Abovian and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 294

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/926

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Helen Abovian
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date1 May 2002
PlaceSydney

Decision The Tribunal determines that the decisions under review are affirmed.

[SGD] Ms N Bell Member
CATCHWORDS
SOCIAL SECURITY – family allowance – failure to complete Income and Assets Review form – cancellation of payment – new claim – application for payment of arrears as from date of cancellation – whether Applicant should be paid arrears of family allowance from date of cancellation

Social Security Act 1991 – sections 1069-H, 887(3), 1302A(1) (as at March 2000)
Social Security Administration Act 1999 – sections 237(1), 109(2)

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mrs Helen Abovian ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 13 March 2001 to affirm the decisions of a Centrelink delegate of Secretary, Department of Family and Community Services ("the Respondent") to not pay arrears of family allowance (dated 15 March 2000) and to reject a later claim for family allowance (dated 5 April 2000). Those decisions had been affirmed by an authorised review officer on 20 April 2000 and 7 December 2000 respectively.
The Applicant was represented by her husband Mr Serg Abovian and the Respondent was represented by Ms Cheryl Collis, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Applicant was not present at the hearing and oral evidence was given to the Tribunal by Mr Abovian.
The following documents were presented before the Tribunal:
Exhibit           Description    Date
T1-T39 pp1-133 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")
R1      Respondent's Statement of Facts and Contentions     11 February 2002
R2      Centrelink print out of family allowance paid to Applicant
A1      Letter from Mr Abovian to Welfare Rights Centre         Undated

background

The Applicant had been in receipt of family allowance in respect of her two children since 1994. The Respondent asserts that on 6 October 1998 it sent an Income and Assets Review Form to the Applicant and following the Applicant's failure to return that form, the Respondent cancelled the Applicant's family allowance on 20 November 1998.
In January 2000 the Applicant lodged a new claim for a family allowance and requested that arrears of family allowance be paid as from the date of cancellation in 1998. On 15 March 2000 the Respondent decided that family allowance could not be paid from the date of cancellation and would only be paid from the date of a new claim, that is, 18 January 2000. On 20 April 2000 an authorised review officer affirmed that decision.
On 5 April 2000 the Respondent decided to reject the Applicant's later claim for family allowance on the basis that the Applicant had not advised Centrelink about her income.
On 17 November 2000 the Applicant lodged a claim for family tax benefit and requested a review of the decision to reject her later claim for family allowance.
On 7 December 2000 an authorised review officer affirmed the decision to reject the Applicant's later claim for family allowance and decided that family tax benefit should be granted with effect from 1 July 2000.
On 29 January 2001 the Applicant applied to the SSAT for review of the Respondent's decisions and those decisions were affirmed by the SSAT on 13 March 2001.
issues and legislation
The issue raised in this application is whether the Applicant should be paid family allowance arrears from the date of cancellation of her family allowance on 20 November 1998.
Section 1302A(1) of the Social Security Act 1991 ("the SS Act") (as at March 2000) provides:
"1302A(1) If notice of a decision under this Act is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the person last known tot he Secretary; or
(c) sent by pre-paid post to the postal address of the person last known to the Secretary,
notice of the decision is taken, for the purpose of this Act, to have been given to the person."
Section 887(3) of the SS Act (as at March 2000) provides:
"887(3) If:
(a) a decision (the previous decision) is made in relation to a family allowance; and
(b) a notice is given to the recipient advising the recipient of the making of the previous decision; and
(c) the recipient applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the recipient sought the review."
These provisions are relevant to the decision to not pay arrears of family allowance prior to the Applicant's lodgement of a new claim for family allowance on 18 January 2000.
In relation to the Respondent's decision to reject the Applicant's claim for family allowance on 18 January 2000, it is common ground that at the time of that claim the Applicant did not have available a tax notice of assessment for herself and her partner in relation to the year 1998/1999. It was on the basis of income in the 1998/1999 year that payments of family allowance in the 2000 calendar year would be made.
Sections 1069-H8(1), 1069-H11 and 1069-H12 of the SS Act (as at March 2000) provide:
"Income components for tax year
1069-H8(1) A person's taxable income for a tax year is:
(a) the person's assessed taxable income for that year; or
(b) if the person does not have an assessed taxable income for that year—the person's accepted estimate of taxable income for that year.
…
Notice estimating income component
1069-H11 A person may give the Secretary a notice setting out the person's estimate of an income component of the person for a tax year.
…
Acceptance of notice
1069-H12 The Secretary is to accept a notice referred to in point 1069-H11 for the purposes of this Module only if the Secretary is satisfied that the estimate is reasonable."
In addition section 1069-H7(1) provides:
"Person with unknown income for tax year
1069-H7(1) If a person does not have any one or more of the income components for a tax year in accordance with point 1069-H8, the person is taken to have an unknown income for that year.
Note 1: For income component see point 1069-H2.
Note 2: A person is not qualified for family allowance if an income component of the person for the tax year is unknown (see points 1069-K1 and 1069-K2)."

It is common ground that the Applicant did not provide a 1998/99 Tax Notice of Assessment to the Respondent until 17 November 2000. At this time the Social Security Administration Act 1999 ("the SSA Act") was in force. That Act contains provisions similar to sections 887(3) and 1302A(1) of the SS Act.
Sections 237(1) and 109(2) of the SSA Act provide:
"Section 237 Notice of decisions
237(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
…
Section 109 Date of effect of favourable determination resulting from review
109(2) If:
(a) a decision (the original decision) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made."

mr abovian's evidence

Mr Abovian told the Tribunal that neither he nor his wife, the Applicant, received a letter advising that payment of family allowance had been cancelled. He said that a payment of $15.40 per fortnight, labelled in his bank statements as "family allowance", continued to be paid into his and his wife's bank account. He said that in June or July 1999 he telephoned the Centrelink Call Centre and queried why his wife's rate of family allowance had been reduced. He said the officer he spoke to advised that as soon as a tax notice of assessment was lodged, family allowance would be reinstated with back pay.
Mr Abovian told the Tribunal that since 1995 his health has been very poor and because of this, combined with his wife working part time and looking after the house, things got somewhat "out of hand". He said they got behind with their tax returns and their financial arrangements were complicated by his wife's direct selling business.
Mr Abovian also said that he and his wife had received a back payment of family allowance previously and directed the Tribunal's attention to document T19, a letter from a Centrelink delegate dated 28 May 1998 in which advice was given of a decision to restore family payment and pay arrears of some $1,200.00. The letter sets out the reason for this decision as being the fact that the Applicant had not received advice that her payment had been cancelled. Mr Abovian pointed out that given the continuation of an albeit reduced payment that was indicated as family allowance; the advice he received from the Call Centre; and his and his wife's previous experience of receiving arrears of payment, he expected that on production of financial information family allowance would be reinstated and arrears paid.
He said that the only advice he received about anything he or his wife was required to do was to await the completion of their tax returns and receipt of Tax Notices of Assessment.
In cross examination Mr Abovian said that neither he nor his wife received a letter from the Respondent dated 13 November 1998, advising of the cancellation of family allowance and that arrears of family allowance would only be paid if a review of the decision to cancel was sought within 13 weeks. He confirmed that at that time he and his wife were living at Conroy Crescent in Kariong, and had been there for some time and continued to live there. He explained that he sometimes received his neighbour's letters and would return these letters to his neighbours. He also explained that he and his wife hold a Post Office Box for business purposes and that they have encountered problems with that Post Office Box as well.
Mr Abovian vaguely recalled receiving a letter from the Respondent dated 15 March 2000 requesting a copy of his and his wife's 1998/99 financial year income tax assessment notices. He said that he could not recall receiving a letter from the Respondent dated 5 April 2000 which advised of the Respondent's rejection of his wife's claim for family allowance. He also said that he did not receive a letter from the authorised review officer dated 20 April 2000 by post, but that it was handed to him in a Centrelink office.
Mr Abovian agreed that during the relevant period he was taking powerful medication for his back, but said he would not have been so confused by that medication as to mistaken the contents of any letters received by him from Centrelink.
other evidence
The following relevant documents were contained in the "T-documents".
T18 is a computer-generated record of the components of payments made to the Applicant and includes a sum of $85.95 as "basic family allowance" together with a component of $15.40 as "family tax payment".
T20 is a letter to the Applicant from the Respondent dated 30 November 1998 which advises of the cancellation of her family allowance and includes an advice to the Applicant in relation to her need to request review of the decision within 13 weeks.
T21 is the Applicant's and Mr Abovian's Tax Notices of Assessment for 1997/98 in the sum of $13,029.00 and $13,114.00 respectively.
T22 is the Applicant's claim for family allowance dated 16 January 2000, in which an estimate of $24,808.00 is given for the combined income of the Applicant and Mr Abovian for the 1998/99 financial year.
T24 is a computer file note made by the Respondent and dated 18 January 2000 of the Applicant's request that the Respondent's decision to not pay arrears of family allowance be reviewed.
T26 is a letter from the Respondent to the Applicant dated 15 March 2000 requesting the Applicant's and Mr Abovian's 1998/99 Tax Notices of Assessment.
T31 is a letter from the Respondent to the Applicant dated 5 April 2000 rejecting the Applicant's claim for family allowance and advising that income details are required. The letter also advises the Applicant of the need to request review of the decision to reject her claim within 13 weeks.
T34 is a letter to the Applicant from an authorised review officer dated 20 April 2000 which, among other things, advises the Applicant to supply the Respondent with her and Mr Abovian's 1998/99 tax details or to provide an explanation why these cannot be provided.
T35 is a claim dated 17 November 2000 by the Applicant for family tax benefit.
T36 is the Applicant's Tax Notice of Assessment for 1998/1999 in the sum of $17,024. Mr Abovian's 1998/99 Tax Notice of Assessment was forwarded by him to the Tribunal after the hearing and is in the sum of $14,204.
consideration
The Tribunal is satisfied that the Applicant's family allowance was cancelled on 20 November 1998. Mr Abovian disputed this to some extent on the basis that the Applicant continued to receive an amount of $15.40 per fortnight. However document T18 establishes that this amount was a family tax payment component and not the basic family allowance amount that had been previously paid to the Applicant.
The Tribunal is satisfied that the Respondent wrote to the Applicant on 30 November 1998, advising of its decision to cancel family allowance and drawing to her attention the need for her to request the review of that decision within 13 weeks in order to be paid arrears in the event of a favourable review.
Mr Abovian's evidence was that neither he nor his wife received that letter. However the provisions of section 1302A(1) of the SS Act mean that if the letter was sent by pre paid post to the postal address of the person last known to the Secretary, the notice of the decision is taken to have been given to the person. Mr Abovian's evidence was that at that time the Applicant and he resided at the address noted on the letter. The requirements of section 1302A are therefore satisfied and the Applicant must be taken to have been given the notice contained in the letter.
Mr Abovian's evidence was that he telephoned the Centrelink Call Centre in June or July 1999 to inquire about the apparent reduction in payments made to the Applicant. He said that he spoke to a female officer who advised him to obtain his and his wife's Tax Notices of Assessment and provide them to the Respondent. Although there is no record held by the Respondent of this telephone contact, the Tribunal has no reason to reject Mr Abovian's evidence in this regard.
Mr Abovian's evidence was that the next contact with the Respondent was the Applicant's lodgement of a new claim for family allowance dated 16 January 2000 (T22). Document T24 also establishes that on 18 January 2000 the Applicant, through Mr Abovian, requested a review of the decision to not pay arrears of the family payments.
The effect of section 887(3) of the SS Act is that, given that the Applicant did not seek a review of the decision to cancel her family allowance within 13 weeks of receiving notice of that decision, a determination to pay family allowance can only be given effect from either the day on which a review of the decision was requested or the day on which a further claim is made. Even on Mr Abovian's evidence of his contact with the Respondent in June or July 1999, that contact could not be taken as a request for review of the decision. Therefore, any resumption of payment of family allowance could only take effect from the date of the Applicant's new claim, that is, 16 January 2000.
As it transpired, the claim made by the Applicant on 16 January 2000 was not accompanied by the Applicant's and Mr Abovian's 1998/99 Tax Notices of Assessment and they sought to rely instead on an estimate of their 1998/99 combined taxable income.
The combined effect of sections 1069-H8, 1069-H11 and 1069-H12 of the SS Act is that the Secretary may refuse to accept a person's estimate of income for a tax year if the Secretary is not satisfied that the estimate is reasonable. The Respondent's submission was that the estimate given by the Applicant gave rise to a concern that the Applicant would attract an overpayment and for this reason it was decided to require production of taxation notices of assessment for the relevant period. In these circumstances the effect of section1069-H7 of the Act is that the Applicant was not qualified to be paid family allowance.
The Respondent notified the Applicant of its requirement that Taxation Notices of Assessment be produced and this was not disputed by Mr Abovian (see T26).
The Tribunal is satisfied that the Respondent wrote to the Applicant on 5 April 2000 advising her of its rejection of her claim for family allowance and in that letter noted the need for her to request review of that decision within 13 weeks (T31). Mr Abovian's evidence was that neither he nor the Applicant received that letter.
Section 237 of the SSA Act applied at that time and has the same effect as section 1302A of the SS Act. The notice of the decision to reject the Applicant's claim for family allowance is therefore taken to have been given to the Applicant.
Again, however, the Applicant had no further contact with the Respondent until 17 November 2000 when her and Mr Abovian's 1998/99 Tax Notices of Assessment were lodged with the Respondent and a claim for family tax benefit was made. This is not in dispute.
Section 109(2) of the SSA Act, which is in similar terms to section 887(3) of the SS Act, provides that if a review of the decision is sought more than 13 weeks after notice of a decision is given, any favourable determination takes effect on the date on which the application for review was made. The provision operates, in these circumstances, to make any favourable decision effective from 17 November 2000 only.
As it happens, the Respondent applied the recently introduced Family Tax Benefit legislation which came into an effect on 1 July 2000 and allowed for payment of that benefit to be back dated to 1 July 2000.
For the reasons outlined above there was no basis on which the Applicant could be paid family allowance prior to 17 November 2000.
decision
The decisions under review are affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: O.Caragianni           .....................................................................................
  Associate
Date of Hearing  2 April 2002
Date of Decision  1 May 2002
Representative for the Applicant   Mr Abovian (Applicant's husband)
Advocate for the Respondent Cheryl Collis

[2002] AATA 294

1 May 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Administrative Law

Review of Administrative Decisions

Notice of Decisions

Standing