Kristoffersen and Secretary, Department of Social Services (Social services second review)
[2018] AATA 524
•15 March 2018
Kristoffersen and Secretary, Department of Social Services (Social services second review) [2018] AATA 524 (15 March 2018)
Division:GENERAL DIVISION
File Number: 2017/6091
Re:Kurt Kristoffersen
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:15 March 2018
Place:Brisbane
The application is dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
.........................[sgd]...............................................
Senior Member Theodore Tavoularis
CATCHWORDS
PRACTICE AND PROCEDURE – dismissal application – s 42B Administrative Appeals Tribunal Act 1975 (Cth) – whether application has any reasonable prospect of success – family tax benefit – school kids bonus – where Applicant received less than the full rate of FTB Part B – whether Applicant’s wife’s income should be considered for the purposes of calculating FTB Part B – application does not have any reasonable prospect of success – substantive application dismissed pursuant to s 42B Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth), Schedule 1, cll 29, 38L, 38M; Schedule 2; Schedule 3 cll 2(1), 3(2)
Administrative Appeals Tribunal Act 1975 (Cth), s 42BCASES
Filsell and Comcare
[2009] AATA 90
James and Secretary, Department of Social Services[2017] AATA 523
Merante and Secretary, Department of Employment[2017] AATA 1178
Paraponiaris and Secretary, Department of Employment[2015] AATA 895; 68 AAR 143
SECONDARY MATERIALS
Dennis Pearce, Administrative Appeals Tribunal (4thed, LexisNexis, 2015)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
15 March 2018
INTRODUCTION
On 11 September 2017, the Tribunal, via its Social Services and Child Support Division (“SSCSD”) made certain decisions as to the rate of payment of two benefits to Mr Kurt Kristoffersen (“the Applicant”). Those benefits comprise the Family Tax Benefit (“FTB”) and the School Kids Bonus (“SKB”). More specifically, the abovementioned decision of the SSCSD dealt with the rate that each of the benefits was to be paid to the Applicant on and from 11 October 2007.
In the substantive application for this matter, the Applicant has sought review of the SSCSD’s decision. However, the Respondent has applied for this matter to be dismissed, contending that the substantive application has no reasonable prospect of success and thus attracts the operation of s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
The Applicant has a long and storied involvement with the Tribunal. He and his wife are the parents of an eleven year-old child. The Applicant is currently in receipt of two benefits: (1) the disability support pension (“the DSP”) and (2) FTB in respect of the child. His wife is currently in receipt of carer payment (“CP").
HISTORY OF THE MATTER
A concise summary of the contested sequence of this matter is to be found at [5]-[24] of the Respondent’s submissions.[1] In essence, the Applicant is disputing the rate of FTB and SKB that he has received for his child. He was originally paid FTB Part A and FTB Part B for his child at the maximum rate. In October 2007, the FTB began to be paid to him at a reduced rate.
[1] See Exhibit 3: Respondent’s Submissions and Annexures thereto.
The Applicant has contended and, via the present substantive application, continues to contend, that the Respondent’s derivative entity, Centrelink, has wrongly reduced his rate of FTB by basing its calculations on both his and his wife’s tax-free social security payments. His primary contention seems to be that because his income estimates[2] are nil and, because both he (DSP) and his wife (CP) receive benefits against which income tax is not levied, those benefits he and his wife receive should not be included in Centrelink’s calculations for the FTB.
[2] That is, assessable income and, as such, liable to income tax.
The SSCSD, on 11 September 2017, rejected the Applicant’s contention and found he had been correctly paid the FTB, review of which he had sought. In his letter of 6 February 2017,[3] the Applicant sought review of what he says are 5 decisions:
1) The decision to reduce Family Tax Benefit (FTB) part A and not pay at the full or maximum rate since 11/10/07
2) The decision to not pay the FTB part A annual bonuses at the maximum rate since 11/10/07
3) The decision to not pay the school kids bonuses at the full or maximum rate since 11/10/07
4) The decision to reduce FTB part B and not pay at the maximum or full rate since 11/10/07
5) The decision to not pay the FTB part B annual bonuses at the maximum rate since 11/10/07
[3] Exhibit 3: Respondent’s Submissions and Annexures thereto, A 12, p 73.
In its decision of 11 September 2017, the SSCSD, in my view correctly, told the Applicant that if he disputed receipt of any of these payments (rather than his eligibility for or entitlement to them), then that should be appropriately raised at departmental level and not ventilated before the Tribunal. As the learned Member observed:
In summary, I am satisfied that Mr Kristoffersen has been correctly paid the five family assistance payments he requested to be reviewed. If any of the payments… are missing or incorrect they should be identified by date and amount and brought to Centrelink’s attention. It is not the function of this tribunal to conduct a forensic review into whether an individual’s entitlement as determined by Centrelink arrive [sic] in their nominated bank account. The tribunal’s role is to consider the facts and the law of a decision made under the family assistance law and not the administration of the law.[4]
(my underlining)
[4] Exhibit 3, Respondent’s Submissions and Annexures thereto, A1, p 7.
This is consistent with the submission made on behalf of the Respondent in the hearing before me. This is a case about qualification for certain payment(s) and, if so qualified, the rate at which that payment(s) is/are to be received by a claiming party or parties. Just as the SSCSD could not address the question of whether the amounts purported to be paid to the Applicant actually were, neither can this Tribunal. The Applicant therefore cannot succeed on this ground of contention. I will now turn to addressing the Applicant’s prospect of success in areas that I do have the power to deal with.
CONSIDERATION
The power to dismiss
Section 42B(1) of the AAT Act affords the Tribunal power to dismiss an application if it is satisfied the application is:
(a)frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
The Tribunal’s exercise of its power to dismiss an application is governed by parameters established on previous occasions where exercise of the power has been considered.[5] Stated succinctly, those parameters can be said to comprise:
(a)The power to summarily dismiss a proceeding must be attended with caution and not exercised lightly;
(b)The test of “no reasonable prospect success” sets a higher standard than that followed under the previous form of s 42B(1), whereby the power to dismiss was limited to an application that the Tribunal was satisfied as being frivolous or vexatious;[6]
(c)For the Tribunal to be satisfied of “no real prospect” of success of a given application, there must exist “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way”;[7]
(d)Reaching (or not reaching) the “no prospect of success” standard involves an assessment of an application’s merits to ascertain whether it can reasonably sustain any reasonable contention or line of argument;[8] and
(e)The threshold of satisfaction of the “no prospect of success” standard is not reached if the Tribunal apprehends that it is unlikely that an applicant will succeed on a question of law or fact (or both).[9]
[5] Filsell and Comcare [2009] AATA 90; Paraponiaris and Secretary, Department of Employment [2015] AATA 895; James and Secretary, Department of Social Services [2017] AATA 523.
[6] See: Dennis Pearce, Administrative Appeals Tribunal (4thed, LexisNexis, 2015) 278-279, [15.14].
[7] James and Secretary, Department of Social Services [2017] AATA 523 at [7], citing Paraponiaris and Secretary, Department of Employment (2015) 68 AAR 143 at 149-150 (DP Alpins).
[8] Ibid.
[9] Ibid.
As pointed out by the learned Deputy President Forgie of this Tribunal,[10] although a full-scale consideration of the merits is not required, if the Applicant demonstrates an arguable view of the law, such as to create some doubt about its correctness or otherwise which, in turn, indicates “…the applicant would have some measure of success in varying the decision under review, it cannot be said that an applicant has no prospect of success.”[11]
[10] Merante and Secretary, Department of Employment [2017] AATA 1178.
[11] Ibid, [17].
The calculation of the FTB
The contention(s) now ventilated by the Applicant in the present substantive application is/are of the same nature and type and have, at their core, the same particularity to those appearing in his application in 2012, when he first alleged that there was an error with his FTB payments.
The specific issue(s) he now seeks to re-ventilate has/have been squarely addressed in the decision of the SSCSD dated 11 September 2017. The learned Member has both accurately and succinctly summarised the methodology of calculation of the rate of FTB pursuant to Schedule 1 of A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”) at [18]-[23] of that decision.[12]
[12] See Exhibit 3, Respondent’s Submissions and Annexures thereto, A1, pp 4-6.
The FTB is comprised of two parts: Part A and Part B. Each part (together with its associated supplements) is reconciled at the end of each financial year. As mentioned earlier, the essence of the Applicant’s case is that he is entitled to the maximum rate of payment for the FTB because his income from the DSP and his wife’s income from the CP should not be taken into account in the relevant calculation. This contention is plainly incorrect and is not otherwise sustainable.
This comment is tempered by the helpful concession made by the Respondent: the Applicant’s abovementioned contention is correct in respect of the FTB Part A component. This concession squarely accords with the findings of both the Authorised Review Officer (“ARO”),[13] and the learned Member who decided the matter at the SSCSD level.[14] As the former correctly pointed out in his decision:
The rate for FTB instalment customers is worked out using the customer’s estimate of ATI [i.e. adjusted taxable income] for the financial year and estimated maintenance income. If either members of a couple are on an income support payment they will receive FTB Part A free of the income test (with the exception of the maintenance income test). Only single income support customers receive FTB Part B free of the income test. FTB Part B is based on the lower secondary income earner (either member of the couple).[15]
(my underlining)
[13] Ibid, A 14, p 76.
[14] Ibid, A 1, p 6.
[15] Ibid, A 14, p 76.
Looking to the provisions of the Act, specifically clauses 38L and 38M of Schedule 1, the Applicant’s entitlement for the FTB Part A was, in my view, correctly calculated at the maximum rate for all but a short period in 2007 for the following reasons identified by the ARO, with whom the learned Tribunal Member at the SSCSD subsequently concurred:
I first looked at the amount of FTB Part A, you were paid for this financial year. For the period 24 October 2007 to 15 January 2008 you were paid $138.65, which was reduced from the maximum rate. The reason for this was mandatory continuous adjustment. This occurs where it is determined that the individual/or claimant has been paid more than they are likely to be entitled, mandatory continuous adjustment (MCA) will apply. This is calculated automatically upon a change to the customer’s circumstances, income estimate or maintenance income. This possible overpayment was due to your partner’s carer’s claim that was rejected. It was found that there was no overpayment and this was returned to you during reconciliation. Therefore I can confirm you were paid the correct rate of FTB Part A for this period.[16]
[16] Ibid, A 14, p 76.
As noted by the Respondent, the Applicant’s contention about FTB Part B, as put to the SSCSD and now propounded in the substantive application, is not correct and can never be correct. It is surely unarguable that clause 29 of Schedule 1 of the Act establishes the rate of FTB Part B a person received is to be reduced by taking into account that person’s adjustable taxable income. This reality brings one to the nub of the Respondent’s contention in this dismissal application:[17]
(i)Clause 3(2)(b) of Schedule 3 of the Act stipulates that where a person is a member of a couple, the relevant adjusted taxable income is the income of the person who earned the lower amount;
(ii)Clause 2(1) of Schedule 3 of the Act defines adjusted taxable income and includes an individual’s tax-free pension or benefit for that year. This includes the FTB.
[17] Ibid, [32].
To avoid any lack of clarity, or to prevent a situation where this self-represented Applicant may assert ignorance of the law and how it applies to his own circumstances, the decision-making process has sought to ‘localise’ the operative effect of the legislation to his own circumstances, insofar as FTB Part B is concerned. The ARO told him:
For FTB Part B, you were not paid the maximum rate. This was due to your partner’s income estimate of $9,000. For this financial year the lower earner income limit is $4,380 before it affects FTB Part B. Part B payments are reduced by 20 cents for each dollar of income earned over $4,380. Due to this income estimate you were not paid the maximum rate of FTB Part B. For the period 1 July 2007 to 25 September 2007 you were paid the maximum rate of FTB Part B, which given your partner’s income estimate, should have not been the case. I have been unable to find the reason for this, however as FTB is reconciled at the end of each financial year this is not an issue. On 15 January 2008 you were paid a reduced rate of FTB Part B due to the MCA.[18]
[18] Ibid, A 14, p 76.
As part of this exercise, the ARO accurately analysed and explained the Applicant’s entitlement to the FTB as at 30 June of each relevant year of income comprising: 2007/2008, 2008/2009, 2009/2010, 2010/2011, 2011/2012, 2012/2013, 2013/2014, 2014/2015, 2015/2016 and 2016/2017. The ARO’s commentary is augmented by a self-explanatory schedule in spreadsheet format in which each payment for each period is duly itemised.[19] As noted by the Respondent, the Schedule reconciles the Applicant’s entitlement to the FTB at the end of each year, thus ensuring the correct rate for the FTB was applied, including supplements.[20]
[19] Ibid, pp 84-93.
[20] Ibid, [33].
Having regard to the above, there can be no question the Applicant’s entitlement to the FTB since 11 October 2007 has been correctly calculated.
The calculation of the SKB
I am of the view that the decision of the ARO regarding the Applicant’s entitlement to this bonus is entirely correct and unarguable. The ARO[21] told the Applicant:
SKB payments did not begin until 1 January 2013 and finished 31 December 2016. You were eligible for this payment as you were receiving FTB part A and your ATI [i.e. adjusted taxable income] was under $100,000 (from 1 January 2015). Eligibility for SKB was based on the income information already provided to the department. Eligibility was determined on each of the bonus test days of 1 January and 30 June each year. The SKB payments were a set rate depending on whether the child was at primary or secondary school and the year. As [your child] was at primary school for this period, [the SKB] was paid at the primary school rate. The primary school rate for 2013/2014 was $205, for 2015 was $211 and for 2016 was $215… you have received your correct entitlement for [your child].[22]
[21] With whom the learned Member of the SSCSD concurred.
[22] Exhibit 3, Respondent’s Submissions and Annexures thereto, A 14, p 81.
The calculation of the FTB supplements
The Applicant further contends that there are errors in the calculations of his FTB Part A and FTB Part B supplements. The payments of these supplements were reduced from the maximum rate owing to the income assessments of the Applicant’s wife. Having regard to the totality of the evidence before me, I am satisfied that these reductions were properly made; there is no evidence before me supporting any contention of the Applicant that the Respondent’s calculations were incorrect.
CONCLUSION
The currently configured and propounded substantive application reveals three things:
(a)The principle expressed in Clause 3(2) of Schedule 3 of the Act[23] is beyond argument;
(b)The principle expressed in Clause 2(1) of Schedule 3, defining adjusted taxable income to include an individual’s tax-free pension or benefit for that year, is beyond argument; and
(c)The resulting calculations and findings of both the ARO and the SSCSD are incapable of rational challenge.
[23] It provides that in the case where a person is a member of a couple, the relevant adjusted taxable income is the income of the person who earned the lower amount.
If the Applicant is incapable of comprehending the above three items, or is otherwise dismissive of their operative reality, then the substantive application is clearly misconceived and ought be dismissed pursuant to s 42B(1)(a) of the AAT Act.
More substantially, even in the absence of such a demonstrated misconception, the substantive application has no reasonable prospect of success. The Applicant’s contentions go nowhere in terms of convincing the Tribunal that he would have any measure of success in varying the decision under review. Nothing he contends raises any doubt in respect of the calculation of his entitlement to FTB and SKB.
The substantive application is both misconceived and hopeless. No legitimate purpose could be achieved by allowing it to continue. It can serve no purpose for the Applicant and should no longer consume this Tribunal’s time and resources.
I therefore dismiss the substantive application in this matter pursuant to s 42B(1)(b) of the AAT Act.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.....................[sgd]...................................................
Associate
Dated: 15 March 2018
Date of hearing: 12 March 2018 Applicant: In person Advocate for the Respondent: Christopher Bishop Solicitors for the Respondent: Mills Oakley
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