Arzu Los and Secretary, Department of Social Services

[2014] AATA 684

[2014] AATA 684  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2103
Re	Arzu Los
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	19 September 2014
Place	Sydney

The decision under review is affirmed.

..........................[sgd]..............................................

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY - Claim for baby bonus - Whether an effective claim - No tax file number provided for father of child - Failure to provide necessary documents renders claim ineffective - Whether request to review claim was within time limit - Request made out of time - No special circumstances to warrant an extension of time - No evidence of severe illness associated with birth of the child - Decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance (Administration) Act 1999 (Cth), ss 38, 38(1)(a), 38(1)(b), 38A, 39(2), 39(3), 41(1), 109D

Evidence Act 1995 (Cth), s 163

CASES

Adams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 876

Kataria and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 236

REASONS FOR DECISION

Ms N Isenberg, Senior Member

19 September 2014

DECISION UNDER REVIEW

1. The decision under review by this Tribunal, is the decision made by the Social Security Appeals Tribunal (SSAT) on 25 March 2014 which affirmed the decision of the Centrelink Authorised Review Officer (ARO) made on 21 February 2014 to reject the Applicant's claims for baby bonus.

   ISSUES

2. The issues for determination by this Tribunal are as follows:

   ·Whether the Applicant's claim for baby bonus lodged on 14 June 2012 was an effective claim;

   ·If so, whether the Applicant's request to review the decision to reject her claim for baby bonus was made within the time limit; and

   ·Whether the Applicant's claim for baby bonus lodged on 30 December 2013 was an effective baby bonus claim.

   BACKGROUND

3. The Applicant and Firat Los are the parents of a boy, who was born on 3 May 2012.

4. On 14 June 2012 the Applicant lodged a claim for baby bonus.  The claim form stated, in part:

   “I do not have or know firat's Tax File Number" (sic).

   The Applicant's baby bonus income estimate details for the period 3 May 2012 to 3 November 2012 was recorded as $0 for both the Applicant and her partner.

5. On 24 September 2012, by which time the applicant had been overseas for about 3 months, Centrelink rejected her baby bonus claim.

6. On the same day a letter was sent to her nominated address, which stated, in part:

   “..We cannot pay you Baby Bonus for [your son] because you have not provided a reasonable estimate of income. To be paid Baby Bonus for [your son] you will need to contact us and you may need to make a new claim.”

7. On 30 December 2013, about three weeks after her return to Australia, the Applicant lodged a claim for family tax benefit (which included a claim for baby bonus) in respect of her son. FTB was granted but insofar as the application related to the baby bonus, it was refused.

8. On 7 February 2014 the Applicant requested review of both decisions to reject her claim for baby bonus. The decisions were affirmed on internal review and by the SSAT. The applicant now seeks review by this Tribunal.

   LEGISLATION

9. The legislation relevant to this review is contained in the A New Tax System (Family Assistance (Administration) Act 1999 (Cth) (the FAA Act).

10. Section s.38 of the FAA Act sets out how to claim baby bonus:

    38 How to claim

    An individual (the claimant) may make a claim for payment of:

    (a) baby bonus … in normal circumstances; or

    (b) ….

    A claim is not effective unless:

    (a) the claim:

    (i)        is made in a form and manner; and

    (ii)       contains any information; and

    (iii)      is accompanied by any documents;

    required by the Secretary; and

    (aa) in the case of a claim for baby bonus—the claim contains an estimate of the sum of:

    (i) the individual's adjusted taxable income; and

    (ii) if the individual is a member of a couple on the day the claim is made—the adjusted taxable income of the individual's partner;

    for the 6 month period …; and

    (b) in the case of a claim for baby bonus … in normal circumstances—the tax file number requirement in section 38A has been satisfied in relation to the claim; and

11. Section 38A provides the tax file number (‘TFN’) requirement must be satisfied for claims for baby bonus to be effective. Section 41 of the FAA Act provides that if the claim is not effective, it is taken not to have been made.

    Was the claim lodged on 14 June 2012 an effective claim?

12. The applicant said in that while in hospital after giving birth to her son, she had filled out an application for a birth certificate and for a Medicare card for her son as well as a claim form for baby bonus. While she received the birth certificate and the Medicare card, she heard nothing about the baby bonus. She enquired at Centrelink and was told the application had not been received. She was given a brochure which she was to fill in. The form required her husband’s signature but because he was still overseas because of his sick parents he was unavailable to complete it. She was advised to complete the application online. She contacted Centrelink’s interpreter service and was assisted in completing the application. She said she “found out later” that her income had been erroneously recorded as being in excess of $400,000, although this assertion was not apparent from the copy of the claim before me.

13. In her claim form the Applicant stated that "I do not have or know firat's Tax File Number" (sic). After she received no response to her application she enquired at Centrelink and was told that her husband’s TFN was required to complete her application. She said she told Centrelink her husband was not yet living in Australia and consequently had no TFN.

14. In cross-examination the applicant was referred to a Centrelink record dated 14 June 2012 in which she was said to have been given an application for a TFN, but she could not recall receiving the form.

15. The applicant said that when she told her husband, he went to the Consulate in Istanbul where he filled out a TFN form. He then sent the completed form to the applicant, who then took the form to the ATO office in Parramatta where she also submitted ‘additional documents’ and obtained a receipt. She said she was asked where she wanted the TFN sent and, because Centrelink wanted it, she asked for it to be sent to Centrelink.

16. On 28 June 2012 Centrelink sent her a reminder notice requesting she provide her partner's tax file number by 12 July 2012. The applicant said in cross-examination that that was when she first started making enquiries about obtaining a TFN. No TFN was provided to Centrelink.

17. The applicant conceded that she had made no follow-up with either the ATO or Centrelink before she left for overseas on 28 July 2012, knowing that her baby bonus application could not be finalised until the requested information was provided. By that time her father-in-law had died, both her parents were ill, she wanted to show them their grandchild, and she wanted to resume her relationship, albeit strained, with her husband. She said she assumed the TFN would be sent to Centrelink as she had requested.

18. The applicant said that she was under pressure to remain in Turkey and that it was only on her return to Australia in December 2013 that she discovered she had not been paid baby bonus. However the applicant said that while in Turkey she received some form of Centrelink payments for about three months which she had monitored by accessing her Centrelink account through its website. As she had access to her Centrelink account it should have been apparent to her at that time that no baby bonus had been paid as she had expected.

19. The applicant was aware that she was obliged to supply Centrelink with her husband’s TFN; it was plain on the form that it was required. She was sent a reminder before she went overseas. Her evidence was of belated attempts through the Consulate in Istanbul and the ATO to obtain a TFN, but there was no evidence that she had followed up in order to satisfy the requirement that the information be provided by 12 July 2012, namely before her departure. She said she enquired at the Consulate but was told to follow up about the TFN on her return to Australia. The applicant had no reason to require a TFN for her husband, on her evidence, other than in satisfaction of Centrelink’s requirements. Her claim to have followed up the matter at the Consulate is inconsistent with her evidence wherein she stated that she did not know of the refusal of her baby bonus claim until her return from Turkey in December 2013. Further, no attempts were made to follow up directly with Centrelink or with the ATO. Her assumption that the application was in hand was misplaced. Although I accept her time in Turkey may have been somewhat stressful because of the various family issues, no efforts were made to ensure that the information Centrelink required was actually provided.

20. A claim for baby bonus is effective only if it is made on an approved claim form and contains the necessary documents and information required by Centrelink: s.38(1)(a). No TFN was provided. I therefore find that s.38(1)(b) of the FAA Act was not satisfied and the applicant therefore had not made an effective claim.

21. The legislation is strict with respect to this requirement: see Adams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 876 and Kataria and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 236.

    Was the Applicant's request to review the decision to reject her claim for baby bonus made within the time limit?

22. Even if the applicant had made an effective claim, s.109D of the FAA Act sets out the time limits for review of certain decisions. Subsection 109D(1) provides that:

    ... an application for review under section 109A of any decision (other than an excepted decision) must be made no later than 52 weeks after the applicant is notified of the decision concerned.

23. The evidence is that the Applicant was notified of the decision to reject her claim for baby bonus on 24 September 2012 but she did not seek review of that decision until 7 February 2014, which is more than 52 weeks after being notified of the decision.

24. The Applicant told the SSAT that the letter informing her of the decision was correctly addressed. Understandably, because she was overseas by that time, she claims not to have received it. The applicant said however that her sister was checking her mail and would contact her if there were matters of importance. In addition she had given her sister authority to deal with Centrelink.

25. Section 163 of the Evidence Act 1995 (Cth) however provides that a letter sent from a Commonwealth agency addressed to a person at a specified address is presumed to have been sent by prepaid post to that address. The letter of 24 September 2012 is therefore taken to have been received by the Applicant, notwithstanding that because she was overseas she may not in fact been aware of it.

26. Subsection 109D(2), however, is a discretionary provision which allows the time limits to be extended under special circumstances. The applicant knew family members were ill before she went to Turkey. Her relationship was rocky but the evidence was that she and her husband reconciled there. I accept these, together with the birth of her child, created some stress. However, I do not consider these to amount to special circumstances such as to warrant the exercise of the discretion to extend the time limit for review of decision under s.109D(2).

    Was the claim lodged on 30 December 2013 an effective baby bonus claim?

27. On 30 December 2013 the Applicant lodged a claim for FTB which included a claim for baby bonus. The baby bonus claim was rejected because the claim for baby bonus was made more than 52 weeks after the child’s birth.

28. Subsection 39(2) of the FAA Act provides that under the "normal circumstances" baby bonus claim must be made within 52 weeks after birth of the child, otherwise the claim is ineffective.

29. The claim was made approximately 86 weeks after the child’s birth, and therefore is outside the time limit specified in s.39(2) of the FAA Act.

30. Subsection 39(3) of the FAA Act however provides that the time may be extended if the delay was because of severe illness associated with the birth of the child.

31. There was no evidence that the delay was a result of a severe illness associated with the child’s birth. The applicant claimed she was stressed, but this does not, in my view, amount to severe illness associated with the birth of the child. Consequently, the exception under s.39(3) of the FAA Act does not apply.

32. I therefore find that the claim of 30 December 2013 was not effective because it was not lodged within the required time.  Therefore it is taken not to have been made: s.41(1).

    CONCLUSION

33. The Applicant's claim for baby bonus dated 12 June 2012 was correctly rejected because the Applicant failed to satisfy the requirements as set out in s.38(1) of the FAA Act, and therefore it was not an effective claim.

34. In any event, even if that claim was effective, the Applicant's request to review the decision was made outside the time limit specified in s.109D of the FAA Act, and thus is not reviewable. 

35. The Applicant's claim for baby bonus dated 30 December 2013 was correctly rejected because the Applicant did not lodge the claim within the required time set out in s.39(2) of the FAA Act, and therefore it was not an effective claim.

    DECISION

36. The Administrative Appeals Tribunal affirms the decision under review.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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Associate

Dated 19 September 2014

Date of hearing	8 September 2014
Applicant	In person
Solicitors for the Respondent	Ms B Salaji, Department of Human Services