Editors --- "Partner allowance: transfer under s.12 of Administration Act" [2006] SocSecRpr 22; (2006) 8(2) Social Security Reporter, Article 11

• MULHOLLAND and SECRETARY TO THE DEWR
• Background
• The law
• The evidence
• Consideration
• Formal decision

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Partner allowance: transfer under s.12 of Administration Act

MULHOLLAND and SECRETARY TO THE DEWR

(2006/225)

Decided: 7th February 2006 by M.J. Carstairs

Background

Mulholland commenced receiving social security payments in June 2002. She received newstart allowance and then austudy. At all times since at least June 2002 her husband had been in receipt of disability support pension. Mulholland did not become aware until 2005that she may have had an entitlement to partner allowance at the time she began to receive social security payments.

The law

The Social Security Act1991 (‘the Act’) provides the qualification criteria for partner allowance:

771HA(1)Subject to subsections (1A) and (3), and section 771HB, a person is qualified for a partner allowance in respect of period if:

(a) throughout the period, the person is a member of a couple; and

(b) throughout the period, the person’s partner is at least 21; and

(c) the person’s partner is receiving:

(i) youth allowance, austudy payment, newstart allowance, sickness allowance, special benefit, rehabilitation allowance, age pension, disability support pension, mature age allowance, service pension or income support supplement; or ...

(d) throughout the period, the person is an Australian resident; and

(e) the person was born on or before 1 July 1955; and ...

(h) the person does not have recent workforce experience...

771HA.(1C) For the purposes of paragraph (1)(h), recent workforce experience is employment of 20 hours or more a week for a total of 13 weeks or more at any time during the 12 months immediately before the day the person lodged the claim for the allowance.

Subsection 771(1) restricts the grant of partner allowance according to the date of claim:

771.(1) In spite of any other provisions of this Act or of the Administration Act, a person is not to be granted a partner allowance under this Part unless:

(a) the person’s claim for the allowance:

(i) was lodged before 20September 2003; or

(ii) is taken, because of the operation of section 12, 13 or 15 of the Administration Act, to have been made before 20 September 2003; and

(b) the person was qualified for the allowance:

(i) in a case to which subparagraph (a)(i) applies-on the date of lodgement of the claim; and

(ii) in a case to which subparagraph (a)(ii) applies-on the date the person is taken to have made the claim.

Section 12 of the Social Security (Administration) Act1999 (the ‘Administration Act’) provides a mechanism for transferring a person to a social security payment without requiring that person to make a claim for that payment. That section relevantly provides:

12.(1) Subject to subsection (3), if:

(a) a person is receiving an income support payment; and

(b) while receiving the payment, the person becomes qualified for another income support payment (the other payment); and

(c) the Secretary determines that the person is to be transferred to the other payment;

the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment...

12.(3) The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.

The evidence

Mulholland’s husband was at all relevant times in receipt of disability support pension.

Mulholland ran her own business until about June 2002. Soon after the business was sold she claimed and started to receive newstart allowance. In the second half of 2002Mulholland obtained some part-time work. In 2003 Mulholland commenced studies and became eligible for austudy. There was some confusion in the evidence given as to when Mulholland actually ceased her part-time work, however her employer could verify that between 6 September 2002 and 30September 2003 she worked a total of 115 hours.

Mulholland had at no time before or after 20 September 2003 attempted to claim partner allowance. She claimed not to have been aware that such a payment had ever existed until sometime in 2005.

Consideration

The Tribunal briefly considered section 11 of the Administration Act, which provides that a person who wishes to be granted a social security payment must make a claim. In this case Mulholland could not simply make a claim for partner allowance as, by the time she learned about its existence sometime in 2005, the operation of sub-paragraphs 771(1)a(i) and 771(1)(b)(ii)of the Act meant that it could not be granted to her.

The Tribunal then carefully considered the references in s.771(1)(a)(ii) to other provisions of the Administration Act, which all deal with situations in which a claim can be deemed to have been made (ss. 12, 13 and 15). Of these sections the Tribunal considered s.12 to be the only section relevant to this case. The Tribunal cited the Federal Court’s decision in Burgess v Secretary, Department of Family and Community Services 6(2)SSR 22. In that case the Federal Court found that s.12 of the Administration Act could be used to effect a retrospective transfer from newstart allowance to the disability support pension, provided that the Secretary was satisfied that Burgess was retrospectively qualified for that payment.

In Mulholland’s case the Secretary conceded that s. 12 of the Administration Act would allow the retrospective transfer of Mulholland to partner allowance, provided that the issues of her qualification for that payment were satisfied. The respondent further conceded that s. 12could effect a transfer to partner allowance even after 20 September 2003, ass.12 is expressly mentioned in s.771 of the Act.

The Tribunal concluded that the law does not place any time limits for the application of s. 12, and that it would be unfair to impose them when they were otherwise not provided. Mulholland’s delay in seeking to be paid partner allowance over 18 months after the date she could have qualified for that payment was therefore irrelevant.

However, the Tribunal also commented that in some cases the respondent’s clear intention to close off partner allowance in order to encourage allowees to continue seeking work would, in some cases, be relevant. The Tribunal indicated that in some cases such a policy consideration could mitigate against exercising the discretion in s. 12. It was not found to be relevant in this case, however, as Mulholland had remained actively involved in seeking work or studying while on newstart allowance.

As to the date of effect of the transfer, the Tribunal considered that Mulholland was being paid an appropriate payment while she was receiving newstart allowance and then austudy. The transfer to partner allowance was therefore determined to take effect from 20 September 2003 rather than any earlier date.

Formal decision

The Tribunal decided to set aside the decision under review, and remitted the matter to the respondent for consideration in accordance with the recommendation that, subject to Mulholland satisfying Centrelink about the number of hours she worked in the 12 months immediately before 20 September 2003, she should be transferred to partner allowance with effect from 20 September 2003.

[D.A.]