Jefferies and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1693
•17 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1693
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1214
GENERAL ADMINISTRATIVE DIVISION ) Re TONI ROBERTA JEFFERIES Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date17 August 2007
PlacePerth
Decision 1. The decision of the Social Security Appeals Tribunal made on 2 March 2007 under review in these proceedings is affirmed.
2. It is recommended, for the reasons expressed by this decision that the applicant be paid compensation for detriment by the defective administration of Centrelink.
...........[Sgd J Handley].................
John Handley
Senior Member
SOCIAL SECURITY – claim for maternity payments – failure to provide tax file numbers and bank account details of applicant and her partner – subsequent request by Centrelink to provide tax file number of partner only – information provided by letter – letter not received – presumption that letter was delivered – claim deemed not effective – decision affirmed – recommendation for CDDA payment
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 7(2)(aa), s 7A, s 36, s 38(2), s 38A(3), s 39(2) and s 41
A New Tax System (Family Assistance) Act 1999 (Cth) s 36(2)
Evidence Act 1995 (Cth) s 160 and s 160(1)
Australian Trade Commission v Solarex Pty Ltd (1988) 78 ALR 439
REASONS FOR DECISION
17 August 2007 Mr John Handley, Senior Member 1. The applicant applies to review a decision made by the Social Security Appeals Tribunal (SSAT) on 2 March 2007. The SSAT then decided to affirm a decision previously made by an authorised review officer (ARO) to reject claims made for maternity payment. The applicant lodged claims for maternity payment on 27 June 2005 and 5 January 2006. The ARO decided that each claim was not an effective claim within the meaning of the applicable legislation.
2. The factual basis for each application is relatively clear and will be referred to later. The legislative basis upon which entitlement to maternity payment can be found is complex and should at the outset be summarised.
3. A claim for maternity payment is governed by a combination of the A New Tax System (Family Assistance) Act 1999 (FAA) and the A New Tax System (Family Assistance) (Administration) Act 1999 (FAAA). For the purposes of manoeuvring through each of these Acts, references are frequently made to family assistance. Family assistance is defined in the FAA as meaning a maternity payment.
4. Section 36(2) of the FAA provides that an individual is eligible for a maternity payment in respect of a child if the individual is the parent of the child and the individual is eligible for family tax benefit within 13 weeks of the birth of the child (a family tax benefit also comes under the umbrella of family assistance as defined).
5. Section 36 of the FAAA provides that a person has an entitlement to be paid maternity payment if a claim is made in accordance with this Act.
6. Section 38(2) of the FAAA provides that a claim is not effective unless it is made in a form and in a manner and contains information and is accompanied by documents as required by the Secretary (of the respondent) and, in the case of a claim for maternity payment, the tax file number requirement in section 38A of the FAAA has been satisfied.
7. Section 38A(3) of the FAAA provides that in a claim for maternity payment a statement of the TFN claim person’s tax file number must be made. A TFN claim person is defined by s 3(1) of the FAAA in relation to a claim for maternity payment as the claimant and the claimant’s partner at the time of the claim.
8. Section 39(2) of the FAAA provides that a claim for payment of maternity payment is not effective if it is made later than 26 weeks after the birth of the child.
9. Section 41 of the FAAA provides that if a claim is not effective it is taken not to have been made. In making a determination the Secretary is to have regard only to the information in the claim and any accompanying documents or information required.
10. Section 7(2)(aa) and s 7A of the FAAA in combination provide that a claim will only be effective if a claimant’s bank account details (either being an account held alone or jointly) are provided in the claim. (I have some concern whether these latter sections do apply in the present case although – for reasons which will appear later – no issue will turn on this aspect of the review. Section 7(2) and s 7A are within Part 3 Division 1 of the FAAA which has as its heading Payment of Family Assistance and a sub‑heading Family Tax Benefit. A family tax benefit is not a maternity payment. A family tax benefit and a maternity payment are separate benefits but both are within the definition of family assistance. Section 7(2) and s 7A are both within Division 1 which is concerned only with family tax benefit. The qualifying provisions for maternity payment come within Division 3 commencing at s 36. There is no requirement under Division 3 for provision of bank account details). Perhaps the request for bank account details is to facilitate payment, when a claim is found to be effective.
11. As may be seen later in these reasons, the decision‑maker decided that the claims made by the applicant were not effective because there had been a failure to provide tax file numbers and bank account details.
12. It should also be recorded at the outset that the second claim made by the applicant for maternity payment on 5 January 2006 could never have succeeded because the claim was then made more than 26 weeks after the birth of the applicant’s son. That is to say, even if the applicant did then provide bank account details and tax file numbers the claim would have failed.
13. Accordingly this application will principally be concerned with the first application made which was lodged on 27 June 2005.
14. The claim is concerned with an application made by Ms Jefferies, the applicant in these proceedings, who is the mother of the infant Jack Tylich born on 29 April 2005. Benjamin Thomas Tylich is the applicant’s husband and the father of Jack. Mr Tylich is the applicant’s partner, as that expression is used in the FAA, in the definition of TFN claim person (refer later).
the evidence
15. The applicant said that she completed the first claim for maternity payment (T4)by posting it to the Medicare office at Karrinyup (it being a Family Assistance Office for the purposes of lodging claims for family assistance type payments). The claim form was eventually lodged at the Centrelink office at Mirrabooka on 29 June 2005 (p17).
16. The applicant said she was under tremendous personal stress because motherhood was not easy at the time the claim was lodged. She said her husband was conducting a business between 7am and 6pm for seven days of each week, Jack was not sleeping well and she was exhausted. She acknowledged that parts of the claim form with respect to bank account details and tax file numbers were not completed.
17. The applicant acknowledged that she did receive a letter from Centrelink dated 29 June 2005 (T6, p47). That letter was addressed to her mother’s home at Mt Claremont. The applicant recalled that at 29 June 2005 she had returned to her family home at Karrinyup and said that she would have received the letter of 29 June 2005 within a few days of that date. She said she would have been given it by her mother. The letter asked her to provide the tax file number (TFN) of her partner and a bank account number of an account held in her name. She was asked by the letter to mail that information to the office at Mirrabooka or personally deliver it to the nearest Centrelink office.
18. The applicant said that she did not know her husband’s TFN and rang him at his workplace. She said that his accounts were managed by a book keeper who was not working on the day that she made the telephone call (and who would locate the TFN for him). She remembered that her husband provided his TFN to her within a few days of her requesting it from him. She recalled that she had the letter of 29 June 2005 with her when she received the telephone call from her husband advising of his TFN. She said that she wrote his TFN on that letter identifying it by the letters TFN. She also wrote the bank account number on the same letter identifying it by the letters BSB. That account was jointly held with her husband. A copy of that letter was not retained but it was posted to Centrelink at Mirrabooka.
19. The applicant said that she specifically recalled posting that letter with that data because it occurred during an occasion when she had taken her son for a walk and mailed it at a local post box. She said she posted it (a few days later) in an envelope addressed to Centrelink at its Mirrabooka address as was evident from the letter of 29 June 2005. She said she placed a stamp on the envelope and affixed a sticker to the back of the envelope which recorded her name and address. She said that that letter was not ever returned to her.
20. The applicant also acknowledged having received a letter from Centrelink dated 14 July 2005 (T7, p48) which recorded that family tax benefit would not be paid because you have not told us your bank account details. The letter also recorded that maternity immunisation allowance and maternity payment would not be paid for the same reason, namely, you have not told us your bank account details.
21. The applicant said that it was likely that she ignored the letter of 14 July 2005 because she assumed the letter of 29 June 2005 that she posted to Centrelink had crossed with the letter of 14 July 2005. She said that she managed the bank account into which she assumed the maternity payments were being made. She said that she did not take much notice of whether money from Centrelink was being paid into the joint account because there was always sufficient monies to make payments of accounts which she did by internet banking. It was not until approximately November 2005 – approaching Christmas – when she examined the account and realised for the first time that maternity payments were not being made. It was then that she contacted Centrelink by telephone which eventually gave rise to the second claim being made in January 2006. (For reasons given earlier, that claim is of no relevance to this review because it was lodged beyond 26 weeks from the date of the birth of Jack).
submissions
22. Ms Conlon on behalf of the respondent submitted that the claim of 27 June 2005 was not effective within the meaning of the legislation because bank account details and TFNs were not provided. Additionally it was submitted that there was no evidence that the letter of 29 June 2005 was ever received by Centrelink. It was also submitted that the discretion permitted by the legislation to extend the period of time beyond 26 weeks for lodging of claims could be exercised only if there was evidence of illness of the child (which would give rise to delay in making a maternity payment claim) which was absent in the present application. (The applicant conceded that her child was not ill). This contention, for the reasons given above, is only relevant with respect to the second application. The first application was lodged well within the period of 26 weeks as required by the legislation.
23. I asked Ms Conlon during the hearing whether I should presume the letter of 29 June 2005 was received. I asked her to explain the practice within Centrelink for receipt and acknowledging correspondence.
24. It appears that correspondence posted to Centrelink – irrespective of the suburban address – is likely to be received at a central mail office maintained by Centrelink. That is to say, the postcode against addresses on Centrelink correspondence may not necessarily be the postcode applicable to a particular location but may apply to the location of the central mail office. It was the understanding of Ms Conlon that Australia Post would deliver correspondence to the Centrelink mail office by reference to the postcode rather than the stated address. Accordingly it was likely that the letter addressed to Mirrabooka would be delivered by Australia Post to the Centrelink central mail office elsewhere. It was the practice then at that mail office location to identify, from received documents, the nature or type of benefit in issue, record the receipt of the document on a claimant’s computer file and then forward the document, physically, by internal Centrelink mail to the suburban office where the claimant has had dealings with Centrelink. The content of the document would then be recorded onto the claimant’s computer file. The document would then be returned to the Centrelink central filing location where files are kept. That is to say, claimant’s files are not necessarily kept at suburban locations. In all of these circumstances it is conceivable that documents received by Centrelink could pass to three different locations before being placed physically on a file and would have been subject to two computer entries at two different locations namely, the initial entry at the central mail office and the recording of data at the suburban Centrelink office. Ms Conlon pointed to the document list, found at T21, p104, which does not record receipt by Centrelink of its letter of 29 June 2005 which on the applicant’s evidence was posted to the Mirrabooka office of Centrelink and which had recorded on it the data sought by that same letter namely, the bank account details and her husband’s TFN.
25. I reconvened the hearing on 1 August 2007. The applicant and Ms Conlon participated by conference telephone. Ms Jefferies confirmed that she did not provide her TFN when she returned the letter of 29 June 2005. She said that letter asked only for her husband’s TFN and bank account details. She said that she probably presumed at the time she received the letter of 29 June 2005 that Centrelink had her TFN because the letter did not ask for it. Until the lodging of the second claim in January 2006, the applicant confirmed that she did not ever provide Centrelink with her TFN.
26. Ms Conlon submitted that provision by the applicant of her TFN was essential to make the claim effective. She was unable to explain why the letter of 29 June 2005 did not seek the applicant’s TFN. She agreed that Centrelink should have sought that information.
findings of fact
27. I am satisfied that the applicant is a witness of truth who acknowledged imperfections in her memory. With the passage of time that is not difficult to comprehend. I also note that at or about the time that the claim for maternity payment was completed and lodged and a response was given to the letter of 29 June 2005, Ms Jefferies had given birth to her first child two months earlier, she was sleep deprived and upon her evidence she was exhausted and under tremendous personal stress. She found motherhood not easy. There have been slight variations in the explanations that she has given to Centrelink, to the SSAT and during this hearing concerning the circumstances surrounding the lodging of the claim and the letter of 29 June 2005 which can probably and reasonably be explained by having to attempt a reconstruction of circumstances then existing with respect to the claim and in the domestic environment then prevailing.
28. In relation to the findings of fact which appear below, the discussion in the next paragraph concerns the manner in which findings have been made with respect to the receipt and postage of the letter of 29 June 2005, which, by reason of the evidence heard in these proceedings assumed considerable significance.
29. It is assumed that the letter of 29 June 2005 was posted by Centrelink on that date. It was a Wednesday. Section 160 of the Evidence Act 1995 (Evidence Act) provides that a postal article sent by pre‑paid post, addressed to a person at a specified address in Australia, is presumed to have been received at that address on the fourth working day after having been posted. The fourth working day after 29 June 2005 was 5 July 2005. That letter was received by the applicant’s mother. The evidence was that the letter was delivered to the applicant by her mother a few days after it was received. I will find that that letter was received by the applicant on 7 July 2005. The applicant said that she rang her husband and made enquiries about his TFN and obtained that data a few days later when his book keeper was at the workplace. I will find that data was received by the applicant from her husband on 9 July 2005. It was on that date that she recorded his TFN and the joint bank account number. That data was recorded on the letter from Centrelink of 29 June 2005. The applicant said that she posted that letter to Centrelink a few days later. I will find that that letter was posted on 11 July 2005. Having regard to s 160 of the Evidence Act, I am satisfied that that letter would have been received on or about 15 July 2005.
30. Accordingly I make the following findings of fact.
(i)The applicant is the mother of Jack Tylich who was born on 29 April 2005.
(ii)A claim for maternity payment was lodged at the Medicare office at Karrinyup on 27 June 2005 and deposited at the Centrelink office at Mirrabooka on 29 June 2005.
(iii)The claim form did not record the TFN of the applicant or her partner nor the number of the joint bank account held between the applicant and her partner.
(iv)On 29 June 2005, Centrelink wrote to the applicant at the address of her mother requesting details of her bank account number and the TFN of her partner. The letter did not request the applicant’s TFN. The letter would have been received by the applicant’s mother on 5 July 2005 and would have been received by the applicant by reason of delivery from her mother on 7 July 2005.
(v)On 9 July 2005, the applicant obtained details from her husband of his TFN and recorded it together with the number of their joint bank account on the letter from Centrelink of 29 June 2005.
(vi)The letter of 29 June 2005 containing the bank account number and the TFN of the applicant’s partner was posted on 11 July 2005. The letter was posted in a pre‑paid envelope properly addressed to the Centrelink office at Mirrabooka with the applicant’s name and address printed on an adhesive sticker fixed to the back of the envelope. That letter has not ever been returned.
(vii)Having regard again to the provisions of s 160 of the Evidence Act I am satisfied that the letter posted by the applicant would have been received by the respondent four working days later. The 11th July was a Monday and I am satisfied that four working days later would result in the respondent having received that letter on Friday 15 July 2005.
(viii)At all relevant times after posting the letter of 29 June 2005, the applicant had an expectation of qualification for and a belief that she was being paid maternity payment.
(ix)The letter of 14 July 2005 was not properly comprehended and it was not until November 2005 that the applicant understood that she had not ever been paid maternity payment.
(x)The applicant was invited by an officer of the respondent on 8 November 2005 (T9, p51) to lodge another claim for maternity payment which she did in January 2006. That claim would have been and was, non‑effective, because even at 8 November 2005, more than 26 weeks had elapsed since the date of the birth of her son.
(xi)The applicant did not ever provide her TFN until the second claim was lodged on 5 January 2006 (T10, p63).
conclusion and reasons for decision
31. This is an unfortunate application. For reasons which follow I am unable to find, as a matter of law, that the decision under review should be set aside. I would be hopeful however, again for reasons which follow, that commonsense will prevail and the applicant will obtain the benefit of a payment either voluntarily by the respondent as a compensation payment for defective administration or by the intervention or agitation of the Commonwealth Ombudsman.
32. Section 38(2) of the FAAA provides that a claim for maternity payment is not effective unless the TFN requirement in section 38A (of the FAAA) has been satisfied in relation to the claim. Section 38A(2) of the FAAA provides that a statement . . . must be made in relation to each TFN claim person. Section 38A(3) of the FAAA provides that the statement is of the TFN claim person’s tax file number. Additionally it states Regardless of who the TFN claim person is, this kind of statement can be made by the claimant only.
33. A TFN claim person is defined as s 3(1) of the FAAA in relation to a claim for maternity payment as the claimant and the claimant’s partner at the time of the claim.
34. The TFN claim person is in fact to be interpreted in the plural if the claimant has a partner. That is to say, where the claimant does have a partner, the TFN claim person is in fact both persons. It follows therefore that the TFN of each person must be provided to Centrelink in order that the claim for maternity payment can be deemed to be effective. The relevant sections in Division 3 are cast in mandatory language.
35. In relation to the first claim, the applicant did not ever provide her TFN. It was provided when the second claim was lodged but that claim could never have been effective because it was lodged more than 26 weeks after the birth of the applicant’s child.
36. The decision therefore of the ARO with respect to the first claim for maternity payment, and the second claim, must be affirmed.
37. However, I urge the respondent to consider a payment to the applicant in a sum equivalent to what she would have received in maternity payment under its regime of compensation for detriment by defective administration.
38. The respondent agency has a statutory responsibility to make payments to persons who have a legal qualification. It is also charged with the responsibility of assisting persons when necessary to ensure that their statutory entitlements are satisfied.
39. In the present case the applicant did not provide her TFN or the TFN of her husband or their bank account details when the claim was lodged on 27 June 2005.
40. The deficiencies in the claim form were apparently recognised by Centrelink because on 29 June 2005 a letter was written to the applicant requesting her partner’s TFN and bank account details. The letter did not request the applicant’s TFN. The applicant complied with the letter, obtained the data and forwarded it to Centrelink. She acknowledged on the second day of the hearing of this application that her TFN was not then provided because she was not asked to provide it.
41. Ms Conlon acknowledged, properly in my view, that the letter of 29 June 2005 was deficient. It should have requested the applicant’s TFN. In the proper exercise of its statutory function, Centrelink did seek some of the information which was absent from the first claim form. I have every confidence that if it had requested all of the information absent from the first form, that upon it being provided by the applicant, she would have satisfied the qualifying provisions for payment of maternity payment and those payments would have been made.
42. As recorded earlier, I am satisfied that the applicant did post to the respondent the letter of 29 June 2005 which contained the TFN of her partner and the joint bank account number. It was the respondent’s case that the benefit was denied because that data was not ever provided. I am satisfied that the presumption of delivery of the letter of 29 June 2005 should be made by regard to s 160 of the Evidence Act and by regard to the passages of Beaumont J and Wilcox J in Australian Trade Commission v Solarex Pty Ltd (1988) 78 ALR 439.
43. In the letter of 29 June 2005, the applicant was asked to mail any information we have requested to this office or deliver it to the nearest Centrelink office. The applicant acted on that request and did mail the information that was requested to the Mirrabooka office. She therefore complied with the request made by Centrelink. The request was for the information referred to earlier. I am satisfied that the letter was sent by pre‑paid mail and it was not returned. It was the case of Centrelink that the claim was denied because that letter was not ever received. Even if it was, the claim would still have been denied because the applicant did not provide her TFN. But she was not requested to provide that data by the letter of 29 June 2005. I am satisfied that she did act on the respondent’s request and did post the letter which, by reference to the statutory and common law presumption, I am satisfied was delivered.
44. The applicant should not suffer detriment because she complied with a request for information from Centrelink that was deficient. That request was information required by the Secretary (refer para 9 earlier and s 41(2)(a) of FAA). Put another way, the applicant should not be denied her entitlement because information that was not sought by Centrelink was not provided.
45. The respondent’s mail processing system was described on the first day of hearing. It is not difficult to imagine that many thousands of documents would be delivered to the central mail office on any working day. Despite the efficiencies in that system, it is not inconceivable that documents would be either misplaced or overlooked or incorrectly processed. There is nothing by these proceedings which satisfies me that the envelope which was properly addressed and which was not returned did not reach its destination in the ordinary course of post. In those circumstances I am satisfied that the letter was mislaid or misplaced by some unknown means after it was delivered to the respondent’s mail exchange. If there was some prohibition upon the applicant providing the information as requested by post, she should not have been invited to supply that information in that manner.
46. The presumption available by s 160(1) of the Evidence Act is fettered by evidence sufficient to raise doubt about the presumption (being) adduced. The letter of 29 June 2005 was not returned. Its loss or destruction was not proved. That it was not recorded on the document list (refer para 24 earlier) (T21, p104) is not proof of non receipt. I am not satisfied there is a doubt raised sufficient to dispel the presumption.
47. Another basis upon which I am satisfied that the applicant did post the letter of 29 June 2005 and that it did contain her husband’s TFN was a notation in the second claim form (T10, p63) that the TFN of her partner had previously been given. That claim was lodged on 5 January 2006. A memorandum of 12 January 2006 (T15, p91) also records a discussion with the applicant where she then asserted having previously lodged the TFN – again consistent with the letter of 29 June 2005 having been posted.
48. The claim lodged on 5 January 2006 and the conversation with a Centrelink officer on 12 January 2006 were well and truly before any appeal process commenced and would not have been made in contemplation of litigation. In summary therefore I am satisfied that the notation on the claim of 5 January 2006 and the conversation as recorded of 12 January 2006 are consistent with the applicant’s evidence that that data was posted as recorded on the letter of 29 June 2005.
49. In all of the circumstances I am satisfied that the applicant has at all relevant times complied with the reasonable and responsible requests made by Centrelink. In those circumstances, her qualification for maternity payments should have been acknowledged and accepted by Centrelink. It is for all of the above reasons I recommend that a CDA payment of compensation should be paid.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................[Sgd G Carney]..............................
Grace Carney, Personal AssistantDate of Hearing 31 July 2007
Date of Decision 17 August 2007
Solicitor for the Applicant Applicant self‑represented
Departmental Advocate Ms Conlon
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