Antoniou and Department of Family and Community Services

[2001] AATA 1008

DECISION AND REASONS FOR DECISION [2001] AATA 1008

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/586
GENERAL ADMINISTRATIVE DIVISION
  Re:         FANI ANTONIOU
  Applicant

And:SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             11 December 2001
Place:            Melbourne
Decision:      The decision under review is affirmed.

(sgd) M.J.Carstairs
  Member
SOCIAL SECURITY – family allowance – cancellation – arrears of family allowance – whether review sought.

Social Security Act (1991) s873, 881
Social Security (Administration) Act (1999) s109

REASONS FOR DECISION

11 December 2001  M.J. Carstairs, Member

1. This is an application by Fani Antoniou (the applicant) for review of the decision of the Social Security Appeals Tribunal (the SSAT) made on 3 April 2001, which affirmed a decision of the Centrelink delegate of the Secretary Department of Family and Community Services (the respondent), made on 6 March 1998, to cancel family allowance for Erini Antoniou, the applicant's daughter.

2. At the hearing the applicant represented herself and was assisted by an interpreter in the Greek language.  The respondent was represented by Ms E King.

3. The Tribunal had before it the documents lodged by the respondent under section 37 of the Administrative Appeals Tribunal Act 1975 as well as to exhibits (R1 and R2).
   BACKGROUND

4. The applicant received family allowance for Erini until 1998. Family allowance for Erini ceased when she turned 16 on 12 March 1998. The applicant also has a son Xenophon, whose birthdate is 29 August 1984.  On 28 September 2000 a claim for family tax benefit was made for both Erini and Xenaphon.  The family tax benefit claim was granted for both Erini and Xenaphon and the claim for Erini was backdated to 1 July 2001.  Family tax benefit was a newly introduced payment that commenced only on 1 July 2000 and replaced the system of family allowance in place up to that time.

5. On 26 October 2000 the applicant's husband attended an interview at Centrelink and requested that Erini be backpaid payments to the time when she was last paid family payment, when she turned 16 in 1998 (T8).  At the interview, the applicant's husband was recorded as advising that he had gone to the South Melbourne office of Centrelink after the cancellation of his daughter's family payment in 1998 and that no one was able to help him.

6. The interview contact was treated as a request for review, and a decision was made on 15th November 2000 (T10).   The decision affirmed the decision to pay family tax benefit only from I July 2000 and not to pay arrears to the time of cancellation in 1998.  In December 2000 the applicant's husband sought review of that decision with the SSAT (T11).  The SSAT's decision affirming the Centrelink decision was then appealed to this Tribunal on 23 May 2001. 
   EVIDENCE

7. The applicant gave evidence that she had gone to the South Melbourne office on three occasions to ask about a letter she had been sent by Centrelink that referred to Erini turning 16.  The applicant said that she had received a form in the mail accompanied by a letter that said that Erini would not be paid if there was no response.  The applicant said that when she received the letter she contacted her nephew who usually assisted her when she and her husband needed help with forms and letters they received.  She said that on each of the three occasions that she went to Centrelink after getting the form and the letter she had taken them with her to Centrelink.  Her husband accompanied her and she said that each time she saw a different person in the office.  She recalled that on the first two occasions a women assisted her and on the third occasion a man had assisted her.  She said that after the third visit she threw the form and the letter away.

8. The applicant said that on the first visit the woman she spoke to said  "She is 16. She is not entitled to… more money.". and "it stops at 16".  She said that after she had gone three times she then forgot about it, having accepted that Centrelink must be right.

9. The applicant said that she did not get her nephew to fill out the form for her because her nephew said to her that there may be something more required and that she should go and see them.  She said she went back the second and third times because she had heard from neighbours and others that they were getting money for children in similar circumstances.  

10. The applicant said that on the second occasion her friend, Mrs Diavatis, "saw her going in" to the Centrelink office.  The applicant said that on none of the three occasions did she have an interpreter to assist her.  She said

    "..from the first time I went, when I took the form and the letter with me and I went to he other desk and I said, "What must I do with this? I received this, is there an interpreter or anybody who can assist me to complete this? What do I have to do with this?"  So she took them and had a look and said "Well, you don't do anything because you don't – she is 16.  Your daughter is 16 now."

11. Mrs Diavatis, the applicant's friend, told the Tribunal that the applicant had been talking about her problem.  She said she had advised the applicant to go and ask.  Mrs Diavatis said that she could not remember any dates, only that the applicant had been "bitter and disappointed".  She said the applicant is an active person within St John's Mission, an organisation with which Mrs Diavatis also is involved.  She said that it was unfortunate that the applicant did not use the services of St John's Mission as they could have helped with her problems.  Mrs Diavatis said that she could not remember the month or the year that the applicant mentioned that she had had her problem with Erini's payment.  She said that she did not go with the applicant to the Centrelink office.  She said the applicant only mentioned it to her "as a passing reference".
    CONSIDERATION OF THE ISSUES

12. Two issues arise for consideration.  Whether the applicant sought a review of the decision to cancel family allowance in 1998; and whether the applicant is entitled to a payment of family tax benefit from a date earlier than the date when it commenced to be paid, that is, on 1 July 2000.

13. In regard to the second of these issues, Ms King submitted that as family tax benefit only came into existence from 1 July 2000 it could not be paid from any earlier date than that from which it was paid to Erini.  The Tribunal is satisfied that this is correct as legislation must be in force to authorise the payment and the Act only came into operation on that date.

14. In regard to the cancellation of the family payment when Erini turned 16, Ms King submitted that there was no evidence of any contact being made by the applicant in computer records in the period between March 1998 until the time when the claim for family tax benefit was made in 2000.  Ms King submitted that the family payment was correctly cancelled in 1998 under s873 of the Social Security Act (1991) ("the Act").  At the time that the family allowance was cancelled s873 provided that the Secretary may give a notice requiring the recipient to give information about a matter that might affect the payment of family allowance.  Section 881 then provided that if the recipient did not comply with the requirement under s873, family allowance could be cancelled or suspended.

15. It was the applicant's case that in going to Centrelink on the first occasion in April 1998 and then on two later occasions, she was trying to comply with the requirements of the letter she had been sent.

16. The Tribunal is satisfied that the review form applicable to a child turning 16 was sent to the applicant, and accepts the evidence of the applicant that she received that form, although the respondent was unable to produce it to the SSAT this Tribunal.  The Tribunal does not accept on the balance of probabilities that the applicant went in to Centrelink and asked about that form on three occasions, the first of them being about April 1998.  The question of payment to a school age child turning 16 is a simple matter regularly dealt with by Centrelink.  The Act provided for the payments to continue for students past the age of 16.  The Tribunal does not accept that three different Centrelink officers, on three separate occasions, would have told the applicant that there was no entitlement for Erini. 

17. The Tribunal is also satisfied that the notice of the cancellation was sent and received by the applicant.  A copy of that letter, dated 6 March 1998, was in the documents before the Tribunal (T5).

18. At the time of cancellation of the family allowance a request for review of such a decision was governed by s887 of the Act. At the time that the applicant's husband sought back payment for Erini for the period between March 1998 and July 2000, the applicable provision was s109 of the Social Security Administration Act (1999). Section 109(2) provides that if a notice is given of a decision and the person does not seek review within 13 weeks, then any favourable determination can only date from the date that the review is sought.

19. As the Tribunal is satisfied that the decision to cancel family allowance was notified to the applicant by the letter dated 6 March 1998, and further satisfied that no review was sought until the applicant's husband questioned the issue of backpayment on 26 October 2000 (T8) then the earliest possible date for a favourable decision about the cancellation was 26 October 2000.  However Erini was in receipt of payment of family tax benefit from 1 July 2000.

20. For these reasons the Tribunal is satisfied that the correct decision was made to cancel the family allowance for Erini, after the review form required to be returned when she was turning 16 was not returned, and the Tribunal is further satisfied that no request for review of the decision to cancel the payment was made until October 2000.

DECISION

1. The decision under review is affirmed.

   I certify that the twenty-one (21) preceding paragraphs are a true copy of the reasons for the decision herein of 

   M.J.Carstairs, Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  27 August 2001
   Date of Decision  11 December 2001
   Counsel for the Applicant        Self Represented
   Solicitor for the Applicant         Self Represented
   Advocate for the Respondent  Ms E King, Departmental Advocate