Editors --- "Parenting payment for parents equally sharing care: which parent in greater need" [2010] SocSecRpr 39; (2010) 12(3) Social Security Reporter, Article 5

• HERBST and SECRETARY TO THE DEEWR and HERBST
• Background
• The issue
• The issue for the AAT was whether Mr or Mrs Herbst was most in need of payment.
• Whether one carer already qualified as principal carer
• Which carer would receive the higher rate of payment
• Any other sources of income the carers may have, whether actual or potential
• Formal decision

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Parenting payment for parents equally sharing care: which parent in greater need

HERBST and SECRETARY TO THE DEEWR and HERBST

(2010/416)

Decided: 7th June 2010 by M J Carstairs

Parenting payment for parents equally sharing care: which parent in greater need

Background

Mr and Mrs Herbst separated in April 2009. After separation, they shared the care of their four children on a 50:50 basis, week-about. In August 2009 they each claimed parenting payment, Mr Herbst slightly ahead of Mrs Herbst.

Centrelink accepted Mr Herbst’s claim on 3 September 2009 and rejected Mrs Herbst’s claim a few days later. Mrs Herbst’s claim was rejected on the basis that parenting payment cannot be shared between parents where the care is shared equally, and on the basis that Centrelink decided that Mr Herbst was the carer in greater need. Mrs Herbst appealed this decision to the SSAT.

The SSAT set aside the Centrelink decision and found in favour of Mrs Herbst. Mr Herbst then sought further review of this decision with the AAT.

The issue

Section 5(18) of the Social Security Act 1991 (the Act) contains a restriction that only one person can be the principal carer for a particular child. Sections 500 and 500D of the Act specify that where two or more persons are principal carers, the Secretary is to make a written determination specifying one of the adults as the ‘principal carer’. Centrelink’s policy where the care is shared equally, is to grant parenting payment to the parent who claimed parenting payment if the other parent does not. In cases where both parents make a claim, the policy is to grant parenting payment to the parent most in need of payment.

The issue for the AAT was whether Mr or Mrs Herbst was most in need of payment.

In making a determination the AAT considered policy as set out in 1.1.P.416 of the Guide to Social Security Law. This policy specified certain issues which decision makers must take into account when deciding which carer is in most need of a favourable determination, and the factors which may be taken into consideration by decision makers if further information is required to make the determination.

Whether one carer already qualified as principal carer

The AAT found that Mr Herbst was the carer in greater need on the basis of his prior claim to parenting payment in August 2009. In making this decision the AAT referred to the $7642 parenting payment debt which Mr Herbst would incur for the period between August 2009 and May 2010, as against Mrs Herbst’s benefits of $3636 received between August 2009 and June 2010.

Which carer would receive the higher rate of payment

The AAT then considered which carer would receive the higher rate of payment. Mr Herbst’s average weekly earnings at the time of claim were $537.14 and Mrs Herbst’s were $792.72. A letter was submitted from the SSAT acknowledging an error in its decision as to Mr Herbst’s level of income such that his fortnightly income was recorded as his weekly income, and his taxable income for the 2008/09 year was recorded as $55,000 when it was in fact $46,686. The AAT noted that both parents had no assets of note, that both had similar outlays on rent, with Mr Herbst’s slightly higher. On the basis of all of these considerations, the AAT was satisfied that at the time of respective claims, Mr Herbst would have received the higher rate of payment.

Any other sources of income the carers may have, whether actual or potential

The Guide to Social Security Law listed as an issue which decision makers must take into account ‘any other sources of income the carers may have, whether actual or potential’. The Guide listed as a factor which may be taken into consideration ‘workforce experience, education levels and future employment prospects’.

The AAT agreed with the Secretary’s submission that undue emphasis was placed by the SSAT on Mr Herbst’s workforce experience, education levels and future employment prospects. The AAT also agreed with the Secretary’s submission that these matters ought to be referred to only in the event that the factors which must be taken into account are insufficient upon which to base a determination.

The AAT considered Mrs Herbst’s submission that Mr Herbst’s potential to earn income was greater than her own, including his greater qualifications, and potential sources of income including self-employment. The AAT did not consider Mr Herbst’s potential to earn income as a matter which must be taken into account in making a decision.

Discussion also took place as to the difference between factors which must be taken into account and factors which may be taken into account. The AAT concluded that the factors which may be taken into account ought properly only to be taken into account where the factors whichmust be taken into account require further information before a determination is possible.

The AAT found that it was possible to make a decision about which carer was most in need of payment on the basis of two factors listed which must be considered by decision makers. Those factors were Mr Herbst’s prior grant of parenting payment, and that Mr Herbst would receive the higher rate of payment.

Formal decision

The AAT set aside the decision under review that entitled Mrs Herbst to be paid parenting payment on her claim of 18 August 2009, and substituted the decision that Mr Herbst was entitled to be paid parenting payment on his claim of 13 August 2009.

[K.W.]