McAdam and Secretary, Department of Family and Community Services
[2004] AATA 148
•13 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 148
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/347
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN McADAM Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr Murray Allen, Member Date13 February 2004
PlacePerth
Decision The decision of the Social Security Appeals Tribunal made on 26 August 2003 is affirmed. ......…..(sgd. Mr M Allen)..................
Member
CATCHWORDS
Social Security – Family Tax Benefit – applicant paid at the base rate because reasonable action to obtain child support not taken – applicant was sufficiently notified of expectation that reasonable action should be taken and what action that involved – applicant did not take that action – comment regarding how requirement to take action is notified – decision of SSAT affirmed
Administrative Appeals Tribunal Act 1975 s37
Social Security Administration Act 1991 s63
A New Tax System (Family Assistance) Act 1995 s58, schedule 1 clause 10
REASONS FOR DECISION
13 February 2004 Murray Allen, Member 1. This is an application by Mr John McAdam (“the applicant”) for a review of a decision made by the Social Security Appeals Tribunal (“SSAT”) made on 26 August 2003. In that decision the SSAT decided to affirm the decision made by a Centrelink Officer, as delegate of the respondent, on 22 March 2003 to not pay family tax benefit (“FTB”) to the applicant at more than the base rate for the period 8 January 2003 to 16 March 2003.
2. At the hearing the applicant represented himself and the respondent was represented by Mr Holt, a Centrelink officer. The Tribunal received into evidence the documents filed pursuant to Section 37 of the Administrative Appeals Tribunal Act, 1975 (T1 – T20) and three documents tendered by the respondent (R1 – R3).
3. Oral evidence was given at the hearing by the applicant. Mr Holt also gave evidence in relation to an aspect of Centrelink administrative practice.
Legislation and Issues
4. The payment of FTB is provided for by the A New Tax System (Family Assistance) Act 1999 (“the Act”). Section 58(1) of the Act provides that the rate of FTB paid to a person is to be calculated in accordance with a Rate Calculator in Schedule 1 of the Act. Division 1 of Schedule 1 deals with the calculation of the rate of one component of FTB, namely the Part A payment. The amount of the Part A payment is to be determined in accordance with an assessment that is made of the amount of child support that the parent of a child is entitled to receive. However, Clause 10 of the Schedule provides that the amount of FTB paid in respect of a child will be the “base” rate if:
“(a) the individual ... is entitled to claim or apply for maintenance for the child; and
(b)the Secretary considers that it is reasonable for the individual .... to take action to obtain maintenance; and
(c)the individual ... does not take action that the Secretary considers reasonable to obtain maintenance.”
5. The issue in this case is whether Clause 10 of the Schedule is applicable to the applicant such that it was reasonable for the applicant to take action to obtain maintenance and failed to do so – in which case the applicant would have been entitled to FTB at the base rate rather than a higher rate.
6. The SSAT examined letters sent to the applicant by Centrelink and records of telephone conversations between the applicant and Centrelink officers. The SSAT considered that the records of the telephone conversations were too brief and did not contain sufficient detail to allow a conclusion to be reached regarding whether the advice given by Centrelink to the applicant was clear about what was expected of him. However, the SSAT considered that the letters that were sent to the applicant were sufficiently clear and properly informed the applicant of what he needed to do in order to qualify for the higher rate. Accordingly, the SSAT concluded that it was reasonable for the applicant to take reasonable maintenance action in respect of his son, and that he did not take that action until 17 March 2003 – on the basis that Centrelink’s letters to the applicant properly informed him of the action that he needed to take in order to qualify for the higher rate of FTB.
The Facts
7. The majority of the factual material in the case was not in dispute and the following findings of facts can be made.
8. In December 2001 the applicant applied for FTB in respect of his son, Quinn. It is not clear from the papers or the oral evidence exactly when the decision was made to grant that application, but it is clear that on or shortly prior to 7 February 2002 a decision was made to grant the applicant FTB with effect from 1 July 2001 at the base rate because at that time the applicant had not taken reasonable maintenance action. Document T4 is a letter to the applicant from Centrelink dated 7 February 2002 informing him of the payment of arrears of FTB from 1 July 2001 and informing him of the rates that would be paid in the future. Under the heading “Important Information” the letter contained the following statement:
“If you take reasonable action to obtain child support for Quinn you may be eligible to receive more Family Tax Benefit Part A.”
9. In the middle of 2002 the applicant became involved in a dispute with Centrelink and his former wife regarding the percentage of time that his son spent with the applicant. This dispute was referred to a Centrelink officer by the name of Marie Lowe, who is an Authorised Review Officer (“ARO”).
10. In the course of dealing with the dispute about the percentage of time, Ms Lowe spoke to the applicant on 7 October 2002 and document R1 contains a note made by Ms Lowe of that conversation, which the applicant concedes is an accurate record thereof. The note is as follows:
“Rang Mr McAdam 7/10/02. Asked him if he had claimed maintenance action. He stated that he was not aware of this so I have sent him the forms to do so as this can made (sic) a difference to the rate of FTB that he is receiving.”
I pause at this point to note that this information about the telephone conversation on 7 October 2002 was not available to the SSAT.
11. The applicant acknowledges getting something in the mail from Ms Lowe but he was not sure what that was. He thought that it might have been a booklet.
12. In any event, and apparently as a consequence of the telephone conversation with Ms Lowe, several things happened. The first was that on 23 October 2002 the applicant made a phone call to Centrelink and document T5 contains the record made by a Centrelink officer of the conversation. Part of that record is as follows:
“Client very angry that no one informed him that if he took Maintenance action he would be entitled to higher rate of FTB. He will be applying for Maintenance ... he said that it was [Ms Lowe] who informed him that he was entitled to a higher rate of FTB if he took Maintenance action ... “.
On that day a Centrelink officer granted the applicant a 28-day exemption from taking Maintenance action and coded the computer system accordingly so that from that day the applicant began to receive FTB at the higher rate.
13. The next thing that happened was that on 7 November 2002 the applicant again had a telephone conversation with a Centrelink officer and document T6 contains the record of the conversation made by the Centrelink officer. Part of the record is as follows:
“Client did ring the [Child Support Agency – CSA] but they informed him that they could not do anything until he lodged his 2002 [tax return]. Client is in the process of doing this will let his accountant know that it is required urgently for the CSA. Advised client that the system allows for 28 days from the date of contact with CSA.”
Document T6 page 20 contains a record made by a Centrelink officer on 27 November 2002 to the effect that the applicant’s FTB payments have been reduced to the base rate as maintenance action through the CSA had not been taken by the applicant, noting that the only case active with the CSA in relation to the applicant concerns him as a payer of maintenance. On that same day a letter was sent to the applicant by Centrelink (T7) advising that the FTB payments were at the lower rate and containing the same advice about the taking of action to obtain child support as is set out in para. 8 above. That letter obviously caused the applicant to telephone Centrelink on 2 December 2002 and document T8 contains the record made by a Centrelink officer as follows:
“Customer has applied for child support but was advised that he needed to provide tax returns to the CSA. Client has gone to his accountant and will provide to CSA [as soon as possible].”
14. On that day a Centrelink officer again granted the applicant a 28-day exemption from taking maintenance action and restored his FTB payments to the higher rate.
15. By 8 January 2003 the 28 day exemption had expired and the FTB rate of payment was again reduced to the base rate because no maintenance action had been taken by the applicant according to the CSA data available to Centrelink. On that day a further letter was sent to the applicant informing him of the payments to be made at the base rate and again containing the same statement as is set out in para. 8 above.
16. On 17 March 2003 the applicant contacted Centrelink by telephone in order to enquire why his FTB payments had been reduced. Document T10 is a record of the conversation made by the Centrelink officer and in part is as follows:
“Advised customer that he needed to take maintenance action for Quinn. Customer had difficulty in understanding he was required to take maintenance action as payee. Customer has had CSA maintenance taken as the payer previously, and thought this is what previous [Centrelink officers] were advising.”
17. The applicant subsequently made further contact with the CSA and his FTB payments were returned to the higher rate with effect from 17 March 2003. As noted above, the period in contention in these proceedings is from 8 January 2003 until 16 March 2003.
Consideration
18. The applicant’s case, in essence, is that he did nothing in response to the letter he received of 7 February 2002 because he interpreted the letter to mean that he had to take action to pay maintenance to his former wife, rather than to try to obtain it from his former wife. He said that it never occurred to him that he was entitled to claim maintenance from his former wife. The applicant accepted that he became aware from 7 October 2002, as a result of his telephone conversation with Ms Lowe, that payment of FTB at the higher rate depended upon him taking action to collect maintenance. However, he could not recall why he had contacted the CSA between 27 October 2002 and 7 November 2002 – but he accepted that he did so because Ms Lowe or the Centrelink officer that he spoke to on 23 October 2002 had told him that he should do so. He was not prepared to accept that he contacted the CSA at that time because he wanted to claim maintenance from his former wife. Rather, he thought that it was to formalise arrangements between himself and his former wife arising out of the dispute about percentages of time that his son spent with him.
19. I do not accept that part of the applicant’s evidence. The letter of 7 February 2002 referred specifically to the applicant taking action to “obtain” child support for his son. The interpretation put on that statement by the applicant was, in my opinion, unreasonable and I do not accept his evidence that he genuinely held that view. The applicant is a well-educated man, having qualified as a school teacher and worked in that capacity for about 5 years, and thereafter worked in managerial positions. He said that he thought that the word “obtain” meant something broader than ‘to get’ and meant something like ‘become possessed of’ or ‘to be within your possession’.. I note that the Macquarie Dictionary (3rd Edition) defines “obtain” as being ‘to come into possession of; get or acquire; procure, as by effort or request’.. I find that the applicant had a good understanding of the ordinary meaning of the word “obtain”. Despite that understanding the applicant persisted in his view that his interpretation of the statement that it required him to take action to pay maintenance to his former wife in respect of his son was the only reasonable interpretation. This persistence can be contrasted with the applicant’s acceptance that Ms Lowe clearly referred to claiming maintenance on 7 October 2002, that he told Centrelink on 23 October 2002 that he “will be applying for maintenance”, and that he told Centrelink on 2 December 2002 that he had “applied for child support”.
20. My conclusion is that by 7 October 2002, or at the latest by 23 October 2002, the applicant knew that payment of FTB at the higher rate depended on him taking action regarding child support, that Centrelink expected him to take that action, and that to do so he needed to contact the CSA – which he had done by 7 November 2002.
21. We do not know exactly what the applicant told the CSA or asked the CSA to do. The suggestion was made at the hearing that, because the CSA asked the applicant for his tax return, that meant that the CSA was only interested in him as a payer of child support and not as a claimant of it. In this regard the respondent tendered document R3, which is a form that Centrelink gives to persons in the position of the applicant and relates to how to go about obtaining what is referred to as a “child support assessment”. The form advises of the need to contact the CSA and the information that the CSA will need. Note 3 to the form contains the following statement:
“You need to apply for a child support assessment if you wish to receive more than the base rate of Family Tax Benefits (A) through the Family Assistance Office.”
The form also contains information about how child support can be collected.
22. The applicant says that he does not recall getting or seeing a form like R3 from either Ms Lowe or other Centrelink officers. Mr Holt gave evidence that he had worked for 3 years in the Family Allowance/FTB area of Centrelink and that sometime in 2001 Centrelink stopped using a booklet regarding child support assessments and started to use a simpler 2-page form that contained information about contacting the CSA and what information to give that agency. In October 2002 Centrelink was using a form that was very similar to R3, but Mr Holt could not say if it was absolutely identical.
23. On the balance of probability I find that by mid October 2002 the applicant had received a form substantially to the same effect as R3. Whether he dealt with the CSA in accordance with that form I am unable to determine. Nevertheless, I find that the applicant knew by October 2002 that he needed to deal with the CSA in order to claim child support and that he had a form similar to R3 as a guide to do so.
24. I return to the point made above that the CSA had requested the applicant to provide a tax return and the significance of that. At the hearing the applicant could not say whether he ever did actually provide the tax return to the CSA, despite telling Centrelink in October and November 2002 that he was trying to get the return from his accountant as soon as possible. The applicant says that the tax return was irrelevant to the CSA consideration of his position. I don’t know if that was indeed the case. However, what is clear is that by early January 2003 the applicant’s FTB payments had reverted to the lower rate after the second 28-day exemption was exhausted and the letter of 8 January 2003 had been sent to the applicant. If the applicant had by that time given the CSA his tax return I would have expected him to contact Centrelink to say that he had done so and that he had, therefore, done everything that the CSA expected him to do regarding maintenance. If he had not in fact given the CSA his tax return by early January then I would have expected him to quickly do so and then contact Centrelink to inform them of that as above and to seek the reinstatement of the higher rates of payment. The applicant’s failure to do those things suggests to me, and I find, that the applicant was not seriously pursuing the child support issue with the CSA.
25. In fact the applicant did not contact Centrelink at all between 2 December 2002 and 17 March 2003. On that latter date he telephoned Centrelink to ask why the FTB rate had been reduced, although at that date the reduction had been in place for about 2 months. The applicant’s explanation for not contacting Centrelink after receiving the 8 January 2003 letter was that previously when he had telephoned Centrelink about payments being reduced they had always fixed the problem and had restored the payments to the higher rate. I don’t accept that as an entirely accurate statement. The payments were made at the lower rate until October 2002 and I am prepared to find on balance that the two 28-day exemptions that were granted by Centrelink were based on Centrelink’s acceptance that the applicant would take child support action via the CSA and preparedness to allow payments at the higher rate from the time of contact with the CSA for that purpose.
26. The issue arose at the hearing of whether, for clause 10 of Schedule 1 to be activated, the Secretary must formally notify a person that there is an expectation of action being taken and specify precisely what that reasonable action is. Clause 10 is silent about such things and that can be contrasted with s 63 of the Social Security Administration Act 1991, which deals with the situation where the Secretary considers that a person should attend a Centrelink office or provide information to Centrelink. That section sets out with great particularity how the person is to be notified of the requirement to do the things expected of him or her.
27. I accept as a general proposition that a person cannot fail to act unless he or she is aware that he or she is expected to act and what steps are expected to be taken. I do not consider that clause 10 requires any particular type of formality in terms of notification, but I consider that it must be made clear to the person that there is an expectation of action and what that action involves.
28. I do not need to decide the particular point in this case, but I doubt that the statement contained in the letters of 7 February 2002, 27 November 2002 and 8 January 2003 as quoted in para 8 above would be a sufficient notification that action is required. If this case concerned a period of time immediately after the 7 February 2002 letter and that was the only form of notification to the applicant of what Centrelink expected of him, then I may have concluded that there was insufficient notification of what was expected by the Secretary to be done.
29. However, in this case the period in question is after the various pieces of advice were given to the applicant orally and in writing in October and November 2002 and January 2003. I have concluded that the applicant knew that payment of FTB at the higher rate depended on him taking action to claim maintenance and that he had to contact the CSA to progress that. He had a form that assisted him in dealing with the CSA and he told Centrelink that he would claim child support through the CSA. He did contact the CSA but he failed to follow through on that until mid March 2003. Accordingly, whatever the shortcomings of Centrelink’s advice to the applicant might have been prior to October 2002, it cannot be said that after October 2002 the preconditions for clause 10 to apply had not been made out. The applicant did know what was expected of him.
30. In the circumstances my conclusions are the same as those of the SSAT but for somewhat different reasons. I am satisfied that the applicant knew by October 2002 that he was expected to take reasonable child support action and he knew sufficiently what was expected of him in that regard. He did not do so and, accordingly, my decision is that I affirm the SSAT decision.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Murray Allen, Member
Signed: ............Ms R Morgan........................................
AssociateDate/s of Hearing 21 January 2004
Date of Decision 13 February 2004
Counsel for the Applicant Self represented
Solicitor for the Respondent Mr A Holt
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