Narain and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 43 (22 January 2010)

Last Updated: 25 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 43

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3610

GENERAL ADMINISTRATIVE DIVISION		)
	Re		NATASHA NARAIN

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 22 January 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.............Signed..................
Deputy President

CATCHWORDS

SOCIAL SECURITY – parenting payment single (PPS) – parenting payment transitional arrangements – statutory criteria not satisfied – date of effect of a favourable decision, if made – decision under review affirmed

Secretary, Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213

Social Security Act 1991 (Cth) ss 500D(3), 500F(1), 500G

Social Security (Administration) Act 1999 (Cth) s 107(3)

REASONS FOR DECISION

22 January 2010

Deputy President P E Hack SC

1. Up until February 2009 the applicant, Ms Natasha Narain, was paid parenting payment single (PPS). Payments of PPS ceased in that month because her child turned eight. The fundamental issue in this application is whether Ms Narain is entitled to receive PPS after that birthday.
2. The background to the matter is complex but not in dispute. Ms Narain first made a claim for PPS on 3 May 2006. The claim was rejected on 1 June 2006 on the basis that Ms Narain had not provided information regarding a proprietary company in which she had had a peripheral involvement during the course of her marriage.
3. It seems quite possible, given the views of the experienced members of the Social Security Appeals Tribunal, that that decision was wrong[1] however Ms Narain did not seek a timely review of the decision although she subsequently made further claims in November 2006 and March 2007. She was eventually granted PPS with effect from 1 March 2007 by a decision made on 18 April 2007
4. In 2005, and with effect from 1 July 2006, amendments[2] were made to the legislation governing the payment of PPS such that PPS was not ordinarily payable in relation to a child once the child turned eight. However, by virtue of s 500D(3) of the Social Security Act 1991 (Cth) a child satisfies the description of “PP child”, and PPS is payable to a person in respect of that PP child if, relevantly,

“(d) the person is covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F) ...”

In such cases PPS is payable to the age of 16.

5. Subject to an irrelevant exception, a person is covered by the parenting payment transitional arrangements in relation to a child if, immediately before 1 July 2006, the person was not a member of a couple and the 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 parenting payment to the person ...”[3]

6. A determination under s 37 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) is made where the Secretary is satisfied that the claimant satisfies the qualification and payability criteria. Such a determination was not made in Ms Narain’s case until March 2007 and thus there was no determination in force immediately before 1 July 2006.
7. The result of Centrelink’s application of this legislation in the present case was that on 16 January 2009, in anticipation of the eighth birthday of Ms Narain’s child, Centrelink determined that the child was no longer a PP child from that birthday and thus Ms Narain was no longer qualified for PPS with effect from 20 February 2009.
8. Ms Narain was informed of the decision to cancel her PPS payment by letter dated 16 January 2009. She took up the issues with Centrelink in March 2009, arguing that she should have been granted PPS from May 2006 i.e. the date of her original claim, rather than from March 2007. Had that occurred she would have had a determination under s 37 of the Administration Act and would have been entitled to receive PPS to the child’s 16th birthday. In any event, Ms Narain asked for the decision of 1 June 2006 to be reconsidered.
9. The reconsideration was undertaken on 24 March 2009 and the decision was affirmed on the basis that “no request for review within 13 weeks thereafter was ever received”. Ms Narain sought a review by an Authorised Review Officer (ARO). The ARO undertook a review, not of the 1 June 2006 decision, but of the 18 April 2007 decision to pay PPS from 1 March 2007 and not earlier. That decision was affirmed.
10. The matter was next considered by the Social Security Appeals Tribunal in July 2009. That Tribunal took the view that the decision under review was that made on 16 January 2009 to cancel Ms Narain’s PPS from 20 February 2009. That decision was affirmed on 3 July 2009.
11. Ms Narain now seeks review in this Tribunal.
12. As it seems to me there has been a degree of confusion about the decision which is in issue. There were three decisions that are relevant

(a) the decision of 1 June 2006 refusing the claim for PPS,

(b) the decision of 18 April 2007 granting PPS only from 1 March 2007,

(c) the decision of 16 January 2009 cancelling PPS from 20 February 2009.

13. At the re-consideration level it was the 1 June 2006 decision that was reviewed. The decision was not changed. Thereafter Ms Narain, as “a person affected by ... a decision of an officer under the social security law”, applied to the Secretary for a review of the decision[4]. That review was undertaken by the ARO under s 135(1) of the Administration Act. It would appear that, strictly speaking, the ARO did not review the 1 June 2006 decision but reviewed the decision of 18 April 2007 to grant PPS from 1 March 2007. It seems to me, however, that it does not matter that different decisions were considered at the reconsideration level and the ARO level. That is so because reconsideration is not a prerequisite to ARO review. The only prerequisite is that in s 129(1) of the Administration Act, that is, that there be a decision of an officer under the Social Security Law.
14. By virtue of s 142 of the Administration Act a person affected by the decision of an ARO may apply to the Social Security Appeals Tribunal for a review “of that decision”. Thus it was the decision of 22 March 2007, not that of 16 January 2009, which ought to have been the subject matter of the review by the Social Security Appeals Tribunal.
15. But I think it to be of no practical consequence that the Social Security Appeals Tribunal identified, and affirmed, a different decision to that reviewed by the ARO. There has been a purported exercise of power by the Social Security Appeals Tribunal even if irregular. That position is dealt with by the decision in Secretary, Department of Social Security v Alvaro[5] where the Court said:

“The right of review by the AAT of a decision of the SSAT given by s 1283(1) arises where an administrative decision made in purported exercise of powers conferred by the Act has, as a matter of fact, been reviewed by the SSAT. That right exists whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective. A similar construction should also be accorded to ‘decision’ in ss 1239 and 1247 which respectively provide for internal review of decisions by the Secretary, and the review of decisions by the SSAT.

In the present case, as a matter of fact, there plainly was a decision of the SSAT. That decision by its terms affirmed the decision to recover an overpayment of $66,682.04. Whilst that decision stood undisturbed by administrative review or an order of a court on judicial review it affected the rights and interests of the respondent as the decision was likely to be implemented by the Department.

Prior to the decision of the SSAT there was the original decision made on 31 July 1991, and the decision of the Review Officer. In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated procedural irregularity such as a failure to accord natural justice.”

16. By operation of s 179 of the Administration Act, and because the Social Security Appeals Tribunal affirmed the decision, it is the decision of the ARO, as affirmed, which is before this Tribunal.
17. It seems to me to be plain from the material that that decision was correct. The decision was made in response to a claim made on 1 March 2007. The “general rule” for determining the statute, found in s 3(1) of Schedule 2 of the Administration Act, is that the start date is the day on which the claim was made.
18. But Ms Narain argued that the decision of 1 June 2006 was wrong and, that being so, she ought to have the benefit of a decision granting her PPS from 3 May 2006 with the result that she was covered by the parenting payment transitional arrangements.
19. I doubt that that decision is before me as a matter of jurisdiction because it was not the decision reviewed by the ARO or the Social Security Appeals Tribunal. But even if it were and assuming, as the Social Security Appeals Tribunal seemed to think, that the decision was wrong, that would not avail Ms Narain. That is so because of s 107(3) of the Administration Act. It provides:

“(3) If:

(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and

(b) the person is given a notice informing him or her of the original decision; and

(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d) a decision that the claim be granted is made as a result of the application for review;

the determination embodying the last-mentioned decision takes effect on the day on which the application for review was made.”

20. Here the decision of 1 June 2006 rejected Ms Narain’s claim for PPS, a social security payment. She was notified of that decision by letter of that date. That letter notified her of her right to seek a review by an ARO. She did not make an application for review of that decision within 13 weeks after notification of the decision i.e. before, say, mid October 2006. It is unnecessary to decide when an application for review was made; it is enough to say that no application was made within the 13 week period. The consequence is that, were a review of the 1 June 2006 decision to be undertaken and were it to be determined that the claim ought be granted, the determination would take effect on the day on which the application for review was made.
21. Put simply, had Ms Narain sought a review of the 1 June 2006 decision within 13 weeks and succeeded, she would have been entitled to PPS with effect from 3 May 2006 and would then have satisfied s 500F of the Social Security Act. But, since she did not do so her claim, even if successful, cannot be “back-dated” prior to her application for review.
22. In common with the Social Security Appeals Tribunal I have considerable sympathy for Ms Narain. It is regrettable that she did not make a timely application for review of the 1 June 2006 decision. She was apparently distracted by other dealings with Centrelink at the time and did not appreciate, nor was she told, other than by standard form letter, of the significance of a failure to seek a review of that decision.
23. It follows that I would affirm the decision under review, that being the decision to grant PPS from 1 March 2007. On the material before me I would have affirmed the decision of 16 January 2009 had that been open to review.
24. I should add that following the hearing Ms Narain forwarded further written submissions. I have had regard to them but they do not alter the conclusions that I have reached. Particular reliance is placed upon a Centrelink policy document that refers to the transitional arrangement having application in instances where a claim has been made on or after 1 July 2006 but where the start date is prior to 1 July 2006. But the reference is to the expanded scope given to the expression “a determination under section 37 of the Administration Act” in the situations postulated in s 500G of the Social Security Act. Ms Narain’s situation is not included within s 500G.
    

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

Associate

Date of Hearing 13 January 2010

Date of Decision 22 January 2010

Applicant In person

Solicitors for the Respondent Sparke Helmore

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[1] That Tribunal said, “It is probable that [Ms Narain] would have been qualified to receive parenting payment prior to 1 July 2006, had she pursued the matter further with Centrelink.”

[2] Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth)

[3] See s 500F(1)(b), Social Security Act
[4] See s 129(1)(a) Administration Act

[5] [1994] FCA 1124; (1994) 50 FCR 213 at 219-220. Section 1283 of the Social Security Act as it then stood provided for a review of Social Security Appeals Tribunal decisions by this Tribunal in terms relevantly identical to s 179 of the Administration Act.