Brokenshire and Secretary, Department of Social Services (Social security)

[2025] ARTA 644

Brokenshire and Secretary, Department of Social Services (Social security) [2025] ARTA 644 (5 February 2025)

Applicant:  Miss Brokenshire

Respondent:  Secretary, Department of Social Services

Tribunal Number:   2024/B191558

Tribunal:   General Member A Shelley

Place:  Canberra

Date:  5 February 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant is entitled to family tax benefit (FTB) at a rate reflecting her care of two FTB children from 1 July 2022.

CATCHWORDS

SOCIAL SECURITY – family assistance payments – family tax benefit – date of effect of a favourable determination – has two FTB children –  applicant is entitled to FTB at an increased rate – decision under review set aside and remitted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsections 161(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999.

Statement of Reasons

BACKGROUND  

1. This is an application by Miss Brokenshire for the review of a decision made by Services Australia (Centrelink) to pay family tax benefit (FTB) at an increased rate from 1 July 2023 but not earlier. Miss Brokenshire seeks a higher rate of payment from 24 July 2017.

2. Miss Brokenshire has been in receipt of FTB by instalment in respect of her son, born 2015, for a number of years.

3. On 5 May 2017 she submitted a claim for paid parental leave ahead of the anticipated birth of her daughter. Her daughter was born on [date] July 2017.

4. On 29 July 2017 Miss Brokenshire completed a form entitled Newborn Child Declaration. Miss Brokenshire ticked a box indicating that the purpose of the form was ‘to finalise my claim that I made before the birth of my newborn child for Paid Parental Leave, Family Tax Benefit and enrol for Medicare’.

5. On 30 July 2024 a Centrelink officer identified that up to that date Miss Brokenshire’s rate of FTB had been based on her having one FTB child only, her son. As a result, Miss Brokenshire sought review of her rate of FTB.

6. On 14 August 2024 Centrelink’s authorised review officer (ARO) found that Miss Brokenshire was entitled to FTB at a rate that reflected she had two FTB children from 1 July 2023 but not earlier.[1]

   [1] The decision contains mixed references to 1 July 2022 and 1 July 2023 as the relevant date. Information from Centrelink confirms the effect of the decision is that the higher rate will apply from 1 July 2023 and that incongruent references are typographical errors.

7. On 17 October 2024 Miss Brokenshire sought review by the Tribunal. She disagrees with the decision to limit the period at which a higher rate of payments can be ‘backdated’, as she has been underpaid since 2017.

8. The matter proceeded to a hearing on 28 January 2025. I had before me the hearing documents numbered 1 to 274 and a response to a request for information and documents received on 24 January 2025.

ISSUES

1. The legislation governing a person’s eligibility for and rate of FTB is set out in the A New Tax System (Family Assistance) Act 1999 (the Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

2. In brief, section 21 of the Act sets out the general eligibility criteria for FTB. A person will be eligible for FTB if they have at least one ‘FTB child’, meet residence requirements, and the rate of FTB worked out under the Act would be greater than nil. An FTB child, defined in section 22, is a child or secondary student for whom the claimant has certain care responsibilities.

3. A person’s annual FTB rate is worked out under the rate calculator in Schedule 1 to the Act and depends (amongst other things) on the number of FTB children in the person’s care.

4. It is not a matter of dispute that Miss Brokenshire has had two FTB children since the birth of her daughter but – up to the contact on 30 July 2024 – was paid at a rate that reflected that she had only one FTB child.

5. The issue in this application is the date from which Miss Brokenshire can have FTB paid at a rate that reflects that she has two FTB children.

CONSIDERATION

1. Sections 108 and 109A of the Administration Act permit a person affected by a decision made under the family assistance law to seek review of that decision (subject to some exceptions, which do not arise here). Upon seeking review, an ARO may affirm, vary or set aside and substitute a decision.

2. Subsection 109E(1) of the Administration Act provides that if a person seeks review under section 109A more than 52 weeks after they were given notice of the original decision, and a decision is made to vary or substitute a decision with the effect of increasing an entitlement to FTB by instalment, the decision takes effect from the beginning of the period to which the decision relates.

3. That is tempered, though, by subsection (2AA) which provides that despite subsection (1) a person cannot be paid any increased rate earlier than the first day of the financial year before the year in which the review is sought.

4. The functioning of section 109E of the Administration Act is otherwise opaque. The legislation appears to be silent on the date of effect of a favourable decision where the person seeks review within 52 weeks of getting notice of a decision relating to FTB by instalment. It is surely implicit that if a request for review is made within 52 weeks, a favourable decision substitutes for the original decision.

5. Further, subsection (2) purports to provide that the 52-week period in subsection (1) can be extended in special circumstances, where a person was unable to seek review within 52 weeks. But as subsection (1) is only enlivened if the request for review is made after 52 weeks, it appears no benefit could result from extending that period.

6. The 52-week threshold, then, is not particularly significant. In most cases, the date of effect will turn on the financial year in which a request for reconsideration is made, because of the limitation imposed by subsection (2AA).

7. Turning to the facts of Miss Brokenshire’s matter, I note the following chronology:

   ·      As already indicated by way of background, on 5 May 2017 she submitted a claim for paid parental leave ahead of the anticipated birth of her daughter.[2] Her daughter was born on [date] July 2017 and the birth advised to Centrelink two days later.[3]

   [2] Response to request for information and documents.

   [3] Pages 13-17 of the hearing papers.

   ·      On 12 August 2017 Miss Brokenshire was sent a letter about family assistance, which referred only to her son and not her daughter.[4] She was subsequently sent numerous other letters about her family assistance entitlements, all of which referred only to her son.

   Miss Brokenshire told me she simply never noticed or made anything of those letters referring only to her son and not her daughter.

   ·      On 9 March 2019 Miss Brokenshire claimed child care subsidy in respect of her son. The form refers to both children, indicating that child care subsidy was not claimed at that stage in respect of her daughter.[5]

   ·      On 25 November 2021 Miss Brokenshire claimed child care subsidy for her daughter.[6]

   ·      On 29 May 2024 (received by Centrelink on 3 June 2024) Miss Brokenshire completed a form entitled Details of your child’s care arrangements (FA012).[7] The form says:

   Use this form to confirm your child’s care arrangements, or if you are apply for or receiving Family Tax Benefit or Child Care Subsidy and your child(ren) spends time with someone other than you and/or your current partner. ... The information you provide is needed to calculate your rate of payment under family assistance law.

   Miss Brokenshire declared in the form that she had 63% care for her son and 85% care for her daughter. She told me she completed the form because there had been a change of care arrangements for her son (but not her daughter). Family assistance statements up to that point indicate that she had 72% care for her son.

   ·      On 30 July 2024 Miss Brokenshire contacted Centrelink about the changed care arrangements. Centrelink’s file note records that there was contact about the FA012 form and that in examining Miss Brokenshire’s record the officer identified that while she had two FTB children she was receiving FTB for only one child.[8]

   ·      On 3 August 2024 Centrelink recorded a request for review of decisions relating to the rate of FTB.[9]

   [4] Pages 72-74 of the hearing papers.

   [5] Pages 18-22 of the hearing papers.

   [6] Pages 27-31 of the hearing papers.

   [7] Pages 32-44 of the hearing papers.

   [8] Page 62 of the hearing papers.

   [9] Page 63 of the hearing papers.

8. Centrelink, then, was given notice that there were two FTB children in 2017, 2019, 2021 and May 2024. Unfortunately, none of those earlier contacts was for the explicit purpose of querying the rate of FTB. The rate of payment remained overlooked until July 2024.

9. Nonetheless, the effect of section 109E is that Miss Brokenshire cannot benefit from a higher rate of payment earlier than the beginning of the financial year in which she sought reconsideration of the rate of payment, and the question that arises is when she sought reconsideration.

10. It is not necessary that a person explicitly seeks review of a particular decision nor that they observe what is wrong with the decision. In some circumstances, an inquiry as to the correctness of a rate of payment may qualify as a request for reconsideration (see Frost and Secretary, Department of Social Security [1995] AATA 228).

11. I find that the submission of the form dated 29 May 2024 and received by Centrelink on 3 June 2024 constitutes a request for reconsideration as to the rate of FTB. While Miss Brokenshire may have had reason to expect a reduction in the rate of payment in keeping with her percentage of care for her son falling below 65% (the threshold at which FTB is paid only to the primary carer) it was nonetheless a communication sent to Centrelink for the purposes of correcting the rate of FTB. The communication sets out the particulars required by Centrelink for that purpose: the details of the two FTB children in her care and the percentage of care for each child.

12. Indeed, it was treated as such by Centrelink, leading some weeks later to the contact between Miss Brokenshire and Centrelink that identified the longstanding underpayment and in turn to the decision under review.

13. The request was not for Centrelink to review any one particular decision, but to review and correct the rate of FTB generally. It was, in effect, a request to review all decisions as to the rate of FTB that might need correction, based on the information provided in the form. There have, of course, been numerous such decisions since 2017.

14. Miss Brokenshire is, then, entitled to FTB at an increased rate (reflecting that she has two FTB children) from 1 July 2022 – the start of the financial year before the year in which the request for review was made.

15. That differs from the decision under review, which rests on the request for review having been made in July or August 2024, in the next financial year. The decision under review will therefore be set aside.

16. I note that Miss Brokenshire, who seeks an increased rate of payments back to 2017, has been only partly successful in her application. In the absence of an earlier request for reconsideration as to the rate of payment, though, she cannot overcome the obstacle imposed by subsection 109E(2AA) as to the date of effect of a favourable determination.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance            with the order that the applicant is entitled to family tax benefit (FTB) at a rate reflecting her care of two FTB children from 1 July 2022.

Date of hearing: Tuesday 28 January 2025