Day; Department of Family and Community Services [1999] AATA 9 (12 January 1999)

Last Updated: 9 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 9

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/217

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And MICHELLE THERESA DAY

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 12 January 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

SOCIAL SECURITY - family payment - child care allowance - notifiable event - whether interdepartmental transfer is a notifiable event - whether interdepartmental transfer is a change of employment.

REASONS FOR DECISION

12 January 1999 Deputy President DP Breen

1. This is a review of a decision of the Social Security Appeals Tribunal dated 10 February 1998 which set aside a decision of the Department of 20 October 1997 and which determined that the respondent's inter-departmental transfer was not a notifiable event for the purposes of subsection 872(1) of the Social Security Act 1991.

2. This application was heard in Townsville on 17 August 1998. The applicant in this matter was represented by Mr R McQuinlan, Departmental Advocate and the respondent by Mr KG Rose of Counsel instructed by the Townsville Community Legal Service.

3. The following documents were tendered and made exhibits before the Tribunal.

* Exhibit 1 "T" Documents

* Exhibit 2 Duty Statement - ASO1

4. The relevant sections of the legislation are as follows:

"872(1) The Secretary may give a recipient of family allowance a notice that requires the recipient to inform the Department if:

(a) a specified event or change of circumstances occurs; or

(b) the recipient becomes aware that a specified event or change of circumstances is likely to occur.

872(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the family allowance.

....

873(1) The Secretary may give a recipient of family allowance a notice that requires the recipient to give the Department a statement about a matter that might affect the payment of the family allowance to the recipient."

5. Michelle Theresa Day, the respondent in this matter, for some years has been in receipt of family payment and child care allowance. She worked until August 1997 as a Level ASO1 Officer in the Department of Defence. Due to her taking maternity leave during the 1995/96 financial year, the combined income of her husband and herself for this year was only $31,665.

6. During 1997 the respondent was paid family payment and child care allowance on the basis of a 1996/97 estimated income of $57,947 when in fact she ought to have been paid on the basis of their actual 1995/96 income of $31,665. This was due to the fact that whilst their combined income in the 1996/97 financial year was greater than in the 1995/96 financial year, the rate of payment can only be changed when a notifiable event has occurred and returning to work after maternity leave is not classified as a notifiable event.

7. The above facts left Mrs Day in a curious and somewhat unfortunate situation. She received payment of arrears and thus was entitled to a higher allowance than a person on her income would ordinarily receive. However, this was done according to the law and she indeed received her correct entitlement.

8. Unfortunately for the respondent, the same document which triggered the Department's realisation of her being underpaid in the past also triggered this current debacle. The document in question, a "Changes to Income and Assets" form, can be found at Folios 20-27 of the "T" Documents, Exhibit 1 and was completed and signed by the respondent on 14 August 1997.

9. On this form, underneath the heading "Changed Circumstances", the respondent ticked the boxes next to "Started or recommenced work" and "Changed jobs". Another box (which she rightly left blank) included one which read "Your (or your partner's) income has reduced". Also on the form was a box which read "You (or your partner) are self employed and your annual taxable income is likely to go up". However, there was nothing on the form which pertained to the respondent's return to work after maternity leave. The only possible notifiable event, and the issue which is in contention in this application, is whether the applicant's transfer from the Department of Defence to Centrelink amounts to a change of employment.

10. The event to which the respondent referred when she ticked the box "Changed jobs" was that of her transfer from the Department of Defence to Centrelink. The Departmental Officer reviewing the form decided that in accordance with departmental policy this transfer constituted a notifiable event, that is, a change of jobs. Thus it triggered a re-assessment of the respondent's entitlement. Hence, the alleged notifiable event allowed the Department to assess the respondent's entitlement on a new basis. As the respondent's combined taxable income was over 110% greater than it had been in the 1995/96 financial year, upon which they were being assessed until this form was lodged, the applicant was then entitled to start paying the respondent on the basis of the 1997/98 estimated combined taxable income.

11. The result of this was a reduction in benefits effective from August 1997 onwards. Therefore, whilst the respondent received $1,781.20 in arrears, in the same breath they were informed that their rate of pension would be substantially reduced. As the Department has the power to make these assessments only on the occurrence of a notifiable event, the central issue in this case was whether the applicant's transfer from the Department of Defence to Centrelink is in fact a notifiable event.

12. Given that the terms of subsection 872(1) are couched in such a way that the Secretary may give notice that requires a recipient to inform of a specified event or change of circumstances, the problem for the applicant is that the change has to be one of those things listed on the "Changes to Income and Assets" form or some other notice. Therefore, in respect of family payment and child care allowance, the fact that the respondent's income increased was not in itself sufficient to trigger a re-assessment.

13. Therefore the issue is whether the respondent's inter-departmental transfer amounts to a change of job. It would certainly have involved some alteration of duties and a different working environment. On the other hand, the respondent's salary was identical and she maintained the same public service ranking and employee number after the transfer. In addition, there is the issue raised by subsection 872(2) regarding whether the event might affect the payment of family payment. In this case, although the event itself did not result in an increase in salary, it would, in these circumstances by enabling a re-assessment, affect the entitlement to family payment.

14. However, I must conclude on the basis of commonsense and in accordance with the law, that the respondent's inter-departmental transfer did not constitute a change of circumstances or notifiable event as prescribed by the Act or the relevant form that the Department sent to her.

15. Subsection 872(1) requires a person to give notice of a "specified" event or change of circumstances. Nowhere is there a specification of a kind that required of the respondent that she notify the Department that she had returned to her eschelon with the obvious consequence that, as opposed to her former income level during the period of her unpaid maternity leave, there was a resultant increase in the family income in the form of a restoration of the level of it to that which preceded that period of leave.

16. The respondent's inter-departmental transfer can hardly be described as a change of job as she remained an ASO1 public servant and worked for the same employer, that is, the Commonwealth of Australia.

17. By way of analogy, I refer to Secretary, Department of Social Security and Hoy, AAT Decision 13078 delivered 10 July 1998. On page 9 of the decision it was held that:

"In the Tribunal's opinion, the expression 'change jobs' in the notice, strictly construed, is not synonymous with the expression 'changed employment circumstances' but, instead, has a narrower meaning."

18. I concur with these words and find that the ordinary meaning of the words "changed jobs" does not encompass a situation such as an inter-departmental transfer.

19. Therefore, no notifiable event having occurred, the Tribunal affirms the decision under review.

I certify that this and the 5 preceding pages are a true copy of the decision and reasons for decision herein of Deputy President DP Breen, Presidential Member.

Signed: Susan Gray

Associate

Date/s of Hearing 17.8.98

Date of Decision 12.1.99

Counsel for the Applicant Mr R McQuinlan, Departmental Advocate

Solicitor for Applicant

Counsel for the Respondent Mr KG Rose

Solicitor for the Respondent Townsville Community Legal Service