Lomas and Secretary to the Department of Family and Community Ser Vices and Anor

[2004] AATA 278

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 278

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/863

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GERALDINE LOMAS

Applicant

And SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

And    DARREN FOSTER

Second Respondent

DECISION

Tribunal Ms M Carstairs, Member

Date17 March 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.........……………............

MJ Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – claim for family tax benefit – reasonable steps to have a child return to adult’s care

A New Tax System (Family Assistance) Act 1999, s22, 23.

REASONS FOR DECISION

17 March 2004  Ms M Carstairs, Member   

1.      This is an application by Geraldine Lomas for review of a decision made by the Social Security Appeals Tribunal (the SSAT) affirming a decision made by a Centrelink delegate of the respondent. The decision held that the applicant was not entitled to be paid family tax benefit when her grandson, James Foster, came into her care in February 2003.

2.      At the hearing the applicant represented herself.  The first respondent was represented by Mr S Letch.  The second respondent, who is James’ father, did not attend the hearing.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) numbered T1-T28, as well supplementary documents numbered S1-S8 and an exhibit, marked R1 for the respondent.

BACKGROUND

4.      James Foster came to live with the applicant on 28 February 2003, having run away from his father that day.   The applicant claimed family tax benefit for James on 7 March 2003.

5.      In a decision dated 1 May 2003, a Centrelink delegate decided that James was still legally in the care and control of the second respondent.  That decision has been affirmed by an authorised review officer and by the SSAT prior to Ms Lomas seeking review with this Tribunal on 13 October 2003.

EVIDENCE

6.      On the claim form (T4) Mrs Lomas stated that James was in his father’s care prior to coming into her care.  She also stated that she did not have a court document to support the change of care.   She disputed that any letter from Darren Foster had been left in her letterbox for James, as Darren Foster had told the SSAT.  She said that Darren Foster knew where his son was and made no real attempt to contact him until June, when Darren’s sister asked to take James.  James went, with Ms Lomas’ consent, as she thought it important that he have the opportunity to see his cousins.  She said that James was not returned to her care after that visit, though he returned on 25 January 2004 and continues to live with Ms Lomas now.

7.      Centrelink undertook investigations when Ms Lomas made her claim. In a statement dated 25 March 2003 (T8) Darren Foster said that James lived with him, but had run away because of trouble at school.  Mr Foster said in that statement, and repeated to both the authorised review officer (T23) and to the SSAT 2003 (T2), that he had contacted the police in an attempt to have James return to him.  In an Order under the Family Law Act (1975) dated 20 February 2002 (T7) Magistrate Woodford had ordered that James was to live with his father.

8. In oral evidence Ms Lomas said that she did not dispute that the second respondent had a valid order under the Family Law Act.

CONSIDERATION OF THE ISSUES

9.      The provisions dealing with this matter are in the A New Tax System (Family Assistance) Act 1999 (the Act). The qualification provisions for the payment of family tax benefit are at s22 of the Act which provides:

22.(2)  The individual is an FTB child of the adult if:

(a)       the individual is aged under 18; and

(b)       the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and

(c)       the individual is in the adult’s care; and

(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

10. However, where a child (the family tax benefit child) leaves the care of an adult without the adult's consent, family tax benefit can still be paid to that adult for up to 14 weeks beyond the date where the care ceased. This is provided for in s23 of the Act as follows:

23.(1)  This section applies if:

(a)       an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3) (including that subsection in its application by virtue of subsection 22(7)); and

(b)       an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and

(c)       the adult takes reasonable steps to have the child again in the adult’s care.

23.(4) Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period.

23.(5)  In this section:

qualifying period means the period beginning when the child ceases to be in the adult’s care and ending at the earliest of the following times:

…. (b)  after 14 weeks pass since the child ceased to be in the adult’s care;

11. It will be seen from the terms of s23(1) that for payment to continue, the adult must take reasonable steps to have the child returned to their care.  Where the child has not returned to the adult's care after 14 weeks, the payment of family tax benefit will cease.   Centrelink policy provides that reasonable steps to have the child returned to an adult's care might include:

·     notifying the police that the child has been taken from the adult's care without consent;

·     applying to the Family Court to have a new or replacement Parenting Plan issued;

·     taking out a recovery order through the Family Court

12.     The respondent submitted that the issue turned on whether the second respondent had taken reasonable steps to have James return to his care.  Mr Letch referred the Tribunal to the Centrelink policy manual reference 2.1.1.70 headed Change of Care and Disputed Care Arrangements.  He submitted that investigations undertaken by Centrelink supported the correctness of the decision made, because reasonable attempts had been made to have James return.

13.     The applicant submitted that in the past when her grandchildren have come into her care she has not had difficulty in establishing her entitlement to family payment.  She said also that when James returned to her care in January 2004 she did not experience a delay in receiving the payment though she acknowledged that prior to this return, James had been in his aunt’s care, not his father’s care.

14.     The Tribunal considered that the Centrelink policy manual provided a reasonable outline of relevant matters to consider when deciding if a person is taking reasonable steps to have a child return to their care.   Although the Tribunal did not have the advantage of hearing evidence from Darren Foster, the Tribunal was satisfied that both Centrelink and the SSAT had spoken with him to check that he had followed up with the police and the Department of Family Services in an attempt to have James return to him.  The Tribunal was satisfied that Darren Foster had taken reasonable steps in accordance with s23(1)(c), by contacting police and checking the missing persons list, whether or not he took the additional step of having left a letter for James at Ms Lomas’s home.

15.     In all the circumstances the correct decision was made at the time of the claim in March 2003.   Darren Foster was the person who was legally responsible for James and so James was his FTB child, as that term is used in s23(1) and remained entitled to family tax benefit for the period of fourteen weeks. When those fourteen weeks passed, Ms Lomas was paid the family tax benefit.

DECISION

16.     The Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Member

Signed:         S Appleton

Associate

Date/s of Hearing   8 March 2004
Date of Decision  17 March 2004
The applicant appeared in person.  
The respondent was represented by Mr S Letch, Departmental Advocate.