Macumber and Secretary, Department of Family and Community Services

[2005] AATA 1139

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1139

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/285

GENERAL ADMINISTRATIVE DIVISION

Re:         BRYANNA MACUMBER

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mr E. Fice, Member

Date:             17 November 2005

Place:            Melbourne

Decision:The decision under review is affirmed.

(sgd) Egon Fice

Member

SOCIAL SECURITY - Family Tax Benefit ("FTB") – FTB calculator – maintenance action test – reasonable action – inability to provide birth certificate – proof of paternity – back-dating of FTB payment – application of policy guidelines – Compensation for Detriment Caused by Defective Administration scheme

A New Tax System (Family Assistance) Act 1999 Schedule cl 10

A New Tax System (Family Assistance) (Administration) Act 1999 s 109E(1)

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634

Re Secretary, Department of Family and Community Services and 'VAD' (2001) 67 ALD 503

REASONS FOR DECISION

17 November 2005  Mr E. Fice, Member

1.      Ms Macumber lodged a claim for Family Tax Benefit (FTB) in respect of her daughter who was born on 3 April 2001.  She was granted the FTB at the maximum rate. However, following a reassessment in June 2001, her payments were reduced because Centrelink decided that she had not taken reasonable action to obtain maintenance from the child’s father.  Ms Macumber advised Centrelink in July 2004 that she had obtained a birth certificate for her daughter and her FTB was increased, backdated to take effect from 10 June 2003.  However, Ms Macumber is of the view that she is entitled to a FTB for her daughter at the maximum rate from June 2001.  An Authorised Review Officer (ARO) at Centrelink affirmed the decision to refuse arrears of FTB for the child from June 2001. Ms Macumber sought review of the Centrelink decision by the Social Security Appeals Tribunal (SSAT). The SSAT upheld the decision not to pay arrears of FTB prior to June 2003.  Ms Macumber seeks review of that decision.

2.      For the reasons set out below, I am of the view that the decision of the SSAT was correct and therefore its decision should be affirmed.

BACKGROUND

3.      Ms Macumber lodged a claim for FTB on 17 April 2001, some two weeks after her daughter was born.  She was not married to the child’s father who had left her when she was three months pregnant.  She also lodged a claim with the Child Support Agency (“CSA”) on 2 May 2001.

4.      On 29 May 2001, the CSA informed Ms Macumber that her child support claim was rejected because she had not provided proof of parentage with her claim.  Ms Macumber told an officer from CSA that she had not been able to get the child’s father to sign the birth certificate, thereby proving parentage and enabling steps to be taken to have the father pay maintenance for the child.

5.      After her daughter was born, Ms Macumber had an interview with an officer at Centrelink and she claimed that she was told by that officer that when she provided a birth certificate for her child, the FTB would be restored to the full rate.  She claimed she was also told that the full rate would be reinstated as at June 2001 and that she would not suffer any loss as a consequence of the difficulty she was experiencing in proving parentage.

6.      She saw a private solicitor in Horsham and she applied for legal aid in order to obtain compulsory DNA testing if that was required.  She did not know the address of the father and needed some assistance in locating him.  Unfortunately, she was refused legal aid because she had exceeded the cap in a previous family law matter.  She was also not able to obtain the address of the father.  She claimed that both Centrelink and CSA had the information but would not disclose it to her.

7.      By letter dated 13 June 2001, Centrelink informed Ms Macumber that if she took reasonable action to obtain child support for the child, she might be eligible to receive more FTB Part A.  That letter also informed Ms Macumber that if she thought the decision was wrong, she should telephone Centrelink or go into the office and see an officer.  The letter advised Ms Macumber that she could ask for an ARO to re-examine at the decision and it informed her of her rights of appeal to the SSAT.  The letter also stated that if she did not ask for the decision to be reviewed within 52 weeks of being told about it, any back-payment could only take effect from the date that she sought that back-payment.

8.      On 20 June 2001, Ms Macumber telephoned Centrelink and she was told that the FTB for her daughter had been reduced and that the CSA rejected her case because of lack of proof of parentage.  She was told that she needed to apply for maintenance from the child’s father and that she should seek legal aid.  According to the file note of that conversation, Ms Macumber was advised that her FTB would not be restored to the higher rate until the appropriate forms were returned to the Centrelink office.

9.      The next contact that Ms Macumber had with Centrelink was by telephone on 10 June 2003.  She told the Centrelink officer the name of the child’s father and that he refused to sign anything or to acknowledge that the child was his.  She told the Centrelink officer that she had tried a number of ways of obtaining proof of parentage without success.

10.     Finally, after obtaining the assistance of a private investigator, Ms Macumber was able to locate the child’s father, who then agreed to sign the birth certificate indicating that he was the father.  The birth certificate was issued on 19 July 2004 and was received by Centrelink on 27 July 2004.  On 10 August 2004, Centrelink agreed to pay arrears of FTB to Ms Macumber as from 10 June 2003.

CONSIDERATIONS

11. A person’s annual rate of FTB must be calculated in accordance with the Family Tax Benefit calculator (“the calculator”) set out in Schedule 1 of the A New Tax System (Family Assistance) Act 1999 (“the Act”). Clause 10 of Schedule 1 of the Act deals with the effect of maintenance rights and provides that the base FBT child rate is applied if the Secretary considers that it is reasonable for the individual or partner to take action to obtain maintenance and the individual or partner does not take action that the Secretary considers reasonable to obtain maintenance. What is "reasonable action” is set out in the Guide to the Family Assistance Law, a policy document issued by the Secretary.  At paragraph 3.1.6.10, that document provides that where a person applies for child support assessment for an ex-nuptial child, that person must supply documentary evidence that the person being asked to pay child support is the child’s parent.  The way in which this can be done is via one of the following methods:

(a)the provision of the child’s birth certificate; or

(b)a Statutory Declaration:

(i)from the person making the application stating that the name of the person being asked to pay child support is entered as a parent of the child in the register of births;

(ii)completed by the person being asked to pay child support stating that they are the parent of the child;

(iii)adoption papers stating the name of the person being asked to pay child support and the relationship of that person to the child; or

(iv)a court ruling on paternity.

12.     Where an applicant is unable to obtain acceptable evidence of parentage, the CSA will disregard the application and, upon that event, the applicant will be referred to Legal Aid or a solicitor for assistance.  Where the CSA rejects an application, an applicant for FTB in respect of a child will automatically fail the maintenance action test and the FTB Part A rate will be reduced to the base rate (minimum) for that child.  There are exceptions to the “maintenance action test” but there is no need for me to set them out here as they do not apply to Ms Macumber.

13. Although the Tribunal is not bound to apply policy guidelines, it will follow them where the policy is consistent with the objective purpose of the Act (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634. Furthermore, the Tribunal in Re Secretary, Department of Family and Community Services and ‘VAD’ (2001) 67 ALD 503Error! Bookmark not defined. (“VAD”) expressly stated that the policy in respect of the maintenance action test is sound and consistent with the Act. I agree with that view.

14.     Although Ms Macumber said in effect that because she was unable to obtain legal aid, she was prevented from pursuing the child’s father to obtain both his whereabouts and his signature to the birth certificate, it appears that she hired a private investigator in 2004 who located the father.  The father then willingly provided his name to the birth certificate.  In my view, the fact that legal action was not necessary to obtain the father’s signature to the birth certificate, in this case, is significant.  Ms Macumber has not detailed the steps she took to locate the father between 2001 and 2004.  Although she may not have been able to afford to take legal action, because that ultimately was not required, all that was required of her was to locate the father.  At that time, the father was living in the same country town as Ms Macumber.  Even if he had moved in that time, it seems to me that it was not unreasonable for the Secretary to expect Ms Macumber to have made some effort to locate him in that period of time.

15.     In any event, when Ms Macumber was sent the first advice regarding her FTB payment on 13 June 2001, it was made clear to her that if she did not seek a review of that decision within 52 weeks of being told about it, payment of arrears would be limited to take effect from the date from which she asked for such a review. This is in accordance with s 109E(1) of A New Tax System (Family Assistance) (Administration) Act 1999.  Although Ms Macumber said in evidence that she read most of the letters which were sent to her by Centrelink, and most of the letters, if not all, refer to the 52 week limitation period, she took no action for some three years.

16.     Ms Macumber said that she relied on a statement made to her by an officer of Centrelink when she had an interview in June 2001.  Ms Macumber said that she was told that she would receive the full FTB and that this payment would be back‑dated to June 2001 when she was able to provide a birth certificate for her daughter.   She submitted that she relied on that statement to her detriment and that the Tribunal ought to take that into consideration in coming to its decision.  However, in my view, it cannot do so.  It is the Tribunal’s role to come to the correct or preferable decision on the relevant legislation after considering the evidence.  If Ms Macumber was given incorrect advice by a Centrelink officer, she may have a claim for compensation pursuant to the Compensation for Detriment Caused by Defective Administration (“CDDA”) Scheme.  This Scheme was introduced to assist claimants in circumstances where a Commonwealth agency has acted unreasonably or provided wrong or ambiguous information which leads to financial loss.  That, of course, is a matter for her to pursue if she wishes to do so.  I make no comment about whether Ms Macumber has a viable claim under the CDDA scheme.  However, it does not alter her position as far as this application is concerned.

CONCLUSION

17.     The decision of the SSAT made on 18 January 2005 was correct and it should be affirmed.

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr E. Fice, Member

(sgd)     Angela Dennis

Clerk

Date of Hearing:  7 November 2005

Date of Decision:  17 November 2005
Advocate for the applicant:        Self‑represented

Advocate for the respondent:     Mr D. Perton, Legal Services Branch, Centrelink