Delgado and Secretary, Department of Family and Community Services

[2005] AATA 1112

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1112

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/357

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARIA DELGADO ANTHONY DELGADO

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date10 November 2005

PlaceMelbourne

Decision The decision under review is affirmed.

..............................................

Senior Member

SOCIAL SECURITY – applications for child care benefit – claim for 25 hours per week per child – later advised of maximum entitlement of 50 hours per week per child – amended receipts for payment lodged – whether lodged within time – whether lodged at all – if lodged and within time, whether entitled – decision affirmed

A New Tax System (Family Assistance) (Administration) Act 1999 s 49K, s 49K (2), s 109D and s 109D (1)

REASONS FOR DECISION

10 November 2005 Mr John Handley, Senior Member           

1.      Child Care Benefit is payable to the parents of children who in certain circumstances are cared for by a “registered carer”.  This application concerns the entitlement of the applicants to that benefit, more specifically, the number of hours of benefit to which they are entitled.  There is no issue concerning the relevant ages of the children, whether the children were in care (save for a qualification referred to later) and whether the care was provided by a registered carer (that person in this case being the mother of Mrs Delgado).

the application

2. This application concerns the quantum of entitlement for child care benefit after July 2000 until May 2003. The application was not the subject of a hearing. The applicants requested a review be conducted upon the documents lodged. The respondent consented. There were a number of documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with extensive written submissions by both parties.  Mr and Mrs Delgado have had the benefit of assistance from the Victorian Legal Aid Office.  The papers indicate that no claim is sought with respect to benefit beyond May 2003.

3.      The entitlement to child care benefit is processed by Centrelink upon a document lodged by the parents and signed by the registered carer recording the number of hours of care in a weekly period.  That document is known as “receipt for registered child care” (“receipt”).

4.      Throughout the period July 2000 to September 2001 receipts were lodged claiming 25 hours of care for each child per week.  Mrs Delgado later learnt that there was a maximum entitlement of payment for 50 hours care per week, per child.  Telephone contact was made with Centrelink and she was advised to submit documents to claim 50 hours per week.  Amended receipts were later lodged.

5.      In the period September 2001 to September 2002, child care benefit continued to be paid at 25 hours per week per child.  In July and October 2004  duplicate receipts were lodged claiming care at 50 hours per week (refer letters in T‑documents at pages 70, 110 and 252, dated 26 and 30 July 2004 and 14 October 2004).

6.      In the period September 2002 to May 2003, Centrelink advised that it had no record of receiving any receipts from the applicants.  Accordingly benefits were not paid for that period.  Receipts were later lodged in July and October 2004, recording care at 50 hours per week per child.

7.      The Members of the Social Security Appeals Tribunal (“SSAT”) who heard the appeal against a decision of an Authorised Review Officer (“ARO”), found that some benefits were paid at 50 hours per week following submissions of new receipts in or about September 2001 but for limited periods only.  The SSAT found that a substantial body of receipts were lodged in July and October 2004 with respect to the period September 2001 to September 2002 but a request to review was not made until July 2004.  The SSAT also found that between September 2002 and May 2003 receipts for child care benefit were not lodged at all until July 2004.

8. It was decided that s 49K of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the FAA Act”) imposed restrictions on the ability to claim for past periods of care. The SSAT decided that such a claim would be ineffective if, pursuant to s 49K, the past period of care occurred before the commencement of a period of 12 months before the claim was made. Accordingly it was decided that by reasons of claims being made in and after July 2004 for periods of care prior to May 2003, the claims were “ineffective” (refer s 49K (2)).

9. Mr Perdon on behalf of the respondent lodged extensive written submissions. He also submitted that the claims were ineffective by reason of them being lodged beyond the period of time permitted by s 49K.

10.     Further, Mr Perdon submitted that the merits of the application should be treated with some concern.  Mr Perdon noted that the receipt forms asked the applicants for child care payment to record the total number of hours of care per child in the week covered by the form.  He noted that the applicants claimed that 25 hours per week was initially claimed for each child, but was increased to 50 hours per week when it was learnt later that 50 hours was the maximum quantity of hours permitted by the legislation.  He submitted that if 50 hours per week of care per child was initially provided, the applicants should have declared those hours, as opposed to recording the number of hours which coincided with the number of hours understood to be the maximum permitted by the legislation.  Additionally, he noted that a claim was made for care payments for a period beyond May 2003 when the registered carer was absent from Australia.  It was noted that the registered carer was Mrs Delgado’s mother, who also signed receipt forms for the period that she was absent from Australia.  That is, forms were completed requesting a payment for care when care was not provided by the registered carer.  It was acknowledged by Mr Perdon that the claim for care payment beyond May 2003 had subsequently been abandoned and did not form part of this review.

11.     Ms Tortino on behalf of the applicants provided extensive and well researched submissions.  It was submitted that the contact made by Mrs Delgado with Centrelink officers by telephone constituted an application for review on each occasion that an enquiry was made.  It was submitted that the applicants’ record should have been amended accordingly and appropriate and proper rates of care payments should have then been made.  Further, there were occasions that decisions were either made by the respondent and not notified to the applicants, or decisions were not made at all.  In those circumstances the applicants were denied the opportunities to appeal within time limits.

12.     It was also submitted that it was not until “after 21 May 2003” that the respondent decided not to grant any benefit for the period 30 September 2002 to 28 May 2003. It was submitted that Centrelink had decided that receipts had not been lodged for that period and that decision amounted to a rejection of entitlement by reason of the non-lodgement of receipts. However, it was submitted that that decision had not been communicated to the applicants and they were entitled to be exempted from the time restrictions on review applicable under s 109D of the FAA Act.

conclusions and reasons for decision

13.     For reasons which follow I am satisfied that the decision under review should be affirmed.

14.     A valiant attempt was made on behalf of the applicants’ solicitors to submit that each telephone enquiry of Mrs Delgado and a Centrelink officer constituted an application for review.  It followed that applications were made for arrears of benefit within time.  With respect I am not satisfied that the submissions have merit.  In my view the enquiries made by Mrs Delgado upon officers of Centrelink constituted no more than an enquiry as to entitlement.  The nature of the conversations – as may be gleaned from the documents lodged and from the duplicate letters found within the T‑documents – constitute no more than enquiries and, or, submissions to correct alleged past errors.  On occasions the enquiries resulted in advice being given to Mrs Delgado upon which she acted.  Clearly the giving of advice is a response to an enquiry being made.  The advice that was given was to lodge amended or duplicate receipts.  Mrs Delgado acted on that advice, but not until July and October 2004.

15.     The documents lodged do not explain why the initial receipts only recorded a claim for 25 hours per week per child of care when the form itself requests a disclosure of the actual number of hours of care.  That is to say, if 50 hours of actual care was provided, that quantum should have been recorded.  Being advised that there was a maximum of 50 hours entitlement would only entitle payment at that rate if that was the actual number of hours of care.  Advice that there was an entitlement to a maximum rate of payment equivalent to 50 hours per child per week does not explain the initial claim of 25 hours of care.  I am not satisfied that care was provided at a rate greater than 25 hours per week, per child.

16.     Submissions were made by the respondent concerning the merits of the application, particularly having regard to the claim that was initially made for payment beyond May 2003.  For the purposes of this decision I make no finding in the absence of the applicants giving evidence on oath and also being satisfied that they understand that there may be a consequence by them giving evidence in relation to the claim beyond May 2003.  I do note that any claim beyond May 2003 is now abandoned.

17. Section 49K (2) of the FAA Act permits entitlement to past claims for care payments when care is provided by a registered carer, but is “ineffective if the claim relates to a period of care which occurred before the start of the period of 12 months before the date of claim.”

18. The claims that were the subject of these proceedings were with respect to periods variously between July 2000 and May 2003. The claims for increased payment within that period were made in July and October of 2004. The period of 12 months immediately before July and October 2004 expired in July and October 2003. Claims for payment for periods expiring in May 2003 therefore were beyond the period of 12 months as required by s 49K (2). In the circumstances, the claims that are the subject of these proceedings are “ineffective” within the meaning of s 49K (2).

19. Furthermore, s 109D (1) of the FAA Act provides that applications for review must be made within 52 weeks of notification of a decision. It is noted that the letters forwarded to the applicants in 2001 and 2002 notifying them of limitations on claiming arrears in the case of an incorrect determination, were not acted upon until Mrs Delgado wrote to Centrelink requesting a review in July and October 2004.

20. The applicant alleges, and the respondent concedes, that for the period 11 December 2000 to 18 February 2001 Centrelink did not notify the applicants of their entitlement. An application for review if now made, may satisfy the time limits applicable under s 109D, however it should not be assumed that this would result in any entitlement greater than that received in that period, by reason of the foregoing reasons. I offer the same comments concerning the submission recorded at paragraph 12 earlier. I am not confident that receipts were lodged in the period 30 September 2002 to 28 May 2003 claiming 50 hours per week per child (refer below). For the reasons given earlier, I am not satisfied that within that period, care was provided at greater than 25 hours per week per child. Initially, I thought this submission did not have a factual basis because a memorandum at page 67 of the T‑documents dated 22 July 2004 records Mrs Delgado advising receipt of benefits at 25 hours per week “since 2001”.  However, payment schedules at pages 190 and 207 of the T‑documents record payments were not made after 29 September 2002 until September 2003 in the case of one child and August 2003 in the case of the other.

21.     The doubt expressed earlier about whether the receipts were lodged arises out of an observation of duplicate memorandums from the applicants’ Centrelink file lodged by Mr Perdon in his submissions of 18 October 2005.  The memorandums record that between July 2001 and November 2003, many contacts were made by the applicants and Centrelink officers concerning entitlements to child care benefit, family tax benefit and parenting payment.  On one occasion there was an enquiry concerning maternity immunisation allowance.  The numerous enquiries concerned qualification for and the rate of benefits during occasions when one or both applicants were and were not employed.  On occasions, estimates of income were given and raised.  On another occasion, an overpayment was raised and a debt was found.  It is little wonder that Mrs Delgado made a Freedom of Information request on 22 July 2004 (T‑documents, page 68) to allow a reconciliation of payments made into her bank account.

22.     The letters at pages 70 and 110 of the T‑documents from Mrs Delgado would suggest that duplicate receipts were posted to Centrelink within 12 months of the period of care, however Centrelink advised that receipts had not been received claiming payment greater than 25 hours per week per child.  I think this is probably correct.  The frequency of contact by the applicants with Centrelink and the nature of their relationship suggest that missing forms would have been raised much earlier than July 2004, as opposed to many enquiries being made previously concerning entitlements to child care and other benefits.  That child care benefit was claimed after May 2003, when there was no entitlement points to confusion concerning entitlement to benefits.  On balance, I am not satisfied that receipts were lodged, claiming 50 hours per week per child, until July and October 2004.

23.     I should also acknowledge, that for the weeks of 4 and 25 March 2001, payment was made, with respect to one child, at 50 hours per week.  These payments were made following a telephone enquiry of 24 September 2001 (refer T‑documents, pages 43 and 199).  The basis for those payments and the timing is unclear.  Equally unclear is why the increased payments were made for those two weeks only.  If there was an entitlement for payment for each child at 50 hours per week from March 2001 there would surely have been continuing representations to Centrelink, particularly when the payments reverted to the equivalent of 25 hours per week per child.  I also note that a letter was forwarded to the applicants on 24 September 2001 (T‑documents, page 44) notifying of a maximum entitlement of 50 hours per week per child.  Prior to this date also the applicants received letters on 12 January 2001 and 30 July 2001 (at T10 and T16 respectively) advising them of this maximum entitlement.  That would have put the applicants on notice of the extent of entitlement yet receipts claiming 50 hours per week per child for periods prior to May 2003 were not lodged until July 2004.  Payments at 50 hours per week per child were made from September 2003.  I do not know why, more so because from May 2003 there was no entitlement

24.     This review was completed “on the papers”, being the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the extensive written submissions of both parties. The review was conducted in this manner at the request of the applicants (to which the respondent consented). The applicants’ solicitors wrote to the Registrar on 17 October 2005 advising that due to “legal advice that she has obtained” and because “she does not wish to attend the hearing” (which was scheduled for 19 October 2005), a review be completed pursuant to s 34J of the AAT Act. A review under s 34J is an efficient and inexpensive manner of conducting a review, but the absence of the parties prohibits the opportunity to clarify the documents or ask questions. The letter of 17 October 2005 left me with no doubt that the applicants would not attend a hearing, if convened. I also noted they were both legally represented. Accordingly, the conclusion reached in this review has had regard to all the documents and where necessary, interpretations were made.

25.     I am satisfied on the documents read that the decision made by the SSAT is correct and preferable and should be affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         .....................................................................................
  Associate

Date of Hearing  Completed on the papers
Date of Decision  10 November 2005