Estafanos and Secretary, Department of Family and Community Services
[2005] AATA 1065
•25 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1065
ADMINISTRATIVE APPEALS TRIBUNAL )
) A2005/31
GENERAL ADMINISTRATIVE DIVISION ) Re GEHANE ESTAFANOS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date25 October 2005
PlaceCanberra
Decision The decision under review is affirmed. ..............................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – parenting payment partnered – periods of temporary absence from Australia – allowable absence – maximum portability period – waiting period – administrative error – child not a parenting payment child after expiry of portability period despite return to Australia for a period of less than 26 weeks - discretion to extend portability period limited to defined circumstances – decision under review affirmed
FAMILY TAX BENEFIT – periods of temporary absence from Australia – absent overseas recipient – maximum eligibility period during absence from Australia – effect of return to Australia for period of less than 26 weeks – rate of family tax benefit payable after 26 weeks period of initial absence – limited discretion to extend period of initial absence – no grounds for exercise of discretion – decision under review affirmed
Administrative Appeals Tribunal Act 1975 s34J, 37
Social Security Act 1991 ss 7, 500, 500D, 500F, 500H, 1217, 1218B, 1218C
A New Tax System (Family Assistance) Act 1999 ss 3, 21, 22, 24, 62, 63, 63A, Schedule 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461
Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543
REASONS FOR DECISION
25 October 2005 Mr S. Webb, Member 1. By this application Gehane Estafanos is seeking review of a Social Security Appeals Tribunal (“SSAT”) decision dated 13 January 2005 to affirm Centrelink decisions whereby her request for an extension of Parenting Payment (“PP”) and Family Tax Benefit (“FTB”) during the period of her absence from Australia was refused.
2. The parties requested the matter be dealt with on the papers. Substantially, the facts are not in dispute. I am satisfied that it is appropriate to conduct the review and determine the issues on the documents filed by the parties without the need for a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975.
the facts
3. I note that the documents filed by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and following conferences before a Tribunal Conference Registrar are not complete. Consequently, it is not possible to verify certain matters of fact that are incidentally relevant in these proceedings. However, as such matters are not determinative of the issues placed before the Tribunal, it is not necessary to delay proceedings and direct the Respondent to file the relevant documents. Nevertheless, such omissions are regrettable, especially in cases such as this where the Applicant is unrepresented, and will be noted where facts cannot be found as a result.
4. As to the facts arising from the documents filed by the parties, I am satisfied on the balance of probabilities of the following:
(a)Mrs Estafanos and her husband have been resident in Australia since 1995. They have three children, all of whom were born in Australia on the following dates: Sarah – 28 August 1995; Diana – 11 April 1997; Sandy – 3 October 2001 (“the children”) (T5).
(b)Mrs Estafanos’s mother suffers from chronic lymphocytic leukaemia and has been under continuous medical supervision and treatment at the Ospedale Italiano in Egypt for a long period, at least since 15 June 2002 (T4).
(c)Mrs Estafanos and the children departed Australia for Egypt and returned to Australia on the following dates (T23 and T24):
28 November 2001 – depart
9 January 2002 – return
8 May 2002 – depart
13 July 2003 – return
13 September 2003 - depart
I note that there appear to be errors in the Departmental records in T23 concerning the aforementioned departure of Mrs Estafanos and Sandy on 8 May 2002. Nonetheless, I am reasonably satisfied that she did depart Australia with all of the children on that date.
(d)The Respondent asserts that PP payments were ceased and FTB payments were reduced to the minimum rate during the period of Mrs Estafanos’s absence from Australia prior to her return on 13 July 2003. There is no evidence concerning PP or FTB payments to Mrs Estafanos prior to 13 July 2003 in the documents placed in evidence before me. However, Mrs Estafanos completed a Claim for Parenting Payment on 14 July 2003 (T5) in which she stated that she was, at that time, receiving a payment of $6.22 (T5 folio 21). On that basis I accept that it can be inferred that her PP and FTB payments were reduced as claimed during the period of her absence prior to 13 July 2003.
(e)On 4 September 2003 Mrs Estafanos informed Centrelink that she would be departing Australia on 13 September 2003 for Egypt. The Centrelink officer informed her that PP and FTB part A payments could continue until 13 March 2004 and FTB part B payments could continue until 13 September 2006 (T6). The officer noted, erroneously, that Mrs Estafanos and the children had “been in Australia for the last 26 weeks”.
(f)On 9 March 2004 PP payments to Mrs Estafanos ceased and her FTB payments were reduced to the base rate (T25).
(g)On 2 August 2004 Mrs Estafanos’s husband contacted Centrelink and requested extension of the portability period for PP as Mrs Estafanos and the children remained in Egypt caring for her sick mother (T12).
(h)On 5 August 2004 a Centrelink officer decided to refuse the request for an extension of PP and FTB payments (T15):
“… as you have not been entitled to benefits you have received since your absence from Australia on 13 September 2003. Under Section 1218B a person on Parenting Payment who has been overseas and returned as you did on 13 July 2003, must remain 26 weeks in Australia before going overseas again otherwise Parenting Payment is not payable…
…
Because you are not payable from 13 September 2003 for Parenting payment [sic] a debt will be raised from 13/9/03 for the Parenting Payment and similarly you will also owe a debt for being paid too much Family Tax Benefits [sic]”.
(i)On 16 August 2004 Mr and Mrs Estafanos wrote to Centrelink (T17). She claimed that she had requested an extension of the PP and FTB payments in writing and twice by telephone in February 2004. There is no documentary evidence in the materials before me to support that contention. In the absence of a response she claimed that subsequently her request was communicated by a relative, Ramez Estafanos, in person on 26 August 2004. Mrs Estafanos stated:
“We made nothing wrong, we was just misled by the [Centrelink] employees in the Queanbeyan office and it is not fair to get penalized for that, specially we were intending to stay in Australia for what ever till we be eligible for the payments.”
(j)The Centrelink records indicate that Ramez Estafanos communicated a request for review of the original decision on 5 November 2004 (T20).
(k)On 9 November 2004 a Centrelink Authorised Review Officer decided to affirm the original decision (T21):
“On 5 August 04 Centrelink decided not to extend payment of PP after 9 March 04.
This decision was legally correct and I am unable to change it.
Your FTB was reduced to the lower rate in March 04.
I have decided not to change that decision.”
(l)On 13 January 2005 the SSAT reviewed the matters and decided to “affirm the decisions under review” (T2).
issues for determination
5. It is desirable in cases such as this to address all issues of disputation in relation to the particular claim in question. However, the Tribunal does not exercise power at large and exercises the powers of the original decision-maker for the purpose of review (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461). The exercise of power by the Tribunal in these proceedings is confined to determining whether the decision under review was the correct or preferable decision considering all of the material placed before it. Simply put, the question for determination by the Tribunal is the same as the question that was before the original decision-maker.
6. The scope of the issues considered by the original decision-maker on 5 August 2004 included the extension of PP and FTB payments after 9 March 2004 as well as issues of overpayment and debt in the period from 13 September 2003 to 9 March 2004, although the decision-maker did not determine the amount of any such debt (see T15 folio 57). It is perhaps not surprising, therefore, that the issues Mrs Estafanos raised in her letter to Centrelink dated 16 August 2004 (T17) include issues of over-payment and administrative error prior to 9 March 2004 and are not confined to her request for an extension of the PP and FTB payments. Strictly, however, Centrelink’s decision to raise a debt as a result of purported over payment of FTB prior to 9 March 2004 (see T19) is not before me in these proceedings. On the papers, Mrs Estafanos has not requested review of that decision. On the papers, no debt has been raised in relation to any alleged overpayment of PP (see T22).
7. It follows therefore that the issues for determination in these proceedings are:
(a)Whether Mrs Estafanos was entitled to receive PP payments in the period from 13 September 2003 to 9 March 2004;
(b)whether there are grounds to extend the portability period for PP after 9 March 2004;
(c)whether Mrs Estafanos was entitled to payment of FTB at a rate greater than the base rate in the period from 13 September 2003 to 9 March 2004; and
(d)whether there are grounds to extend the initial 26 week period for payment of FTB at a rate above the base rate from 9 march 2004.
legislation and legal principles
8. The Social Security Act 1991 as it stood at relevant times prior to 1 July 2004 (“the SS Act”) and the A New Tax System (Family Assistance) Act 1999 as it stood at relevant times prior to 1 July 2004 (“the FA Act”) apply. References to these enactments in these reasons will be to the relevant provisions as they stood prior to 1 July 2004 unless otherwise stated.
9. The qualification requirements for PP are set out at s 500 of the SS Act. There is no issue in these proceedings about Mrs Estafanos’s Australia residency status at any relevant time pursuant to ss 7 and 500 of that Act. Essentially, to qualify for PP a claimant must have at least one PP child within the meaning of s 500D. If a PP child of a person temporarily leaves Australia for more than 26 weeks that child will only continue to be the PP child of that person if he or she is in the company of the person and the person’s portability period for parenting payment has not ended (s 500F). If a child ceases to be a PP child of the person by operation of s 500F and the child returns to Australia but departs again within a period of 26 weeks, the child is not the PP child of the person from the date of the departure from Australia (s 500H).
10. The maximum PP portability period in relation to a temporary absence from Australia is in accordance with s 1217 of the SS Act as it stood at the relevant time, that is a period of 26 weeks (subs 1217(1)). There is discretion in the Secretary to extend a person’s portability period in certain circumstances (s 1218C). However, the discretion may only be exercised in cases where a person is unable to return to Australia because of the occurrence or commencement of a specified event during the period of the person’s absence from Australia. In relation to PP a person’s absence is an allowable absence within the meaning of subs 1217(2) as it stood at the relevant time if it is a temporary absence of less than 26 weeks duration.
11. S 1218B provided that PP is not payable to a person during the period of an absence in certain circumstances:
“SECT 1218B
Exception—waiting period in Australia before parenting payment
is portable
If:
(a) immediately before the period of absence commenced, the person was receiving parenting payment; and
(b) at a time not more than 26 weeks before the period of absence commenced, parenting payment had ceased to be payable to the person because:
(i) the person's portability period for parenting payment in relation to another period of absence ended; or
(ii) another absence had ceased to be an allowable absence for parenting payment;
parenting payment is not payable to the person during the period of absence.”
12. As can be seen, there is a 26 week exception period to be calculated from the date on which the person’s absence from Australia commenced. The phrase ‘at a time’ connotes a temporal locus in relation to an event. The event in this case is the ceasing of PP payability to a person in relation to a prior period of absence from Australia. The use of the pluperfect tense ‘had ceased’ implies the occurrence of the ceasing on or before the ‘time’ contemplated by the section. The proper construction, therefore, is that the ‘time’ contemplated by the subsection refers to a period when PP ‘had ceased to be payable’. If that ‘time’ occurs within the period of 26 weeks prior to the person’s departure from Australia, then PP is not payable to the person from the date of such departure.
13. The eligibility requirements for FTB are set out at s 21 of the FA Act. Essentially to be eligible for FTB a person must have at least one FTB child pursuant to s 22 of the FA Act. It is not in dispute that Mrs Estafanos was an Australian resident within the meaning of s 3 of the FA Act and s 7 of the SS Act at all material times. The effect of certain absences from Australia of an FTB child and an FTB claimant are set out at s 24 of the FA Act. Essentially, a 3 year limit is imposed on FTB eligibility. Furthermore, if an FTB child or an FTB claimant has been absent from Australia for more than 26 weeks (but less than 3 years) and the child or the claimant returns to Australia but leaves again within 26 weeks, the FTB child or claimant is taken not to have returned to Australia for the purpose of calculating the 3 year FTB eligibility period pursuant to subs 24(4) of the FA Act.
14. The absence of an FTB child or an FTB claimant from Australia may affect the rate at which FTB is payable (see ss 62 and 63 of the FA Act). Relevantly, in these proceedings, an FTB claimant becomes an absent overseas recipient within the meaning of subs 62(2) if he or she remains absent from Australia for a period of more than 26 weeks. If, thereafter, the FTB claimant returns to Australia but leaves again within a period of 26 weeks, the claimant continues to be an absent overseas recipient from the date of the latter departure. Subs 24(4) modifies the FTB rate calculator at Schedule 1 of the FA Act in relation to absent overseas recipients.
15. There is discretion in the Secretary to extent the initial 26 week period of absence from Australia in relation to an FTB claimant (s 63A). However, the discretion is limited in scope and may only be exercised in the case of a claimant who is unable to return to Australia within the 26 week period because a specified event occurred or commenced during the period of absence.
consideration
16. In making this decision I have carefully considered all of the materials, the relevant case law and legislation.
17. The position contended for by the Respondent is that Mrs Estafanos was entitled to receive PP and FTB payments at the higher rate for a period of 26 weeks following her departure from Australia with the children on 8 May 2002. Thereafter, it is said, her PP payment was correctly ceased and her FTB payment correctly reduced to the base rate until her return to Australia on 13 July 2003. In the Respondent’s submission as Mrs Estafanos departed Australia on 13 September 2003, that is within a period of 26 weeks, she is not entitled to PP or FTB payments at the higher rate from that date. Furthermore, the Respondent contends that there are no grounds to extend the PP portability period or the initial 26 week period of absence for the purposes of calculating FTB.
18. Mrs Estafanos contends that she relied upon the advice she was given by Centrelink staff and planned her travel arrangements accordingly. In her submission it is unfair to “penalize” her for Centrelink’s errors.
19. Mrs Estafanos’s entitlement to receive PP on 13 September 2003 is subject to her meeting the qualification criteria for that payment at that time. The contention of the Respondent is that Mrs Estafanos had ceased to be entitled to receive PP prior to her return to Australia on 13 July 2003. There is no evidence before me to support that contention other than the movement records in T23 and T24. Nonetheless, it can be inferred from those records that Mrs Estafanos would have ceased to be entitled to receive PP when, by operation of s 500F, the children ceased to be her PP children 26 weeks after their departure from Australia on 8 May 2002. Furthermore, by operation of subs 1217(4) of the SS Act, Mrs Estafanos’s absence would have ceased to be an allowable absence within the meaning of subs 1217(2) of the SS Act and her PP portability period would have ended 26 weeks after her departure from Australia on 8 May 2002. I so find.
20. When Mrs Estafanos and the children returned to Australia on 13 July 2003 she again qualified to receive PP. I am satisfied, however, that she ceased to be so qualified when she departed Australia with the children within a 26 week period thereafter on 13 September 2003, whereupon the children ceased to be PP children by operation of s 500H.
21. Furthermore, Mrs Estafanos was not entitled to payment of PP by operation of s 1218B. Her entitlement of payment of PP had ceased 26 weeks after her departure on 8 May 2002. That disentitlement continued until her return to Australia with the children on 13 July 2003. However, the time during which PP was not payable as a result of her previous absence, that is prior to 13 July 2003, was within the 26 week period immediately prior to her departure on 13 September 2003. It follows and I find that PP is not payable, therefore, during the period of her absence commencing on 13 September 2003.
22. Absent qualification for PP during the period in which Mrs Estafanos and the children remained absent from Australia after 13 September 2003, there is no basis to her claim for extension of the PP portability period after the passage of 26 weeks. Her PP portability period ceased 26 weeks after her departure from Australia on 8 May 2002.
23. Even if that were not the case I am not persuaded that there would be sufficient grounds to exercise the discretion to extend the period of her PP portability period. Mrs Estafanos is seeking an extension on the basis that she is caring for her mother who is unwell. On the evidence before me Mrs Estafanos’s mother has been unwell for a long period of time and there is no evidence of any event that is within the meaning of subs 1217 of the SS Act occurring or commencing during the period of Mrs Estafanos’s absence from Australia that rendered her unable to return. Her mother’s ongoing ill-health did not render her unable to return to Australia in July 2003: she and the children did so on 13 July 2003. There is no evidence of any change in the health status of Mrs Estafanos’s mother occurring after her departure on 13 September 2003 that rendered her unable to return. That being so it is not appropriate to exercise the discretion to extend the period of Mrs Estafanos’s PP portability period.
24. With regard to FTB, the Respondent contends that Mrs Estafanos is only entitled to payment of FTB at the “lower rate” following her departure from Australia on 13 September 2003.
25. Mrs Estafanos’s entitlement to payment of FTB during the periods of her absence from Australia must be considered in relation to ss 21, 24, 62, 63 and 63A of the FA Act. There is scant evidence concerning her FTB entitlement during the period of her absence with the children prior to 13 July 2003. I note the movement records in T23 and T24. The Respondent contends that, following Mrs Estafanos’s departure from Australia on 8 May 2002 with the children, the rate of her FTB payments was reduced prior to her return on 13 July 2003. Considering the movement records, I am satisfied that Mrs Estafanos’s departure from Australia on 8 May 2002 was the commencement date for assessment of the rate of her FTB payments pursuant to s 62 of the FA Act and for the purpose of calculating her maximum FTB eligibility period pursuant to subs 24(4) of that Act. I so find.
26. It follows therefore, that Mrs Estafanos is entitled to payment of FTB for a maximum period of absence from Australia of 3 years commencing on 8 May 2002. Even though Mrs Estafanos and the children returned to Australia in the period from 13 July 2005 to 13 September 2003, by operation of subs 24(2) and (5) of the FA Act, they are taken not to have returned during that period for FTB purposes pursuant to subs 24 (1) and (4). I so find.
27. Furthermore, Mrs Estafanos became an absent overseas recipient within the meaning of subs 62(2) of the FA Act 26 weeks after her departure from Australia on 8 May 2002. By operation of subs 62(3) she continued to be an absent overseas recipient on the event of her departure from Australia on 13 September 2003 as her departure occurred within 26 weeks of her return to Australia on 13 July 2003. I so find.
28. It follows and I am satisfied that the rate of FTB that is payable to Mrs Estafanos during the period of her absence from Australia commencing on 13 September 2003 is to be calculated pursuant to subs 62(4) of the FA Act, that is at the ‘lower rate’.
29. Considering all of the evidence, for reasons that are set out at paragraphs 22 and 23 above, I am reasonably satisfied that no grounds exist to exercise the discretion to extend the initial 26 week period for FTB payment pursuant to s 63A of the FA Act and so find. On the evidence before me, Mrs Estafanos’s request for such extension is not made out within the terms of s 63A of the Act.
30. That being so the decision under review is affirmed.
31. I note in conclusion that Mrs Estafanos received PP and FTB payments to which she was not entitled. However, such overpayment was the result of the administrative error of Centrelink. Issues concerning the raising and recovery of debts in relation to the overpayments Mrs Estafanos received are not strictly before me in these proceedings. Mrs Estafanos has not requested review of Centrelink’s decision to raise and recover a debt from her as a result of FTB overpayment. However, I note that administrative error, alone, is not sufficient ground for waiver of such a debt. It must also be established that Mrs Estafanos received the overpayments in good faith and would suffer severe financial hardship if the debt is not waived. I make no findings in that regard.
32. There is no power in this Tribunal to award Mrs Estafanos compensation as a result of Centrelink’s administrative error. That is a matter for the Secretary. I note that Mrs Estafanos claims that she made her travel arrangements on the basis of the advice she received. Plainly a person in her circumstances, who is not possessed of a detailed knowledge of the applicable law, is entitled to rely on the advice and information provided to her by the Commonwealth (Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543).
decision
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....................................................................................
Associate
Date of Hearing 13 October 2005
Date of Decision 25 October 2005
Representative for the Applicant Self representedRepresentative Respondent Gary Richardson, Centrelink Legal Services Branch
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