Newitt and Department of Family and Community Services [1999] AATA 529 (4 June 1999)

Last Updated: 17 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/44

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT WILLIAM NEWITT

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 4 June 1999

Place Hobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Social security - disability support pension - parenting payment - application for payments of both.

Social Security Act 1991 - ss.103, 500S

REASONS FOR DECISION

16 July 1999 Ms A F cunningham (Part-time Member)

This is a statement of reasons pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision that the Tribunal made on 4 June 1999. The Tribunal affirmed the decision under review.

1. This is a review of a decision of an authorised review officer made on 19 February 1999 which affirmed a decision of Commonwealth Service Delivery Agency (Centrelink) delegate of the Department of Family and Community Services on 4 April 1999 to reduce Mr. Newitt's claim for parenting payment single.

2. Mr. Newitt appeared in person and gave oral evidence as well as tendering two newspaper articles and a departmental booklet. The respondent was represented by Ms L Miller. No oral evidence was given on behalf of the respondent, but the T documents were submitted in evidence.

3. The T documents reveal that Mr. Newitt has been in receipt of a disability support pension since 1997. He lodged an application for parenting payment in January 1999. He has two children currently in his care pursuant to a consent order of the Family Court of Australia. His wife pays child support of $137.33 per month which has recently been slightly reduced. His total income consists of his disability support pension of $366.80 gross per fortnight and family allowance of $339.00 gross per fortnight.

4. Mr. Newitt gave evidence in relation to his financial situation and the cost of keeping children which according to the Institute of Family Studies is in the order of $250 per week. He says that he does not receive enough income to cover this expenditure and maintains that he should be entitled to receive the parenting payment. He noted that as a disability support pensioner he is not entitled to seek casual employment, whereas someone in receipt of a parenting payment can supplement their income in this way. He conceded however that his financial position is no different to a person in receipt of a parenting payment with family allowance and indeed he had the choice of opting for either pension. His reason for choosing to receive the disability support pension was that if his children moved to live with their mother he would be worse off so far as his pension income was concerned. Further he also receives certain concession entitlements as a receiver of a disability support pension.

5. As Mr. Newitt conceded, this Tribunal, like the Social Security Appeals Tribunal is bound to apply the applicable legislation. However it was his view that there are several inconsistencies in the legislation.

6. There did not appear to be any dispute that the applicable provisions of the Social Security Act 1991 ("the Act") are s.103 which refers to the receipt of disability support pension and s.500S which refers to the receipt a parenting payment. These sections are in essence the antithesis of each other, but the common point being that a pension recipient can only be in receipt of one type of social security pension, in this case either a disability support pension or a parenting payment.

"103(2) [Other pension or benefit becomes payable] If:

(a) a person is receiving a disability support pension; and

(b) another social security pension or a social security benefit or service pension becomes payable to the person;

the disability support pension is not payable to the person."

"500S(1) [Application] This section applies to a person who is not a member of a couple.

(2) [PP not payable] Parenting payment is not payable to the person if the person is already receiving a service pension.

(3) [Cannot double-dip] If:

(c) a person is receiving parenting payment; and

(d) another social security pension or a social security benefit or service pension becomes payable to the person;

parenting payment is not payable to the person."

7. However, Mr. Newitt argues that a parenting payment under the definition in s.23 is classed not only as a social security pension, but also a social security benefit and a social security entitlement. He urged the Tribunal to select a definition other than that of a pension for his purposes.

8. Mr. Newitt also referred the Tribunal to the Disability Discrimination Act and in particular ss.11 and 29. The Tribunal however fails to see how Mr. Newitt can claim that he is being discriminated against by being in receipt of a disability support pension when he had the choice of either receiving a disability support pension or a parenting payment and further that he made his choice to receive a disability support pension because it gave him superior benefits. The only variable factor is that he is not able to seek casual employment, but this is not always available for those in receipt of parenting payments given today's job climate. Without that possibility of additional income from casual employment, Mr. Newitt is in the same position as any other single supporting parent.

9. Whilst the Tribunal has much sympathy with the applicant's endeavour to raise two growing children on a pension and provide them with their increasing needs and desires, as he has conceded, the Tribunal can only apply and interpret the law as it stands. The Tribunal cannot concede to Mr. Newitt's request to select a definition under s.23 that suits his case, for to do so, would be to ignore the definition of a social security pension which includes under sub-section (e) a pension parenting payment (single). As Ms Miller points out, a parenting payment can be classed as a benefit as well as a pension or allowance for different reasons under the legislation. Mr. Newitt's circumstances may be unusual in that he is in receipt of a disability support pension whilst caring for children, but his circumstances must still be referable to the relevant legislative provisions of the Act. The Act is clear in that a pensioner cannot be in receipt of two social security pensions at the same time, he must choose which one he wishes to receive. Mr. Newitt has done this and chosen a disability support pension for his own reasons. The fairness or financial ramifications of the legislation as it applies to Mr. Newitt is not an issue for this Tribunal.

10. For the above reasons the decision under review was affirmed.

I certify that the ten(10) preceding paragraphs are a true copy of the reasons for the decision herein of

Ms A F Cunningham

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 4 June 1999

Date of Decision 4 June 1999

Counsel for the Applicant Applicant represented himself

Solicitor for the Respondent Ms L Miller (Legal Branch - DF& CS)