Berry and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 27 (18 January 2010)

Last Updated: 18 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 27

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4483

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CINDY BERRY

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr R G Kenny, Senior Member

Date 18 January 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..................[Sgd]..................
Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – cancellation of parenting payment due to age of child – qualification for parenting payment – potential coverage by transitional arrangement – parent lived as member of a couple for 7 months in 2008/2009 – parenting payment cancelled for a period greater than 12 weeks – parent not covered by transitional arrangement – parent does not have a PP child – parent not qualified for parenting payment – decision affirmed.

Social Security Act 1991 (Cth), ss 5(15), 500, 500D, 500F, 500G, 500H
Social Security (Administration) Act 1999 (Cth), s 80

Administrative Appeals Tribunal Act 1975 (Cth), s 34J

Strauss and Secretary, Department of Family and Community Services [2005] AATA 608

REASONS FOR DECISION

18 January 2010

Mr R G Kenny, Senior Member

APPLICATION

1. After Cindy Berry’s only child, Charlee, was born on 17 June 2001, Ms Berry began to receive income support payments in the form of parenting payment under the Social Security Act 1991 (“the Act”). On 4 August 2008, Centrelink cancelled her payment on the basis that she was a member of a couple at that time. After that relationship ended, Ms Berry was restored to payments on 13 March 2009. On 19 June 2009, Centrelink cancelled her payment, with effect from Charlee’s 8th birthday on 17 June 2009. That decision was affirmed by an authorised review officer on 10 July 2009 and, in turn, by the Social Security Appeals Tribunal on 31 August 2009.

HEARING

2. Section 34J of the Administrative Appeals Tribunal Act 1975 makes provision for a hearing to be conducted in the absence of the parties. It reads:

34J If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

3. Both parties provided written submissions and consented to the matter being dealt with in their absence. I am satisfied that it is appropriate to proceed in that manner.

ISSUE FOR DETERMINATION

4. The requirements for a person to qualify for parenting payment are set out in s 500 of the Act. One of these is that a person must have a parenting payment child (“PP child”). Since 1 July 2006, the meaning of the term “PP child” is set out in s 500D of the Act. It reads:

500D PP child
(1) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is a member of a couple; and
(c) the child has not turned 6; and
(d) the person is the principal carer of the child.
(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
(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).

5. Mr Black, for the respondent, submitted that, as from Charlee’s 8th birthday, Ms Berry did not satisfy either of the first two categories of PP child in s 500D of the Act. As for the third category, he submitted that the benefit of the transitional arrangement, provided for in s 500F of the Act, is lost to a person whose relationship status changes from what it was immediately before 1 July 2006. He submitted that Ms Berry’s change from a single person to one living as a member of a couple in the period from August 2008 until March 2009, being more that 12 weeks, precluded her from being covered by the transitional arrangement. He submitted that, as Ms Berry did not have a PP child after 17 June 2009, her parenting payment was properly cancelled at that time.
6. Ms Berry submitted that she satisfied the requirements of s 500D(3) of the Act and that, accordingly, parenting payment was payable to her until Charlee’s 16th birthday. In a written submission, Ms Berry nominated the following matters as being relevant: that she commenced her appeal prior to Charlee’s 8th birthday; that she endeavoured unsuccessfully to make her de facto relationship work; that the scheme of the Act works unfairly by removing parenting payment after only a 12 week cohabitation period; that she is experiencing financial hardship as a result of the loss of her parenting payment; and that her parenting payment should have been suspended rather than cancelled during the period of her relationship such that it would not have resulted in her subsequent cancellation. Ms Berry also referred to other matters previously raised by her in relation to s 500G and to s 500H of the Act.
7. Relevant to the cancellation of Ms Berry’s parenting payment is s 80 of the Social Security (Administration) Act 1999 (“the Administration Act”) which reads:

80(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; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.

8. The issue for determination is whether Charlee was Ms Berry’s PP child after her 8th birthday on 17 June 2009 such that she would continue to receive parenting payment after that date.

EVIDENCE AND CONSIDERATION

9. It is not in dispute that Ms Berry was in a de facto relationship from August 2008 until March 2009 or that she has been the “principal carer” of Charlee at all relevant times.[1] A distinction is drawn in s 500D(1) and (2) of the Act based on whether the principal carer is a member of a couple. Where the principal carer is a member of a couple, a child ceases to be a PP child on turning 6 years of age; where the principal carer is not a member of a couple, a child ceases to be a PP child on turning 8 years of age. Again, it is not in dispute that Charlee was 8 years of age when the decision under review was made. In August 2008, Ms Berry was a member of a couple and, therefore, parenting payment was not payable because Charlee was then more than 6 years of age and, therefore no longer a PP child under s 500D(1) of the Act. On 13 March 2009, Ms Berry was no longer a member of a couple and Charlee was a PP child and would be so until she reached 8 years of age under s 500D(2) of the Act. On 17 June 2009, Charlee was 8 years of age and no longer a PP child under s 500D(2) of the Act. Accordingly, neither of the PP child categories in s 500D(1) or (2) of the Act is applicable to her.
10. In the circumstances set out in s 500D(3) of the Act, Charlee would continue to be a PP child of Ms Berry until she turns 16 years of age if:
    • Ms Berry is covered by the transitional arrangement of the Act;[2] and
    • there has not been any continuous period of more than 12 weeks during which she has not, at any time, been covered by the parenting payment transitional arrangement in relation to that child or any other child.[3]
11. The transitional arrangement applies where parenting payment was received prior to 1 July 2006. It is provided for in s 500F(1) of the Act which, in so far as relevant, reads:

500F When a person is covered by the parenting payment 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 (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; and
(f) the person meets any participation requirements that apply to the person under section 500A.
 

12. The effect of s 500F(1)(a) and (c) of the Act is that, if Ms Berry was not a member of a couple immediately before 1 July 2006, the transitional arrangement did not apply to her when she subsequently lived as a member of a couple. It is not disputed that Ms Berry was not a member of a couple immediately before 1 July 2006 or that she was living as a member of a couple for some 7 months from August 2008 until March 2009. Accordingly, the transitional arrangement did not apply to her during that period of cohabitation. Because the duration of that period exceeded 12 weeks, Charlee is not a PP child under s 500D(3) of the Act.
13. As Ms Berry did not have a PP child on 17 June 2009, she was not qualified to receive parenting payment and, under s 80 of the Administration Act, it was liable to be cancelled.
14. I have noted the contentions raised by Ms Berry.[4] First, while Ms Berry refers to her early review application to Centrelink, the relevant date was that of Charlee’s 8th birthday rather than when she initiated any review procedure. Secondly, where there is a period of cohabitation, the scheme under the Act specifically nominates 12 weeks as the period which will impact on parenting payment and it does not enable consideration to be given to the reason for relationship breakdown. Thirdly, the scheme of the Act does not enable financial hardship resultant upon the loss of parenting payment to be taken into account.
15. Under s 80 of the Administration Act, where a person is no longer qualified for parenting payment or where parenting payment is no longer payable to the person, the payment is to be cancelled or suspended. In August 2008, Ms Berry’s parenting payment was cancelled rather than suspended. Ms Berry’s fourth contention was that her payment should have been suspended in August 2008 for a period of, say, 6 or 12 months, to enable her to see if her relationship worked out. However, as I read the terms of s 500D(3)(e) of the Act, whether parenting payment was suspended or cancelled during her cohabitation, she would, in either case, not have “been covered by the parenting payment transitional arrangement” during that time. This is because her status as a member of a couple would still have changed from what it was immediately before 1 July 2006 to what it was “at any time” during the cohabitation.
16. The matter of suspension also arises under s 500F(1)(b)(ii) of the Act. There, reference is made to the situation where there is in force a determination suspending payment of parenting payment under s 80 of the Administration Act. However, that is relevant where such a cancellation or suspension order is in force immediately before 1 July 2006. That was not the situation in Ms Berry’s case.
17. Another matter referred to by Ms Berry relates to the application of s 500G of the Act. As I read s 500G of the Act, it extends the operation s 500F(1)(b)(i) of the Act by enabling that provision to apply in some situations where a determination granting parenting payment was not in force before 1 July 2006. The provision has no application in Ms Berry’s case because there was in force such a determination at that time.
18. Finally, Ms Berry referred to s 500H of the Act. It sets out the effect of cancellation of parenting payment. It provides, in s 500H(1) of the Act, that the reference in s 500F(1)(d) or (e) of the Act to “being qualified for parenting payment” does not include a reference to a person whose parenting payment was cancelled and no determination is in force granting another claim for parenting payment. That component of the provision is qualified by s 500H (2) to (4) of the Act which depend upon the publication of a legislative instrument by the Minister. No such Instrument is in force and the Tribunal does not have jurisdiction to issue such Instruments.[5]
19. As Ms Berry did not have a PP child on and after 17 June 2009, she was not qualified for the parenting payment. Accordingly, it was appropriate that her parenting payment be cancelled under s 80 of the Administration Act.

DECISION

20. The Tribunal affirms the decision under review.
    

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

Signed: .........................[Sgd]................................................

Mátyás Kochárdy, Research Associate

Hearing on the papers 11 January 2010

Date of Decision 18 January 2010

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[1] See the definition of the term in s 5(15) of the Act.
[2] See s 500D(3)(d) of the Act.
[3] See s 500D(3)(e) of the Act.
[4] See para 6 above.
[5] See Strauss and Secretary, Department of Family and Community Services [2005] AATA 608 at [27]- [30].