Kim Leggett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 106
•23 February 2012
[2012] AATA 106
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2282
Re
Kim Leggett
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Date 23 February 2012 Place Sydney Decision Summary: The decision under review is affirmed.
...........[sgd].............................................................
Deputy President R P Handley
Catchwords
SOCIAL SECURITY – family tax benefit – instalment payment – youth allowance – Centrelink – past period – arrears – claim – child recipient – more than one child – child under 16
Legislation
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Cases
Secondary Materials
REASONS FOR DECISION
Deputy President R P Handley
23 February 2012
Ms Leggett has applied for a review of a decision in respect of the payment of family tax benefit concerning her son. The issue for the Tribunal is whether arrears of family tax benefit are payable.
BACKGROUND
Ms Leggett was receiving family tax benefit for her son until he turned 16 in July 2007. She was also receiving family tax benefit in respect of her two younger children. After she notified Centrelink that her son would be claiming youth allowance, Centrelink cancelled payment of family tax benefit to Ms Leggett in respect of her son from the day after his 16th birthday. Centrelink notified Ms Leggett of this decision by letter dated 17 July 2007. However, her son did not claim youth allowance until 17 March 2009 and his claim was rejected by Centrelink because he did not supply requested information.
Ms Leggett’s son was paid approximately $6,000 during a six month traineeship with Green Corps during the 2008/2009 income year and, in the 2009/2010 income year, was in full-time employment.
On 2 August 2010, Ms Leggett contacted Centrelink querying the decision about family tax benefit payable in respect of her son, and was issued with forms to make a lump sum claim for the 2008/2009 and 2009/2010 financial years. On 20 October 2010, Ms Leggett lodged a claim for a lump sum payment of family tax benefit for the 2008/2009 income year. Centrelink rejected her claims on 2 November 2010, a decision that was affirmed by the original decision-maker on 8 November 2010 and by an authorised review officer on 6 December 2010. This decision was reviewed by the Social Security Appeals Tribunal (SSAT) which, on 12 April 2011, set aside the decision dated 17 July 2007 to vary Ms Leggett’s family tax benefit. However, because the SSAT found the earliest date its decision could take effect was 1 July 2009, it found that no arrears of family tax benefit were payable and, therefore, affirmed the decision to refuse payment of arrears of family tax benefit. The SSAT also affirmed the decision to refuse Ms Leggett’s claim for a lump sum payment of family tax benefit for the 2008/2009 income year on the ground that this was not an effective claim because Ms Leggett was entitled to be paid family tax benefit by instalments during the 2008/2009 income year.
On 10 June 2011, Ms Leggett applied to the Tribunal for a further review and an application for an extension of time for lodging her application which was granted on 28 June 2011.
DISCUSSION
The facts are not in dispute. As stated above, the issue is whether arrears of family tax benefit are payable to Ms Leggett, including whether her claim for a lump sum payment of family tax benefit was effective.
Section 22(2) of the A New Tax System (Family Assistance) Act 1999 (the FA Act) provides that an individual is a family tax benefit (FTB) child of an adult if they are aged under 16, and living with and in the care of an adult who is legally responsible for their care, welfare and development. Section 22A(1) sets out exceptions to this including where the FTB child is receiving a social security benefit. Despite Ms Leggett advising Centrelink that her son would be claiming youth allowance, he did not do so at that time and when he did so on 17 March 2009 his claim was rejected. Thus, through the period 17 July 2007 to 30 June 2009, Ms Leggett’s son continued to be her FTB child.
Section 28B of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) provides for the variation of the family tax benefit payable to a person including in situations where an individual makes a claim for a social security benefit. As the SSAT recognised in its decision, with which the Secretary agrees, the section is not, however, enlivened by a stated intention to claim a social security benefit, as was the case here. Thus, the decision to vary Ms Leggett’s rate of family tax benefit was invalid.
Ms Leggett did not challenge the decision of 17 July 2007 to vary her family tax benefit until 2 August 2010. Section 109A of the Administration Act provides for a person to apply to the Secretary for a review of a decision affecting them. Section 109E provides that in the case of a decision relating to family tax benefit, if the application for review is made more than 52 weeks after the person was given notice of the original decision, and the Secretary decides to vary that decision or set it aside and substitute a new decision, the date of effect of the review decision is the first day of the income year before the income year in which the application for review was made. In this case, the application for review was made on 2 August 2010 (in the 2010/2011 income year) and therefore the date of effect of any favourable decision must be 1 July 2009 (being the first day of the 2009/2010 income year).
However, Ms Leggett advised Centrelink that in the 2009/2010 income year, her son was in full-time employment and, as a result, she was no longer entitled to claim family tax benefit in respect of him.
On 26 October 2010, Ms Leggett lodged a new claim for a lump sum payment of family tax benefit in respect of her son for the 2008/2009 financial year. Section 10(1)(b) of the Administration Act provides that a claim for family tax benefit is not effective if the claimant was entitled to be paid family tax benefit by instalment at any time in the past period. Thus, as Ms Leggett was entitled to be paid family tax benefit by instalment in the 2008/2009 income year, her claim for that past period is not effective.
DECISION
The decision under review is affirmed.
I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
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Associate
Dated 23 February 2012
Date of hearing 15 February 2012 Date final submissions received 15 February 2012
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