Bhindi and Secretary, Department of Family and Community Services
[2002] AATA 416
•31 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 416
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/335
GENERAL ADMINISTRATIVE DIVISION )
Re PRANITA BHINDI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr I R Way
Date 31 May 2002
Place Brisbane
Decision The decision under review is affirmed.
..............................................
I R Way
Member
CATCHWORDS
SOCIAL SECURITY – family payment – family allowance supplement – payment of arrears – whether payment of arrears should include family allowance supplement – whether applicant qualifies for family payment
Social Security Act 1947
Social Security Act 1991
Secretary, Department of Social Security v O'Connell (1992) 20 ALD 66
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
REASONS FOR DECISION
31 May 2002 Mr I R Way
This is an application by Pranita Bhindi (the Applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT), dated 12 March 2001, which affirmed a decision of Centrelink to not pay the Applicant Family Payment from 1 January 1993 until 9 January 2001; and which affirmed a decision of Centrelink to not pay the Applicant Family Allowance Supplement for the period 14 December 1989 to 24 December 1992.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T62). The Applicant and the Applicant's husband Sunil Bhindi, gave oral evidence. The Applicant's' husband presented the Applicant's case and Mr Neil Foster, an advocate for Centrelink, represented the Respondent.
BACKGROUND FACTSThe background facts in this matter are not in dispute. In view of this and on the evidence before it, the Tribunal makes the following findings of fact:
(a) In May 1986, the Applicant claimed and was granted, Family Allowance in respect of her children, Sumeet and Vinita (T4,T5).
(b) In March 1987, the Applicant claimed, and was granted, Family Allowance in respect of her daughter Sonia (T7,T8). On the claim form for Sonia, the Applicant listed her address as 28 Cobbadah Street, Jindalee (T7, p 21).
(c) On 1 July 1987, the Applicant advised the Respondent of new bank account details. Her address was again given as 28 Cobbadah Street, Jindalee (T9).
(d) On 25 August 1998, the Applicant's bank advised the Respondent of new bank account details (T12).
(e) On 14 October 1989, the Respondent sent a Family Payment review form intended for the Applicant to 28 Cobbadah Street, Jindalee (T15, p 31).
(f) On 29 November 1989, the review form was returned to the Respondent as the Applicant was no longer at 28 Cobbadah Street, Jindalee (T15, p 30). The Respondent suspended the Applicant's payment on the basis that her whereabouts were unknown (T17).
(g) On 8 August 1990, the Respondent cancelled the Applicant's Family Allowance because her whereabouts were still unknown and she had not been in contact since the suspension of her payment (T16,T17).
(h) On 14 December 1999, the Applicant contacted the Respondent by telephone and Family Allowance claim forms were sent to her (T18). On 10 January 2000, the Applicant lodged a claim for Family Allowance with the Respondent (T19,T20).
(i) On 20 January 2000, the Respondent sent the Applicant a letter advising the Family Allowance was granted to her from 10 January 2000 (T23).
(j) The Applicant subsequently requested payment of arrears back to November 1989 (T25).
(k) After further investigation, the Respondent decided to pay arrears of $4733.40 to the Applicant for the period 14 December 1989 to 24 December 1992 (T49).
(l) The Applicant sought a review of this decision, seeking further arrears of Family Allowance for the period after 24 December 1992. The Applicant also sought review of the amount of arrears already paid, seeking that they also include arrears of Family Allowance Supplement (T55).
ISSUES
The issues in this matter are as follows:
(a) whether the amount of arrears of Family Allowance paid for the period 14 December 1989 to 24 December 1992 should include an amount for Family Allowance Supplement; and
(b) whether Family Payment can be paid to the Applicant from 1 January 1993 to 9 January 2001.The Tribunal notes that with effect from 1 January 1993, the Act provided for a single Family Payment combining the old Family Allowance and Family Allowance Supplement; and subsequently, with effect 1 April 1998, the name of Family Payment was changed to Family Allowance.
LEGISLATIVE FRAMEWORKBoth the Social Security Act 1947, as at 1 November 1989, and the Social Security 1991 (the Act) have application in this matter.
The Social Security Act 1947 relevancy provides as follows:
158(1) The grant or payment of –
(a) a pension under Part IV or V or Schedule 1B;
(b) a benefit under Part VIII;
(c) an allowance under part VI, IX or X;
(c) an allowance under Part VI, IX or X;
(d) a double orphan's pension under Part XI.
(e) a child disability allowance under Part XII;
(f) a benefit under Part XIII; or
(g) a mobility allowance under Part XV'shall not be made except on the making of a claim for that pension, benefit or allowance.
…
159(1) A claim shall be made in writing in accordance with a form approved by the secretary, and shall be lodged –(a) at an office or Department in Australia; or
(b) at a place (whether inside or outside Australia), or with a person (whether inside or outside Australia), approved for the purpose by the Secretary.The Social Security Act 1991 provides as follows:
838 (1) A person is qualified for Family Payment if:
(a) the person has at least one FP child; and
(b) the person is an inhabitant of Australia; and
(c) the person's taxable income for the relevant Family Payment period does not exceed the person's taxable income ceiling; and
(d) the value of the person's assets does not exceed $607,250.(2) For the purposes of paragraph (1)(d), the value of assets of a person is taken to include :
(a) the value of assets of the person's partner; and
(b) the value of assets of the person's FP child or FP children.842 Subject to sections 846 and 847, Family Allowance is not payable to a person before the provisional commencement day (identified under section 843).
843(1) [Day person or organisation claims allowance] Subject to this section and to sections 844, 844A and 845, the provisional commencement day is the day on which the person or approved care organisation claims Family Allowance.
…
851(1) A person who wants to be granted Family Payment must make a proper claim for that payment.
…
852 To make a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
853(1) To be a proper claim, a claim must be lodged:(a) at an office of the Department; or
(b) at a place approved for the purpose by the secretary; or
(c) with a person approved for the purpose by the Secretary.…
853(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
…
1069-H2 If a person is a member of a couple, the person's taxable income for a tax year includes the taxable income for that year of the person's partner.
…
1069-H11 The appropriate tax year for a Family Payment payday is the base tax year for that payday.
1069-H12 The base tax year for a Family Payment payday is the tax year that ended on 30 June in the calendar year that came immediately before the calendar year in which the payday occurs.
…
1069-H21 In sections 1069-H13 to H19, 'income', in relation to a person, means:(a) the person's taxable income; and
(b) the person's adjusted fringe benefits value; and
(c) the person's target foreign income.
THE APPLICANT'S EVIDENCE
It was the Applicant's evidence that she and her husband were not aware that the Respondent had suspended and subsequently cancelled payment of Family Allowance to the Applicant's Westpac Savings Bank Account until they discovered recently that the bank had passed the balance of this account to the Federal Reserve, because the account had not been operative since late April 1989. The Applicant subsequently submitted a further claim for Family Allowance on 10 January 2000.
10. Following the granting of Family Allowance from 10 January 2000 the Applicant wrote to Centrelink on 25 January 2000 about payment of arrears stating:"It is my very sincere request to you, is for consideration to our Family Allowance which we are entitled to and to our surprise and disappointment, had not been taking place to be paid since the last date of payment. … We once again request you to please reconsider this as an isolated case as we do not believe that we had done any wrong to not have been receiving what we were entitled to for the last 10 years. We are more than prepared to supply you with all our tax returns for the last 10 years for your perusal to ascertain what amount we are discussing."
11. Following this letter the Applicant notified Centrelink of tax assessments for the years relevant to her claim of payment of arrears.
12. The combined taxable income of the Applicant and her husband for the years 1988 to 1998 are at T47(Folio 107) and the Applicant agreed that the details as set out therein are correct. The Tribunal notes there is no dispute between the parties that for all of the years shown, except for financial year 1991/92 (when the income was $104,806), the Applicant's combined taxable income was below the relevant taxable income ceiling.
13. The Applicant in her statement dated the 6 November 2000 (T55, p117) said:
"I Mrs Bhindi wish to advise that if I had known that my Family Payments were to cancel at the end of December 1992 (because of my combined taxable income being $104,806) I would have gone into a DSS office to reclaim Family Allowance. I would have provided an estimate of my combined taxable income for the 92/93 financial year as this was much less than 91/92. In fact our combined taxable income for 92/93 was only approximately $58,000. I wish to add that I also request a review of the amount of arrears paid to me for the period from December 1989 to December 1992. I believe I was entitled to higher than the minimum rate of Family Allowance that has been paid to me."
14. Mr Bhindi in his oral evidence reinforced the Applicant's position as stated above, and pointed out that the Department had not sent any written advice about the suspension of the Applicant's Family Allowance nor about cancellation of the allowance; and had they received any notification or advice from Centrelink that the Applicant's Family Allowance was being suspended or cancelled, without doubt they would have submitted the necessary documents to resolve the problem and to ensure that after the one off high income in 1991/92, Family Allowance continued to be paid.
15. Mr Bhindi told the Tribunal that he and his wife considered that they (and their children) should not be penalised by being deprived of what they are entitled to when they were not at fault. Mr Bhindi stressed the point that it was always their intention to utilise the monies for their children's higher education, and that this was evident by the fact that the monies in the bank account had not been touched.
16. Mr Bhindi in answer to questions from the Tribunal said that neither he nor his wife checked the balances in the Westpac Savings Bank Account, nor could they recall receiving notices from the Department about the granting of the allowance, or the need to provide Centrelink with details of any changes of relevant circumstances. Mr Bhindi said they did not inform the Respondent of their change of address when they moved from Jindalee.
17. It was the Applicant's evidence that two days after arrival in Australia, the initial claim for Family Allowance had been submitted, on advice from a network of friends, however they had not submitted a claim for Family Allowance Supplement nor had they intended to do so.
CONSIDERATION
18. The first question to be addressed by the Tribunal is whether the Applicant can be paid arrears of Family Allowance Supplement.
19. The Respondent submits that arrears of Family Allowance Supplement cannot be paid to the Applicant because she never made a claim for this payment and the relevant provisions in the Social Security Act 1947 stipulate that payment of an allowance (including Family Allowance Supplement) shall not be made except upon the making of a claim for that allowance.
20. The Applicant has stated that no claim was made for this allowance. In final submissions for the Applicant, it was conceded that in view of this, and the fact that the Applicant had not intended initially to claim Family Allowance Supplement, the amount of arrears of Family Allowance paid from the period 14 December 1989 to 24 December 1992 should not include an amount for Family Allowance Supplement.
21. In the light of this concession and on the evidence before it, the Tribunal is satisfied that the Applicant did not lodge a claim for Family Allowance Supplement at any time and that Family Allowance Supplement is not payable to the Applicant.
22. Turning then to the question of whether a Family Payment can be paid to the Applicant from 1 January 1993 to 9 January 2001.
23. The Tribunal is satisfied that the original suspension and cancellation of the Applicant's Family Allowance was invalid (see Secretary, Department of Social Security v O'Connell (1992) 20 ALD 66) and that the Applicant's entitlement to Family Allowance therefore revived for as long as she remained qualified.
24. The issue that then arises is the qualification status of the Applicant on 1 January 1993.
25. There is no dispute between the parties and the Tribunal finds accordingly that with respect to 1 January 1993, the relevant Family Payment period was the Applicant's "base year", namely the 1991/92 tax year, this being the tax year ended 30 June in the calendar year before 1993.
26. There is also no dispute between the parties and the Tribunal is satisfied that with respect to 1 January 1993, the Applicant's combined income in the base year 1991/92 was $104,806 and that this amount was well in excess of the relevant taxable income ceiling of $71,436 (section 1069.H21 of the Act). The Tribunal therefore is satisfied that with effect 1 January 1993 the Applicant ceased to be qualified, pursuant to section 838 of the Act, for Family Payment.
27. The Respondent has submitted that once the Applicant's qualification for Family Payment ceased, Family Payment cannot be paid to her until she is qualified again under section 838, and made a new proper claim. The Respondent noted that such a claim was not made until 10 January 2000, and that pursuant to section 842 and 843 of the Act, the Applicant's provisional commencement date was 10 January and it is not possible to backdate the claim of 10 January 2000 to allow payment in arrears.
28. The Tribunal accepts the Respondent's submission that the Applicant's claim of 10 January 2000 can not be backdated to allow payment of arrears and in the absence of any general discretion under the Act to otherwise allow an arrears payment of the kind sought by the Applicant, the Tribunal is satisfied that no arrears of Family Payment (or Family Allowance) can be allowed with respect to the Applicant's claim of 10 January 2000.
29. The issue that then remains is whether the Respondent is correct in asserting that the Applicant's initial claim for Family Allowance ceases to be operative once the Applicant's qualification for Family Payment ceased on 1 January 1993. In making this submission the Respondent relied on Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, where His Honour Justice Davies held that any entitlement of an Applicant to a benefit at a time subsequent to the date of cancellation of the benefit must be the subject of a further claim. The Tribunal notes that the full Federal Court in Secretary, Department of Social Security v O'Connell (Supra) adopted the view of Jenkinson J (in dealing with Mrs O'Connell's case at first instance) where His Honour stated
"once the … decision to cancel the allowance has ceased to have legal effect there was revived Mrs O'Connell's legal entitlement to receive payment of Family Allowance payable on each Family Allowance payday falling after the cancellation, until some disentitling event or Act in the law should supervene."
30. In Mrs Bhindi's matter there is no doubt, as already indicated, that she ceased to be qualified for Family Allowance on 1 January 1993, nor is there any dispute that for the succeeding years 1994 to 1999 she would meet the taxable income ceiling test and had she lodged the proper claim at the relevant time she would most likely have met the qualification requirements for Family Payment.
31. But she did not lodge such a claim because she was not aware that there were circumstances, which would necessitate such a claim, nor indeed was the Respondent aware of the Applicant's financial position until such time as the Applicant brought the matter to the Respondent's attention in 1999.
32. Mr and Mrs Bhindi contended that they are not at fault for this unfortunate set of circumstances. The Respondent contends that this is not so and that Mr and/or Mrs Bhindi should accept some responsibility for failing to monitor the Westpac Saving Bank Account.
33. In this regard the Tribunal is mindful of what was said in the explanatory memorandum to the Bill introduced as a result of the decision in Secretary, Department of Social Security v O'Connell. The summary of proposed changes stated, inter alia:
"sometimes the Social Security recipient will change her or his address and not tell the Department of Social Security. It is important that the Department be notified of any change of address because it may affect the person's entitlement to, or rate of a pension, benefit or allowance... it is not feasible for the Department to seek information from banks etc given the large number of clients of whom the Department deal. Administration of the Act would become extremely difficult if the Department were obliged to locate clients who have "disappeared". It is reasonable to expect clients to notify the Department of changes of address to ensure that the correct Social Security entitlements can continue to be paid and to ensure that public monies are being paid only to those who are qualified."
34. The Tribunal is satisfied that the Respondent having set aside the decision to cancel the Applicant's Family Allowance, correctly revived the Applicant's claim of Family Allowance and paid arrears until such time as the Applicant ceased to qualify. At that point in time the Tribunal is satisfied that the Applicant's initial claim was no longer valid and hence cannot be the basis for further consideration of payment of any arrears. The fact that this in effect precludes the Applicant from receipt of an allowance which otherwise might have been payable is unfortunate, however the Applicant must reasonably accept some responsibility for this outcome having failed to monitor her savings bank account and having failed to notify the Respondent of her change of address. In arriving at this conclusion the Tribunal notes that the Respondent has been unable to locate any written advice or notice sent to the Applicant about the granting of Family Allowance or about the need to notify the Department of changes in circumstances, and that the Applicant claims that she and her husband were not aware they were required to notify the Department of any change of address.
35. The Tribunal is mindful that a decision leading to the loss of Family Payment to Mrs Bhindi during a period when she considers she was qualified to receive such a payment may seem to her to be harsh and unreasonable and against the interests of her dependent children. However, in this case, where the Applicant is partly to blame, where the legislation makes no specific provision for payment of arrears of the kind sought by the Applicant and where there is no general discretion under the legislation to otherwise allow an arrears payment of the kind sought by the Applicant, the Tribunal is satisfied that the decision to refuse the Applicant arrears of Family Payment from 1 January 1993 to 9 January 2001 is correct.
36. It follows from the above reasons that the Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: ..........................................................................
AssociateDate/s of Hearing 28 March 2002
Date of Decision 31 May 2002The Applicant Appeared in Person
Solicitor for the Respondent Neil Foster, Departmental Advocate
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