Ledster and Secretary, Department of Social Services (Social services second review)

[2017] AATA 996

Ledster and Secretary, Department of Social Services (Social services second review) [2017] AATA 996 (29 June 2017)

Division:General Division

File Number(s):      2016/5569

Re:Carmen Ledster

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:29 June 2017

Place:Sydney

The decision under review is affirmed.

......................[sgd]..................................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit Part A – reasonable maintenance action – late application to extend Child Support Assessment – decision affirmed.

LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth), sch 1

CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645

SECONDARY MATERIALS

Guide to Social Policy Law – Family Assistance Guide

REASONS FOR DECISION

Professor R McCallum AO, Member

29 June 2017

BACKGROUND

1. The Applicant, Ms Carmen Ledster is the mother of two sons whom I shall call Child A and Child B.   Ms Ledster is separated from their father. Since 12 March 2005, a child support assessment has been in place in respect of Child A and Child B.

2. It is important to appreciate that when a child turns 18, the child support assessment no longer applies to that child.  It is possible to apply to have the child support assessment extended, if the child is still at school, beyond the child’s 18^th birthday until the end of the school year.

3. Child A was born on 15 March 1998 which meant that he turned 18 on 15 March 2016.

4. On 1 January 2016, Child Support which is the agency administering the Child Support Scheme, wrote a letter to Ms Ledster. The letter advised Ms Ledster that when Child A turned 18 on 15 March 2016 the child support assessment would no longer apply to him. The letter further advised that Ms Ledster could apply to have the child support assessment extended beyond Child A’s 18^th birthday until the end of the school year. However, it was necessary to apply for this extension before Child A turned 18. This is known as taking reasonable maintenance action.

5. If no application to extend was made, this could affect the amount of Family Tax Benefit (FTB) which she would receive for Child A.

6. On 17 February 2016, the Department of Human Services which is better known as Centrelink wrote a letter to Mrs Ledster. This letter contained the same advice with respect to the need to extend Child A’s Child Support Assessment.

7. Ms Ledster did not apply to have Child A’s Child Support Assessment extended before Child A’s 18^th birthday.

8. On 15 March 2016, that is on Child A’s 18^th birthday, Centrelink decided only to pay Mrs Ledster FTB at the base rate of Part A with respect to Child A because his Child Support Assessment had ended and had not been extended by Ms Ledster taking maintenance action.

9. On 25 May 2016, Ms Ledster applied to Child Support to make a late application to extend Child A’s Child Support Assessment.

10. On 28 June 2016, the Child Support Registrar (Registrar) refused this late application.

    MS LEDSTER SEEKS REVIEW OF TWO DECISIONS

11. Ms Ledster sought review of two decisions. First, she sought review of Centrelink’s 15 March 2016 decision to pay her FTB at the base rate for Child A. I shall call this decision the Centrelink decision.

12. Second, Ms Ledster sought review of the Decision of the Registrar of 28 June 2016, to refuse her late application. I shall call this decision the Registrar decision.

13. Ms Ledster sought review of the Centrelink decision. However, on 14 June 2016, an Authorised Review Officer (ARO) affirmed the Centrelink decision.

14. On 13 September 2016, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1) affirmed the Centrelink decision.

15. Ms Ledster now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).

16. Ms Ledster sought a review of the Registrar Decision and this type of review is called an objection. However, on 23 September 2016, the objection was disallowed. Ms Ledster was notified of this disallowance in a letter dated 23 September 2016.

17. On 13 December 2016, Ms Ledster applied to the Social Services and Child Support Division of the AAT for a review of the decision to disallow her objection. As this application was made more than 28 days after the disallowance decision, Ms Ledster sought an extension of time to bring her review. On 10 February 2017, the AAT1 decided not to grant Ms Ledster an extension of time.

18. Ms Ledster did not seek a review of the decision to refuse her an extension of time to apply to the General Division of the AAT, that is to an AAT2.

    THE HEARING

19. Ms Ledster attended the hearing by a telephone with a speaker. Ms Ledster’s eldest son, Mr Vincent Ledster-Eyre ably assisted his mother at the hearing.

20. Ms Ledster gave evidence over the telephone by affirmation. I found her to be an honest and truthful witness.

21. Ms Ledster was asked whether she recalled receiving the letter from Child Support dated 1 January 2016, and also the letter from Centrelink dated 17 February 2016. Ms Ledster said that she recalled receiving the letter from Child Support, but that she did not recall receiving the Centrelink letter. Ms Ledster said that she was suffering chronic pain at that time.

22. Ms Ledster stated that she did not respond to the Child Care letter because she no longer wished to have anything more to do with Child Care. She said that she informed Centrelink that Child A would be staying on at school until the end of the school year.    Ms Ledster said that she believed that it was sufficient to inform Centrelink, and I accept that this was her honest view.

23. Ms Ledster said that Child A had completed school at the end of the 2016 school year. He was now receiving Youth Allowance.

24. Ms Ledster said that she has been receiving Disability Support Pension as she has suffered from depression and neck pain for the last seven years.

25. In cross-examination, Ms Ledster indicated that when Child A’s FTB was moved to the base rate, she lost approximately $90 a week. As Child A is now not in school, Ms Ledster no longer receives FTB for Child A.

26. Ms Ledster was taken to a letter from Dr Chandler dated 28 April 2016, and she was asked whether this letter is still an accurate account of her mental and physical conditions. Ms Ledster read through the letter and said that it was an accurate account as nothing had changed.

27. The material portion of the letter reads as follows:

    Carmen Ledster, age 51 yrs, is a long term patient of this surgery. She suffers from chronic migraine headaches, right arm neuralgia from a chronic neck condition as well as depression and anxiety. She is in receipt of a disability support pension. Prior to March this year, she was receiving family allowance from Centrelink, related to her care of her son, [Child A], who has attention deficit hyperactivity disorder, oppositional defiance disorder, Autistic Spectrum Disorder, obesity and pre-diabetes. She received a letter from the Child Support Agency in January of this year asking about [Child A]’s schooling. Because she has clashed with this department before and receives no child support, she notified Centrelink that her son [Child A] was continuing in high school, feeling that that would be adequate notification. In March this year, following [Child A]’s 18th birthday, her Family Allowance was withdrawn, causing significant financial hardship and leaving her confused as to why such an action had taken place, when she felt she had complied with all requested undertakings. Now, as her doctor, I am aware that Carmen was under a lot of personal stress during February of this year due to family confrontation with some of her close relatives which may well have blurred her attention to other matters.

    CONSIDERATION

28. At the outset of this consideration and for the sake of clarity, it is essential to appreciate that this Tribunal is reviewing the decision of the AAT1 dated 13 September 2016 which affirmed the Centrelink decision. This Tribunal is not reviewing the Registrar’s decision with its extension of time issue because Ms Ledster has not sought review of these matters.

29. The issue before me, as I stand in the shoes of the Secretary, is whether Centrelink was correct on 15 March 2016 to pay Ms Ledster Child A’s FTB  at the base rate of Part A because Ms Ledster had not taken reasonable maintenance action with respect to Child A. 

30. The relevant provision concerning the taking of reasonable maintenance action is tucked away in Schedule 1 of A New Tax System (Family Assistance) Act 1999 (Cth). Clause 10 of Schedule 1 makes it clear that to receive FTB above the base rate, the parent must take reasonable maintenance action.

31. The Government has published in the Guide to Social Policy Law – Family Assistance Guide (the Guide), its policy on what will be regarded as taking reasonable maintenance action. I shall have regard to this policy, see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.

32. In Ms Ledster’s circumstances, instruction 3.1.5.25 of the Guide provides that where Child A is in school and is receiving FTB at the higher rate, Ms Ledster is required to apply for an extension to his Child Maintenance Assessment before Child A turns 18. If she does so, then she will continue to receive FTB at the higher rate after he turns 18 until the end of the school year. Ms Ledster’s application for the extension will satisfy the requirement of taking reasonable maintenance action. (See also instruction 3.1.5.50 of the Guide.)

33. Instruction 3.1.5.70 of the Guide further provides that a person may receive an exemption from the maintenance action test. The exemptions are narrowly defined and cover situations where the other parent is violent, where making the application to extend may have a harmful or disruptive effect on the applying parent, or where paternity cannot be proved etc. I am satisfied that none of the exemptions outlined in the policy are applicable to Ms Ledster’s circumstances.

34. I appreciate that the relevant law and applicable policy are not easy to find. However, Ms Ledster did receive two letters dated 1 January 2016 and 17 February 2016 with detailed instructions concerning her need to apply for an extension to the Child Maintenance Assessment of Child A  before he turned 18, to receive FTB at the higher rate after Child A’s 18^th birthday.

35. In her evidence, Ms Ledster said that she recalled receiving the letter from Child Support dated 1 January 2016.

36. I also appreciate that Ms Ledster has health issues which are detailed in Dr Chandler’s letter which I have quoted above.

37. Instead of applying to Child Support for an extension to Child A’s Child Support Assessment, Ms Ledster simply informed Centrelink that Child A would continue in school after his 18^th birthday. However, the letters instructed Ms Ledster to apply to Child Support for the extension and she decided not to do so.

38. Given that no application for an extension had been made, and that none of the exemptions were applicable to Ms Ledster, Centrelink correctly decided to pay FTB at the base rate of Part A once Child A had turned 18. The decision of the AAT 1 to affirm the Centrelink decision is correct.

    DECISION

39. The decision under review is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

...........................[sgd].............................................

Associate

Dated:   29 June 2017

Date(s) of hearing:	14 June 2017
Advocate for the Applicant:	Vincent Ledster-Eyre
Solicitors for the Respondent:	Dr Stephen Thompson