Editors --- "Equal shared care: who should receive parenting payment single" [2009] SocSecRpr 37; (2009) 11(3) Social Security Reporter, Article 15

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Equal shared care: who should receive parenting payment single

VICKERS and SECRETARY TO THE DEEWR and SMITH (Other party)

(2009/534)

Decided: 17th July 2009 by L. Hastwell

Background

Vickers was the father of Reuben (DOB 11/11/03). Smith, the mother, was joined as a party. The parents of the child were in a de facto relationship until 2004. Reuben was the only child of the relationship. Smith had seven children and was receiving parenting payment single (PPS) in respect of Rachel, aged

14. Smith shared the care of Reuben and Rachel with the children’s respective fathers. Smith’s 22 year old son, who suffered from anxiety and depression, was in receipt of Centrelink benefits and also lived with her.

Vickers was a self employed painter; he went bankrupt and was discharged from bankruptcy in November 2008. He suffered from depression, neck, shoulder and lumbar problems (verified by medical evidence), and now found it difficult to work commercially. Vickers had been involved in the care of Reuben since his birth and, on 16 June 2006, he was granted PPS. Vickers and Smith had equal shared care of Reuben from 16 February 2007.

Smith was 50 years of age, had back and leg pain and mild bursitis and had not been in the workforce for 32 years. Smith’s PPS for Rachel was cancelled on

25 March 2008 because her care dropped to less than 30% care. The legislative changes in 2006 made any re-grant in respect of Rachel unlikely.

The ARO rejected PPS for Smith because Vickers was already the PPS recipient for Reuben and the legislation allowed only one PPS for a child. On 17 November 2008 the SSAT granted PPS to Smith for Reuben retrospectively from

25 March 2008 and Vickers was charged with a debt. Vickers appealed to the AAT; Smith was joined as a party.

Legislation

Section 500 of the Social Security Act 1991 (the Act) sets out the qualification requirements for entitlement to parenting payment, including that the person must have a PP child. Section 500D(2) of the Act sets out the criteria to determine whether a child can be regarded as a PP child of a person, and includes the requirement that the person is the principal carer of the child.

Section 5(18) of the Act provides that only one person at a time can be the principal carer of a particular child. Section 5(19) provides that if the Secretary is satisfied that, but for subsection

(18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must make a written determination specifying one of the adults as the principal carer of the child. When a decision is made about the principal carer the other parent must be advised.

In allocating PPS when the care is equal the ‘Guide’ provides assistance:

1.1.P.416 Principal carer - shared care

...

In situations of equal care where only one of the carers is claiming or receiving income support, that person should be determined as the principal carer. If both carers are claiming or receiving income support, the carer who is most in need of a favourable determination should be deemed principal carer.

...

The Guide goes on to list some of the indicators to be considered including work experience and duration of income support.

It was conceded that Centrelink failed to advise Smith when Vickers was granted PPS for Reuben. Smith said she would have contested the determination if she had been so advised. Each parent gave evidence about the care of Reuben and their respective health needs and financial circumstances.

Vickers showed that he took Reuben to most doctors’ appointments and for haircuts; that he drove Reuben to and from school and kindergarten and for the change-overs because Smith did not own a car. Smith showed that she paid for a home-vision therapy program and music lessons for Reuben. Smith had insisted on a private school for Reuben and Vickers had agreed to pay half but the cut in his benefits meant he could no longer afford to pay his contribution.

Decision

The AAT considered the financial circumstances of each parent. Smith had no debts, had money from a property interest with a former spouse, and had leant $40,000 to her brother in July 2008. Vickers had assets of $20,000, and significant costs associated with his care of Reuben. The Tribunal found that neither party owned their own home, that each had modest assets and limited income and that Smith was a better financial manager than Vickers.

The AAT found that each parent was a good and committed parent and that PPS in the hands of either parent would be used for the benefit of Reuben.

The AAT found that, given his health status, return to the workforce for Vickers was not certain but was a greater prospect than that of Smith.

In conclusion the AAT said:

The Tribunal finds the decision a very difficult one to make. Both parties are equally good and committed parents and both have limited means with Mr Vickers, on the face, having less means than Ms Smith. Nevertheless, Ms Smith does have another child to support as well and has never worked. The Tribunal notes the suggestion in the Guide that the status quo should be maintained unless there is good reason to change it.

Bearing in mind the expenses born by Ms Smith, the probability that Mr Vickers can do some work to supplement his income and the current status quo, the Tribunal is of the view that the SSAT decision should stand and Ms Smith should continue to be the parent who receives parenting payment single. (Reasons, paras. 65, 66)

The Tribunal was critical of the SSAT for making a retrospective payment for Smith and creating an overpayment for Vickers. However, if the Tribunal were to vary the decision to change the start date for payment of PPS to Smith, this would create an overpayment for her. Senior Member Hastwell expressed the hope that there would be no recovery of the debt for Vickers; the failure on the part of the Department to notify Smith in 2006 when Vickers was granted PPS was cited as a possible obstacle to the recovery.

Formal decision

The AAT affirmed the decision of the SSAT.

[M.R.]