De Silva and Secretary, Department of Social Services (Social services second review) - [2018] AATA 2718

De Silva and Secretary, Department of Social Services (Social services second review) [2018] AATA 2718 (9 August 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0726
Re:Udayanga De Silva
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:9 August 2018
Place:Melbourne

The Tribunal affirms the decision under review.
..................[sgd]......................................................
Ms Anna Burke, Member
Catchwords
FAMILY TAX BENEFIT - whether FTB should be paid at the base rate - absences from Australia - decision under review affirmed
Legislation
Administrative Appeals Act 1975
A New Tax System (Family Assistance) Act 1999
Cases
Re Rydel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 143
Re Department of Families, Housing, Community Services and Indigenous Affairs and Evtushenko [2011] AATA 596
Secondary Materials
Department of Social Services, Guides to Social Policy Law - Family Assistance Guide
REASONS FOR DECISION
Ms Anna Burke, Member
9 August 2018

On 17 July 2012 Mr De Silva applied online for family tax benefit (FTB) under the A New Tax System (Family Assistance) Act 1999 (the Act), for his child born on 20 November 2011. The claim was granted from 1 July 2012.
On 24 July 2012 Centrelink advised Mr De Silva he could not be paid FTB Part B or more than the base rate of FTB Part A because the records show he was still overseas. On 24 August 2015, on internal review, a departmental authorised review officer (ARO) affirmed the earlier Centrelink decision. The ARO determined that Mr De Silva:
had been overseas for more than 13 weeks between 2 October 2011 to 27 May 2012 and then departed Australia again on 22 July 2012, being within 13 weeks of [his] arrival back into the country 27 May 2012, [he was] only entitled to the base rate of Family Tax Benefit for the time [he was] overseas from 22 May 2012 to 31 July 2012. Because then departed Australia on 11 August 2012, again being within 13 weeks of [his] return on 1 August 2012, [he was] only entitled to the base rate of Family Tax Benefit for the period [he was] overseas from this date until 6 September 2012.
On 12 January 2017 the Social Services and Child Support Division of the Tribunal
(AAT1) affirmed the ARO’s decision. The AAT1 found that Mr De Silva was only entitled to FTB Part A during his periods of absence from Australia, from 22 July 2012 to 31 July 2012 and 11 August 2012 to 6 September 2012, even though his departure was before he may have been eligible for the payment. The AAT1 found that this was in accordance with the decision of Deputy President Nicholson in Re Rydel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 143.
Mr De Silva requested a review of the AAT1 decision by the General Division of the Tribunal. He stated his reason as follows:
The law was not applied correctly. Subsection 24(4) and (5)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: De Silva and Secretary, Department of Social Services (Social services second review) [2018] AATA 2718
Case: [2018] AATA 2718
Decision Date: 9 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr De Silva against a decision regarding his entitlement to Family Tax Benefit. The dispute centred on whether Mr De Silva should be paid Family Tax Benefit at the base rate, a determination that was influenced by his absences from Australia. The decision was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the correct rate of Family Tax Benefit payable to Mr De Silva, specifically in light of his absences from Australia.

The Tribunal affirmed the decision under review. In its reasoning, the Tribunal noted Mr De Silva's expressed frustration with advice received from Centrelink. Consequently, the Tribunal advised Mr De Silva that he could pursue a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme), which is administered by the Department of Finance. The Tribunal outlined the definition of defective administration, which includes a specific and unreasonable lapse in complying with administrative procedures, an unreasonable failure to institute appropriate procedures, an unreasonable failure to provide proper advice within an officer's power and knowledge, or giving incorrect or ambiguous advice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As Mr De Silva had expressed his frustration with the advice from Centrelink, the Tribunal advised him he could seek redress by making a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme), which is administered by the Department of Finance. Defective administration is defined as: a specific and unreasonable lapse in complying with existing administrative procedures; or an unreasonable failure to institute appropriate administrative procedures; or an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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