Murray and Secretary, Department of Family and Community Services

[2004] AATA 227

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 227

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/437

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HELEN MARGARET MURRAY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal SP Estcourt, QC (Deputy President)

Date5 March 2004

PlaceAdelaide

Decision The decision under review is affirmed.

SP Estcourt QC

(signed)

Deputy President

CATCHWORDS

SOCIAL SECURITY - benefits and entitlements - family assistance - whether effective claim for benefits made - whether claim lodged within relevant time-frame

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance)(Administration) Act 1999 ss49J, 50

REASONS FOR DECISION

5 March 2004 SP Estcourt, QC (DEPUTY PRESIDENT)         

1.      This is an application to review a decision of the Social Security Appeals Tribunal of 11 June 2003 affirming a decision of the respondent of 8 November 2002 determining that a child care benefit claim for the financial year 2000/2001 could not be made by the applicant.

2.      In the years 2000/2001 the applicant, Dr Murray, had two dependant children, who attended childcare and on 8 August 2002 she lodged a past period claim in respect of the care used by them.

3.      On 8 November 2002 a Centrelink officer decided that the claim was out of time and was thus not effective.

4.      Section 49J of the Family Assistance (Administration) Act 1999 (“the Act”) provides that a past period claim is ineffective unless it is made within one income year of the period concerned.

5.      Section 52(1) of the Act provides that if a claim is not effective it is taken not to have been made.

6.      Dr Murray’s claim was out of time and there is no discretion in the Tribunal to ameliorate the effect of any hardship evoked by a failure to comply with these provisions. It follows that the decision of the respondent must be affirmed.

7.      The following discussion of the facts of this case are taken from the decision of the Social Security Appeals Tribunal and was not in controversy between the parties.

“Information Provided at the Hearing

Ms Murray told the Tribunal that she did not realise there was a deadline for child care benefit claims. She said she had not received very much information about the new way that child care benefit was administered. The first time she heard about it was when she went into Medicare with her childcare receipts and was told she had to lodge them via a claim form. In the past she had gone to Medicare every six to twelve weeks with a wad of receipts.. Ms Murray remembers speaking to the manager of the childcare centre about the new arrangements. The manager suggested that it would be better if Ms Murray claimed at the end of the financial year due to the casual nature of her work. She neglected to tell Ms Murray that there would be a time limit for this type of claim.

Ms Murray said she did not prepare her tax returns at the end of the 2000/2001 year because she was too busy. She said she is two years behind with her returns but was not overly worried because she knew that the Tax Office was flexible with lodgement arrangements. Ms Murray said that an accountant prepares her returns but she could not find the time to gather the required information for the accountant. She explained that she has worked as a general practitioner for about 10 years. The work is stressful and so too is raising two children who in 2000/2001 were one year old and four years old.

Ms Murray said that in 2000/2001 she had a smaller than usual income. She estimated that she paid out about $17,000 in child care costs and would have received about $2000 in child care benefit. She said that it was very unfair that she has missed out on this money. She said she was only six weeks outside the required lodgement time. Ms Murray was distressed by the Centrelink decision.

…

Discussion of the Evidence

There was no dispute regarding the facts of the case. Ms Murray said that if the decision was based on the law then she did not think her appeal would be successful. She said she did not lodge within the timeframe. Her argument was that she was not made aware of the lodgement requirements. The Tribunal considered whether there had been an element of defective administration in this instance. It found that Centrelink had not given Ms Murray incorrect advice. Whilst the Tribunal sympathises with her predicament, there is no legal remedy that enables payment for child care benefit for the 2000/2001 year to be administered.”

8.      The respondent tendered details of its media campaign prior to 30 June 2002 directed towards advising families claiming childcare payments for care used before 30 June 2001 of the new requirement to submit their claims prior to 28 June 2002.

9.      The applicant tendered a brochure dated July 2002 published by the respondent which noted that care used for the previous financial year must be claimed for by the end of the current financial year, however she gave unchallenged evidence that a brochure she picked up in August 2002, about the time she made her disputed claim, was to the same effect as a booklet published by the respondent in 1998, which she also tendered. That booklet stated merely that the childcare rebate was not payable for claims lodged “more than two years after care was provided.”

10.     The applicant also gave unchallenged evidence that she was not advised of the changed requirement either at Medicare where she had been accustomed to submitting her claims or by the childcare centre she was using.

11.     It is clear that the respondent went to considerable trouble to publicise the changed requirements, however busy parents might legitimately expect that such a stringent new requirement might be brought to their attention at the coal face, as it were, that is to say, at Medicare or the childcare centre. Although the respondent as part of its campaign reminded childcare services to let families using their care know about the change, it is plain in this case at least that it was not enough. Equally in this case the only information the applicant obtained from her Medicare office in August 2002 was out of date.

12.     The Tribunal has no jurisdiction to entertain claims for compensation under r9 of the Financial Management and Accountability Regulations 1997, however the Tribunal does not accept that the observation of the Social Security Appeals Tribunal “that Centrelink had not given Dr Murray incorrect advice” should deter Dr Murray from applying for compensation. The real point is not that she was given incorrect advice but that she was not advised at all at the two points of contact where she could reasonably have expected to have been told of the changed requirement.

13.     The decision of the Tribunal is that the decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of SP ESTCOURT, QC (DEPUTY PRESIDENT)

Signed:         .......................................................................................
  Associate

Date of Hearing  3 March 2004
Date of Decision  5 March 2004
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms S. Cerone
Solicitor for the Respondent     Service Recovery Team Centrelink