JUSTINE SHERWOOD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 682
•5 October 2012
[2012] AATA 682
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3033
Re
JUSTINE SHERWOOD
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 5 October 2012 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY - Family Tax Benefit - Claim for benefit from earlier financial year - Time limit for effective claim - Claim made out of time - Compensation for Detriment caused by Defective Administration - Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 5, 10
Financial Management and Accountability Act 1997 (Cth) s 33
CASES
Croker v Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1136
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
5 October 2012
INTRODUCTION
Ms Sherwood (the applicant) has lodged a claim for an annual lump sum payment of family tax benefit (FTB) for her children. The claim was made for the financial year ending on 30 June 2009 (which is referred to in these reasons as the 2008/2009 financial year). Her claim was rejected on the ground that it was made outside the required time limit.
PRIOR DECISIONS
The prior decisions are:
·On 29 December 2011, the applicant lodged her claim for lump sum FTB for the 2008-2009 financial year. On 3 January 2012, Centrelink rejected her claim on the basis that it was lodged outside the allowable time.
·On 27 March 2012, the decision of Centrelink was affirmed on internal review by an authorised review officer.
·On 4 June 2012, the decision of Centrelink was affirmed by the Social Security Appeals Tribunal.
The applicant has made an application to this Tribunal to review the decision.
ISSUE
The issue that I have to determine is whether the claim of the applicant for a lump sum FTB payment for the 2008/2009 financial year should be allowed.
RELEVANT LEGISLATION
The legislation that I have to administer is the A New Tax System
(Family Assistance) (Administration) Act 1999 (Cth) (the Act).Section 5 of the Act provides that the only way that a person can become entitled to be paid FTB is by making a claim in accordance with Subdivision A of Division 1 of Part 3 of the Act; Division 1 is entitled “Family tax benefit”. The Subdivision contains the requirements for an “effective claim”, which must be made in the form and manner required by the Secretary (see s 7(2) of the Act).
There are time limits for the payment of FTB. Section 10 of the Act provides for restrictions on claims for payment of FTB for past periods. A claim must not be made after the end of the following two income years. This is the effect of s 10(2) of the Act, which provides:
A claim for payment of family tax benefit is not effective if:
(a) the period does not fall wholly within one income year; or
(b) the period does fall wholly within one income year but the claim is made after the end of the 2 income years immediately following that income year.
CONSIDERATION
The applicant and respondent have both agreed that, pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth), the application should be determined without a hearing. I consider that this procedure is appropriate in this case as the facts in this unfortunate matter are not in dispute. I will therefore decide this application by considering the material that has been filed in this Tribunal.
On 29 December 2011, the applicant lodged her claim for a lump sum payment of
FTB for the 2008-2009 financial year. The operation of s 10(2) of the Act has the consequence that a claim for a lump sum payment of FTB for the 2008-2009 financial year has to be made by 30 June 2011 to be an effective claim. However, the claim was lodged on 29 December 2011 and, therefore, is not an effective claim under the Act.
The applicant has quite properly acknowledged that the FTB claim was not lodged in accordance with s 10(2) of the Act. In her written application to this Tribunal for review, she remarked: “I accept that my claim does not comply with section 10 of the
Admin Act”. The reason why the applicant has lodged the application is to see whether there is any discretion to waive the time limit imposed by s 10(2) of the Act. In her own words, she is “seeking a relaxation of this Law in order to receive monies I am entitled to”. However, s 10(2) of the Act does not confer any discretion upon the Secretary
to extend the time within which a person can lodge a claim. I have also considered that other legislation which is part of social security law, such as the Social Security (Administration) Act 1999 (Cth), does not confer any such discretion upon the Secretary.
In my opinion the applicant's claim for a lump sum payment of FTB for the 2008-2009 financial year was correctly rejected by Centrelink. However, that is not the end of the matter. The authorised review officer has taken account of a letter dated 10 March 2009 which contained advice of changes to the method of claiming FTB. That letter was sent to the applicant through her accountant as her tax agent. The authorised review officer has noted that the accountant has no record of any such correspondence from Centrelink.
The advocate of the Secretary has, quite properly in my view, already lodged a claim on behalf of the applicant under the scheme for Compensation for Detriment caused by Defective Administration. In these circumstances the Finance Minister may approve an act of grace payment under s 33 of the Financial Management and Accountability Act 1997 (Cth). It is to be hoped that the claim for compensation for defective administration is being considered quite independently of this application.
In Croker v Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1136 in which Rares J remarked, at [23]:
Suggestions by an agency of the Commonwealth … that there is a reasonable basis to make an act of grace payment … must be approached intelligently and sensitively. In such cases, the … delegate should consider the consequences of making a decision on a claim … immediately as opposed to requiring the person seeking the act of grace payment to pursue to the end any claim or legal proceedings brought or foreshadowed by him or her.
His Honour added, at [28]:
It may be that the delegate ultimately might have decided that no act of grace payment should be made in the proper exercise of the discretion. But, good public administration, one might think, should involve a timely, realistic and intelligent consideration of whether or not to grant applications under s 33 for very small sums of money by indigent persons when they are supported by the responsible instrumentality of the Commonwealth under the s 33 Scheme.
DECISION
I affirm the decision under review.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
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Associate
Dated 5 October 2012
Hearing on the Papers
28 September 2012
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