Bignell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 812
•12 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008]AATA 812
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1217
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER BIGNELL Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date12 September 2008
PlaceBrisbane
Decision The decision under review is affirmed. .................[Sgd].......................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – family tax benefit – whether applicant entitled to receive more than the base rate of family tax benefit – decision under review affirmed.
A New Tax System (Family Assistance) Act ss 21(1)(a), 22(1), 22(2), 22(7); Schedule 1
Wade and Secretary, Department of Family and Community Services [2004] FCA 1660; (2004) 87 ALD 26
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 24 ALR 577
REASONS FOR DECISION
12 September 2008 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Christopher Bignell made a claim for family tax benefit to support his child. He has been paid family tax benefit at the basic rate for the period 16 June 2006 to 20 February 2007 (‘the relevant period”). Mr Bignell contends that he was entitled to receive a higher level of family tax benefit for the relevant period. The main issue that I have to consider is whether, for the relevant period, Mr Bignell had taken reasonable action to obtain child support for his child.
HISTORY OF THE MATTER
2. On 19 May 2006 Mr Bignell separated from his wife and it is from that time he had the care of his child.[1] In these reasons I do not mention the name (or sex) or various home addresses of the child to protect the privacy of the child. There is no issue that on 24 May 2006 Centrelink sent Mr Bignell a form titled ‘Details of your Child Support’ (Form 003).[2] This form was promptly completed by Mr Bignell and lodged on 26 May 2006. Mr Bignell claimed family tax benefit in respect of shared care for his child.[3] On 26 May 2006 he was granted family tax benefit from 19 May 2006 on the basis that he had 49% shared care of his child.[4]
[1] T5 fol 15.
[2] T4 fol 14.
[3] T7 fol 17.
[4] T7 fol 17.
3. On 14 June 2006 Centrelink notified Mr Bignell that he would be paid family tax benefit of $178.40 for the payment period 19 May 2006 to 7 June 2006, being the sum of $96.00 for Family Tax Benefit Part A and the sum of $82.40 for Family Tax Benefit Part B.[5] That notice also contained advice to “talk to the Child Support Agency”.[6]
[5] T9 fol 19.
[6] T10 fol 20.
4. On 16 June 2006 Centrelink advised Mr Bignell in writing that it had made a decision that he was not entitled to more than the base rate of Family Tax Benefit Part A. He was advised that he could not be paid rent assistance because he was not entitled to more than the base rate of Family Tax Benefit Part A. Mr Bignell was also advised that ‘If you take reasonable action to obtain child support for [name of child deleted] you may be eligible to receive more Family Tax Benefit Part A’. He was also advised that his regular payment from payday 7 July 2006 would total $3.97.[7] That notice also contained advice to “talk to the Child Support Agency”. [8]
[7] T10 fol 23.
[8] T10 fol 24.
5. On 21 June 2006 Mr Bignell was notified in writing by Centrelink that: ‘If you take reasonable action to obtain child support for [name of child deleted] you may be eligible to receive more Family Tax Benefit Part A’.[9]
[9] T12 fol 28.
6. On 22 December 2006 Centrelink notified the applicant in writing that: ‘We cannot pay you Rent Assistance because you are not entitled to more than the base rate of Family Tax Benefit Part A’.[10]
[10] T19 fol 50
7. On 21 February 2007 Mr Bignell notified Centrelink by telephone that he had contacted the Child Support Agency to apply for maintenance action.[11]
[11] T21 fol 58
8. On 21 February 2007 Centrelink notified Mr Bignell in writing that he was to receive a higher level of payment for Family Tax Benefit Part A and Family Tax Benefit Part B and that he would receive rent assistance.
9. On 16 May 2007 the applicant sought review of the decision of Centrelink dated 16 June 2006. On 21 June 2007 Centrelink notified the applicant that it affirmed the original decision. On 18 July 2007 the authorised review officer notified the applicant that he affirmed the original decision.
10. On 19 December 2007 the applicant appealed the original decision to the Social Security Appeals Tribunal.
11. On 29 February 2008 the Social Security Appeals Tribunal affirmed the original decision.
12. Mr Bignell now seeks the review of that decision by this Tribunal.
ENTITLEMENT TO FAMILY TAX BENEFIT
13. The entitlement of both Mr Bignell to receive Family Tax Benefit (“FTB”) is conferred by the A New Tax System (Family Assistance) Act 1999 (“the Act”). Under the Act an individual is eligible for family tax benefit if the individual has at least one FTB child[12]. An “FTB child” is defined by s 22 of that Act to be a child of an adult where the child is aged under 18 years and where the adult is legally responsible for the day-to-day care, welfare and development of the child, and the child is in the care of the adult and the child is an Australian resident[13].
[12] See s 21 (1) (a) of the Act.
[13] See s 22 (1) and 22(2) of the Act.
14. The Act enables a child to be an FTB child of more than one individual. That will occur where the Secretary is satisfied that there has been or will be a “pattern of care” where the child is an FTB child of more than one individual who has care for the FTB child for at least 10% of the period for which family tax benefit is being claimed. A child is to be taken to be an FTB child of that individual for the purposes of s 22 on each day in that period, whether or not the child was in that individual's care on that day[14].
[14] See s 22 (7) of the Act.
15. I am satisfied that the Secretary was entitled to determine that the child is an FTB child of both Mr Bignell. I am also satisfied that Mr Bignell has care for the FTB child for at least 10% of the period for which family tax benefit is being claimed. It is clear from the testimony of Mr Bignell that he is committed to supporting his child. I, however, mention that an unsatisfactory aspect of this application is that Mr Bignell contends that he had care of the child for a greater percentage of the period that he has disclosed in his claim. However, it is not necessary for me to consider this issue.
ISSUE UNDER CONSIDERATION
16. I must determine whether Mr Bignell was entitled to receive more than the base rate of family tax benefit for the relevant period. The rate of family tax benefit is calculated in accordance with Schedule 1 of the Act.
17. Clause 10 of Schedule 1 provides that the FTB child rate for an FTB child of an individual is the base FTB child rate (see clause 8), if the individual is entitled to claim for maintenance for the child, and the Secretary considers that it is reasonable for the individual to take action to obtain maintenance, and the individual does not take action that the Secretary considers reasonable to obtain maintenance.
18. The term “maintenance” is defined in s3 of the Act to mean “child support”. The term “child support” is defined in s 3 of the Act to mean “financial support” under the Child Support (Assessment) Act 1989.
POLICY
19. I have had to consider the Social Security Family Assistance Guide[15] (“the Guide”). Section 3.1.5.30 of the Guide, which was in evidence before me,[16] contains policy guidelines. It states, in general, that an applicant who has 30% care or more for a child is required to take reasonable maintenance action for an FTB child and they can only be paid Family Tax Benefit Part A at the base rate if they do not. Further, a child is not included for the purposes of rent assistance calculations.
[15] Family Assistance Guide, Department of Families, Housing, Community Services and Indigenous Affairs, Version 1.106 - Released 1 September 2008.
[16] T3, fols 12-13.
20. The Guide also provides guidance on whether an applicant is “taking reasonable maintenance action”. The Guide provides for various ways in which an applicant is regarded as “taking reasonable maintenance action”. As far as this application is concerned, the Guide provides that applying for a child support assessment through the Child Support Agency will have the consequence that an applicant will be regarded as meeting “the maintenance action test during the period of time their action is still in progress”.
21. The Guide also states that, prior to 1 January 2007 a 28 day grace period is to be provided to give a claimant an opportunity to commence reasonable maintenance action. This grace period commences upon the date that the child’s parents separate.
CONSIDERATION
22. This Tribunal will apply relevant policy in the absence of any compelling reasons why the policy should be disregarded[17]. I consider that in determining a person’s entitlement to family tax benefit, the application of the relevant policy is particularly important. This is because the Act confers a broad discretion upon the Secretary and the consistent application of policy ensures that applicants will be fairly treated on the same basis. The Federal Court of Australia has accepted the appropriateness of applying the Guide.[18] After reviewing all of the evidence before me I have come to the conclusion that there are no compelling reasons why the policy in the Guide should be disregarded in this instance.
[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 24 ALR 577.
[18] Wade and Secretary, Department of Family and Community Services [2004] FCA 1660, [29]; (2004) 87 ALD 26 at 31.
23. The Secretary accepts that Mr Bignell, the applicant, was qualified to receive family tax benefit for his child and that he was qualified from 19 May 2006. The Secretary also contends that the 28 day grace period in respect of which Mr Bignell was paid family tax benefit at a rate consistent with his eligibility commenced on 19 May 2006 and ended on 16 June 2006. The Secretary also contends that the applicant was paid family tax benefit calculated in accordance with his eligibility for payment during that period.
24. The Secretary contends that Mr Bignell, having on 24 May 2006 been provided with notice in writing that failure to take reasonable maintenance action may affect his rate of payment, failed to take reasonable maintenance action by 16 June 2006. The Secretary further contends that, despite being provided on 16 June 2006, 21 June 2006 and 22 December 2006 with further written notice or information that failure to take reasonable maintenance action had affected his rate of payment. It was contended that Mr Bignell had failed to take reasonable maintenance action until 21 February 2007.
25. I have had regard to Clause 10 of Schedule 1 which provides that the FTB child rate for an FTB child of an individual is the base FTB child rate (see clause 8), if the individual is entitled to claim for maintenance for the child, and the Secretary considers that that it is reasonable for the individual to take action to obtain maintenance, and the individual does not take action that the Secretary considers reasonable to obtain maintenance. I note that the word “and” is used in a conjunctive manner so that all the requirements of the clause must apply before a decision can be made that the FTB rate for a child is the base FTB rate.
26. On the evidence before me I am satisfied that Mr Bignell is the individual and is entitled to claim for maintenance for the child[19]. Mr Bignell did in fact claim maintenance after the relevant period had expired. There was certainly no suggestion that Mr Bignell was not entitled to claim maintenance during the relevant period.
[19] See Clause 10(a), Schedule 1 of the Act.
27. I am also satisfied that it is reasonable for Mr Bignell to take action to obtain maintenance[20]. He did in fact claim maintenance after the relevant period had expired. I should also mention that at the hearing I explored with Mr Bignell whether there was any reason why he did not claim maintenance during the relevant period, such as a desire to reconcile with his wife. Mr Bignell rejected such a suggestion and stated that he was unaware of the Child Support Agency.
[20] See Clause 10(b), Schedule 1 of the Act.
28. My findings leave for consideration whether the individual does not take action that the Secretary considers reasonable to obtain maintenance[21]. This was the issue which was highlighted in the Secretary’s Statement of Facts and Contentions[22]. In determining this issue I will apply the test in terms of the words of the statute.
[21] See Clause 10(b), Schedule of the Act.
[22] See paragraph 2.
29. I am satisfied that Mr Bignell did not, during the relevant period, take action to obtain maintenance. The only question that remains is whether Mr Bignell could take action that the Secretary considers reasonable to obtain maintenance. I have come to the conclusion it would have been reasonable for Mr Bignell to make an application to the Child Support Agency to obtain maintenance.
30. Mr Bignell gave evidence before me that it was not until February 2007 that an officer of Centrelink told him that he could receive a higher rate of family tax benefit if he went to the Child Support Agency. His evidence in this regard is consistent with what he told the Social Security Appeals Tribunal. I accept his evidence as being truthful in that regard. However, during the relevant period Mr Bignell has been sent notices by Centrelink that have advised him to “talk to the Child Support Agency”. In evidence before me Mr Bignell claimed not to have received such notices. However, before the Social Security Appeals Tribunal Mr Bignell stated, to his credit, that it was possible that he may have received the letters but had not looked at them.
31. The evidence before me is that a number of notices of decisions have been sent to Mr Bignell which have contained information concerning the need to contact the Child Support Agency.
32. In his claim submitted on 29 May 2006 the applicant gave information that his then home address was in Maudsland, Queensland. I find that Centrelink sent notices of decision or information to that address on 24 May 2006, 14 June 2006, 16 June 2006 and twice on 21 June 2006.
33. On 5 July 2008 Mr Bignell advised Centrelink that his then home address was in Coomera, Queensland. I find that Centrelink sent notices of decision or information to that address on 10 July 2006, 13 July 2006, 11 October 2006, 19 December 2006, 22 December 2006 and 21 February 2007.
34. Those Centrelink notices which have been sent to Mr Bignell have fortified my conclusion that Mr Bignell could have taken action during the relevant period to obtain maintenance. I consider that it would have been reasonable for Mr Bignell to have made an application to the Child Support Agency to obtain maintenance during the relevant period.
35. I should mention that during the hearing Mr Bignell stated that certain documentation that were presented to the Social Security Appeals Tribunal could have supported his case. I am satisfied that the advocate for the Secretary has provided all such documentation to Mr Bignell. I also gave Mr Bignell the opportunity to make a search of any documents that may be at his home. However, Mr Bignell has not made any submission after the hearing had concluded.
CONCLUSION
36. I affirm the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ...........................[Sgd]..................................................
Elizabeth Young, Research AssociateDate/s of Hearing 15 July 2008
Date of Decision 12 September 2008
The Applicant was self represented.
For the Respondent Mr B Hamilton, departmental advocate.
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