Fagan and Secretary, Department of Family, Community Services and Indigenous Affairs

[2007] AATA 2038

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2038

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/406

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICIA FAGAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J Campbell, Member

Date11 December 2007

PlaceSydney

Decision The decision under review is affirmed.

....................sgd..........................

Dr J Campbell     
  Member

CATCHWORDS

Social Security – Family Tax Benefit – shared cover – claim for Family Tax Benefit for year 2002/2003 - lodged February 2006 – issue of advice rendered – decision under review is affirmed.

RELEVANT ACT/S:

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999: Part 3, section 5, section 7, section 10(2)

REASONS FOR DECISION

11 December 2007	Dr J Campbell, Member
Summary

1.      On 21 February 2006 Ms Fagan (“the Applicant”) submitted a claim for an annual lump sum payment of Family Tax Benefit (“FTB”) for the 2002/2003 financial year. The claim was rejected on 15 March 2006 by the Secretary, Department of Family, Community Services and Indigenous Affairs (“the Respondent”) because the claim was lodged too late.

2.      The decision of 15 March 2006 was reviewed and affirmed by a Centrelink Authorised Review Officer (“ARO”) on 6 September 2006.  The decision by the Social Security Appeals Tribunal (“SSAT”) heard on 29 January 2007 affirmed that decision. The decision of the SSAT is the subject of this review by the Administrative Appeals Tribunal (“AAT”).

3.      The relevant issues in this matter are:

(a)Whether Ms Fagan’s claim for FTB for financial year 2002/2003 lodged on 21 February 2006 was an effective claim?

(b)In the event that Ms Fagan’s claim is found not to be an effective claim, are the circumstances surrounding the late lodgement by Ms Fagan sufficient for consideration to be given for an “act of grace” payment to be made?

Decision

4.      For reasons stated later in this decision, I find that:

(a)Ms Fagan’s claim lodged on 21 February 2006 for FTB for financial year 2002/2003 was not an effective claim; and

(b)Assessment of the circumstances that has led to Ms Fagan’s late lodgement of a claim for FTB for financial year 2002/2003, is in my view of sufficient imperative to warrant consideration be given by the Respondent to seek authority to pay an “act of grace” payment to Ms Fagan to offset the loss arising as a consequence of an effective claim not having been lodged.

Background

5.      Ms Fagan was married in 1988, with a son being born in 1996.  Ms Fagan received a carer’s allowance for, Rhys, (“the son”) from March 1997, the son having been diagnosed with autism at the age of one.

6.      Ms Fagan suffered an injury to her back on 12 November 2001, resulting in a continuing condition, with chronic and severe back pain being the predominant symptom.

7.      Between November 2001 and March 2002, difficulties arose within the marriage, with Ms Fagan’s then husband, Mr Abela, departing on three separate occasions.  Ms Fagan and her ex-husband, Mr Abela, separated on 1 March 2002, with Ms Fagan moving to live with her elderly mother.  The son, at the time of separation was domiciled with his father, Mr Abela.

8.      In early March 2002, Ms Fagan suffered a mental breakdown (anxiety and depression) and was admitted to a psychiatric facility, where she remained for several weeks.  On discharge from hospital, Ms Fagan returned to live with her elderly mother.  Ms Fagan nominated that her son was back in shared care by 1 July 2002 (T5 p32) and provided documentary evidence to the effect that he spent 29 percent of the 2002/2003 year in her care (T7 p59).

9.      While under care in hospital in March 2002 for her psychiatric condition, arrangements were made for her to receive a disability support pension (“DSP”) because of significant impairment arising from her back condition.

10.     Ms Fagan related how on 5 April 2002, she rang Centrelink to inform them of changed circumstances in relation to her marriage and that the son was currently living with his father.  Ms Fagan stated that at the time she had just been discharged from hospital and that she was heavily medicated.  To avoid overpayment of benefits Ms Fagan notified Centrelink of changes to her circumstances on 5 April 2002.  Such changed circumstances indicated her period of hospitalisation, her separation from her husband and that the son had been living with his father from 1 March 2002.

11.     Centrelink records detail that Ms Fagan contacted them to advise of such a change in her circumstances on 5 April 2002; 8 April 2002; 10 April 2002; 17 April 2002 and 20 April 2002, with both FTB payment and child disability allowance ceased with effect from 1 March 2002 and overpayment notices raised. 

12.     Further documentation held by Centrelink records detail Ms Fagan seeking advice on the following dates; on 3 December 2002 concerning the current income test for a person on a single pension; on 2 January 2003 concerning tax and threshold re: DSP payments and on 19 and 20 June 2003 concerning property settlement proceeds arising from sale of marital property, together with details of divorce proceedings.  Further documentation details matters relating to advice on name change (25 June 2003); for clarification on coding (19 September 2003) and reissue of concession cards (10 November 2003).

13.     Ms Fagan stated that there had been increasing interpersonal difficulties with her ex-husband, leading up to their divorce on 3 August 2003.  Such difficulties have continued, as noted by the issue of interim Family Court orders in February 2006 and consent orders in May 2006 in relation to child access issues, with Ms Fagan advising during the hearing that her son had been returned to her sole care, without discussion as and from 2 March 2007.

14.     Ms Fagan contends that despite interaction with Centrelink in relation to DSP, and other issues relating to her circumstances, including her disability, her mental illness and enquires about her entitlements and at no stage was she informed of her entitlements, in relation to shared care FTB or carer’s allowance and a health care card for her son. In her oral evidence, Ms Fagan stated that she remained unaware of such entitlements until September 2005, after which she made a claim for an annual lump sum payment of FTB for financial years 2003/2004 and 2004/2005.  The claim for financial year 2002/2003 was not lodged until 21 February 2006 because of an absence of an appropriate claim form not being made available to Ms Fagan.

Consideration and Findings

15.     I have considered all the material before me in this matter.  It is evident that Ms Fagan experienced particularly difficult circumstances in late 2001 and the first half of 2002.  In this period she suffered a disabling back condition, a separation and hospitalisation for depression and anxiety.  As a consequence of her health circumstances, her autistic son resided with his father from the time of separation 1 March 2002 to 30 June 2002.  From that period, the evidence before me indicates that the son has been in shared care until 7 March 2007, at which time the son’s care has become the sole responsibility of Ms Fagan.  I note that for the financial year 2002/2003, the shared care arrangements as detailed in the clinical records of Ms Fagan.  I accept those records as a factual circumstance of the care arrangements for that year.

16.     I note that Ms Fagan lodged her claim for an annual lump sum payment of FTB on 21 February 2006 for the 2002/2003 financial year.

17. I further note that Part 3, section 5 of A New Tax System (Family Assistance) (Administration) Act 1999 (“the Administration Act”) states that the only way that a person can become entitled to be paid FTB is to make a claim in accordance with this subsection.

18. In relation to claims for payment of FTB for past periods, section 7 of the Administration Act, details the requirements necessary for an effective claim. Such requirements must include; being made in the correct form and manner; contain the required information and be accompanied by any documents as required by the Secretary.

19. More importantly in this matter, I note section 10(2) of the Administration Act which provides:

…

Claim must relate to one income year and not be made after the end of the next income year

(2)A claim for payment of family tax benefit for a past period is not effective if:

(a)the period does not fall wholly within one income year; or

(b)the period does fall wholly within one income year but the claim is made after the end of the 2 income years immediately following that income year.

…

20. I note that for Ms Fagan to lodge an effective claim for FTB for financial year 2002/2003, any such claim would have to be lodged by 30 June 2005, if section 10(2) of the Administration Act was to be satisfied. Clearly in this matter, Ms Fagan was not aware of any entitlement to shared care FTB until September 2005, and did not lodge a claim until February 2006, for want of the correct form.

21.     I note the absence of any discretion available to a decision-maker in the nominated statutory circumstances that I have outlined.  In such circumstances, Ms Fagan’s claim for a lump sum payment of FTB for financial year 2002/2003 must be denied, for failure to lodge the claim within the defined statutory time frame (30 June 2005) results in a claim which is not effective.  With such findings, the decision under review is affirmed.

Other Considerations

22.     In considering all the material before me, I observe that Ms Fagan’s experienced particularly troubled circumstances in the period from late 2001 and the first half of 2002.  These included suffering a severe back injury for which she was granted DSP in March 2002, separation from her husband in a domestic environment which included a young autistic son, and hospitalisation for some weeks for a mental illness (depression and anxiety).

23.     Further, I note that initial communication with Centrelink was immediately following her discharge from hospital and at a time when she was medicated heavily for both her physical and mental disabilities.  I note her endeavours to inform Centrelink of her changed circumstances.

24.     I note that Ms Fagan was able to resume shared care of her son while living with her aged mother.  I note the ensuing three years during which there is much evidence of continuing disharmony between Ms Fagan and her ex-husband, as well as Ms Fagan continues to experience much difficulty from her back condition.

25.     I also note the record of communication detailed by the Centrelink documentation during the period.  It is evident, that Centrelink was made aware of Ms Fagan’s physical injury for which she was granted DSP, her separation and divorce from her husband, the cessation of child disability allowance payments and FTB payments to Ms Fagan from 1 March 2002, with her son being in the sole care of Mr Abela, until 30 June 2002.

26.     In such circumstances, I consider that Centrelink has a responsibility to correctly advise Ms Fagan, of what her entitlements are.  In relation to both FTB and carer’s allowance, there is no evidence to suggest that Ms Fagan was advised that benefits may or may not be payable in shared care arrangements, and further, what documents may be required when claims for such are made.  I recognise that an individual also has a responsibility to seek and pursue their own particular entitlement benefits, but such a responsibility is difficult to pursue, when an individual's mind is clouded by physical and mental impairment arising from both the conditions and medications given to threat the conditions.

27.     In the circumstances of the matter, I believe the greater responsibility lies with Centrelink.  Failure on their part to do so, permits me to recommend that consideration be given for an “ex gratia” payment is to be sought for payment of a lump sum FTB payment to Ms Fagan for financial year 2002/2003, at a rate that recognises that Ms Fagan cared for her son for 29 percent of that year.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member

Signed:   ................................sgd..............................................
                Associate: Felicia Daniele

Date/s of Hearing:  16 October 2007
Date of Decision:  11 December 2007
Solicitor for the Applicant:         Unrepresented
Counsel for the Applicant:        
Solicitor for the Respondent:     Glenda Heggen, Centrelink Legal Services Branch.
Counsel for the Respondent: