Mason and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Hamer (Party Joined)
[2008] AATA 1105
•10 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1105
ADMINISTRATIVE APPEALS TRIBUNAL )
)No 2008/1191 &
No 2008/2230
GENERAL ADMINISTRATIVE DIVISION ) Re MARK MASON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
And
DIANNE HAMER
Party Joined
DECISION
Tribunal Ms Robin Hunt, Senior Member Date10 December 2008
PlaceSydney
Decision The reviewable decision of the Social Security Appeals Tribunal made on 14 February 2008 is affirmed; and
The decision of the Social Security Appeals Tribunal made on 6 February 2008 is not altered as it is not reviewable.
....................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – shared care of children – apportionment of benefit – correct amount of Family Tax Benefit paid to each carer – pattern of care – decision affirmed.
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999 ss 111, 111A, 116
Social Security Act 1991
Social Security (Administration) Act 1999 s 142
REASONS FOR DECISION
10 December 2008 Ms Robin Hunt, Senior Member summary
1. Mark Mason and his former wife have divorced and share the care of their two sons. Mr Mason previously received a share of family tax benefit (‘FTB’) but now seeks a greater share for periods from 2001 to 2006. During the periods in question, the children lived with their mother, Dianne Hamer, and spent some school holidays and weekend periods with Mr Mason. Mr Mason disagrees with the percentages the Social Security Appeals Tribunal (‘the SSAT’) and previous decision-makers allocated as time when the boys were in his care. This affects the amount of FTB Mr Mason received for the periods in dispute. The review does not affect any entitlements at the date of the tribunal hearing and decision.
2. After hearing from Mr Mason, Ms Hamer and an advocate for the Secretary, and considering the submissions made, I have decided that I cannot review the decision made by the SSAT on 6 February 2008 for lack of jurisdiction. As to the reviewable decision made on 14 February 2008, I have decided that it was correct and should be affirmed. This means Mr Mason has not succeeded in his claims.
introduction
3. Mr Mason made his application for review by this tribunal by way of a letter dated 17 March 2008, which was received by the tribunal on 25 March 2008. In the letter, Mr Mason referred to the findings of the SSAT with which he disagreed. He argued that his sons were in his care for more time than was accepted by the SSAT. He referred to written statements supplied by various people who stated they had seen him frequently in the company of his sons. He attached to his letter of application copies of two SSAT decisions, one dated 6 February 2008 and another dated 14 February 2008. Mr Mason’s letter addressed those findings in the SSAT decision dealing with the shared care percentage that the SSAT allocated to him. Only the later decision of the SSAT dealt with this question. In the earlier decision, the SSAT found Mr Mason’s application in 2007 for review of a decision made in 2004 was out of time and the SSAT granted no extension.
4. At the tribunal hearing before me, Mr Mason represented himself as did Ms Hamer. The Secretary was represented by an advocate from Centrelink.
issue
5. The issue in this case is whether the correct amount of FTB was paid to Mr Mason under the A New Tax System (Family Assistance) Act 1999 in respect of his shared care of his two children.
late application to the ssat
6. The earlier decision of the SSAT, that is, the decision of 6 February 2008, found that Mr Mason’s application on 23 May 2007, for review of an Authorised Review Officer’s (‘ARO’) decision made on 3 June 2004, was outside time limits for review by the SSAT. The decision for which Mr Mason had sought review concerned his percentage of care for the 2001/2002 year, the period from 1 July 2002 to 17 March 2003, and his continuing FTB instalments from 17 March 2003. Limits apply under social security law preventing backdating of benefits for more than 13 weeks once a favourable decision has been made and this means that any review of the decision made in June 2004 would have very limited application. The legislative scheme includes the following provisions.
7. Section 111 of the A New Tax System (Family Assistance) (Administration) Act 1999 (‘the Family Assistance Administration Act’) permits a person to apply to the SSAT for review of the ARO’s decision. Section 116 sets out the application requirements, including the methods of application. Subsection 111A(1) sets a time for making application to the SSAT at 13 weeks after notification of the internal review decision. This general rule about applying for review may be overcome where there are special circumstances which prevented the person from making the application within time [subsection 111A(2)], and where the decision is one relating to payment to the person of FTB by instalment [subsection 111A(3)(a)]. Any other claim must be assessed under section 17 of the Family Assistance Administration Act. The appropriate rate payable is determined under other legislative provisions.
8. The original decision-maker and an ARO did consider Mr Mason’s claim and a final decision about his entitlements from 2001 was made on 3 June 2004 as mentioned above. Mr Mason then waited almost three years to seek review of this decision by the SSAT in 2007.
9. Mr Mason made no written submissions about the reasons for the lateness of his application to the SSAT but gave oral evidence at the hearing before me that he was homeless for about two and a half years. According to the reasons for decision of the SSAT, he told that tribunal that things were haphazard during the time he was homeless. The SSAT concluded he was no longer homeless by 14 July 2005. The SSAT then noted he was aware of time limits in a general sense and found that even if things were difficult when he was homeless, he was not prevented from applying for review until he made the application almost two years later, on 23 May 2007. Therefore, the SSAT did not review Mr Mason’s percentage entitlements over the period covered by the ARO’s decision of June 2004 but decided that his application was made out of time.
10. The Administrative Appeals Tribunal has no jurisdiction to review this decision of the SSAT in accordance with section 142 of the Social Security (Administration) Act 1999. That section permits the SSAT to affirm, vary or set aside a decision of the Secretary, the CEO or an ARO. The SSAT, however, did not reconsider or review a decision of any of these persons with the result that it did not affirm, vary or set aside a decision of the Secretary. The SSAT declined to review the ARO’s decision of which Mr Mason complained as his application for review was out of time and the SSAT considered no special circumstances overcame the lateness of Mr Mason’s application.
11. As the SSAT did not conduct any review of the decision made in June 2004, there is no reviewable decision before me. This means I cannot review the SSAT decision of 6 February 2008.
12. I note that the ARO’s decision of 3 June 2004 about previous entitlements does not affect Mr Mason’s entitlements at later dates when current patterns of care were again considered by later decision-makers. The reviewable decision of the SSAT, which is the second decision before me, involves later periods from 1 July 2004 onwards.
percentage of care
13. The second decision of the SSAT, made on 14 February 2008, was not to increase the percentage of care for Mr Mason from 14% for an initial period and 22% thereafter. This decision was in respect to an ARO’s decision dated 29 December 2006. The Secretary’s records show Mr Mason claimed 25% care of the boys. Before me, he claimed 25% to 30%.
14. The ARO determined Mr Mason’s care percentage was 14% from 1 July 2004 to 30 June 2006 and 22% from 1 July 2006. The SSAT was not satisfied that Mr Mason had any greater percentage of care and affirmed the ARO’s decision. The SSAT went on to conclude there was insufficient basis to allocate a greater shared care percentage to Mr Mason from 1 July 2004 to 30 June 2006, and that the shared care percentage from 1 July 2006 was appropriately set at 22%.
15. For the present review, I heard Mr Mason’s oral evidence and read several letters in support of his claims which he handed up at the hearing. I also heard the evidence of Ms Hamer and took into account the Secretary’s records supplied to the tribunal. Nine letters written in 2008, which Mr Mason handed up to me, were in addition to a large number of letters written in 2003, 2004, 2005, 2006 and 2007, copies of which already were on the Centrelink file and available to previous decision-makers. Although none of the persons who wrote letters in support of Mr Mason gave oral evidence, on balance, I consider the writers gave true accounts of their impressions about Mr Mason, his closeness to his sons and time he spent with them. Several people noticed his regular attendance with his sons at swimming pools during school holiday periods and at weekends, as well as their visits together to other locations or venues.
16. Mr Mason also supplied some hotel receipts showing he had taken his sons with him to stay in these hotels from time to time. Some of the letters from neighbours also described occasions when Mr Mason was at home with his sons. The letters about Mr Mason and his sons at his home were fairly recent. Mr Mason admitted he was homeless for about two and a half years and slept in a car. This was consistent with the findings of the SSAT that Mr Mason was provided with a house on 14 July 2005. Mr Mason also told me that while he was homeless, he often stayed with the boys in the houses of friends so that they had a roof over their heads.
17. Some writers confirmed overnight stays for Mr Mason and his sons occurred at their homes. Mark Priest on 11 December 2003 wrote that Mr Mason and his sons stayed with his family on Saturday 6th and Sunday 7th December 2003. Margot McAlary wrote on 11 December 2003 that they stayed with her over three weekends in August, September and October 2003. Carole Moss on 13 December 2003 wrote that they stayed with her from the evening of Friday 12 December 2003 to the afternoon of Sunday 14th. Kim Burton wrote on 22 December 2003 that they stayed at her house on at least ten occasions during March to June 2003 but she could not remember exact dates. Michael Bulbert wrote that he remembered a three day stay in September 2003 and some other occasions including 3 days in January 2004. Claire Mason remembered 4 occasions at her house in 2003. Merridy Elphick on 25 November 2003 wrote that Mr Mason lived in his car and was only able to provide accommodation for his children on weekend contact visits through the generosity of family and friends but she provided no details. Overall, the many letters supplied, taken with other material, confirm that Mr Mason is a father who spends a lot of weekend time with his sons, that they have taken some short vacations together and that they enjoy being together. The letters, on the other hand, provide few specific dates or precise details as to how many days Mr Mason had care of his sons. The hotel receipts give dates but are few in number.
18. Ms Hamer told me that Mr Mason spends more time with his sons now than he did during the periods involved for the review. She gave evidence that, during the periods in dispute, Mr Mason usually collected the boys every second weekend but he did not always take them for the whole weekend. She said she had kept a record of dates when Mr Mason collected and returned the boys as she had been advised to do this. She did not wish these records to be made public as she had made other personal notes on the same pages.
19. Mr Mason agreed that Ms Hamer had asked him to sign her record book when he collected and returned the boys but he had done so only for a short while and later refused. Ms Hamer disagreed with Mr Mason that his care of the boys was no different during the time he was homeless. She gave evidence that he had not kept the boys with him over many weekends as he could not expect them to sleep with him in his car.
20. By contrast to Ms Hamer, Mr Mason has relied on unassisted memory as to the time he spent with his sons. Although Mr Mason has many friends, who remember seeing him with his sons on numerous occasions and who hosted them from time to time, his evidence is imprecise as to particular dates and is inconclusive except as to a few stays. The SSAT also noted that Mr Mason admitted he had seen his boys less than he would have liked from July 2005 to December 2005.
21. Without more precise and continuous records I am unable to be reasonably satisfied that Mr Mason’s account should be preferred to that of Ms Hamer. On balance, I prefer the evidence of Ms Hamer who kept some records, as acknowledged by Mr Mason and the SSAT, even though I have not had the benefit of seeing this material.
22. For these reasons, the decision of the SSAT made on 14 February 2008 should be affirmed.
decision
23. The reviewable decision of the Social Security Appeals Tribunal made on 14 February 2008 is affirmed; and
The decision of the Social Security Appeals Tribunal made on 6 February 2008 is not altered as it is not reviewable.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: ..........................[Sgd]............................
Jennifer Wong, AssociateDate/s of Hearing 3 November 2008
Date of Decision 10 December 2008
Appearance for the Applicant Self-representedRepresentative for the Respondent Ms S Mantaring, Centrelink Legal Services and Procurement Branch
Appearance for the Party Joined Self-represented
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