Lee and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 706

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 706

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5536

GENERAL ADMINISTRATIVE DIVISION		)
Re		AARON LEE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr T Schafer, Member

Date16 September 2009

PlaceSydney

Decision The decision under review is affirmed.

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

Dr T Schafer
  Member

CATCHWORDS

SOCIAL SECURITY – application for child care benefit – whether applicant made an effective claim for child care benefit – claim for benefit made after the end of the two income years immediately following the income year for which the claim was made – decision under review is affirmed

A New Tax System (Family Assistance) Act 1999 (Cth) section 44

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) sections 49, 49C, 49J, 52

Re Whitting and Secretary, Department of Family and Community Services [2003] AATA 870

REASONS FOR DECISION

16 September 2009 Dr T Schafer, Member       

BACKGROUND

1.      The decision under review is the decision of the Social Security Appeals Tribunal (SSAT) dated 3 November 2008 affirming the decision of an Authorised Review Officer (ARO) on 8 August 2008 that Mr Lee did not make an effective claim for child care benefit for the 2004/05 financial year.

2.      On 10 September 2007, Mr Lee lodged a form entitled “Claim for an annual lump sum payment of Child Care Benefit for the 2004-05 financial year”.

3.      Centrelink wrote to Mr Lee on 2 October 2007 advising him that his claim for child care benefit had been rejected on the basis that the claim had not been received within 12 months of the end of the financial year for which the benefit was claimed.

4.      On 23 July 2008 Mr Lee requested a review of Centrelink’s decision.  The ARO affirmed the decision to reject Mr Lee’s application for child care benefit for the 2004/05 financial year because it was lodged more than two years after the financial year had ended.

ISSUE

5.      The issue to be decided is whether Mr Lee made an effective claim for child care benefit for the 2004/05 year.

LEGISLATION

6. Section 44 of the A New Tax System (Family Assistance) Act 1999 (Cth) sets out the criteria that must be met by an individual to be eligible for child care benefit for a past period of care provided by an approved child care service.

7. Section 49 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Act) provides that to become entitled to be paid child care benefit a person must make a claim in accordance with Subdivision B of Division 4 of Part 3 of the Act.

8. The requirements for making an effective claim are set out in section 49C of the Act as follows:

49C  Form etc. of effective claim by individual

Requirements for claim by individual to be effective

(1)To be effective:

(a)a claim (other than a claim that is taken to be made under subsection 49(2)) must:

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

(ii)subject to subsections (2), (3) and (4), contain any information; and

(iii)be accompanied by any documents;

required by the Secretary; and

(b)the bank account requirement set out in section 49G must be satisfied in relation to the claim; and

(c)in the case of a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service—the tax file number requirement in section 49E must be satisfied in relation to the claim; and

(d)in the case of a claim by an individual for payment of child care benefit by single payment/in substitution because of the death of another individual for care provided by an approved child care service—the tax file number requirement in section 49F must be satisfied in relation to the claim.

…

9. Section 49J of the Act concerns claims for past periods. Relevantly, it states:

49JRestrictions on claim by individual for payment of child care benefit for past period for care provided by an approved child care service

Claims to which section applies

(1)This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service to a child (a past period claim).

Claim period must fall within one income year etc.

(2)A past period claim is ineffective if:

(a)the period does not fall wholly within one income year; or

(b)the period does fall wholly within one income year but the claim is made before the end of that income year or after the end of the 2 income years immediately following that income year.

…

10. Pursuant to s 52(2) of the Act a claim for payment of child care benefit for a past period that is not effective is taken not having been made.

EVIDENCE

11. I have before me the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Mr Lee also gave oral evidence at the hearing.

12.     Mr Lee’s evidence to the SSAT was that the proceedings associated with his separation and divorce had been protracted and that he was informed by the child care centre that his son attended that Centrelink would pay child care benefit to either Mr Lee or his ex-partner once those proceedings concluded.

13.     Mr Lee had attended a tax agent in mid-June 2007 with the intention of sorting out his child care benefit claim. He was told by the tax agent that he would have to contact Centrelink. His tax agent did not advise him that there was a time limit on making a claim.

14.     Mr Lee says that he attempted to contact Centrelink by telephone to enquire about child care benefit in June 2007. His evidence to the SSAT was that he tried calling a few times but the lines were busy.

15.     Mr Lee emailed Centrelink on 29 June 2007 seeking guidance about claiming child care benefit. Mr Lee advised Centrelink in his email that he had received no discount on the fees that he had paid for child care although the account was in the name of his wife. He explained that the child care centre had refused to change the name of the account until his divorce proceedings had been finalised and that he had been reassured by the centre that he would still receive the benefit. He also noted that his tax agent had told him he that he could not claim. At the time of his email, Mr Lee was still not aware that a claim could not be made more than two years after the financial year for which the claim was made.

16.     In response to his email, on 4 July 2007 Mr Lee received a telephone call from a Centrelink officer. It was not until this conversation that he became aware that he was required to submit his claim for child care benefit for the 2004/05 financial year before the end of the 2006/07 financial year.

17.     Mr Lee lodged a claim form for child care benefit on 10 September 2007. His explanation to the SSAT for the delay in submitting his claim form was that the Centrelink officer had taken a while to send him the appropriate form.

CONSIDERATION

18.     It is not disputed by the Respondent that Mr Lee was eligible to receive child care benefit for the 2004/05 financial year.

19.     The issue is whether Mr Lee’s email of 29 June 2007 fulfilled the criteria for an effective claim for child care benefit or whether Mr Lee’s claim was taken to have been made on 10 September 2007.

20. The Respondent contends that in order for a claim to have been effective, section 49J(2)(b) of the Act required that it be lodged by 30 June 2007.

21.     The Respondent also contends that the legislation confers no discretion to accept a late claim for child care benefit. I was referred to the decision of Re Whitting and Secretary, Department of Family and Community Services [2003] AATA 870.

22.     Mr Lee claims that he attempted to contact Centrelink on numerous occasions during June 2007 but the phone lines were “literally dead” and there were no recorded messages or ring tones. However, the first contact which Mr Lee made with Centrelink that can be verified was on 29 June 2007, the last business day of the 2006/07 financial year.

23. I consider that 2 years’ allowance is more than ample time for an applicant to lodge an effective claim. Without any record of prior contact, on the evidence before me, Mr Lee first contacted Centrelink by email on 29 June 2007 regarding a claim for child care benefit. I do not consider that this contact constituted an effective claim because section 49C(1)(a)(i) of the Act required Mr Lee’s claim to be made in a “form and manner” required by the Secretary. That “form and manner” required Mr Lee to lodge a claim form by 30 June 2007. Mr Lee’s email on 29 June 2007 did not include a completed claim form; the form was not lodged until 10 September 2007, outside the required timeframe.

24.     There is no discretion in relation to Mr Lee’s situation for me to make a decision other than in accordance with the legislation, cf Re Whitting and Secretary, Department of Family and Community Services.

25.     Accordingly, given that Mr Lee did not lodge an effective claim within the required timeframe, his claim for child care benefit cannot be approved.

DECISION

26.     For the reasons stated above, the decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr T Schafer, Member

Signed:         ............[sgd]....................................................................
  Associate

Date of Hearing  2 June 2009
Date of Decision  16 September 2009
Appearance for the Applicant        Self- represented
Appearance for the Respondent    Mr K Bullock