Couch and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 559 (16 August 2011)

Last Updated: 16 August 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 559

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/1068

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CHRISTOPHER COUCH

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Dr M Denovan, Member

Date 16 August 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...............[Sgd]................
District Registrar

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – Youth allowance – Cancellation of youth allowance based on failure to meet independence exemption – Provisions of Social Security Act 1991 satisfied – Decision under review affirmed

Social Security Act 1991 (Cth) s 16B, 1067A, 1067G

REASONS FOR DECISION

16 August 2011

Dr M Denovan, Member

INTRODUCTION

1. Mr Couch, the applicant, was granted Youth Allowance from 3 September 2009. The decision to do so was not made until 7 May 2010.
2. On 19 May 2010, the respondent made a decision to cancel his Youth Allowance with effect from 1 February 2010. Mr Couch seeks review of that decision.

LEGISLATION AND ISSUES

3. The relevant legislative provisions that set out the criteria for the grant of Youth Allowance are contained in ss 16B, 1067G and 1067A(12) of the Social Security Act 1991 (Cth) (the Act).
4. Youth Allowance is subject to a parental income test^[1], unless the applicant meets the criteria for independence set out in s 1067A of the Act.
5. It is not in dispute that, at all relevant times, Mr Couch’s parents’ income was too high for him to be paid Youth Allowance unless he qualified under the independence provisions. The decision to grant Youth Allowance to Mr Couch was on the basis that he met the criteria for independence, pursuant to s 1067A(12) of the Act. It states:

People with a partial capacity to work

(12) A person is independent if the person:
(a) has turned 16; and
(b) has a partial capacity to work; and

(c) is not undertaking fulltime study and is not a new apprentice.^[2]

6. It is also not in dispute that Mr Couch commenced full-time study on 1 February 2010 in a 12 month Diploma of Justice Administration course. From that time, he no longer met the requirements to be considered independent under the Act, and, accordingly, his Youth Allowance was cancelled.
7. Mrs Couch, the mother of Mr Couch, represented him at the hearing. She submitted that I should consider this matter in its entirety. She contended that Centrelink has made a series of mistakes since early 2009, and that it is because of Centrelink’s errors that her son lost his eligibility for Youth Allowance. She contended that although her son was eligible for Youth Allowance from 3 September 2009, he was not informed of that eligibility until some nine months later in the decision dated 9 May 2010; had he known that he was eligible for Youth Allowance earlier, it is possible that he may not have enrolled in full-time study. She submitted that the only reason her son commenced full-time study was because of the delay by Centrelink in making the decision to grant Youth Allowance.
8. Mr Couch lodged two applications for Youth Allowance; the first on 2 April 2009, and the second on 30 November 2009. Mrs Couch believes that her son should have been granted Youth Allowance from 2 April 2009, the date he first applied for Youth Allowance.
9. Mr McQuinlan, for the respondent, submitted that s 1067A(12) of the Act does not allow for a person to continue to be regarded as independent once they have commenced full-time study, and that there is no power of discretion which would allow the Tribunal to made a decision to the contrary.
10. The issue I must decide is whether Mr Couch’s Youth Allowance was correctly cancelled on 15 May 2010.

CONSIDERATION OF THE ISSUE

11. Mr Couch first applied for Youth Allowance on 2 April 2009. At that time he also provided a medical certificate, stating that he suffered from postoperative pain in his left knee, which was regarded as temporary. Centrelink rejected the claim, and an Authorised Review Officer affirmed the decision on 28 October 2009. Mrs Couch believes that this was the first of a series of mistakes made by Centrelink which led to her son’s Youth Allowance being cancelled. I am unable to review this decision because no application for review has been made to either the Social Security Appeals Tribunal or to this Tribunal in relation to this earlier decision.^[3]
12. On 3 September 2009, Mr Couch contacted Centrelink and applied for Disability Support Pension (DSP). A Job Capacity Assessment (JCA) was conducted on 22 November 2009.^[4] Mr Couch’s knee condition was assessed as temporary and he was considered to have a ‘temporary reduced capacity to work’. For these reasons, his claim for DSP was rejected on 23 November 2009.
13. On 30 November 2009 Mr Couch re-applied for Youth Allowance. Mr Couch submitted further medical evidence in the form of a medical report for DSP dated 10 December 2009. Unfortunately Centrelink did not consider the new medical report Mr Couch provided when he re-applied for Youth Allowance. On 1 February 2010 the respondent, relying on the JCA dated 22 November 2009, decided that Mr Couch had a temporary (not permanent) reduced capacity to work, and as such could not be considered independent for the purposes of his application for Youth Allowance. On that basis he was still subject to the parental income test. As he had failed to provide evidence about his parents’ income, his claim was rejected on the same day.
14. It was only after Mr Couch requested a review of this decision to reject his claim of Youth Allowance that this most recent medical report was taken into account. A JCA was completed on 23 April 2010 took into account the medical report dated 10 December 2009, and assessed Mr Couch as having a permanent partial incapacity to work. That JCA relied on the medical information dated 29 November 2009 and provided to Centrelink on 30 November 2009 and 10 December 2009.
15. On 7 May 2010 Mr Couch was granted Youth Allowance on the basis that he had a permanent partial incapacity to work, and satisfied the criteria for independence. The payment was backdated to 3 September 2009, the date Mr Couch applied for DSP.^[5]

16. It is not in dispute that Mr Couch enrolled in a 12 month full-time course of study, which commenced on 1 February 2010. The fact that he was a full-time student on that date meant that he no longer satisfied the requirements to be considered independent in relation to Youth Allowance under s 1067A(12)(c) of the Act.
17. I understand the frustration Mrs Couch feels on behalf on her son. The decision to grant Youth Allowance in May 2010 was made as a result of the most recent JCA dated 23 April 2010. It is theoretically possible that had that JCA been completed closer to the time the most recent medical evidence was provided to Centrelink on 10 December 2009, the decision to grant Youth Allowance might also have been made earlier and Mr Couch would have been better placed to consider the impact of studying on his Youth Allowance. That theoretical possibility is not grounds for a successful review in these circumstances where the legislation provides no discretion.

DECISION

18. The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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

Danielle Armstrong, Research Associate

Date/s of Hearing 1 July 2011

Date of Decision 16 August 2011

The Applicant was represented by his mother, Mrs Angelina Couch

For the Respondent Mr Rick McQuinlan, departmental advocate

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^[1] Social Security Act 1991 (Cth), ss 1067A(1), 1067G-A1, 1067G-F1 – F3.
^[2] The three notes to the section state: for ‘partial capacity to work’ see section 16B, for ‘undertaking fulltime study’ see section 541B and for ‘new apprentice’ see subsection 23(1) of the Act.
^[3] Administrative Appeals Tribunal Act 1975 (Cth), s 25(4).
^[4] Exhibit 3, appendix G.
^[5] Social Security (Administration) Act 1999 (Cth) Schedule 2, cl 35.