FULLER and SECRETARY, DEPARMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS - [2010] AATA 822

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 822
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0302

GENERAL ADMINISTRATIVE DIVISION )

Re HAYLEY FULLER

Applicant

And

SECRETARY, DEPARMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And

YVETTE ASHENDEN

Other Party

DECISION

Tribunal Dr M Denovan, Member
Date25 October 2010
PlaceBrisbane

Decision
The Tribunal:

(1)     Sets aside the decision of the Social Security Appeals Tribunal (“SSAT”) which extended the period of debt from 24 October 2007 to 27 October 2008, and substitutes its decision that the period of family tax benefit (“FTB”) debt is from 1 March 2008 to 27 October 2008; and,

(2)     Sets aside the decision of the SSAT that cancelled the applicant’s FTB payments in respect of her daughter (“A”) from 24 October 2007, and substitutes its decision that FTB payments in respect of A are cancelled from 1 March 2008; and,

(3)     Affirms the decision of the SSAT to raise and recover a FTB debt for the period 19 January 2009 to 16 February 2009; and,

(4) Pursuant to s 101 of the A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”), waives the FTB debt for the period 1 March 2008 to 1 May 2008.

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

CATCHWORDS
SOCIAL SECURITY – Family tax benefit – Qualification to receive family tax benefit during the relevant period – If the applicant was overpaid family tax benefit should the debt be waived – Decision of Social Security Appeals Tribunal to extend the period of the debt set aside – Decision of Social Security Appeals Tribunal to cancel the applicant’s family tax benefit payments from 24 October 2007 set aside – Decision of Social Security Appeals Tribunal to raise and recover debt for specific period affirmed – Debt for remaining period waived.
A New Tax System (Family Assistance) Act 1999 (Cth) s 22
Social Security (Administration) Act 1999 (Cth) ss 71, 97, 101
Director-General of Social Services v Hales (1983) 47 ALR 281
Dranichnikov and Another v Centrelink and Another (2003) 75 ALD 134
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Lucey and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 485
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461
REASONS FOR DECISION

25 October 2010 Dr M Denovan

1.      Hayley Fuller, the applicant, has a daughter (“A”) born in 1993. On 24 October 2007 A ceased to live with the applicant. Ms Fuller continued to receive family tax benefit (“FTB”) on the basis that she had 100% care of A until 23 March 2009.
2.      On 18 February 2009 Centrelink decided to cancel Ms Fuller’s FTB in respect of A from 1 March 2008. On the same day Centrelink decided to raise and recover a FTB debt of $4,018.24 for the period 1 March 2008 to 27 October 2008, and a FTB debt of $464.29 for the period 19 January 2009 to 16 February 2009.
3.      Ms…

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: FULLER and SECRETARY, DEPARMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS [2010] AATA 822
Case: [2010] AATA 822
Decision Date: 25 October 2010

CaseChat Overview and Summary

The case between Fuller and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs involves a dispute over the correct period for which the applicant was overpaid family tax benefit and the appropriate period for which a debt should be waived. The matter was heard by the Administrative Appeals Tribunal (AAT), which had to determine the correct period for which the applicant was overpaid family tax benefit and whether a debt should be waived for a specific period. The court was required to consider the relevant statutory provisions, particularly sections 71, 97, and 101 of the Social Security (Administration) Act 1999, as well as the A New Tax System (Family Assistance) Act 1999. The AAT also had to take into account relevant case law, including Director-General of Social Services v Hales, Dranichnikov and Another v Centrelink and Another, Drake and Minister for Immigration and Ethnic Affairs (No 2), Re Lucey and Secretary, Department of Education, Employment and Workplace Relations, and Secretary, Department of Family and Community Services v Holmes.

The AAT considered the statutory provisions and relevant case law in making its decision. The Tribunal found that the Social Security Appeals Tribunal (SSAT) had incorrectly extended the period of debt from 24 October 2007 to 27 October 2008. The AAT substituted its decision, determining that the period of family tax benefit debt is from 1 March 2008 to 27 October 2008. The AAT also found that the SSAT had incorrectly cancelled the applicant’s family tax benefit payments in respect of her daughter from 24 October 2007, and instead substituted its decision that family tax benefit payments in respect of the daughter are cancelled from 1 March 2008. The AAT affirmed the SSAT’s decision to raise and recover a family tax benefit debt for the period 19 January 2009 to 16 February 2009. Finally, the AAT determined that pursuant to section 101 of the A New Tax System (Family Assistance) Act 1999, the family tax benefit debt for the period 1 March 2008 to 1 May 2008 should be waived.

The final orders of the AAT were that the decision of the SSAT to extend the period of debt was set aside and replaced with a decision that the period of family tax benefit debt is from 1 March 2008 to 27 October 2008. The decision of the SSAT to cancel the applicant’s family tax benefit payments from 24 October 2007 was also set aside, and replaced with a decision that family tax benefit payments in respect of the applicant’s daughter are cancelled from 1 March 2008. The decision of the SSAT to raise and recover a family tax benefit debt for the period 19 January 2009 to 16 February 2009 was affirmed. Finally, the AAT determined that the family tax benefit debt for the period 1 March 2008 to 1 May 2008 should be waived.

Orders

Orders of the court

The Tribunal:

(1) Sets aside the decision of the Social Security Appeals Tribunal (“SSAT”) which extended the period of debt from 24 October 2007 to 27 October 2008, and substitutes its decision that the period of family tax benefit (“FTB”) debt is from 1 March 2008 to 27 October 2008; and,

(2) Sets aside the decision of the SSAT that cancelled the applicant’s FTB payments in respect of her daughter (“A”) from 24 October 2007, and substitutes its decision that FTB payments in respect of A are cancelled from 1 March 2008; and,

(3) Affirms the decision of the SSAT to raise and recover a FTB debt for the period 19 January 2009 to 16 February 2009; and,

(4) Pursuant to s 101 of the A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”), waives the FTB debt for the period 1 March 2008 to 1 May 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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