Miller and Department of Families, Housing, Community Services and Indigenous Affairs

[2007] AATA 2084

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2084

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/948

GENERAL ADMINISTRATIVE DIVISION		)
Re		LYNETTE MILLER

Applicant

And DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date21 December 2007 

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mrs Miller should be permitted to make her application for review of the decision of 8 March 2002 later than 52 weeks following the date of deemed notice of the decision.  The Tribunal further decides that the 52 week period should be extended to 12 April 2006

....................[Sgd]...................

Ms N Bell         
  Senior Member

Social Security – Family Tax Benefit – Was Adequate Notice given in the Letter – Was Reasonable Action to Obtain Child Support Taken – Special Circumstances – Not receiving the Letter – Noticed was Deemed to have been Received – Special Circumstances apply.

A New Tax System (Family Assistance)(Administration) Act 1999

Acts Interpretation Act 1901

Secretary, Department of Family and Community Services v Rodgers (2000) 104 FCR 272

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

1.      Mrs Miller gave birth to her son Bodhi on 10 December 2001. Two weeks later, on 24 December 2001, she lodged a claim for Family Tax Benefit (FTB) with Centrelink. A decision was made on the same day to grant her the payment and a notice was sent to her outlining the total rate of FTB she would be paid for all her dependent children.

2.      Centrelink sent Mrs Miller a letter on 7 January 2002 outlining her total rate of FTB and advising that if Mrs Miller took reasonable action to obtain child support for Bodhi, she might be eligible for a higher rate of FTB (Part A). The next letter sent by Centrelink, on 11 January 2002, did not mention anything about child support for Bodhi.

3.      On 25 January 2002 Mrs Miller provided Centrelink with a child support assessment application and it was passed on to the Child Support Agency (CSA). Because Mrs Miller had completed the relevant steps, the Centrelink computer screen read that “[she] has satisfied the requirements for reasonable maintenance action.” Another record made on that day states “maint[enance] action now taken for new born child”.

4.      However, the CSA wrote a letter to Mrs Miller, on 14 February 2002, stating  they could not accept her application because they could not be sure that Mr Groves was Bodhi’s father. A statutory declaration was lodged by Mr Groves at Centrelink on 18 February 2002, which Mrs Miller, in her evidence, said she knew nothing about.

5.      Mrs Miller was then sent a further letter by Centrelink, dated 8 March 2002. This letter advised Mrs Miller of her total rate of FTB for all her dependent children and again said “if [she takes] reasonable action to obtain child support for Bodhi [she] may be eligible to receive more Family Tax Benefit (Part A).”

6. Section 109D(1) in the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act), requires Mrs Miller to seek review of a decision within 52 weeks of being notified of it. Notice of the decision is important because the 52 week period commences on the date of notice. However, section 109E of the Administration Act allows for a favourable decision on review to be given effect from an earlier date if the Secretary considers that special circumstances prevented a person from making an application for review within 52 weeks.

7.      On 12 April 2006, Mrs Miller sought a review of the decision to not pay her a higher rate of FTB (Part A) for the period 8 March 2002 to 30 June 2004.

Issues

There are two main issues that I have to decide:

(i)Did Mrs Miller receive notice of the decision to reduce her rate of FTB?  This involves a consideration of whether the letter dated 8 March 2002 constituted notice of the decision and, if so, whether she actually received the letter and, if not, whether she is deemed to have received it.

(ii)If notice was given, are their any special circumstances which prevented Mrs Miller from lodging a review of her application within 52 weeks.

Did Mrs Miller receive the letter dated 8 March 2002?

8.      The letter dated 8 March 2002 contained important information for Mrs Miller in relation to the FTB she was receiving. In particular, it stated that she was receiving $401.10 fortnightly and this was broken into a Part A and Part B component. The letter also said that if Mrs Miller “[took] reasonable action to obtain child support for Bodhi [she] may be eligible to receive more Family Tax Benefit Part A.” The letter stated that Mrs Miller is receiving FTB in respect of her three children; William, Amber and Bodhi, but it did not specify what amount she was receiving for each child individually.

9.      Mrs Miller gave evidence that she has a disciplined approach to filing when she receives Centrelink letters. She keeps all her Centrelink letters and bills in a box and at the end of the year she clears it out.

10.     Mrs Miller also said that her mail goes missing now and again and in the past she has lost electricity bills and birthday cards sent to her children. Consequently, she has had a word to the postal workers to encourage them to push the mail further into the mail box, but she is still experiencing mail problems.

11.     Mrs Miller stated that she did not receive the letter dated 8 March 2002. If Mrs Miller did not physically receive the letter from Centrelink, she did not receive notification of a decision to reduce her FTB. 

12.     I am satisfied, on the basis of Mrs Miller’s evidence, that she did not actually receive the letter of 8 March 2002.

Is the Letter Deemed to have been Received?

13. According to s 237 of the Social Security Act 1991 and section 28A of the Acts Interpretation Act 1901, a letter is deemed to have been received if it has been sent by prepaid post to the postal address of the person’s last known address to the Secretary. There is no evidence before the Tribunal to the contrary.

14.     Mrs Miller gave evidence to the affect that sometimes her mail went missing from her mail box, not that there had been any problems with the actual postal service at the relevant time.

15.     Accordingly, I must conclude that the letter is deemed to have been received by Mrs Miller, despite her evidence that she did not receive it.

Did the Letter Constitute Notice?

16.     The letters that Centrelink sends out are often difficult to understand. However, the Secretary contends that Mrs Miller did receive notification of the decision. The Secretary argues that the letter of 8 March 2002 is clear and unambiguous (Secretary, Department of Family and Community Services v Rodgers (2000) 104 FCR 272).

17.     Mrs Miller first received a letter from Centrelink on 24 December 2001 shortly after lodging a claim for FTB. That letter specified her total rate of FTB and distinguished the Part A and Part B components clearly. The letter dated 8 March 2002 clearly states that Mrs Miller will receive a different amount, some $100 less than the total amount specified on 24 December 2001. This is a significant sum when you consider the total amount of FTB Mrs Miller was receiving initially ($499.04). To further highlight the reduction, the Part B component of the FTB remained the same on both letters and only the Part A component was reduced.

18.     The 8 March 2002 letter stated that Mrs Miller might be eligible to “receive more” FTB Part A if she took reasonable action to obtain child support for Bodhi. This makes it clear that a decision has been made to reduce her FTB in relation to Bodhi.

19.     The letter also notes that if Mrs Miller “does not ask for the decision to be reviewed within 52 weeks of being told about it, any changes to that decision… can only take effect from the date you ask.” This statement on the letter indicates that a decision has been made.

20.     Due to the significant decrease in FTB payment to Mrs Miller and the two statements on the letter regarding the entitlement to more FTB Part A and the need to seek a review of the decision within 52 weeks, I conclude that the letter dated 8 March 2002 constitutes notice of a decision.  

Special Circumstances

21.     Now I will turn to the issue of what special circumstances may or may not have prevented Mrs Miller from applying for a review of the decision to change her FTB rate within 52 weeks of notification of the decision.

22.     For special circumstances to exist they need to be “unusual, uncommon or exceptional’ which makes them markedly different from the usual run of cases” (Re Beadle and Director-General of Social Security (1984) 6 ALD 1).

23.     Mrs Miller gave evidence of her deteriorating health. Some of the problems included her back and neck injuries. However, they occurred in 2005. She did experience health problems and was in and out of hospital for about three months after the birth of Bodhi, in 2001. Mrs Miller recalls going to the hospital about four to five times in this period. While she was out of hospital, she was at home, bed ridden and not able to look after her children. She was fortunate to have her mother and niece to help care for her children.

24.     Mrs Miller also gave evidence that she was also diagnosed with epilepsy 13 years ago and suffers from seizures three to four times a week. She took medication for the epilepsy which made her sleepy, and said this did not help her look after Bodhi.

25.     The Secretary submits that in 2002 Mrs Miller made regular contact with Centrelink (letters found at T-27). Mrs Miller’s contact with Centrelink would suggest that her illness was not serious enough to prevent her lodging an application for review. 

26.      However, the overriding circumstance of a special nature is that Mrs Miller did not actually receive the letter that is deemed by law to have been given to her. In order to ‘take reasonable action to seek child support’ Mrs Miller must have actually received the letter, read and understood the terms and acted upon them. I have found that Mrs Miller did not receive the letter, and therefore the notice of the decision. This means that she was unaware of the need to take action – either to seek child maintenance or to seek a review of the decision.

27.     In addition, it appears she had already been recognised as having taken action to seek child support (see paragraph 3 above) and it is not clear why she was again requested to do so.

28.     I conclude that these circumstances are sufficiently unusual, exceptional or uncommon as to be special, that they prevented her from seeking a review within 52 weeks and that the period of 52 weeks should be extended in accordance with section 109D of the Administration Act.

Decision

29.     The decision under review is set aside and instead the Tribunal decides that Mrs Miller should be permitted to make her application for review of the decision of 8 March 2002 later than 52 weeks following the date of deemed notice of the decision.  The Tribunal further decides that the 52 week period should be extended to 12 April 2006.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .............[ Sanjiv Shah ]..................
  Associate

Date of Hearing  26 October 2007
Date of Decision  21 December 2007
Solicitor for the Respondent     Ms Raewyn Harlock