Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 429

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 429

ADMINISTRATIVE APPEALS TRIBUNAL      )           No V 2006/1175
  )           No V 2007/0047

GENERAL  ADMINISTRATIVE  DIVISION      )           No 200700705

Re DAVID WILLIAM KERFERD AND
LOUISE MIRIAM KERFERD

Applicants

And

SECRETARY,

DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date26 May 2008

PlaceMelbourne

Decision:The Tribunal:

1.sets aside the decision under review in application Nº V 2006/1175 and Nº 200700705 and in substitution decides that family tax benefit payments for both children be paid to Mr Kerferd and the matter be referred to the respondent for the reconciliation of payments to each party; and

2.affirms the decision under review in application Nº V 200700047.

(sgd) Conrad Ermert

Member

SOCIAL SECURITY – maternity benefits – maternity benefits payable when not receiving family tax benefits – receipt of family tax benefits – eligible member of couple – determination by secretary – preferred determination – decision set aside ‑ cancellation of family tax benefits because of failure to provide bank account details – date of effect of cancellation – whether appropriate to exempt from the consequence – decision affirmed

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance (Administration)) Act 1999

REASONS FOR DECISION

26 May 2008   Mr C. Ermert, Member

INTRODUCTION

1.      Mr David Kerferd had been receiving fortnightly Family Tax Benefit (FTB) payments in respect of his daughter Georgina since she was born on 17 September 1999.  Mrs Kerferd gave birth to a son, James, on 5 June 2005.  On 10 June 2005 Mrs Kerferd submitted to Centrelink, the agency which acts  as service provider for the respondent, a form entitled Claim for Family Tax Benefit, Maternity Payment, Maternity Immunisation Allowance for the 2004-2005 financial year and/or a Health Care Card (for a foster child).  The form only contained details for James.  Mr Kerferd intended that the maternity payments in respect of James be paid to his wife, as at the time her income was lower than his.  He also intended that FTB in respect of Georgina continue to be paid to him and FTB in respect of James be paid to him later.

2.      Centrelink advised that maternity payment could not be paid to Mrs Kerferd because Mr Kerferd was receiving FTB.  Mr Kerferd felt that he was being forced into cancelling his FTB for Georgina so that Mrs Kerferd could be paid the maternity payments.  As the Kerferd’s needed the money Mr Kerferd accepted Centrelink’s advice; and by a facsimile sent to the Family Assistance Office on 20 June 2005, Mr Kerferd requested the cancellation of the payments of FTB in respect of his daughter.  However, in an earlier telephone discussion, he had advised the Family Assistance Office that once the maternity payments were received he wanted the FTB payments for his daughter to revert back to him and he would also claim FTB for his son, but at the end of the year. 

3.      On 20 June 2005 Centrelink cancelled the payments of FTB to Mr Kerferd.  There followed a number of exchanges between Mr Kerferd and Centrelink, the result of which was that Centrelink did not resume FTB payments to Mr Kerferd, instead granting FTB to Mrs Kerferd for James on 4 July 2005 and for Georgina on 14 July 2005.  Mr Kerferd asked for a review of the decision to cancel the payments of FTB to him.  That decision was reviewed in turn by an Authorised Review Officer (ARO) of Centrelink and the Social Security Appeals Tribunal (SSAT) and affirmed.  Mr Kerferd sought review of the SSAT decision by this tribunal; that application being V2006/1175. 

4.      The same circumstances led to Mrs Kerferd requesting a review of the decision to pay the FTB to her.  This decision was also reviewed in turn by an ARO and the SSAT and affirmed. Mrs Kerferd sought review of the SSAT decision by this tribunal; that application being 2007/0705.

5.      Between July 2005 and June 2006 there were a number of exchanges between Mr Kerferd and Centrelink relating to the payments of the benefits available to the Kerferd family.  On more than one occasion, when Mr Kerferd disagreed with some aspect of a payment, he closed the bank account into which the payments were being made.  On 22 June 2006 Mr Kerferd was in receipt of FTB in respect of both his children when he was sent a letter by the Family Assistance Office which stated that the FTB payment made to his account had been returned by the bank.  The letter asked Mr Kerferd to provide, within 28 days, the correct details of the account into which he would like the payments made. 

6.      Mr Kerferd did not provide the required details and accordingly Centrelink determined, on 21 July 2006, that he was not entitled to be paid FTB and he was notified accordingly.  Mr Kerferd requested a review of this decision by an ARO and the SSAT in turn and the decision was affirmed.  Mr Kerferd sought review of the SSAT decision by this tribunal; that application being 2007/0047.

THE HEARING

7. Mr Kerferd represented himself in applications V2006/1175 and 2007/0047 and participated in the hearing via a telephone link. He also represented Mrs Kerferd in application 2007/0705. I note also that at all relevant times Mr Kerferd held an enduring Power of Attorney from Mrs Kerferd (T98) giving him the authority to do anything on her behalf that she may lawfully authorise him to do. Centrelink had been advised of the existence of this power of attorney. The respondent was represented by Mr David Perdon, an advocate from Centrelink Legal Services. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).

THE MAJOR ISSUES

8.      There are three applications to be considered.  I will deal with the two applications (V2006/1175 and 2007/0705) that arise out of the same facts, related to the issue of the payment of FTB to Mrs Kerferd instead of Mr Kerferd, under the heading of ‘Payment of FTB’.  I will deal with application 2007/0047 separately, under the heading ‘Details of Bank Account’.

PAYMENT OF FTB

The Legislation

9. The provisions for eligibility for FTB are contained in Sections 21 and 22 of A New Tax System (Family Assistance) Act 1999 (the FA Act). In this case there is no dispute that both Mr and Mrs Kerferd meet the eligibility provisions for FTB.

10. Section 26 of the FA Act provides for only one member of a couple to be eligible for FTB, as follows:

Only 1 member of a couple eligible for family tax benefit

(1)  For any period when 2 individuals who are members of a couple would otherwise be eligible at the same time for family tax benefit in respect of one or more FTB children, only one member is eligible.

(2)  The member who is eligible is the one determined by the Secretary to be eligible, having regard to:

(a)whether one member of the couple is the primary carer for the child or children; and

(b)whether the members have made a written agreement nominating one of them as the member who can make a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child or children.

11.     The provisions for making claims for FTB are contained in A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). Section 5 states:

The only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision.

Section 7 relevantly provides:

(2)  To be effective:

(a)A claim must:

(i)Be made in a form and manner; and

(ii)Contain any information; and

(iii)Be accompanied by any documents;

required by the Secretary; and

(aa)in the case of a claim for family tax benefit by instalment--the bank account requirement set out in section 7A must be satisfied in relation to the claim…

12. The eligibility criteria for Maternity Immunisation Allowance (MIA) are set out in Section 39 of the FA Act which relevantly provide that an individual is eligible for MIA if the Secretary is satisfied that the individual is eligible for FTB in respect of that child.

EVIDENCE AND SUBMISSIONS

13. On the issue of the cancellation of Mr Kerferd’s FTB payments, Mr Perdon contended that Mr Kerferd requested that the FTB be cancelled and it was cancelled under section 21(3) of the Administration Act. In respect of the payment of FTB to Mrs Kerferd, Mr Perdon contended that there were claims lodged and there are responses in those claims which indicate that a claim for FTB was being made. There was no other person in receipt of FTB, and there were ambivalent responses given by Mr Kerferd, over June and July 2005, as to whether the claim should go ahead. There is no specific indication of withdrawal on Mrs Kerferd’s part; and indeed the notations on the fax that was sent to Centrelink indicate that Mr Kerferd would in fact lodge a claim, but he did not do so. Family tax benefit was granted to Mrs Kerferd for James from his date of birth on 5 June 2005 and in respect of Georgina from 22 June 2005.

14. Mr Perdon submitted that Mrs Kerferd was qualified for FTB in respect of those children under the sections 21 and 22 of the FA Act, and those children were FTB children in relation to her. He said that basically the children were in her care and she was legally or jointly responsible for those children’s upkeep and maintenance. Mr Perdon submitted that Mr Kerferd was not in receipt of FTB when Mrs Kerferd was granted FTB and there was no outstanding claim by Mr Kerferd at that time. There is no requirement to lodge a specific claim in respect of a second child. He said that section 31 of the Administration Act allows a variation of entitlement once an entitlement to the benefit is established and that is how Centrelink actions a claim for an additional child.

15.     Mr Kerferd contends that from the date of James’ birth it was the clear intention of both Mr and Mrs Kerferd that she would claim the maternity payments and he would continue to receive the FTB.  He said:

When we lodged the claim for parenting payment the claim was lodged in my wife’s name.  … So the sole reason for claiming parenting in my wife’s name was that she was the lower income earner, and in – my understanding was that we would get a higher rate of income  (Transcript page 15).

16.     Mr Kerferd’s evidence in relation to the way in which the claim form was completed was:

The form was completed with the express purpose to claim maternity payment and maternity immunisation allowance for Louise Kerferd to pay for the obstetrician fees of approximately $3400.  There was no intention for her to claim family tax benefit and although some income questions were answered, income and family tax benefit questions were not completed in full and it was realised prior to completing the form that these were not required to complete the application for maternity payment and maternity immunisation allowance. (Transcript page 10)

17.     Mr Kerferd said that on 16 June 2005, when making enquiries of Centrelink regarding the payments he:

… told them that it was only maternity payment and maternity immunisation claim form; no family tax benefit required.  We would claim family tax benefit at the end of the year for James Kerferd. (Transcript page 11)

18.     Mr Kerferd’s evidence was that although Centrelink knew what he wanted they told him that they could not pay maternity payment to his wife because he was receiving FTB: 

As a result of this, I said, Okay.  I will cancel family tax benefit for my daughter. (Transcript page 11) I thought that I was forced into making the decision to cancel family tax benefit for Georgina, so that Louise Kerferd could be paid maternity payment for James Kerferd. (Transcript page 20)

19.     Mr Kerferd said that on 20 June 2005 he sent a fax to Centrelink cancelling his claim for FTB and Mrs Kerferd’s claim for maternity payment was processed the next day and paid.  In the fax Mr Kerferd said:

As per telephone conversation, I no longer want to claim any F.T.B. for my daughter, Georgina Louise Kerferd, as of 10/6/2005.  (T12, page 63)

20.     Mr Kerferd said: And the day that I faxed the letter in, at that point, there was no dispute as to what we required.  But the dispute arose later when Centrelink refused to start paying family tax benefits back to me (Transcript page 24).  Mr Kerferd also referred to the annotations made on the file copy of his fax by an officer of Centrelink:

wishes all entitlement in wife’s name claiming mpy only. Nil ongoing FTB.  Spoke to David phone 21.6.05 re bank act req in wife Louise’s name which he provided also states once maternity payment through, he wishes to re-claim FTB for both children, claim form sent 21/06/05.

21.     In relation to this issue of FTB payments Mr Kerferd submitted: … we asked for the money to be paid in … a certain manner, and Centrelink refused. (Transcript page 26).

CONSIDERATION

22.     The form submitted by Mrs Kerferd on 10 June 2005 was headed “Claim for Family Tax Benefit, Maternity Payment, Maternity Immunisation Allowance and contained the following relevant instructions:

Step 3

Claiming Family Tax Benefit for an additional child

If you are currently receiving Family Tax Benefit as fortnightly payments from the Family Assistance Office and you family’s circumstances have not changed since you last told the Family Assistance Office, you do not need to complete ALL the questions in this form – follow the prompts throughout the form …

Claiming Maternity Payment

If you are claiming Maternity Payment only, you do not need to answer all the questions on this form.  Follow the prompts throughout the form …

Claiming Maternity Immunisation Allowance

You can use this form to claim Maternity Immunisation Allowance with your Maternity Payment and fortnightly payments of Family Tax Benefit …

Dependent child details

Instructions

·If you currently receive Family Tax Benefits as fortnightly payments from the Family Assistance Office and you are using this form to add another child (including a newborn baby) – you need to provide details of the additional child only. You do not need to provide details of the dependent children we already know about.

….

If you are only using this form to claim Maternity Payment and Maternity Immunisation Allowance – you need to provide details of the child you are claiming for only. …

Income details

Instructions

If you are only using this form to claim Maternity Payment and Maternity Immunisation Allowance – you do not need to complete Questions 17-31.

23.     The relevant responses on the form submitted by Mrs Kerferd on 10 June 2005 were:

Question 17 – no income details but “Already provided” written after “Total estimated taxable income”.

Questions 18-23 – no entries made.

Question 24 How do you want your Family Tax Benefit to be paid? – tick placed in box ‘some or all of my payment fortnightly’.

Question 25 How do you want your Family Tax Benefit Part A to be paid? – tick placed in box ‘All payments fortnightly’.

Question 26 How do you want your Family Tax Benefit Part B to be paid? – tick placed in box ‘All payments fortnightly’.

Question 27 Would you like to be assess for any entitlement to Family Tax Benefit for any of your children after the end of the financial year? – tick placed in box ‘No’.

Question 28 Rent Assistance – tick placed in box ‘not applicable’.

Question 29 Do you want an advance of your fortnightly payments? – tick placed in box ‘no’.

Question 30 Past period claim – all boxes ticked ‘no’.

Question 31 Do you want to claim Family Tax Benefit for a previous financial year? – tick in box ‘no’.

Question 32 Documents you may need to attach – tick in box for Child 1 ‘I am attaching the Hospital Certificate sticker to Page 31 (for newborn babies)’.

24.     It is easy to understand some confusion on the part of a Centrelink officer receiving this form as to the intentions of Mrs Kerferd.  If her intentions had been to receive only Maternity Payment and Maternity Immunisation Allowance then questions 17-31 which relate to FTB should have been left blank.  However questions 24-31 contained responses.  In particular, questions 24-26 which related to the method of payment of FTB were answered with the indication that payments should be made fortnightly.

25.     From just the responses on the form, it is equally as reasonable to assume that Mrs Kerferd was claiming only maternity benefits as it is to assume that she was claiming FTB in addition to the maternity benefits.  However, Mr Kerferd’s evidence is that he told Centrelink that the submission of the form was to claim only maternity benefits for James and not to claim FTB.  This is supported in part by the Centrelink enquiry record dated 16 June 2005 (T8) which states cus called to enq when he was going to receive MAT.  There is no mention of Mr Kerferd enquiring about FTB; indeed when the officer taking that telephone call spoke of FTB, Mr Kerferd asked to speak to a supervisor.  In a second telephone conversation with Centrelink on 16 June 2005, the file records (T9) show Cus advised that they did not wish to continue with the claim for FTB and would claim for that child at the end of the fin yr and they just wanted to received (sic) MPY.  The file record of a call to Centrelink made on 17 June 2005 (T10) shows partner states that they only wish to claim maternity payment for newborn child and will claim ftb at end of year. 

26.     The statements made by Mr Kerferd to Centrelink on 16 and 17 June 2005 were sufficiently clear, in my opinion, to clarify any confusion residing in Centrelink as to the intentions of Mrs Kerferd on the submission of the 10 June 2005 claim form. 

27.     Following the clarification by Mr Kerferd, Centrelink should have understood that the form dated 10 June 2005 was submitted for the purpose of claiming maternity benefits only and should have been processed as such.  Accordingly, I find that the form submitted by Mrs Kerferd on 10 June 2005 was a claim for Maternity Payment and Maternity Immunisation Allowance but was not a claim for FTB in respect of James.

28. Section 39 of the FA Act provides that an individual is eligible for Maternity Immunisation Allowance if the Secretary is satisfied that the individual is eligible for FTB in respect of that child. There is no disagreement between the parties that Mrs Kerferd is eligible to receive FTB in respect of James, for whom the MIA allowance was being claimed. There is therefore no reason why Centrelink could not properly pay MIA and Maternity Payment to Mrs Kerferd on the basis of the form submitted on 10 June 2005. I note also that there is no requirement under the acts for Mrs Kerferd to be receiving FTB payments in order to be eligible for maternity payments. The requirement is only that Mrs Kerferd be eligible to receive FTB, which she was.

29.     There were some contentions made during the hearing concerning the proper form to be used when making such claims, however Centrelink, acting on behalf of the Secretary, obviously found the 10 June 2005 form sufficient for the payment of maternity benefits as it did indeed subsequently make those payments on the basis of that form without further documentation.

30. In considering the payment of FTB, I must have regard to Section 26 of the FA Act which provides that only one member of a couple is eligible for FTB. Section 26(2) provides that the determination of which member of the couple is eligible for FTB is made by the Secretary, having regard to whether one member is the primary carer of the children and whether there is any written agreement made between the members of the couple. In this case there is no evidence in relation to which of the Kerferd couple is the primary carer, nor is there evidence of a written agreement between Mr and Mrs Kerferd regarding the care of the children. Mr Kerferd does hold the enduring Power of Attorney from Mrs Kerferd. However, I do not consider this to be sufficient to meet the provisions of section 26(2)(b) of the Administration Act, which requires the members to have made … a written agreement nominating one of them as the member who can make a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child or children. The generality of the Power of Attorney is not, in my opinion, sufficient to meet the specific requirements of section 26(2)(b).

31. In the absence of evidence of a primary carer or a written agreement it was open to Centrelink to determine that either Mr Kerferd or Mrs Kerferd be the member of the couple eligible for FTB. Equally, there is nothing in the FAA Act that prevented Centrelink from determining that Mr Kerferd was the member of the couple eligible for FTB. Indeed, Mr Kerferd had been in receipt of FTB in respect of Georgina since 1999. On that basis, it would have been more reasonable to continue the determination of Mr Kerferd as the eligible FTB partner than to discontinue his eligibility and make a new determination that Mrs Kerferd was the eligible partner. The preferred determination would have been to maintain Mr Kerferd as the eligible member of the couple as this complied with the provisions of the Administration Act and in addition was the outcome preferred by Mr and Mrs Kerferd. This approach was later acknowledged by an ARO of Centrelink in his telephone conversation with Mr Kerferd, the file notes of which appear at T36. In those notes the ARO states:

I acknowledge my understanding of what he wanted, which he confirmed again today, was that his intentions were to have his wife received Mat payments for the new child and he recieve FTB for both children by instalments.  I acknowledged that if this was his intention at the time then this was appropriate and possible, that is should have happened, it was a legal process. 

32.     Accordingly I find that, although the determination of Mrs Kerferd as the eligible FTB member of the Kerferd couple was not incorrect, it was not the preferred determination.  The preferred determination is that Mr Kerferd is the member of the couple eligible for FTB in respect of both children.  There would be no change to the costs to the Commonwealth as a consequence of such a determination.  FTB can be paid to only one person and there is no claim by the Kerferds for payment to anyone other than Mr Kerferd. 

33.     Had that determination been made at the time of the initial consideration of eligibility for FTB in respect of James there would have been no grounds for dispute between the parties.  Maternity payments could have been made to Mrs Kerferd and FTB payments would have been made to Mr Kerferd as requested and allowed under the provisions of the FAA Act. 

34.     I accept the contentions of Mr Kerferd regarding  the payments of FTB and find that the preferred decision is that FTB payments for both children be made to Mr Kerferd as he requested and not to Mrs Kerferd.  Consequent on that decision, I find that the decision of the SSAT made on 21 November 2006 (V2006/1175), affirming the earlier decision to cancel Mr Kerferd’s FTB, and the decision made on 11 January 2007 (2007/0705), affirming the earlier decision to pay FTB to Mrs Kerferd, be set aside.  In substitution for those decisions, I decide that FTB payments for both children be paid to Mr Kerferd and that the matter be referred back to the respondent for the reconciliation of payments to each party.

DETAILS OF BANK ACCOUNT

Legislation

35. Section 26A of the Administration Act details the powers of the Secretary to require bank account details:

If:

(a)a determination is in force under which the claimant is entitled to be paid family tax benefit by instalment; and

(b)the claimant has not nominated a bank account into which instalments of family tax benefit are to be paid;

the Secretary may require the claimant to give the Secretary, within 28 days of the requirement being made, details of a bank account maintained by the claimant alone, or jointly or in common with someone else, into which instalments of family tax benefit are to be paid.

36. Section 27A relevantly provides for non-compliance with the requirement to provide bank account details:

(1)  If:

(a)the claimant is subject to a requirement under section 26A; and

(b)the claimant does not comply with the requirement within 28 days of the requirement being made;

then, subject to subsection (2), the consequence in subsection (3) applies.

Exemption from requirement under section 26A

(2)  The Secretary may determine that the consequence in subsection (3) does not apply if the Secretary considers that it is appropriate to exempt the claimant from the consequence.

Variation of determination

(3)  For the purposes of subsection (1), the consequence is that the Secretary may vary the determination so that it has the effect that the claimant is not entitled to be paid family tax benefit for any day, on which the determination was or will be in force, after the end of the last instalment period before the variation takes place.

EVIDENCE AND CONTENTIONS

37.     Mr Kerferd’s contention on this issue is that Centrelink cancelled FTB and the associated Health Care Card benefits without giving proper notification in that a 28 day period had not elapsed since the commencement of FTB payments.  He submits that cancellation should not have taken place until 28 days after the last time that the benefit was paid, which was 10 July 2006.

38.     Mr Kerferd’s evidence was:

… the agreement in March was to pay the family tax benefit from 8 November 2005 continually, on the basis of – income tested of $25,000 per year.  And what Centrelink did was that they changed their mind and they paid on the basis of $27,000 a year and they refused to alter it.  So I closed my account in – within a couple of days of giving it to them.  And of course, the payments were returned.

… I contacted the ombudsman, and eventually they reviewed it, and the reviewing officer overturned the decision to cancel family tax benefit on 22 June 2006, and Centrelink sent to me a request for bank account details, giving me 28 days’ notice, and then they commenced payment back to the original closed account.  But the trouble was that the original closed account was still closed, and they started the payment, and of course I think that was returned, and they cancelled it again on 28 June 2006.  And so my assumption is of course that it was cancelled under section 26A, Family Assistance (Administration) Act …

… So I said, Give me another 28 days’ notice. And they recommenced it to the closed account, and of course it was returned to them, and they cancelled it again on 10 July 2006, which would once again have been under the provisions of the Family (Administration) Act – Assistance Administration, section 26A. And then they recommenced it, and they never paid me anymore because they cancelled it on 21 July 2006. So the contention was that they haven’t given me 28 days’ notice from the commencement of a new payment.

39. Mr Perdon contended that the Mr Kerferd was sent a written request on 22 June 2006 to provide valid bank details within 28 days but he did not do so and he had no intention to do so. A non-entitlement determination was made on 21 July 2006. That date was changed to 28 July 2006 by the SSAT, but because the non-entitlement determination is set under section 27A of the Administration Act, the payment is stopped after the end of the last payment period. The end of the last payment period before both those dates was 17 July 2006, so the determination took effect on 18 July 2006.

CONSIDERATION

40.     In this case there is no dispute as to the key facts, that on 22 June 2006 Mr Kerferd was sent a request to provide details of a valid bank account within 28 days and he did not do so.  There is also no dispute that a cancellation determination be made.  The only disagreement is the date of the determination, whether that date should be 28 July 2006 as contended by the respondent, or 28 days after the new payment on 10 July 2006 as contended by Mr Kerferd.

41.     I note that Mr Kerferd’s family benefits were cancelled on 28 June 2006 (T51), restored on 4 July 2006 (T55, 56), cancelled again on 10 July 2006 (T62), restored again on 11 July 2006 (T64), and cancelled yet again on 21 July 2006 (T71).  In each case the payments were cancelled because Mr Kerferd had not provided details of a valid bank account.

42.     The restorations of the payments were in each case noted as being restored. Section 26A of the Administration Act refers to determinations in force.  I accept that the restoration of the benefits is a reversion to the determination in force, that being the determination prior to the 22 June 2006, that Mr Kerferd was entitled to receive FTB.  Therefore, the restorations do not create new determinations in force and the 28 days remain the 28 days from the 22 June 2007 as notified in the Centrelink letter of that date.  On that basis, I find that the 28 day period of notice correctly commences on 22 June 2006. 

43. Section 27A of the Administration Act provides that a person who is subject to a determination according to section 26A and who does not nominate a bank account will be subject to the consequence set out in section 27A(3), unless the Secretary considers that it is appropriate to exempt the claimant from that consequence. In this case, as the failure to nominate the details of a bank account was as a result of a deliberate decision of Mr Kerferd and not as a result of any circumstances outside his control, I do not find it appropriate for Mr Kerferd to be exempt from the consequence in section 27A(3).

44.     The consequence in this case has been determined by the SSAT to be that Mr Kerferd was not entitled to be paid FTB with effect from 28 July 2006.

45.     In relation to the Health Care Card entitlement associated with FTB, Mr Perdon contended that it follows the FTB entitlement.  In his evidence, Mr Kerferd stated:

What does matter, though, is that the health care card was cancelled as of that date, 21 July 2006, so we were deprived of a Centrelink benefit, which we’re entitled to, and the SSAT had extended to us”.  When asked whether he had actually incurred medical expenses during the period 21 to 28 July 2006 Mr Kerferd said “It’s the opportunity cost.  I could have incurred a medical expense.  I wasn’t able to because I didn’t have the health care card.  (Transcript page 28)

46.     Mr Kerferd did not give any evidence of medical expenses incurred  between the cancellation of his FTB by Centrelink and the cancellation date determined by the SSAT.  Accordingly, I find that there is no issue in this case regarding entitlement for Health Care Card benefits for my determination.

47.     From the above considerations, I find that Mr Kerferd was not entitled to be paid FTB from 28 July 2006 and was also not entitled to Health Care Card entitlements from the same date.  Accordingly, I affirm the decision made by the SSAT in application 2007/0047.

DECISIONS

48.     The Tribunal:

(a)sets aside the decision under review in application Nº V 2006/1175 and Nº 200700705 and in substitution decides that family tax benefit payments for both children be paid to Mr Kerferd and the matter be referred to the respondent for the reconciliation of payments to each party; and

(b)affirms the decision under review in application Nº V 200700047.

I certify that the forty‑eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)     Dianne Eva
  Clerk

Date of Hearing:  6 February 2008

Date of Decision:  26 May 2008

Advocate for the applicants:               Mr David Kerferd

Advocate for the respondent:             Mr David Perdon, Centrelink Legal Services