El Abboud and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1022

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1022

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1963

GENERAL ADMINISTRATIVE DIVISION		)
Re		FATMA EL ABBOUD

Applicant

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

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date14 November 2008

PlaceSydney

Decision The decision under review is affirmed.

...................[Sgd]......................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – whether applicant entitled to arrears of family tax benefit – limited backdating – decision under review affirmed

A New Tax System (Family Assistance) Act 1999 – sections 22 and 58, Schedule 1

A New Tax System (Family Assistance) (Administration) Act 1999 – sections 32, 109A, 109D and 109E

Guide to Social Security Law – 3.1.5.30

REASONS FOR DECISION

14 November 2008   Ms N Isenberg, Senior Member   

BACKGROUND

1.      Mrs El Abboud and her husband married in Lebanon in 2000.  At that time Mr El Abboud already had a young child, Salam who had resided with him exclusively since she was 15 months old.  The whereabouts of her mother were unknown.  When the couple came to Australia, the child remained in Lebanon with Mr El Abboud’s mother.  When Mrs El Abboud was pregnant with their first child they arranged for Salam to join them permanently in Australia.  She arrived within days of the birth of her step-brother.  Mrs El Abboud claimed and was paid family tax benefit (“FTB”) in respect of the baby and Salam. 

2.      The FTB scheme is, broadly speaking, designed to supplement the maintenance of a child through payments made by the non-custodial parent, on the principle that it is the parent, rather than the taxpayer, who should, in the first instance, contribute to the support of the child. 

3.      In accordance with this principle, after a few weeks, the rate of FTB for Salam decreased to the base rate because Mr and Mrs El Abboud were not taking action to seek maintenance for Salam.

4.      On 8 November 2002, before the rate was decreased, Centrelink sent Mrs El Abboud a notice stating her rate of FTB and informing her that she was required to take reasonable action to obtain child support for Salam in order to receive more FTB.

5.      On 20 June 2006, another notice was issued to Mrs El Abboud to the same effect.  A similar letter was sent to her on 18 June 2007.

6.      A number of other letters were also sent to Mrs El Abboud about the rate of her FTB.

7.      On 24 July 2007, in the course of a discussion with Mrs El Abboud, a Centrelink officer noticed that Mrs El Abboud was receiving FTB at the base rate for Salam because maintenance had not been claimed.  As a result, Mrs El Abboud was referred to the Child Support Agency (“CSA”).  On 2 August 2007, Mrs El Abboud provided Centrelink with a letter from the CSA noting that maintenance could not be collected from Salam’s mother since she was overseas and her whereabouts were unknown.  These circumstances entitled Mrs El Abboud to be paid FTB at a higher rate.  Centrelink was prepared to pay the higher rate from 24 July 2007.

8.      Mrs El Abboud contended that she should be paid at that higher rate from the date her claim was lodged because she was not advised of the requirement to claim maintenance from Salam’s mother. 

9.      The SSAT found that arrears were payable from 1 July 2006.  At the hearing Centrelink conceded that this was the appropriate date from which the higher rate of FTB should be resumed, but not earlier.

ISSUE

10.     Is Mrs El Abboud entitled to payment of arrears of FTB for Salam from a date earlier than 1 July 2006?

CONSIDERATION OF THE EVIDENCE

rate of ftb

11. There was no dispute that Mrs El Abboud was entitled to FTB in respect of Salam at the time of her claim: section 22 of the A New Tax System (Family Assistance) Act 1999 (“the Act”).

12. The rate of FTB is calculated in accordance with a Rate Calculator in Schedule 1 of the Act: section 58(1). Clause 10 of Schedule 1 limits the amount of FTB (Part A) to the base rate if it is reasonable for the person to take action to claim maintenance on behalf of a child in his or her care and does not do so.

13. Centrelink contended that Mr and Mrs El Abboud had failed “the maintenance action test” prior to 2 August 2007, namely by not complying with Centrelink’s Guidelines (set out in the Respondent’s Statement of Facts and Contentions and sourced from Centrelink Guidelines 3.1.5.30). As I discussed at the hearing, whether or not they had met the Guidelines, did not in fact address the test in the legislation – clause 10 of Schedule 1 of the Act, namely whether it was reasonable for Mr and Mrs El Abboud to take action to obtain maintenance from Salam’s mother.  The Guidelines address how one might demonstrate that reasonable steps have in fact been taken.  Some options include contacting the CSA.

14.     Mr and Mrs El Abboud claimed they were not advised of the requirement to take maintenance action for Salam.  There was a Centrelink computer file note to the effect that Mr El Abboud was advised to contact the CSA on the day the claim was lodged.  Mrs El Abboud said that although they went together to lodge the claim, it was her application, and her husband took no part in the interview because he speaks no English.  To have informed Mr El Abboud, the Centrelink officer would have needed an interpreter.  If he had been told through Mrs El Abboud, or she had been told herself to contact the CSA, she would have done so because it would have meant they would receive more money.  She is the one who deals with all issues about the children.

15.     More relevantly though, in my view, was Mrs El Abboud’s evidence that since Salam had come into her husband’s care at the age of 15 months in about 1996, he had not known of the mother’s whereabouts.  By the time Salam came to Australia in August 2002, there had still been no contact.  Since the mother had given up all rights to Salam by Lebanese law, it was said,, there was no requirement to obtain her consent to allow Salam to come and live in Australia.  Although Mr and Mrs El Abboud still have family in Lebanon, no-one has heard of the mother’s whereabouts, even now.

16.     I accept that it was futile for Mr and Mrs El Abboud to seek maintenance for Salam because they had no idea of her mother’s whereabouts.  Therefore, it was not reasonable for them to take action to obtain maintenance.  In coming to this view, I note that when Mr and Mrs El Abboud did in fact contact the CSA in late July 2007, within days the CSA was able to inform Centrelink (through Mrs El Abboud) that the mother, the non-custodial parent, was at an unknown location overseas.  This was no more information than Mr and Mrs El Abboud had had for years.  The CSA’s assessment triggered re-instatement of FTB at the higher rate.

application for review

17. Section 32 of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Administration Act”) requires that a person receiving FTB be given notice of any variation of a determination, such as a reduction in the rate of FTB.

18.     By letter dated 8 November 2002, Mrs El Abboud was notified that if reasonable action was taken to seek child support, she might receive more FTB:

If you take reasonable action to obtain child support for Salam you may be eligible to receive more Family Tax Benefit Part A.

19.     The letter informed her of the rate of her FTB instalments, which was a reduction from what she had initially received.  Mrs El Abboud did not deny that she received the letter but could not recall reading this letter in particular.  She said that even if she had read it, she would not have thought it applied to her because Salam’s mother was overseas.  She thought it was for information only, but agreed in cross-examination that it put her on notice about seeking maintenance.

20.     She also could not specifically recall the letters of 20 June 2006 and 18 June 2007, but did not deny receiving them.  Mrs El Abboud agreed that the letters about her rate of FTB informed her that she had 52 weeks to appeal.  She probably did not read the “fine print”.  She said she received many letters from Centrelink that do not contain the notice about seeking maintenance.  As she was busy with the new baby, she did not notice that her FTB “dropped”.  Consequently, she made no enquiries about the reduced rate.  Furthermore, the rate of FTB fluctuated.  However, she did not think she had any reason to query the amounts she was paid.

21.     She did recall that she contacted Centrelink on 1 August 2005 but could not remember for what reason.  It was pointed out that this was shortly after the birth of her 2^nd child and that it may have been in relation to FTB for him.

22.     She agreed that it was not until 24 July 2007 that there was any discussion about the rate of FTB that could be claimed for Salam.    

23. An applicant can apply for a review of a decision under section 109A of the Administration Act. There is no time limit to make such an application where the decision relates to the payment of FTB by instalments: section 109D(6). However, section 109E states that if an applicant applies more than 52 weeks from the date of the original decision there is a limit on the date of effect of a review decision, unless there are special circumstances that prevented an applicant from seeking review: section 109E(2) .

24. I accept that the letter of 8 November 2002 was one relating to payment of FTB by instalments and a notice under section 32 of the Administration Act. The letter was clear and unambiguous in notifying Mrs El Abboud that a decision had been made and it provided the content of that decision. It informed her of the amount of FTB that she would be receiving from 26 October 2002 to 8 November 2002 and notified her of a new rate of FTB from 26 November 2002: a reduction from $380.26 to $300.44 per fortnight. It also advised her that she could seek review of that decision should she not agree with it. However, Mrs El Abboud did not query her FTB rate for nearly 5 years.

25.     I find that Mrs El Abboud failed to seek a review of the decision to reduce her rate of FTB in November 2002 within 52 weeks of receiving notification of that decision. 

are there special circumstances that prevented mrs el abboud from seeking review?

26.     I accept that Mrs El Abboud was busy with a new baby and with the arrival of her step-daughter.  However, there was no evidence that she was in any way incapacitated, so as to prevent her querying with Centrelink about her FTB payments. 

27.     I accept that she may not have thought that there was any relevance in the notice informing her to seek maintenance because the mother’s whereabouts were unknown.  She may or may not have read the letter on 2 November 2002, but the same information was provided to her in at least 2 subsequent letters in the ensuing almost 5 years.  She did not make any enquires as to why her FTB reduced or how she might maximize her FTB.

28.     She said she did not notice a reduction. However, the letter clearly informed her of this, yet she did not query her payment. 

29.     I find that Mrs El Abboud’s circumstances are not sufficiently special so as to attract section 109(2).

30.     As a result, there is a limit on the date of effect of the review decision.  Section 109E(1)(f) permits backdating only to 1 July 2006, that is, the first day of the income year before the income year when she requested review.  This was the decision of the SSAT and I agree with it.

DECISION

31.     The decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ..................[Sgd].......................
  Ms Radhika Prasad, Associate

Date of Hearing  30 October 2008
Date of Decision  14 November 2008
Appearance for the Applicant   Self-represented
Solicitor for the Respondent     Mr G Lozynsky, Centrelink legal services