Crook and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1253
•26 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1253
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/784
GENERAL ADMINISTRATIVE DIVISION ) Re PETER CROOK Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr EK Christie, Member Date26 March 2007
PlaceBrisbane
DecisionThe decision under review is affirmed. This means that Mr Crook’s application for review is unsuccessful. The respondent has raised the possibility of a payment for Mr Crook under the Scheme for Compensation for Detriment caused by Defective Administration.
....................[Sgd]..........................
Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – lump sum payment – claim for FTB lodged for a past period – time limits – discretion to extend time – possibility of compensation for Detriment Caused by Defective Administration
Administrative Appeals Tribunal Act 1975 (Cth) s 37
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 5, 7, 10
Financial Management and Accountability Act 1997 (Cth)Haidar v Secretary, Department of Social Security (1998) 157 ALR 359
Briginshaw v Briginshaw (1938) 60 CLR 336
WRITTEN REASONS FOR ORAL DECISION
24 April 2007 Dr EK Christie, Member Introduction
1. This is an application for review of the following decision (of the Social Security Appeals Tribunal) (the “SSAT”) made on 9 October 2006 that decided to reject Mr Crook’s claim for a lump sum payment of family tax benefit (“FTB”) for the 2003/2004 financial year.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant represented himself at the hearing. The respondent was represented by Mr B Avery, a Departmental Advocate.
Issues Before The Tribunal
4. The only question for the Tribunal to decide was to establish the date Mr Crook made an effective claim for an annual lump sum payment of FTB for the 2003/2004 financial year.
Facts
5. On the basis of the evidence before it the SSAT made the following Findings of Fact [T1, Folio 9]:
“(i) On 11 August 2005, Mr Crook lodged a claim for FTB in respect of the 2005/2006 financial year.
(ii) On 25 August 2005, Centrelink received from Mr Crook, signed copies of certain pages of the 2005/2006 claim form together with a court order dated 28 June 2004.
(iii) On 13 April 2006, Mr Crook was issued with a claim for an annual lump sum payment of FTB for the 2003/2004 financial year.
(iv) On 12 July 2006, Mr Crook lodged the claim for an annual lump sum payment of FTB for the 2003/2004 financial year.”
6. Mr Crook gave the following responses to the findings of fact made by the SSAT:
(i)That he agreed with findings (ii) and (iv).
(ii)That he disagreed with finding (i). He said that he had attempted to lodge a claim for the 2003/2004 financial year on 11 August 2005 – but this claim had been returned to him as it had been unsigned and required him to produce his children’s birth certificates.
(iii)That he gave a qualified acceptance for finding (iii). He said that on 11 August 2005 he had lodged claims for:
· The 2003/2004 financial year;
· The 2004/2005 financial year; and
· The 2005/2006 financial year.
He had received lump sum FTB payments for the 2004/2005 and 2005/2006 financial years. In April 2006, he had asked for duplicate claim forms for 2003/2004 and 2004/2005. He subsequently lodged the 2003/2004 claim on 12 July 2006. He was also going to lodge a lump sum FTB claim for 2004/2005 but was advised by Centrelink that this was unnecessary as he had been paid. Mr Crook was adamant that the 2004/2005 claim form (FTB Lump Sum) did not state the date by which it had to be returned and that he had relied on the form in not specifying a return date when lodging his 2003/2004 claim.
Statutory Requirements and Case Law
7. The relevant statute is the A New Tax System (Family Assistance) (Administration) Act 1999 (the “FAA Act”). The relevant provisions are sections 5, 7, and 10. These sections of the statute set out the relevant facts which must be proved in order for Mr Crook to succeed in his application.
8. Section 5 of the FAA Act states that the only way Mr Crook can become entitled to be paid FTB is to make a claim in accordance with section 7. Section 7 enables Mr Crook to make a claim for payments for FTB in accordance with that section. Section 7 also enables Mr Crook to make a claim for payment for FTB for a past period, in his case for the 2003/2004 financial year. In addition, to be an “effective claim” the claim must be made in a form and manner, containing (a) any information, and (b) accompanied by any documents e.g. birth certificates of children, as required by the Secretary. In this case, Mr Crook lodged an “effective claim” for FTB for the 2003/2004 financial year on 12 July 2006 (T22, Folio 74).
9. Section 10 of the FAA Act sets out the restrictions, such as time limits, on a claim for an FTB benefit for a past period. A claim for payment for FTB for a past period will only be an effective claim if it is lodged no later than “2 income years immediately following that income year”. In Mr Crook’s case, this means an effective claim for the 2003/2004 financial year must be lodged no later than 30 June 2006.
Consideration of the Issues and Findings of Fact
10. In this application for review, I consider all the evidence and information before me as at the date of the hearing “to the extent those facts are relevant to the decision…by reference to the subject matter, scope and purpose of the legislation…”
[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367].
11. I have carefully considered the submissions and factual evidence before me in this application for review, specifically in relation to the questions of law set by the FAA Act in order to ensure an “effective claim” for FTB is lodged and meets the civil standard of proof as described by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362:
“The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found….to the reasonable satisfaction of the Tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
12. Firstly, I find Mr Crook to be an honest witness who at all times tried to comply with his obligations under the FAA Act to receive FTB payments for past periods. At times, he had to cope with an anxiety and depression condition (e.g. June 2006) when he was on medication. He continued to pursue his claim for FTB payments as best as he could – given this condition.
13. The only “effective claim” for FTB for the 2003/2004 financial year that is supported by the documents and evidence before me is the claim lodged on 12 July 2006 (T22, Folio 74).
14. Mr Crook’s reference to lodging a FTB claim for 2003/2004 on 11 August 2005 cannot be supported by documentary proof. Unfortunately, in such a case I can only consider that in terms of the factual evidence, there are “inexact proofs” or “indirect inferences” that a claim for FTB was first lodged on 11 August 2005. This means that the legal standard of proof required cannot be satisfied for this date.
15. The only finding I can make on the proved facts before me is that Mr Crook’s claim for past FTB payments for the 2003/2004 financial year was made on 12 July 2006 – twelve days after the period when a claim could be made. This means Mr Crook’s claim was out of time and so he was not entitled to receive past payments for FTB for 2003/2004, as a matter of law.
16. It is also unfortunate for Mr Crook that the FAA Act does not give me any discretion to extend the time limits for lodging an “effective claim” for FTB for 2003/2004.
17. I acknowledge that Mr Crook has raised a number of facts (see para 18) that help explain how the problem associated with his claim for FTB payments for 2003/2004 arose. However, these facts cannot be applied to the decision that must be made under the FAA Act as they are not relevant to the questions of law set out in s 5, 7 and 10. In addition, the FAA Act does not give me any discretion to consider them in my decision.
18. These facts raised by Mr Crook may have potential application in alternative pathways for resolving the FTB problem he has encountered – other than litigation. These facts can be summarised as follows:
· That he was eligible for FTB from 2001 following his marriage breakdown but was unaware of his entitlements until 2005 when he became unemployed. In July 2005, the Palm Beach Centrelink office advised him that he had missed FTB deadlines for the 2000/2001, 2001/2002 and 2002/2003 financial years. Consequently, he was aware, from that time, for the need to lodge claims on time.
· That, in order to avoid problems, he had requested FTB Claim Forms from Centrelink at Palm Beach for 2003/2004, 2004/2005 and 2005/2006 at the same time, in person. These claim forms were lodged in August 2005.
· The 2004/2005 claim form made no mention of the date or time limits by which the form had to be lodged. He had relied on the information given to him by Centrelink staff. He had also relied on this information for his 2003/2004 form.
· When he completed a FTB Claim Form for 2005/2006 on 11 August 2005 (T4, Folio 26) he had completed Question 31 as follows:
Question 31 – Lump sum claim for a previous financial year
Do you want to claim Family Tax Benefit for a
previous financial year
no
Ø i.e. July 2004 – 30 June 2005
and/or
1 July 2003 - 30June 2004
yes √
Which financial year(s) do you want to claim for?
i For more information see Lump sum claim for a previous financial year on PAGE 9 in the information booklet.
√ 2004-2005 financial year
√ 2003-2004 financial year
The Family Assistance Office will contact you for further details
· However, at no stage had the Family Assistance Office contacted him about further details relating to his claim for 2003/2004, notwithstanding he had indicated he had claimed for 2003/2004 and question 31 included a notation that the “Family Assistance Office will contact you for further details”.
· Mr Crook assumed that he had received no response from the Family Assistance Office as he had lodged all information for 2003/2004 previously. In this regard, he had only been contacted by the Family Assistance Office for his 2004/2005 FTB claim on 18 November 2005 stating that his claim could not be paid as there was no proof of the dates of birth of his two children (T11, Folio 57 and T13, Folio 60).
· On 25 November 2005 Mr Crook telephoned Centrelink to clarify the letter he had received for his FTB claims (T14, Folio 61).
· On 27 January 2006, Mr Crook obtained birth certificates for his two children and gave them to the Centrelink office at Palm Beach on 8 February 2006.
· On 13 April 2006, he spoke to a Centrelink staff member at Palm Beach about the status of his three claims and was advised that records of claims for 2003/2004 and 2004/2005 could not be located. He was issued with an original copy of a 2004/2005 FTB Claim Form but a 2003/2004 Claim Form could not be located and so he was given a photocopy. Mr Crook asked the Centrelink staffer the dates by which the completed forms should be returned and was told “next time you are in the office”. The Centrelink staffer told Mr Crook that the 2004/2005 form did not have to be returned until 2007 and that he should return the 2003/2004 form when he lodged his next application for payment of newstart allowance form. Mr Crook said that the Centrelink staffer may have thought that he would be lodging his next newstart form on 24 April 2006 (in two weeks time). However, because he was unfit for work at the time and had lodged a medical certificate, that day, Mr Crook was not required to lodge another newstart allowance form for three months. He lodged his 2003/2004 claim for FTB when he next lodged a newstart allowance form on 12 July 2006.
19. However, because of marital issues around this time and that he was suffering an anxiety condition with depression, he was given a medical certificate by his treating GP that he was unfit for work until July. Consequently, the next time he was in the office was 12 July 2006 – 12 days after the time limit for his 2003/2004 FTB Claim. It was on this date that he was told that he had missed the deadline as he was outside the allowable time limit.
20. There is no medical evidence before the Tribunal as to the consequences of the anxiety/depression condition Mr Crook suffered from April to July 2006. Mr Crook may wish to obtain a short statement from his treating GP as to whether this anxiety/depression condition (and the medication regime) had any impact on his capacity to make rational decisions to manage his day to day affairs during the April - July 2006 period, when the medical certificate for being unfit for work applied.
Decision
21. For all of the above reasons, the Tribunal affirms the decision under review. This means that Mr Crook’s application for review is unsuccessful.
22. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The FAA Act gives me no other option than to make such a decision. There is no discretion in the FAA Act for me to make any other decision, as a matter of law, for Mr Crook.
Tribunal Observations
23. Therapeutic jurisprudence (Wikipedia, 2007[1]) is a term first used by two United States Professors, David Wexler and Professor Bruce Winick in 1987. It represents a new perspective for studying the role of lawyers and judges and how the legal process may, or may not, produce beneficial consequences for individuals involved in the legal process. Therapeutic jurisprudence has been applied in an effort to reframe the role of the lawyer. It conceives lawyers “practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of the [parties] as well as their legal rights and interests, and to actively seek to prevent legal problems through creative… problem-solving approaches.”
[1] ‘Therapeutic Jurisprudence’, 15/02/2007, Wikipedia, < (March 2007).
24. In this context, the Tribunal makes the following observations. Firstly, Mr Avery has raised the possibility of the Scheme for Compensation for Detriment caused by Defective Administration (“CDDA Scheme”).
25. In raising the possibility of the CDDA Scheme, Mr Avery has adopted a creative problem-solving approach to Mr Crook’s legal problem.
26. Mr Crook could consider the application of Finance Circular 2006/05 (Australian Government, Department of Finance and Administration) to the issues that he has raised. This Finance Circular particularises, amongst other things, the principles and application of the CDDA Scheme for Commonwealth Government agencies under the Financial Management and Accountability Act 1997 [“FMA Act”].
27. The following materials in the Finance Circular give an overview of the CDDA Scheme.
“Introduction
The CDDA Scheme is an administrative scheme to enable Commonwealth agencies to compensate persons who have suffered detriment as a result of an agency’s ‘defective’ actions or inaction, and who have no other avenues of redress [or remedy].
…
There are two key features … [in] the CDDA Scheme. They are:
· decisions are made at the discretion of the decision maker; and
· payments are approved on the basis that there is a moral, rather than legal obligation to the person or body concerned.
The claimant’s own actions are also a relevant factor in deciding whether there is a moral obligation to pay compensation under the CDDA Scheme.
[In addition], [e]ach case must be determined on its own merits.
Defective Administration is Defined as follows(a) an unreasonable failure to give to (or for) a claimant, the proper advice that was within the official’s power and knowledge to give (or reasonably capable of being obtained by the official to give)… [For example], an unreasonable lapse or failure is one where the actions of the officer(s) involved are considered to be contrary to the standards of diligence that the agency expects to be applied by reasonable officers acting in the same circumstances with the same powers and access to resources.
(b) giving advice to (or for) a claimant that was, in all the circumstances, incorrect or ambiguous… Where advice or information given to a claimant was incorrect or ambiguous, it is not necessary for an element of unreasonableness to be present for the action to fall within the definition of defective administration.
Evidence of Defective Administration
…
Each case must be decided on its own merits. Where insufficient evidence of defective administration exists, a judgement must be made about the plausibility of the claimant’s account of his or her actions and the plausibility of the allegations [made] against the agency.
Claimant’s Own Actions
The actions of a claimant are important [and consideration should be given to matters such as]:
· whether he or she contributed to, or caused, the detriment suffered; and
· the appropriate level of compensation
…
· whether the advice provided to the claimant was informal and no reasonable person would have relied on it.
…
In considering a claimant’s actions, it is important to take into account the claimant’s specific circumstances and the factors that influenced his or her actions, rather than adopting an assumed normative model of ‘usual’ behaviour.”
28. The issues Mr Crook raised in his oral evidence at the Tribunal hearing (see para 18) may be relevant considerations in regard to his considering the possibility of pursuing a payment under the CDDA Scheme, as may any medical opinion as to his capacity to make rational decisions in managing his day to day affairs when he was suffering from generalised anxiety disorder (see para 19).
29. I must emphasise that the Tribunal has no power whatsoever to order that payment under the CDDA Scheme be made to Mr Crook. The process for such a payment is for Mr Crook to make a claim to the Department for a payment under the CDDA Scheme and to request that his claim be assessed under the specified eligibility criteria. The final authority to grant payment does not rest with the Tribunal, but the Minister for finance or their appointee.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: ……………………………………
F. Kamst, Legal Research OfficerDate of Hearing 26 March 2007
Date of Decision 26 March 2007
Date of written reasons 24 April 2007
The Applicant was self represented
For the Respondent Mr B Avery, Departmental Advocate
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