Morrissy and Secretary, Department of Family and Community Services

[2004] AATA 577

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 577

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/795

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONNA MORRISSY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal M.A. Griffin

Date7 June 2004

PlaceSydney

Decision The Tribunal affirms the decision under review

[Sgd] M.A Griffin, Member

CATCHWORDS

SOCIAL SECURITY - Family Tax Benefit – claim made after end of next income year - decision affirmed

A New Tax System Family Assistance (Administration) Act 1999

REASONS FOR DECISION

7 June 2004 M.A. Griffin             

1.      This is an application to review a decision of the Social Security Appeals Tribunal dated 22 January 2003 which affirmed a decision of the Secretary, Department of Family and Community Services (“the Respondent”) that the Applicant, Donna Morrissy, was not entitled to a lump sum payment of Family Tax Benefit (“FTB”) for the year ended 30 June 2001. 

2. At the hearing Mrs Morrissy represented herself. Ms Green, an advocate with Centrelink, represented the Respondent. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T19) and documents exhibited as A1-A3 for Mrs Morrissy and R1 for the Respondent.

BACKGROUND

3.      On 15 April 2002, Mrs Morrissy lodged a claim for FTB for the 2001-2002 financial year. On the claim form Mrs Morrissy indicated that she did not want to claim FTB for the previous financial year, that is, for 2000-2001. On 17 May 2002 Mrs Morrissy telephoned Centrelink to request a lump sum payment of FTB for the 2000-2001 financial year. On 17 July 2002 Mrs Morrissy lodged a claim for the lump sum payment of FTB for the 2000-2001 financial year. On 13 August 2002, Centrelink advised Mrs Morrissy her claim for 2000-2001 had been rejected because it was lodged outside the allowable time frame, that is, after 30 June 2002. That decision was affirmed by an Authorised Review Officer (ARO) on 30 September 2002 and by the SSAT on 22 January 2003.

EVIDENCE

4.      The Centrelink records contain a copy of a letter sent to Mrs Morrissy on 18 April 2002 (T6) advising her of the rate of FTB to be paid to her during 2002 following the lodgement of her claim on 15 April 2002.  The letter states the amount of estimated combined income for Mrs Morrissy and her husband upon which the FTB payment rate was calculated for the 2001-2002 year. The letter also advises that FTB for the 2000-2001 financial year can only be assessed if tax returns are lodged by 30 June 2002. The letter was sent to the address provided by Mrs Morrissy in the claim form she lodged, three days earlier, on 15 April 2002.

5.      Mrs Morrissy told the Tribunal she did not receive that letter. Mrs Morrissy said she had been very ill and the family had recently moved from Emerald to that Brisbane address so that she could receive specialised medical treatment. She said that she and her husband had previously been in full employment and had no dealings with the social security system up till then. She said that after moving to Brisbane, she spoke to the Family Assistance Office (FAO) about child care benefit and was told of her entitlement to FTB. Mrs Morrissy said she dealt with the Chermside office of Centrelink. She confirmed the Centrelink record of the telephone conversation of 17 May 2002 (T7) during which she said she learned of the availability of a lump sum payment of FTB for 2000-2001. She said she was told at that time that the necessary claim form and paperwork would be sent to her.

6.      Mrs Morrissy said the documents did not come. She said she was sick at the time and did not worry about it until around 23 June 2002 when she rang Centrelink to ask about the form. Mrs Morrissy said the claim form without a covering letter arrived at her address on 3 July 2002.  Mrs Morrissy said she then contacted her accountant to action the claim and the form was lodged in mid-July 2002. She said she again rang Centrelink to confirm receipt of the claim and was advised it would take 28 days to process. She said no mention was made to her of the 30 June 2002 time limit. She said she rang again one week later to be told that she had missed the cut-off date. She said she was told she would receive a letter explaining these matters but nothing came. Mrs Morrissy described a further series of telephone calls and conflicting advice from the Centrelink staff about the process.

7.      Mrs Morrissy said she complained to the Ombudsman about the treatment she had received from Centrelink and was referred to the Welfare Rights Centre. She said the Welfare Rights Centre had taken her concerns to the Ombudsman. Mrs Morrissy wrote to a Centrelink manager claiming payment of the very substantial amount of the lump sum payment, pursuant to the Compensation for Detriment Caused by Defective Administration provisions (A1). On 23 February 2004, a Centrelink Business Leader decided that no compensation was payable.  On 18 May 2004, Ms Green advised the Tribunal that an “act of grace” payment of the amount in dispute has since been paid to Mrs Morrissy.

CONSIDERATION OF ISSUES

8. To be entitled to the payment of FTB a person must lodge a claim which is made in accordance with s5 and s7(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Act”). There is no dispute that Mrs Morrissy satisfied these requirements for her 2000-2001 claim.

9. However, section 10(2) of the Act provides:

“Restrictions on claims for payment of family tax benefit for a past period

10(2)  A claim for payment of family tax benefit for a past period is not effective if:

(a)       the period does not fall wholly within one income year; or

(b)the period does fall wholly within one income year but the claim is made after the end of the next income year.”

10.      In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

11.      Mrs Morrissy was an impressive witness and the Tribunal accepts her evidence about the lack of clear and prompt advice she received from the Centrelink office that she dealt with.  The Tribunal also accepts that Mrs Morrissy did not receive the claim form for the lump sum payment until 3 July 2002 and that she was unaware of the 30 June 2002 cut-off date at the time.

12. The Tribunal finds that Mrs Morrissy lodged a claim for FTB for a past year (2000/01) in accordance with s7(2) of the Act. However, the Tribunal finds that she lodged the claim on 17 July 2002, which was after the end of the next financial year (30 June 2002). Therefore, the claim was not effective under s10(2) of the Act. There is no discretion in the Act to extend the time limit for the lodgement of claims.

13.      The Tribunal has considerable sympathy for the position in which Mrs Morrissy found herself. Mrs Morrissy was an impressive witness who appeared to be sincere and genuine and had acted reasonably in the circumstances. Nevertheless I am satisfied there is no discretion available to this Tribunal in the interpretation of the legislation and that a lump sum payment of FTB for the 2001-2001 financial year cannot be made to Mrs Morrissy. Fortunately, it appears that the relevant authority within the Department is satisfied of the unfairness of this situation and has authorised an “act of grace” payment in the amount in dispute.

DECISION

14.      The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin, Member

Signed: A. Krilis
  Associate

Date of Hearing  24 March 2004
Date of Decision  7 June 2004
Representative for the Applicant    Self
Advocate for the Respondent       Ms Jane Green