JULLIA LIGHT and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 727
•20 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 727
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3465
GENERAL ADMINISTRATIVE DIVISION ) Re JULLIA LIGHT Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date of Decision 20 August 2009
Date of Written Reasons 23 September 2009
Place Sydney
Decision For the reasons given orally at the hearing of this matter the Tribunal refuses; pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 to grant an extension of time to the Applicant to lodge an application for review of the decision of the Social Security Appeals Tribunal dated 28 May 2009.
………… sgd………………
Ms N Bell, Senior MemberCATCHWORDS – Social Security – Extension of time application – Cancellation of Family Tax Benefits and Parenting Payment - Extension of time refused.
Social Security Act 1991
A New Tax System (Family Assistance) (Administration) Act 1999
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
REASONS FOR DECISION
23 September 2009 MS N BELL, Senior Member 1. At the hearing of this application the terms of the decision intended to be made and my reasons were stated orally. After service upon Ms Light of a copy of the decision that was made, she, pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to her a statement in writing of the reasons of the Tribunal for its decision.
2. On 27 July 2009, Ms Jullia Light sought review by this Tribunal of a decision made by the Social Security Appeals Tribunal (SSAT) made on 28 May 2009. The SSAT’s decision was despatched on 9 June 2009. Ms Light seeks an extension of time in which to lodge her application for review of the SSAT’s decision.
3. The decision made by the SSAT was to affirm the decision of a Centrelink Authorised Review Officer of 9 December 2008 to cancel Ms Light’s Parenting Payment (PP) and Family Tax Benefit (FTB) from 9 July 2008.
4. In considering whether to grant an extension of time I apply the principles in the Federal Court’s decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:
(a)The applicant should provide a reasonable explanation for the delay;
(b)The respondent should not be unduly prejudiced if the time is extended; and
(c)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.
5. In this application for extension of time, the delay is relatively minor and likely to have been contributed to by some confusion about postal addresses. I note the Respondent did not raise it as an important consideration. I agree that it is not.
6. In relation to the question of prejudice, the Respondent submitted that Ms Light has no prospects of success on a substantive application and that through wasted costs and time the Respondent would be prejudiced if the extension of time were to be granted.
7. This brings me to the question of the merits of the substantive application and Ms Light’s prospects of success.
8. In November 2008, Ms Light’s daughter was granted Youth Allowance, to be paid back to 9 July 2008. For most of the period of July to October 2008 Ms Light was in receipt of PP and FTB in respect of her daughter.
9. Section 500 of the Social Security Act 1991 (the Act) sets out the qualification criteria for PP including the following mandatory criteria:
(1) A person is qualified for parenting payment if:
(a) the person has at least one PP child (see sections 500D and 500F to 500H);
…
10. This means that a person is not qualified for PP if the person does not have “at least one PP child”.
11. Section 500D of the Act sets out the circumstances in which a person has a PP child. In all cases, the person must be the “principal carer” of the child. Section 5(15) of the Act states that a person is the principal carer of a child if the child is under 16 years of age and is a dependent child. A dependant child is, among other things, a child under the age of 16 in the care of the principal carer. However section 5(6) provides:
A young person cannot be a dependent child for the purposes of this Act if:
…
(b) the young person is receiving a social security benefit;
12. Section 21 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) sets out the criteria for eligibility for FTB and relevantly provides that:
(1) An individual is eligible for family tax benefit if:
(a) the individual has at least 1 FTB child ;
….
13. Section 22 of the Family Assistance Act sets out the circumstances in which a person will be the FTB child of another individual. This is qualified by section 22A which provides:
(1)Despite section 22, an individual cannot be an FTB child of another individual (an adult ) in the cases set out in this table:
When the individual is not an FTB child of the adult at a particular time
If the individual is aged:
then the individual cannot be an FTB child of the adult if:
1
5 or more and less than 16
(a) the individual is not undertaking full‑time study or primary education and the individual has adjusted taxable income, for the income year in which the particular time occurs, that equals or exceeds the cut‑out amount (see subsection (2)); or
(b) the adult is the individual's partner, or would be if the individual was over the age of consent applicable in the State or Territory in which the individual lives.
2
16 or more
(a) the individual has adjusted taxable income, for the income year in which the particular time occurs, that equals or exceeds the cut‑out amount (see subsection (2)); or
(b) the adult is the individual's partner; or
(c) the individual, or someone on behalf of the individual, is, at the particular time, receiving payments under a prescribed educational scheme.
3
any age
the individual, or someone on behalf of the individual, is, at the particular time, receiving:
(a) a social security pension; or
(b) a social security benefit; or
(c) payments under a program included in the programs known as Labour Market Programs.
14. It is clear that if Ms Light’s daughter was receiving Youth Allowance, which is a social security benefit, then she was neither a dependent child nor a FTB child. This would make Ms Light ineligible to receive PP and FTB.
15. Ms Light contended that, since her daughter only commenced to be paid Youth Allowance in December 2008, after Centrelink made its decision in November 2008, then it could not be said that her daughter was receiving a social security benefit before December 2008.
16. However, section 23(2) of the Act provides:
For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.
17. By this provision, Ms Light’s daughter is taken to be receiving a social security benefit on the first day it was payable, that is, 9 July 2008.
18. It follows that, from 9 July 2008, Ms Light’s daughter was neither a dependent child nor a FTB child. That renders Ms Light ineligible to receive PP and FTB. I see no escape from this conclusion, nor from the conclusion that Ms light’s substantive application to this Tribunal has no merit.
19. For this reason I refuse the application for an extension of time.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Snr Member Bell.
Signed: .....................................sgd................................................
Associate: Felicia DanieleDate/s of Hearing 20 August 2009
Date of Decision 20 August 2009
Date of Written Reasons 23 September 2009
Solicitor for the Applicant Self- represented
Solicitor for the Respondent Ms Sharma, Centrelink Legal services
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