Hussary and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 524

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1859

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SALWA HUSSARY
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr R P Handley, Senior Member

Date 23 June 2000
PlaceSydney

Decision      The Tribunal affirmed the decision under review.
  ..............................................
  Senior Member
CATCHWORDS
Social Security – Family Payment/Family Allowance – Refusal to pay arrears – Notice about matter affecting payment
Social Security Act 1991 – ss 842, 843, 873, 881

REASONS FOR DECISION

Mr R P Handley, Senior Member

This is an application by Salwa Hussary for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 6 September 1999 to affirm a decision of the Secretary of the Department of Family and Community Services ("the Department") and an Authorised Review Officer to refuse to pay a family payment/family allowance in respect of the period 8 November 1996 to 9 May 1999.
At the hearing, Ms Hussary represented herself and Ms Hannelore Schuster of Centrelink represented the Department. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following documents:
R1                  Letter to applicant from Centrelink dated 29 April 1996
R2                  Letter to applicant from Centrelink dated 23 May 1996
R3                  Statement of Vicki Selby dated 24 May 2000
Ms Hussary and her husband, Rezek Hussary, gave sworn evidence.
BACKGROUND
In early November 1996, Ms Hussary was receiving family payment in respect of her sons William (born 16 May 1983) and Jamie (born 20 January 1987). On 14 November 1996, payments were automatically cancelled (T22) for failure to complete and return a form headed "Review of your Family Payment and Childcare Assistance". The Department claims Ms Hussary was notified of this cancellation by letter of the same date (T5).
On 10 May 1999, Ms Hussary lodged a claim for family allowance in respect of William and Jamie (T6). On that day, family allowance was granted in respect of Jamie but Ms Hussary was advised that William should claim youth allowance because he was to turn 16 years of age on 16 May 1999.
On 24 May 1999, Ms Hussary asked for a review of that decision and, in particular, sought back payment of family payment/family allowance on the ground that she had not received notification of the cancellation. On the same day, the original decision-maker confirmed the decision, which was also affirmed by an Authorised Review Officer on 29 July 1999 and by the SSAT on 6 September 1999. On 10 December 1999, Ms Hussary lodged an application for a review by the Tribunal. On 15 December 1999, the Tribunal granted an extension of time for the review of the application until 10 December 1999.
ISSUES AND LEGISLATION
The issue to be decided is whether arrears of family payment/family allowance are payable for the period 8 November 1996 to 9 May 1999. The Social Security Act 1991 ("the Act"), section 873, provides for the Department to give a notice to a recipient of family allowance requiring the recipient to give the Department a statement about a matter that might affect payment. Section 881 allows for cancellation of family payment if a recipient fails to comply with the requirements set out in the notice.
Even if the cancellation was incorrect, section 887(3) restricts payment of arrears:
Notified Decision – review sought after 13 weeks
887(3) If:
(a) a decision (the previous decision) is made in relation to a family allowance; and
(b) a notice is given to the recipient advising the recipient of the making of the previous decision; and
(c) the recipient applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the recipient sought the review.
The date from which family allowance is payable after the lodging of a claim is determined by sections 841 to 847. The relevant sections in Ms Hussary's case are sections 842 and 843:
Family Allowance generally not payable before claim
842 Subject to sections 846 and 847, family allowance is not payable to a person before the provisional commencement day (identified under section 843).
Family allowance provisional commencement day
843(1) Subject to this section and to sections 844, 844A and 845, the provisional commencement day is the day on which the person or approved care organisation claims family allowance.
843(2) If:
(a) a person or an approved care organisation makes a claim (the initial claim) for:
(i) a child disability allowance or a double orphan pension; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a family allowance; and
(b) on the day on which the person or organisation makes the initial claim, the person or organisation makes the initial claim, the person or organisation is qualified for family allowance; and
(c) the person or organisation subsequently makes a claim for family allowance; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person or organisation;
the person's or organisation's provisional commencement day is the day on which the person or organisation made the initial claim.
843(3) If:
(a) a person lodges a claim for family allowance; and
(b) the person is not, on the day on which the claim is lodged, qualified for family allowance; and
(c) during the period of 13 weeks starting on the day immediately after the day on which the claim is lodged, the person becomes qualified for family allowance otherwise than because of the birth of a child;
the person's provisional commencement day is the first day on which the person is qualified for.
843(4) If:
(a) a person (youth allowance claimant) makes a claim for youth allowance (initial claim); and
(b) on the day on which the initial claim is made, another person is qualified for family allowance for the youth allowance claimant; and
(c) that person subsequently makes a claim for family allowance in respect of the youth allowance claimant; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to that person;
that person's provisional commencement day is the day on which the initial claim is made.
"Family payment" was renamed "Family allowance" from 1 April 1998 by operation of the Social Security Legislation Amendment (Parenting and Other Measures) Act 1997, Schedule 3.
MS HUSSARY'S CASE
Ms Hussary said she was very excited when she got her first job in Australia with a tobacconist in March 1996. Her husband was also working at that time and so, when she notified the Department of her employment, they were not surprised when social security payments stopped. Ms Hussary said she and her husband assumed that payments stopped because they were not so entitled. When, in giving evidence at the hearing, Ms Hussary was questioned about these social security payments, it was clear that she was confused about whether it was parenting allowance or family payments which were stopped.
Ms Hussary said she continued to work in the tobacconist shop until the shop closed earlier this year. After only six months in job in 1996, she had been promoted to Shop Manager. Mr Hussary lost his job last year. It was their accountant, in completing their tax returns in early 1999, who asked why Ms Hussary was not receiving family allowance. They immediately contacted Centrelink and discovered that Ms Hussary should have been continuing to receive family payments.
Ms Hussary said she suffers from diabetes which makes her forgetful. She did not remember receiving a letter from the Department in November 1996 but admitted that it was possible she had received letters without remembering them.
Ms Schuster asked Ms Hussary about her contact with Centrelink around the time Ms Hussary started work in March 1996. Ms Hussary was shown a letter from the Department dated 29 April 1996 (Exhibit R1) asking her to contact the Ashfield office about her payments. Ms Hussary did not remember this letter and said she had gone to the Ashfield office of her own volition to inform them of her employment. Ms Hussary was also shown a letter of 23 May 1996 (Exhibit R2) informing her that because of her and her husband's income, she was no longer entitled to parenting allowance. Ms Hussary had no clear recollection of when particular social security payments stopped. Her husband looks after their financial affairs.
Ms Hussary said she had not claimed family allowance again before May 1999 because she did not know she was entitled to do so. She was concentrating on working and was not greedy and looking for more social security payments. She said it was unfair that she was being denied family allowance because she was unaware of her entitlements.
THE DEPARTMENT'S CASE
Ms Schuster noted that the last family payment to Ms Hussary in 1996 was an amount of $209.30 made on 7 November 1996. Ms Schuster referred to the letter dated 14 November 1996 (T5) notifying Ms Hussary of the cancellation of family payment. This was sent to Ms Hussary's then current address. Ms Schuster tendered a statement from Vicki Selby dated 24 May 2000 (R3) about the Department's mail handling procedures. Ms Schuster contended that since the letter had been sent to Ms Hussary at her last known postal address, section 1302A(A) of the Act provided that notice of the decision to cancel family payment to Ms Hussary is taken to have been given.
Ms Schuster submitted that even if the decision to cancel family payment was incorrect, section 887(3) prevented payment of arrears because a review of the decision to cancel had not been sought within 13 weeks.
Ms Schuster noted that it was not until 10 May 1999 that Ms Hussary lodged a new claim for family allowance. Family allowance was granted from that day, with the first payday being 20 May 1999. Ms Schuster said that in the case of a new claim, family allowance could only be backdated where provided for in sections 841 to 847 of the Act. Since none of the specific provisions allowing for backdating applied in Ms Hussary's case, family allowance could only be paid from the date of claim.
CONSIDERATION OF LAW AND FINDINGS
The Tribunal accepts Ms Hussary's evidence that she was not aware of her continuing eligibility for family payment/family allowance after 7 November 1996. Unfortunately for Ms Hussary, however, this does not resolve the issue of whether arrears of family payment/family allowance are payable for the period 8 November 1996 to 9 May 1999.
Ms Hussary told the Tribunal that she suffers from diabetes which makes her forgetful. She said she did not remember receiving the letter of 14 November 1996 (T5) notifying her of cancellation of family payment. She acknowledged, however, that it was possible she might have received it.
In the Tribunal's view, all the other evidence points to the letter being sent to Ms Hussary at her correct postal address. Thus, paragraph 1302A(I)(b) of the Act applies and notice of the cancellation is taken to have been given to Ms Hussary. Section 1302A(1) states:
Notice of decisions under this Act
1302A(1) If notice of a decision under this Act is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by pre-paid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of this Act, to have been given to the person.
The Tribunal notes that pursuant to section 23(12), section 1302A applies "even if the Secretary is satisfied that the person did not actually receive the notice".
Ms Hussary did not seek a review of the cancellation until she reapplied for family allowance on 10 May 1999. Because she applied for a review more than 13 weeks after the giving of the notice of cancellation, section 887(3), cited above, provides that any favourable decision arising from the review can only take effect on the day on which the person sought the review. Thus, there is no basis in law upon which payment of arrears of family payment/family allowance can be made.
The Tribunal also agrees with Ms Schuster's submission that payment of family allowance cannot be backdated before the date of Ms Hussary's new claim for family allowance lodged on 10 May 1999. In Ms Hussary's case, sections 842 and 843, cited above, only permit payment of family payment from the date of claim.
The Act imposes no duty on the Department to notify potential recipients of their entitlement to social security benefits. The large number of potential recipients in the community makes any such duty totally impracticable. The Act also limits the payability of arrears where those who would have been entitled to social security benefits fail to make a claim. In these circumstances, and in view of the application of the Act discussed above, there is no basis in law for payment of arrears of family payment for the period 8 November 1996 to 9 May 1999. The decision of the SSAT must, therefore be affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  26 May 2000
Date of Decision  23 June 2000
Solicitor for the Applicant         Self-represented
Counsel for the Respondent    Ms Hannelore Schuster, Advocate, Centrelink - Administrative Law Team

[2000] AATA 524

23 June 2000

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Interpretation

Limitation Periods

Notice

Family Law