Hume and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1683

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1683

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600281

GENERAL ADMINISTRATIVE DIVISION		)
Re		JILLIAN HUME

Applicant

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

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date22 August 2007

PlaceAdelaide

Decision The Tribunal sets aside the decision to raise a debt in sum of $92.77 and remits the matter to the Department with a direction that Ms Hume’s entitlement to FTB for the 2003/2004 financial year be re-assessed in the light of a combined income estimate of $81,000.

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

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit – no overpayment  – decision set aside

A New Tax System (Family Assistance) (Administration) Act 1999 ss 71, 97, 101

A New Tax System (Family Assistance) Act 1999 Schedule 3

Re Beadle and Director-General of Social Security [1984] 6 ALD 1

REASONS FOR DECISION

22 August 2007   Mr J G Short (Member)  

1.      Ms Jillian Hume has applied for a review of the decision of the Social Security Appeals Tribunal (SSAT) made on 20 July 2006 affirming what the SSAT described as “A decision made by a Centrelink officer on 29 November 2005 to recover a debt of $92.77 covering the period 1 July 2003 to 22 February 2004”.

2.      Ms Hume’s husband died on 23 February 2004.

3.      Ms Hume had been assessed to receive Family Tax Benefit (FTB) in accordance with an estimate of income (Exhibit R2) lodged on 30 April 2003.  This document is likely to have been considered with a Form FAO07 (unable to be located) and used as a basis for a calculation recorded by Mr Allen Maxted (T5/51).  Mr Maxted provided evidence that it appeared reasonable to him to assume that the hand-written section of Exhibit R2 reading “$50,000 + $,9000 Fringe Benefits = $59,000” was recorded on that document when it was used by him to calculate an estimate of Ms Hume’s combined taxable income of $85,635.  This figure comprised 51.5 percent of fringe benefits of $9,000 + $59,000 = $63,635 for Ms Hume’s husband and $22,000 for Ms Hume, presenting a total of $85, 635.

4.      If Ms Hume’s estimate (Exhibit R2) had been correctly transferred to Centrelink’s computer record, as it was intended by her, as estimating $22,000 for herself and $50,000 plus $9,000 in fringe benefits for Mr Hume then the estimate upon which FTB would have been paid would have totalled $81,000.  The respondent (the Department) said that no debt would exist if such an estimate had been used. 

5.      I find that Ms Hume did estimate her and her late husband’s combined taxable income, including 100 percent of the value of fringe benefits available to Mr Hume, at $81,000.

6. The appropriate method of determining an adjusted taxable income for use in the calculation of any potential debt in circumstances such as those of Ms Hume during the 2003/2004 financial year, in accord with clause 3A of Schedule 3 of the A New Tax System (Family Assistance) Act 1999 (the Act), is to make two calculations, the first based on Mr and Ms Hume’s actual income and a second calculation based on her estimate of income.  Ms Hume’s final FTB entitlement will be the most favourable to her of these two calculations, that is the calculation which gives Ms Hume the most money.  

7.      In a final written submission provided by the Department on 4 July 2007, it was suggested that the Tribunal set aside the decision under review and substitute a new decision that in calculating Ms Hume’s entitlement to FTB for the 2003/2004 financial year a combined income estimate of $81,000 should be used.  The same submission suggested that if such an estimate were used as a basis for the calculation of Ms Hume’s entitlement, then no debt would exist and Ms Hume would be entitled to repayment of the $92.77 recovered from her and also be entitled to a yet to be determined top-up payment of FTB.  Ms Hume provided a submission in response, indicating in part that she would be happy with an order made substituting a combined income estimate of $81,000.

8.      In the light of the further submissions made by both parties, I will set aside the decision under review and substitute a new decision that Ms Hume’s entitlement to FTB for the 2003/2004 financial year be calculated in reflection of her combined income estimate of $81,000.

decision

9.      The Tribunal sets aside the decision to raise a debt in sum of $92.77 and remits the matter to the Department with a direction that Ms Hume’s entitlement to FTB for the 2003/2004 financial year be re-assessed in the light of a combined income estimate of $81,000.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ..........J Coulthard...........................................
  Associate

Date of Hearing  29 June 2007
Date of Decision  22 August 2007
Advocate for the Applicant       In person

Advocate for the Respondent   Ms J Kitto

Centrelink Legal Services Branch