DANIA MARIE VAN DER MEER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 480

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 480

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6015

GENERAL ADMINISTRATIVE DIVISION		)
Re		DANIA MARIE VAN DER MEER

Applicant

And SECRETARY,   DEPARTMENT  OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal   Ms A F Cunningham (Senior Member)

Date  29 June 2010

Place  Hobart

Decision   The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY -  family tax benefit and rent assistance - past period claim for rent assistance - claim for past family tax benefit made through Australian Taxation Office - claim for rent assistance not accompanied by family tax benefit by instalment claim - no eligibility for rent assistance arrears - decision under review affirmed

A New Tax System (Family Assistance) Act 1999, Clause 38C of Schedule 1

A New Tax System (Family Assistance) (Administration Act) 1999, Section 10(1), 23

Family Assistance Guide, 3.1.4.30

Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179

REASONS FOR DECISION

29 June 2010  Ms A F Cunningham (Senior Member)

1.      The applicant, Dania Marie Van der Meer seeks a review of a decision of the Social Security Appeals Tribunal (SSAT) dated 27 November 2009 which determined that she was not eligible to be paid rent assistance for the period February 2008 to 30 June 2008.  The SSAT decision affirmed a decision of a Centrelink Authorised Review Officer made on 27 October 2009.

background

2.      From April 2006 Mrs Van der Meer had decided to defer all fortnightly payments of Family Tax Benefit (FTB) pursuant to the More Choice For Families (MCFF) initiative.  After providing an income estimate for the 2007/08 year on 12 February 2008 Mrs Van der Meer's FTB record was cancelled.  Following an assessment by the Australian Taxation Office (ATO) of Mr and Mrs Van der Meer's actual combined income for the 2007/08 year, which was less than the income estimate submitted, Mrs Van der Meer became eligible to receive the maximum rate of FTB and rent assistance (RA).

3.      Mrs Van der Meer was backpaid FTB in three instalments for the 2007/08 year and RA for the period 1 July 2007 to 11 February 2008.  As a consequence of her FTB record being cancelled on 12 February 2008 when Mrs Van der Meer lodged her income estimate, she was not paid RA for the period 12 February 2008 to 3 June 2008.

4.      Centrelink determined that Mrs Van der Meer was not eligible to receive RA for this period because her claim for a past period of FTB was not accompanied by a claim for FTB by instalment.

issue

5.      The issue for the Tribunal to determine is whether Mrs Van der Meer is entitled to be paid RA for the period 12 February 2008 to 30 June 2008.

legislation

6. The eligibility provisions for RA are contained in Clause 38C of Schedule 1 of the A New Tax System (Family Assistance) Act 1999 (the Act):

"Eligibility for rent assistance

(1)       An amount by way of rent assistance for a period is to be added in working out an individual’s maximum rate if:

(a)       the individual has at least one rent assistance child; and

(b)       the individual’s claim for family tax benefit is not a claim to which   subclause (2) applies; and

(ba) neither the individual nor the individual’s partner is receiving payments of incentive allowance under clause 36 of Schedule 1A to the Social Security Act 1991; and

(c)       the individual is not an ineligible homeowner; and

(d)       the individual is not an aged care resident; and

(e)       the individual pays, or is liable to pay, rent (other than Government   rent); and

(f)        if the individual has at least one FTB child and is not a relevant shared                carer—the rent is payable at a rate of more than:

(i)        if the individual is not a member of a couple—$3,073.30 per   year; or

(ii)       if the individual is a member of a couple but is not partnered   (partner in gaol) or a member of an illness separated couple, a   respite care couple or a temporarily separated couple—  $4,547.90 per year; or

(iii)      if the individual is partnered (partner in gaol) or is a member of   an illness separated couple or a respite care couple —  $3,073.30 per year; or

(iv)      if the individual is a member of a temporarily separated   couple—$3,073.30 per year; and

(fa)      if the individual is a relevant shared carer, or has only one or                    more regular care children (but no FTB children)—the rent is   payable at a rate of more than:

(i)        if the individual is not a member of a couple—$2,332.35 per   year; or

(ii)       if the individual is a member of a couple but is not partnered   (partner in gaol) or a member of an illness separated couple, a   respite care couple or a temporarily separated couple—  $3,806.95 per year; or

(iii)      if the individual is partnered (partner in gaol) or is a member of   an illness separated couple or a respite care couple—  $2,332.35 per year; or

(iv)      if the individual is a member of a temporarily separated   couple—$2,332.35 per year; and

(g)       if the individual is outside Australia:

(i)        the person was paying rent (other than Government rent) for   accommodation in Australia immediately before the individual   left Australia; and

(ii)       the person continues to pay rent for the same accommodation   while outside Australia.

(2)       This subclause applies to an individual’s claim for family tax benefit if:

(a)       the claim is for family tax benefit for a past period that occurs in the   first or second income year before the one in which the claim is made;            and

(b)       when the claim is made the individual:

(i)        is eligible for family tax benefit; and

(ii) is not prevented by section 9 of the A New Tax System (Family Assistance) (Administration) Act 1999 from making an effective claim for payment of family tax benefit by instalment; and

(c)       the claim is not accompanied by a claim for family tax benefit by   instalment".

7.      Mr Aaberg submitted on behalf of the respondent, that the application of subparagraph 1(b) has the result of disentitling Mrs Van der Meer for rent assistance on the basis that her claim was not accompanied by a claim for Family Tax Benefit by instalment.  Mr Aaberg maintained that sub clause 2 does apply in this case in that Mrs Van der Meer satisfies the provisions of sub paragraphs (a), (b) and (c) in that firstly, she made a claim for FTB for a past period, secondly she was eligible for FTB when the claim was made and was not prevented by Section 9 from making an effective claim and thirdly, her claim was not accompanied by a claim for FTB by instalment. Mr Aaberg contended that as Mrs Van der Meer's circumstances meet the provisions of subclause 2, she accordingly does not satisfy the eligibility requirement of clause 1(b) of Section 38C.

consideration

8.      It was not disputed that Mrs Van der Meer's claim was not accompanied by an FTB instalment claim.  Mrs Van der Meer's claim for FTB for the 2007/08 year was lodged by the couple's tax agent through the ATO which does not have the facility to accept FTB instalment claims.  The Guide at 3.1.4.30 states "RA cannot be paid to recipients through the tax system".

9. The effect of Clause 38C is that a past period claim for RA can only be made if it is accompanied by an instalment claim. This is confirmed by the Family Assistance Guide (The Guide) which notes "an applicant who is entitled to FTB part A for a past period in the income year either before or in the year in which the past period claim is made may receive any entitlement to RA as a lump sum with their past period payment.   However, to receive RA the past period claim must be accompanied by an instalment claim...."

10.     Reference to government policy is appropriate where it is not inconsistent with the applicable legislation (Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179). I am satisfied that the reference referred to in the Guide supports the meaning of section 38C.

11.     The term "instalment claim" is not defined in the Social Security legislation.  I was referred to the definitions of "instalment amount" and "instalment period" which appear in Section 3 of the A New Tax System (Family Assistance) (Administration Act) 1999 (the Administration Act) which states " 'instalment amount', in relation to family tax benefit has the meaning given by subsection 23(2) 'instalment period', in relation to family tax benefit, has the meaning given by subsections 23(2) and (3)".

12.     Section 23 provides:

"(1)  Subject to this section, if the claimant is entitled to be paid family tax benefit by instalment, the Secretary must, after each instalment period ending after the determination is made, pay the instalment amount to the claimant, at such time as the Secretary considers appropriate and to the credit of a bank account nominated and maintained by the claimant.

Instalment amount and instalment period

(2)  In subsection (1):

"instalment amount" means the amount accruing for the days in the instalment period for which an entitlement to be paid family tax benefit arose under the determination.

"instalment period" means, subject to subsection (3):

(a)  the period of 14 days beginning on the day the Secretary considers                 appropriate in relation to the claimant, or class of claimants in which                    the claimant is included, and each successive period of 14 days; or

(b)  if the claimant:

(i)  is included in a class of persons specified under   subsection (3A); and

(ii)  is the subject of a determination in force under subsection (3B);

the period of 7 days beginning on the day the Secretary considers appropriate, and each successive period of 7 days.

Changing the day on which later instalment periods begin

(3)  The Secretary may change the day on which successive instalment periods are to begin in relation to a claimant or class of claimants. If the Secretary does so, the last instalment period before the first day on which the new instalment periods are to begin is shortened so that it ends immediately before that day".

13.     I was also referred to the Guide to the Family Assistance Law regarding the terms "instalment amount, instalment claim and instalment period".

14.     It is clear from the above definitions and explanations that an instalment claim is for periodic and successive payments as distinct from lump sum payments for a past period of eligibility.

15.     As it was apparent to Centrelink officers that Mrs Van der Meer would have been entitled to RA for the relevant period on the basis of the couples actual combined income for 2007/08, she was advised to lodge an instalment claim for FTB with Centrelink and did so on 25 September 2009.  On 21 September 2009 Mrs Van der Meer lodged a past period claim for FTB with Centrelink.

16.     The provisions of Section 10(1) of the Administration Act provide that a claim is not effective however, where a previous claim has been lodged.  This means that although Mrs Van der Meer lodged a claim for FTB by instalment with Centrelink in September 2009, because she had previously lodged a claim through the ATO, her second claim was ineffective.

findings

17.     Although Mrs Van der Meer met the income threshold limit for the payment of FTB and RA for the financial year 2007 to 2008, she was only paid RA up until 12 February 2008 when her entitlement to FTB was cancelled on the basis of the income estimate provided by her.  Any subsequent entitlement to RA from 12 February 2008 was only available through a claim for FTB by instalments.  As her claim for FTB was made through the ATO which did not allow for the lodgement of a claim for FTB by instalment, Mrs Van der Meer could not qualify for RA for the period 12 February 2008 to 30 June 2008.

18.     It is unfortunate that Mrs Van der Meer was not made aware that her claim for FTB through the ATO would preclude payment of RA for a past period.  One would have assumed that her tax agent would have been aware of the limitations.  The information sheet entitled Family Tax Benefit (FTB) Tax Claim Instructions 2008 provides instructions as to whether to claim FTB through the FAO or the ATO.  Step 3 states "are you eligible for a health care card or rent assistance from the FAO.  If yes do not complete an FTB claim. Instead the claimant must contact the FAO and claim your FTB directly from them to receive rent assistance".  It is noted that at paragraph 11 of the SSAT's decision it is recorded that "Mr Van der Meer was advised by his accountant that rent assistance could not be paid via the tax office when the accountant lodged their family tax benefit claim on 30 June 2009 but that he needed to lodge a claim with Centrelink".  It appears that the Van der Meer's were not aware at the time that the lodgement of their claim through the taxation office for FTB precluded a subsequent claim for RA. 

19.     From 1 July 2009 FTB claims can no longer be made through the ATO and thus the unfortunate predicament that Mrs Van der Meer has encountered would no longer occur.  My decision however can only be made in accordance with the legislation that applied at the time of the claim and I must accordingly, for the above reasons, affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  M Brereton  (Administrative Assistant)

Date/s of Hearing  1 June 2010
Date of Decision  29 June 2010
Representative for the Applicant    Mr C Van der Meer
Solicitor for the Respondent          Mr F Aaberg and Mr B Sparkes, Centrelink   Legal       Services