Labrosciano and Department of Family and Community Services - [2002] AATA 336

DECISION AND REASONS FOR DECISION [2002] AATA 336

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/102

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LOUISE LABROSCIANO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date10 May 2002
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
SOCIAL SECURITY - Family Allowance - cancellation for failing to return Income and Assets form – applicant did not respond to letter notifying of cancellation for fourteen months - whether entitled to back payment.
Social Security Act 1999 ss.873, 874, 880, 881, 1068B-D1, 1068B-D19, 1069-H1, 1069-H7, 1069-H8, 1069-H23, 1069—K1, 1072
Social Security (Administration) Act 1999 ss.109, 110
Catt & Secretary, Department of Family and Community Services [2000] AATA 1101

REASONS FOR DECISION

10 May 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mrs Louise Labrosciano (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 12 February 2001 (T2) affirming the decision of an authorised review officer (ARO) dated 15 September 2000 (T10) which affirmed the delegate's decision of 4 April 2000 (T6) to pay family allowance from 22 March 2000 only.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T12), together with six exhibits, four lodged by the applicant (Exhibits A1-A4) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant. The applicant was represented by Ms C. Phillips, of counsel, and Mr J. Underwood, a departmental advocate, represented the respondent.
The issue in this matter is whether or not the payment of family allowance to the applicant can be backdated to a date before 22 March 2000, and in particular to 29 January 1999.
history of the application
The applicant was receiving parenting payment and family allowance during 1998. The parenting payment was calculated using the income of the applicant and her partner. The family allowance was paid at the maximum rate, without regard to the income test.
On 31 December 1998, the applicant advised the Department of her earnings from employment (Exhibit R1, Attachment A). The income used to calculate her entitlement was derived by averaging her gross wage for the previous 3 weeks (Exhibit R1, Attachment A).
By letter dated 5 January 1999, the applicant was advised that her parenting payment was to be cancelled because of her and her partner's income (Exhibit A2).
By separate letter dated 5 January 1999, the applicant was advised that her family allowance rate had reduced to $31.40 per fortnight (Exhibit A3). The letter stated (inter alia):
"…
You will be paid $31.40 for Thomas every second Thursday, starting on 14 January 1999.
We cannot pay you the maximum amount of Family Allowance any more.
This is because you and your partner are no longer getting an income support payment (such as a pension or allowance) from Centrelink. While you or your partner were getting this payment, you were paid Family Allowance without having to give us details of your income or assets.
Depending on your family's income and assets, we may be able to pay you more Family Allowance. Please contact us now and we will give you a form to fill in. From the information you give us we will be able to work out how much Family Allowance we can pay you.
Thank you for telling us the details of your new annual income. Because your yearly income has increased, we will be paying you less Family Tax Payment.
…"
Centrelink computer records indicate that a form SC217 "Request for Income and Asset Details" (Exhibit R1, Attachment D) was sent to the applicant's home address on 5 January 1999 (Exhibit R1, Attachment A). Issued automatically, this form requested taxable income details for a tax year.
The form was not returned and as the relevant income details were not known the applicant's family allowance was cancelled (T4/22).
By letter dated 27 January 1999, the applicant was advised of the cancellation of her family allowance (Exhibit A4). The letter stated (inter alia):
"…
We cannot pay you Family Tax Payment and Family Allowance any more. This is because you have not told us how much your income is.
This has been decided under section 900A and 881 of the Social Security Act 1991.
…"
On 22 March 2000, the applicant contacted the Department about obtaining family allowance and on 3 April 2000 lodged a claim form (T5/23-42). The applicant was paid family allowance with effect from 22 March 2000, the contact on that date being deemed a claim for payment (T6/43).
On 15 September 2000 an authorised review officer ("ARO") affirmed the decision to pay family allowance only from 22 March 2000 (T10/57-58). In his reasons for decision, the ARO stated (inter alia)(T10/57-58):
"…
I have considered Ms Labrosciano's comments and do not question the veracity of her situation as stated. Unfortunately for her, whether or not the letter dated 27/1/99 was sent in error has no significance on this decision (and therefore I have not considered this aspect). The fact remains that FA was cancelled at that time. Ms Labrosciano was advised of this in the letter dated 27/1/00 (sic), and this letter also advised that she should seek a review of the decision within 13 weeks of being told about it for arrears to be payable. Ms Labrosciano elected at that time not to pursue the matter, instead she relied on information provided in an earlier letter from Centrelink. Her family situation at the time is also unable to be considered as a factor in this decision.
As such in this case the claim lodged on 3/4/00 must be taken as a new claim. It has been accepted that Ms Labrosciano first contacted Centrelink on 22/3/00, with the effect that her new FA claim was granted from date. I can find no provision in the legislation to allow her claim to be backdated further under these circumstances.
…"
On 12 February 2001, the Social Security Appeals Tribunal ("SSAT") affirmed the ARO's decision (T2/3-19).
On 20 March 2001, the applicant lodged an application for review with this Tribunal (T1).
evidence of the applicant
The applicant was born on 18 April 1968 and was married to Mario Labrosciano in June 1991. She has two children – Thomas, born 6 August 1998, and Kate, born 22 October 2001.
Towards the end of the year 1998 after her son Thomas was born, the applicant applied for Centrelink payments. She had never previously been in receipt of Centrelink payments. Prior to her son's birth she was working full-time for Ward & Partners as a secretary. She went on maternity leave 10 days before Thomas was born.
The applicant stated that she went into the Port Adelaide Centrelink office in October or November 1998 and the advice she received was that she would be required to fill out some forms and she was told that she was entitled to both parenting payment and also a health care card because her husband was on a low income. In relation to family tax payment and family allowance she recalled that she was told that she would be entitled to both. She said that she started receiving payments quite soon after putting the forms in but couldn't recall the exact date.
The applicant stated that she recommenced full-time employment in January 1999 but she had worked a few days part-time in December 1998 for approximately 5 days. She knew that this part-time work would have an effect on her payments and so she rang Torrensville or Port Adelaide Centrelink office and told them on 31 December 1998 that she had done a few days work. She could not remember to whom she had spoken or if they were male or female.
The applicant testified that she told the person on the telephone that she had been working part-time and would be recommencing full-time work in January 1999 and gave them an income figure. The applicant stated that she could not remember the specific figure she had given them. In relation to how she arrived at a figure, the applicant stated that she went by what she was earning before commencing maternity leave – her annual salary was approximately $30,000. The applicant said that during the telephone call she also advised what her husband's fortnightly salary was.
The applicant testified that she was told by the Centrelink officer that she should have let them know earlier that she had done some part-time work and that Centrelink would be sending her an account for the overpayment. The applicant said that she repaid the overpayment.
The applicant recalled receiving various letters from Centrelink in January 1999. The applicant was shown the letter dated 5 January 1999 entitled "About Your Parenting Payment" (Exhibit A2) and recalled receiving it.
The applicant was then shown another letter dated 5 January 1999 about her family tax payment and family allowance (Exhibit A3) and in particular the sentence in the letter stating: "Thank you for telling us the details of your new annual income." The applicant stated that she believed that this referred to her telephone conversation with Centrelink on 31 December 1998.
The applicant was then shown a letter dated 27 January 1999 (Exhibit A4) which stated: "We cannot pay you Family Tax Payment and Family Allowance any more. This is because you have not told us how much your income is." The applicant testified that she took no action in relation to this letter as she had been getting so many letters from Centrelink and thought that this letter related to her parenting payment. When referred during cross-examination to the fact that the letter dated 27 January 1999 stated that Centrelink "was writing to you about your Family Tax Payment and Family Allowance"(Exhibit A4) the applicant stated that she thought the letter was referring to parenting payment because the letter she had received in relation to family allowance a couple of weeks earlier had said that "this is what we'll be paying you" and she did not understand why the position in relation to family allowance would change in two weeks.
The applicant stated that after receiving this letter she was not aware that Centrelink had stopped her payments of family tax payment and family allowance. The applicant told the Tribunal that she contacted Centrelink in March 2000 after she had worked full-time for 15 months and then decided to go part-time, and she wanted to find out if she was entitled to any parenting payment. The lady at Centrelink that she spoke to told her that she had not received any family allowance for the past 15 months.
The applicant recalled that she might have written a letter to Centrelink asking them to backpay her the family allowance, but her payments of family allowance recommenced without backpay.
The applicant stated that she had recently filled out an "SC217" form (Request for Income and Asset Details) resembling the one attached to Exhibit R1 and entitled "Attachment D". When asked whether or not she had received one of these forms at the same time as receiving the three letters in January 1999 (Exhibits A2, A3 & A4) the applicant stated that she did not recall receiving such a form at the time and did not know that she was supposed to fill in such a form. The applicant stated that on the back of the letters it stated that you could notify Centrelink of any changes by telephoning, writing or going in, so she decided to telephone.
The applicant stated that she did have a system for the receipt of information from Centrelink – she kept all of her Centrelink documents in her study at home.
During cross-examination, the applicant was referred to Attachment A of Exhibit R1, a computer record of the telephone conversation which the applicant had with "Maria" from the Adelaide Call Centre on 31 December 1998. At the line commencing "Txt" reads the words:
"clt call 31/12/98 to adv earns from casual empl of $813.89
She worked 9,10,11,21,22,23/12 for Ward & Ptnrs. Not adv w/i 14 days.
$813.89 total earned for 3 weeks to 30/12/98 = $271.29 pw x 52
= $14107.42 annually. Rea PPP from doe 9/12/98. sc217 form sent to clt as she will begin f/t empl on 4/1/99."
The applicant agreed that her recollection of the telephone conversation was consistent with what the Centrelink officer had written.
The applicant was referred to the sentence "sc217 form sent to clt as she will begin f/t empl on 4/1/99" and stated that she did not recall being told by the Centrelink officer on the telephone that an SC217 form was to be sent to her. The applicant stated that she did not remember being told anything except that an account was being sent.
The applicant did not remember if she was asked by the Centrelink officer to give details of her husband's annual income, only his fortnightly wage. Nor did she recall if the wage figure for her employment that she told Centrelink was gross or net. The applicant did not recall being asked for any other details about her income and assets.
submissions of the applicant
Ms Phillips made submissions on behalf of the applicant.
Ms Phillips made submissions in relation to 3 areas. Ms Phillips first submitted that the decision on 27 January 1999 to cancel the applicant's family tax payment and family allowance was wrong, void and of no effect and therefore the applicant was entitled to backpay.
Ms Phillips submitted that at the time the original decision was made, it was made under old provisions of the Social Security Act 1991 ("the Act") (new legislation came into effect 20 March 2000). The relevant old provisions were sections 874 and 881 which stated that:
"874 Continuing effect of determination
Entitlement determination
874(1) A determination that:
(a)a person's or an approved care organisation's claim for family allowance is granted; or
(b)family allowance is payable to a person or organisation;
continues in effect until:
(c) the payment ceases to be payable under section 875 or 876; or
(d)a further determination in relation to the payment under section 880, 881 or 881A has taken effect.
…
881 Cancellation or suspension for failure to comply with section 873, 1304 or 1305 notice
If:
(a) a recipient is given a notice under section 873, 1304 or 1305; and
(b)the recipient does not comply with the requirements set out in the notice;
the Secretary may determine that the family allowance is to be cancelled or suspended."
Ms Phillips submitted that the letter in relation to family allowance dated 5 January 1999 (Exhibit A3) clearly stated that the applicant was entitled to family tax payment and family allowance.
Ms Phillips submitted that in her phone conversation with the Centrelink officer, the applicant gave Centrelink the information they needed, hence the words in the above letter (Exhibit A3): "Thank you for telling us the details…" and Centrelink stating in the letter the exact amount of family allowance that the applicant was entitled to.
Ms Phillips submitted that the letter dated 27 January 1999 stating that Centrelink was ceasing payments of Family Tax Payment and Family Allowance was inconsistent with the letter sent to the applicant two weeks previously. There was no evidence why Centrelink sent out this letter on 27 January 1999.
Ms Phillips submitted that section 881 gave Centrelink the power to cancel family allowance where someone failed to provide information. Ms Phillips submitted that the applicant's evidence was that she did not receive the SC217 form and that words on a computer printout were a long way from proving whether or not the form was actually sent out.
Ms Phillips submitted that Centrelink had no legal basis to cancel the applicant's family allowance and the Tribunal should find the decision void and of no effect and the earlier decision as set out in the letter dated 5/1/99 (Exhibit A3) should stand.
Ms Phillips second submission in the alternative was that under the provisions of section 110 of the Social Security (Administration) Act 1999 ("the Admin Act"), there was capacity for the Tribunal to make a decision granting backpay in substitution for the SSAT decision.
Ms Phillips submitted that section 110 reads as follows:
"110 Date of effect of favourable determination following notification under section 68 notice
(1)Subject to subsections (2) to (11) (inclusive), if a favourable determination is made following a person having informed the Department of the occurrence of an event or change of circumstances, the determination takes effect:
(a)on the day on which the person so informed the Department; or
(b) on the day on which the event or change occurred;
whichever is the later."

…"

Ms Phillips submitted that section 110 gave the Tribunal the capacity to backpay the applicant in that the Tribunal could decide that as the client did advise Centrelink of her income details on 31 December 1998 then the Tribunal could substitute the date of the favourable determination for 31 December 1998.
Ms Phillips's third submission in the alternative was that if the Tribunal found against the applicant on the law, then it was requested that the Tribunal recommend a CDDA payment to the applicant from the department in its reasons for decision. This is a scheme to compensate persons who have suffered detriment as a result of defective administration, namely, the Compensation for Detriment caused by Defective Administration ("CDDA") scheme.
Ms Phillips requested that if the legislation does not allow the applicant to succeed, then the Tribunal could set out in its reasons a recommendation that the respondent pay to the applicant a compensation for detriment caused by defective administration payment (a "CDDA payment") as the applicant's loss was caused by the respondent's defective administration.
Ms Phillips submitted that the applicant did all she was required to do to advise Centrelink for her situation. Ms Phillips referred to the back of the Centrelink letter dated 5 January 1999 (Exhibit A3) where it stated:
"Under the Social Security Act 1991 (the Act), you must tell us within 14 days following the date that any of these things happen or are likely to happen. You can tell us by writing to us, telephoning or coming in and talking to us at any Centrelink office."
Ms Phillips referred the Tribunal to the decision of the Tribunal in Catt & Department of Family and Community Services [2000] AATA 1101, where at paragraphs 68 to 69, Senior Member Ettinger stated:
"68. I found that the Applicant did everything possible to ensure that the Respondent was aware of, and used the correct information to calculate her entitlement to PP, and that it was Departmental error which caused her PP, and that it was Departmental error which caused her PP entitlement to be assessed on the incorrect amount of her partner's income of $699.38.
69. Therefore, I strongly recommend that the Department acknowledge its administrative error and compensate the Applicant pursuant to the CDDA Scheme for loss of arrears of PP to which she would otherwise have been entitled, had the correct information been used to calculate her PP entitlement."
Ms Phillips submitted that the case only concerns an amount of approximately $900.
Ms Phillips also submitted that the respondent had not explained the meaning of the letter dated 5 January 1999 (Exhibit A3) which quite clearly stated that the applicant had provided the necessary information. Ms Phillips further submitted that the applicant had reasonable grounds to be confused by the letter dated 27 January 1999 (Exhibit A4) and she did not realise that she was not receiving payments until March 2000.
submissions of the respondent
Mr Underwood made submissions on behalf of the respondent.

Mr Underwood referred the Tribunal to the computer print-out details of the applicant's telephone call to Centrelink on 31 December 1998 (Exhibit R1, Attachment A) and submitted that he did not dispute that the applicant gave Centrelink some information or that the applicant assumed that she was giving information in relation to all of her payments.
Mr Underwood submitted that a decision was made by Centrelink to change the applicant's rate of family tax payment and family allowance in light of the information provided by the applicant over the telephone (Exhibit A3). Mr Underwood submitted that Attachment A records that an "sc217 form" was sent to the applicant. Mr Underwood referred the Tribunal to a blank copy of the relevant form (Exhibit R1, Attachment D) and stated that the computer adds a person's name and address to the form before sending it out to the person.
Mr Underwood submitted that the Centrelink computer record dated 27 January 1999 (T4/22) stated "sc217 sent 5/1/99 not returned no income details known – cancel fpa/ftp inp sec 880 and 1069 ssa refers." Mr Underwood submitted that this record meant that a decision was made to cancel the applicant's family allowance and family tax payment in accordance with section 880 with reference to section 1069.
Mr Underwood submitted that the applicant had no further contact with Centrelink until 22 March 2000, when Centrelink deemed the applicant's telephone call as an intent to claim a payment.
Mr Underwood referred the Tribunal to section 1068B-D1 (attached to Exhibit R1), which states:
"Effect of income on maximum payment rate
1068B-D1. This is how to work out the effect of a person's ordinary income, and the ordinary income of the person's partner, on the person's maximum payment rate:
Method statement
Step 1.Work out the amount of the person's ordinary income on a fortnightly basis.
…
Note 1:For ordinary income see section 8.
…"
Mr Underwood then referred the Tribunal to section 1068B-D19 which reads as follows:
"Period over which ordinary income taken into account
1068B-D19. Subject to points 1068B-D8 to 1068-D18 (inclusive), a person's ordinary income is to be taken into account over such period, not exceeding 52 weeks, as the Secretary determines."

Mr Underwood submitted that this section indicated that parenting payment could be assessed using any period of income.
Mr Underwood then referred the Tribunal to section 1072 which states:
"General meaning of ordinary income
1072.A reference in this Act to a person's ordinary income for a period is a reference to the person's gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A."

Mr Underwood submitted that in relation to parenting payment, an assessment is made of the person's gross income over a period as the Secretary determines. Mr Underwood stated that in the applicant's case, the period for which the applicant's ordinary income was taken into account was three weeks – her gross income from all sources (Attachment D, Exhibit R1).
Mr Underwood submitted that family allowance was paid at the maximum rate without reference to income if a person was already receiving a social security benefit, as set out in section 1069-H1 which reads:
"Persons to whom the income test applies
1069-H1 The family allowance income test in Submodule 3 applies to a person unless the person, or the person's partner, is receiving a social security pension, a social security benefit or a service pension."
Mr Underwood referred the Tribunal to the family allowance income test which was set out at section 1069-H23, which reads as follows:
1069-H23. This is how to work out whether a person satisfies the family allowance income test:
Method statement
…
Step 2B.Work out the person's family payment income for the appropriate tax year by adding:
(a)the person's taxable income for that tax year; and
(b)the person's adjusted fringe benefits value for that tax year; and
(c)the person's target foreign income for that tax year; and
(d)the person's net rental property loss for that tax year; and
deducting the person's deductible child maintenance expenditure for the person's appropriate child maintenance expenditure year.
…"
Mr Underwood then referred to section 1069-H8 which sets out a person's taxable income:
"Income components for tax year
1069-H8.(1) A person's taxable income for a tax year is:
(a)the person's assessed taxable income for that year; or
(b)if the person does not have an assessed taxable income for that year – the person's accepted estimate of taxable income for that year."
Mr Underwood submitted that there is a distinct difference between the income tests for parenting payment and family allowance. The family allowance test looks at a person's assessable income for a financial year. The parenting payment test can be over any period, can overlap with the start of a tax year and a person's gross fortnightly income from all sources is examined.
Mr Underwood explained that the applicant was not subject to the family allowance income test whilst on parenting payment. However, once the applicant was no longer receiving parenting payment, she had to give details in relation to family allowance. The applicant said that she did not give all of her and her partner's income details over the telephone. Mr Underwood explained that Centrelink would have left this information for the applicant to fill out on the SC217 form. Mr Underwood submitted that an SC217 form was sent to the applicant and therefore it was "given". Mr Underwood submitted that the relevant test was whether a form was "given" to the applicant and not whether it was actually received by her.
Mr Underwood submitted that whilst Ms Phillips had made reference to section 881, the form entitled SC217 was actually a section 873 notice and if the SC217 notice was not returned then section 881 provides the power to cancel the payment of family allowance. Section 873 reads as follows:
"873.(1) The Secretary may give a recipient of family allowance a notice that requires the recipient to give the Department a statement about a matter that might affect the payment of the family allowance to the recipient."

Section 881 reads as follows:
"Cancellation or suspension for failure to comply with section 873, 1304 or 1305 notice
881.If:
(a)a recipient is given a notice under section 873, 1304 or 1305; and
(b)the recipient does not comply with the requirements set out in the notice;
the Secretary may determine that the family allowance is to be cancelled or suspended."
Mr Underwood submitted that the respondent sent a letter dated 27 January 1999 to the applicant stating that it did not have the requisite information in relation to family allowance and family tax payment and that it would be cancelling her payment and there was no contact by the applicant for some 14 months later. If the applicant had contacted Centrelink after she received the 27 January 1999 letter, there would be no argument. However, she did not and the cancellation was valid.
Mr Underwood submitted however, that the decision to cancel the applicant's family tax payment and family allowance was actually made under section 880 rather than section 881 (see T4/22). Section 880 reads as follows:
"Cancellation or suspension determination
880. If the Secretary is satisfied that family allowance is being, or has been, paid to a recipient to whom it is not, or was not, payable under this Act, the Secretary is to determine that the family allowance is to be cancelled or suspended."
Mr Underwood referred the Tribunal to Module K – General section 1069-K1 plus the Note:
"Income component unknown – no qualification
1069-K1. Subject to point 1069-K2, a person is not qualified for family allowance if:
(a)an income component of the person for the appropriate tax year for the family allowance period is unknown; or
(b)an income component of the person's partner for the appropriate tax year for the family allowance period is unknown.
Note:For the circumstances in which an income component of a person is to be treated as unknown see point 1069-H7."
Mr Underwood then referred the Tribunal to section 1069-H7 which states:
"Person with unknown income for tax year
1069-H7.(1) If a person does not have any one or more of the income components for a tax year in accordance with point 1069-H8, the person is taken to have an unknown income for that year."
Mr Underwood submitted that the respondent did not know what the applicant's income for the year was and therefore the applicant was not qualified to receive family allowance, which is subject to an income test. If the information is not provided, then the department cannot say if family allowance is payable or not. Therefore, the respondent's determination not to pay family allowance to the applicant was a valid determination stating that the applicant was not even qualified for the payment.
Mr Underwood submitted that the original determination dated 27 January 1999 was valid. An attempt had been made to find out the applicant's income however this failed and the applicant's payment was cancelled. Mr Underwood stated that this could have been changed if the applicant had responded to the letter dated 27 January 1999.
In responding to the applicant's argument regarding section 110 of the Admin Act, Mr Underwood submitted that it was necessary to examine the context of the legislation and the facts in this case. When the applicant contacted Centrelink regarding her wage details, no favourable determination was made at that time. Section 110 is intended to be exercised contemporaneously with the events. The decision had a date of effect already at the time.
Mr Underwood stated that section 109 of the Admin Act sets out the dates of effect stemming from review of a decision and in this case, section 109(2) was relevant:
"Date of effect of favourable determination resulting from review
…
109.(2) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application was made."
Mr Underwood submitted that if section 110 applied in this case then it would undermine section 109, making section 109 irrelevant. Mr Underwood submitted that Section 110 does not address the point and it does not say that a favourable determination can result from a review.
Mr Underwood submitted that the connection between the favourable determination made in December 1998 and the determination today was broken by the cancellation of the family allowance and therefore section 109 is the only provision which can be applied. Therefore the date that the request for review was made, 22 March 2000, is the earliest date which the favourable determination can take effect from.
Mr Underwood submitted that, therefore, whether the original decision to cancel the applicant's family allowance was correct or not, 22 March 2000 was the only date from which payments can commence. Mr Underwood submitted that the original determination was correct in any event.
In relation to the issue of a CDDA payment, Mr Underwood submitted that the Tribunal can certainly make such recommendations and the respondent would be happy to consider a CDDA payment after the hearing, however, the Tribunal does not have the jurisdiction to specifically consider the CDDA issue.
discussion and findings
In arriving at its conclusion the Tribunal has taken the evidence as a whole into account including the submissions of counsel. As a result of the form SC217 requesting income and asset details, which had been forwarded to the applicant on 5 January 1999, not being returned the respondent proceeded to cancel the family allowance (T4/22) on 27 January 1999. The applicant was notified by letter dated 27 January 1999 (T3) pursuant to section 237 of the Admin Act. The Act further provides that an aggrieved person if believing that the decision was wrong has the right to seek review within thirteen weeks of notice being given for any arrears to be paid, namely 27 January 1999. Unfortunately, no written request for review was made within the required time. The applicant did, however, phone the respondent on 22 March 2000, some fourteen months later to enquire about obtaining family allowance. She also lodged a claim with Centrelink on 3 April 2000 (T5) and notwithstanding this Centrelink in considering the matter accepted the date she communicated with it as the date of the claim, namely, 22 March 2000 and accordingly was paid family allowance from that date.
Irrespective of the applicant's position at the date of the original cancellation of the family allowance the unfortunate thing was that she failed to exercise her option within the required time. The Tribunal also rejects the submission by Ms Phillips, for the applicant, that the decision to cancel the family allowance was invalid. In any case a favourable decision was ultimately made reinstating the entitlement. The Tribunal is satisfied and so finds that in cancelling the family allowance the respondent had done so on the basis that she had not provided the necessary information as requested and that the decision to so cancel was correct. The Tribunal is also satisfied and so finds that the decision to restore family allowance effective from 22 March 2000 was correct.
Ms Phillips in her submissions requested that the Tribunal give consideration to recommending to the respondent that the applicant be granted a CDDA payment. In support of this she referred to the Tribunal's decision in Catt and in particular to the recommendation of that Tribunal. In Catt the Tribunal was satisfied that there had been an administrative error for which Ms Catt should be compensated. However, in the current matter the Tribunal was not satisfied that any administrative error had been made and hence does not proffer any recommendation for the respondent's consideration.
Accordingly, the Tribunal affirms the decision under review pursuant to section 43 of the Administrative Appeals Tribunal Act 1975.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:   (Signed)
  Barbara Armstrong, Associate
Date of Hearing  25 January 2002
Date of Decision  10 May 2002
Counsel for the Applicant        Ms Cheryl Phillips
Solicitor for the Applicant         Phillips Fox
Counsel for the Respondent    Mr James Underwood
Solicitor for the Respondent    Centrelink