the fact that Mrs Waldron has not been paid her full entitlement of PPP. This arose entirely because of Centrelink’s mistaken recording of the information that Mrs Waldron provided about her and her husband’s income. The information that she provided was, in fact, accurate and the Secretary conceded this. The Secretary also concedes that she provided the information in a timely fashion, without exception, every fortnight, by phone. Mrs Waldron has always fully understood her obligation to provide accurate, timely information, and she has always met that obligation.

10. But, for some reason, Centrelink made a mistake with that information. It incorrectly recorded Mr Waldron’s income, in practical terms, twice, by recording income amounts separately against two employers, South Nowra Veterinary Clinic and All Animals Pty Limited, when in fact those are simply two separate names for the one employer. Mr Waldron had never had two jobs, but Centrelink thought he did. This was a pure administrative error on Centrelink’s part. Because of the error, Centrelink had an inflated income figure for the Waldron family and, as a result, Mrs Waldron has been underpaid her PPP entitlement.

11. Now, one might think that in circumstances where Centrelink makes an error like this, especially in circumstances where the claimant has met all their obligations – and a reasonably heavy obligation it is, to provide income figures every single fortnight for the best part of a year, which she did – one might think that it would be a simple matter for Centrelink to say, “Sorry, Mrs Waldron, we made a mistake, we’ve underpaid you, we owe you some money, here it is”. But that didn’t happen. And the reason why it didn’t happen is that section 109 of the Social Security Administration Act 1999 prevented it from happening. This is because Mrs Waldron did not pick up Centrelink’s error for more than 13 weeks after it was made. In that circumstance, because of section 109(2), she can't be paid her rightful entitlement.

12. The Secretary says that Mrs Waldron was given proper notification of the PPP entitlement that was calculated for her every fortnight and that she had adequate material to enable her to identify that Centrelink had based its decision on wrong information. I don’t accept that it is quite as straightforward as that. The letters that were sent to her – T16, T17 and T18 are examples – set out a list of fortnightly periods (generally the most recent pay periods), the type of payment, the date of payment and the amount paid. On the back of the letter, for the corresponding fortnightly periods, was a reference to her employer, the amount of income earned and the number of hours worked. In relation to her husband’s earnings there was a reference only to the amount of income earned (which, as it turned out, was wrong) but there was no reference to his employer or to the number of hours that he worked. If there had been, the mistake would surely have been discovered earlier and Mrs Waldron could have received what was rightly hers. But it wasn’t, and she didn’t. And that is the law.

13. At the foot of the section dealing with her husband’s income was a note that said:

Your partner’s earnings shown above may be different from what you told us about if we have received newer information.

14.The letter also says on the first page:

Please check the information on this statement carefully and tell us within 14 days if any information is incorrect, missing or needs to be updated.

15. But on the information that was available to her, there was nothing for Mrs Waldron to correct. This is because, as far as her PPP payments were concerned, they were correct inasmuch as the amounts that Centrelink said they had paid agreed with the amounts deposited to Mrs Waldron’s bank account. And as far as her husband’s income amounts were concerned, the note had specifically warned that those amounts may be different from what she had told Centrelink. So on a fair reading of the instruction, she didn’t take any action because she didn’t have any action to take. Nevertheless, she did not seek a review of her PPP entitlement within the 13 week limit set by section 109(2). In terms of what the law says, I must affirm the decision under review.

16. I do, however, have some additional observations to make. As I have already stated, the short payment to Mrs Waldron arose entirely as a result of an administrative error on Centrelink’s part. Mrs Waldron met every single obligation that the law imposed on her and she did not contribute to any extent to Centrelink’s error. She was at all times mindful of what she had to do and she did it. She did it accurately, and she did it on time. She has been sorely let down by Centrelink’s error and it has caused her and her husband unnecessary financial difficulty. I understand that she has applied for compensation on the basis that she has suffered detriment as a result of defective administration. On what I have seen and heard, and taking into account the fact that Mrs Waldron at all times not only tried to comply but did comply fully with all her obligations, I consider that her claim for compensation should be accepted. She should never have been short-paid. Her full entitlement should be paid to her. I strongly recommend that the error be corrected to the maximum extent possible.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost

Signed: .....................[sgd]...................................................
  Associate

Date of Hearing  14 May 2008
Date of Decision  14 May 2008
Date of Written Reasons                27 May 2008
Representative for the Applicant    Self-represented
Solicitor for the Respondent          Glenda Heggen, Centrelink Legal Services