Editors --- "Disability Support Pension: duty of a nominee to principal" [2011] SocSecRpr 36; (2011) 13(4) Social Security Reporter, Article 9

• CONFIDENTIAL and SECRETARY TO THE DFHCSIA and CONFIDENTIAL
• Background
• The issue
• Evidence
• Reasoning
• Formal decision

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Disability Support Pension: duty of a nominee to principal

CONFIDENTIAL and SECRETARY TO THE DFHCSIA and CONFIDENTIAL

(2011/0306)

Decided: 25th October 2011 by E. Fice

Background

The applicant father and the other party mother were the parents of a child with a serious disability. The mother and father had been separated since 2002, with ongoing conflict in respect of custody and co-parenting issues, as well as the future management of the child’s care and his disability support pension.

On 15 March 2010 the father lodged a form seeking to be the child’s correspondence nominee, or person who may receive social security correspondence and who may act on the principal’s behalf. The child was unable to sign because of his intellectual disabilities. Centrelink notified the father on 15 March 2010 that this appointment had been approved. On 19 March 2010 the mother also lodged a form seeking to be the child’s payment and correspondence nominee, to both act on the child’s behalf and receive the child’s disability support payments. Centrelink processed this only as a request to be appointed as payment nominee, notwithstanding it clearly being a request for both nominations. On 19 May 2010 the mother was appointed payment nominee. On the same date Centrelink wrote to the child, notifying him that the correspondence nominee arrangement with the father had ended. The father sought review of this decision by an Authorised Review Officer. On 25 June 2010 an Authorised Review Officer reviewed the decision of 19 May 2010, which described the decision on review as the father’s application to be appointed as a payment nominee. The father and the mother then began a battle of lodging nomination application forms to Centrelink.

On 16 July 2010 Centrelink informed the child that the payment nominee arrangement with the mother had ended on his request. On 22 July 2010 Centrelink notified the child that the mother had again been appointed as payment nominee. On 29 July 2010 the child was again advised that the mother’s payment nominee arrangement had ended. On 29 July 2010 Centrelink informed the child that the father had been appointed correspondence nominee. On 5 August 2010 the child was notified the mother had been approved as correspondence nominee.

After the SSAT sought clarification of the decision on review, on 11 October 2010 an ARO wrote to the father stating the decision made 19 May 2010 had been reviewed incorrectly as a decision relating to appointment as payment nominee, where it should have read, correspondence nominee. The SSAT reviewed three decisions, including the decision to revoke the father’s appointment as correspondence nominee from 19 May 2010, the decision to appoint the mother as correspondence and payment nominee from 19 May 2010, and the decision to reject the father’s application to be appointed as payment nominee. The effect of the SSAT decision of 15 December 2010 left the father a joint correspondence nominee for the child, the mother the child’s payment nominee and joint correspondence nominee. The father then sought review of this decision with the AAT.

The issue

The AAT identified the principal concern of the father applicant as being the decision to reject his application to be appointed payment nominee in lieu of the other party, and addressed this as the sole issue to be determined on review.

The AAT considered that issues relevant to an assessment of which person should be appointed payment nominee were:

(a) evidence of sound decisions regarding financial management;

(b) past contact in dealing with the principal’s finances;

(c) the person most likely to be responsible for the majority of the expenditures to be made on behalf of the principal; and

(d) the financial circumstances of the nominee.

Evidence

Evidence before the AAT included the financial records of each parent showing monies received on behalf of the child, and spent for the purposes of the child, evidence of the income of the mother and of her permanent employment, a recent interim order of the Federal Magistrates Court indicating a 45% of care to the father and a 55% of care to the mother, and a report by a Centrelink social worker which detailed the mother’s history of managing the child’s expenses, and detailed the father’s history of using the child’s payment to supplement his living expenses.

Reasoning

Considering these factors, the AAT concluded that the objective evidence including evidence relating to both parties’ history of dealing with the child’s finances and financial circumstances, and the current percentage of care, and weighed in favour of the mother being appointed as the payment nominee.

The AAT commented that the process whereby both parents were able to simply lodge forms authorising a person to enquire or act on behalf of the child without any input from the child, warranted review, particularly in instances where such forms were lodged on behalf of mentally disabled persons.

Formal decision

The AAT affirmed the decision under review that the other party mother be appointed payment nominee for the child.

K.W.