Nicole Collin and Secretary, Department of Social Services
[2014] AATA 861
•20 November 2014
[2014] AATA 861
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2861
Re
Nicole Collin
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 20 November 2014 Place Brisbane The Tribunal affirms the decision under review.
................................[Sgd]........................................Dr P McDermott RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – FTB – Lump sum payment – Application lodged outside of time limitation – Whether application should be allowed – Provision does not confer discretion upon Secretary to extend time to lodge claim – Decision under review affirmed.
LEGISLATION
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 5, 7, 10, 13, 16
Commonwealth of Australia Constitution Act (Cth), s 61
(Cth), s 65
Family Assistance and Other Legislation Administration Act 2013 (Cth)
Financial Management and Accountability Act 1997 (Cth), s 33
CASES
Abidin v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 237
SECONDARY MATERIALS
The Scheme for Compensation for Detriment Caused by Defective Administration (the CDDA Scheme)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
20 November 2014
INTRODUCTION
Mrs Collin (“the applicant”) has lodged a claim for a lump sum payment of
Family Tax Benefit (“FTB”). The claim was made for the financial year ending on
30 June 2009 (which is referred to in these reasons as the 2008/2009 financial year). Her claim was rejected on the basis that it was made outside the required time limit. The issue that I have to determine is whether the claim of the applicant for a lump sum FTB payment for the 2008/2009 financial year should be allowed.
BACKGROUND
On 7 November 2013 the applicant lodged a claim form for lump sum FTB for the
2008-2009 financial year. On 16 December 2013, Centrelink rejected the claim on the basis that it was lodged out of time. On 11 March 2014 the decision of Centrelink was affirmed on internal review by an Authorised Review Officer. On 23 May 2014, the decision of Centrelink was affirmed by the Social Security Appeals Tribunal (“SSAT”). The applicant has made an application to this Tribunal to review the decision.
LEGISLATION
The relevant legislation is the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“the Act”).
Section 5 of the Act provides that a person can become entitled to be paid FTB by making a claim in accordance with Part 3, Division 1, Subdivision A of the Act; Division 1 is entitled “Family tax benefit”. The Subdivision contains the requirements for an “effective claim”, which must be made in the form and manner required by the Secretary (see s 7(2) of the Act).
There are time limits for the claiming for payment of FTB. Section 10 of the Act provides for restrictions on claims for payment of FTB for past periods. Prior to the Family Assistance and Other Legislation Administration Act 2013 (Cth), a claim for a past period was not effective if it was made after the end of the following two income years. Prior to the amending legislation s 10(2) of the Act provided:
(2) A claim for payment of family tax benefit 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
(i) the 2 income years immediately following that income year.
The Family Assistance and Other Legislation Administration Act 2013 (Cth) amended
s 10(2)(b) of the Act by reducing the time period to one year. However, there is no issue that in this case an effective claim had to be made after the end of the two income years following the income year for which a claim is made. The form of claim contains the instruction:
To claim for a lump sum payment for Family Tax Benefit for the 2008 – 2009 financial year, you (and your partner) must complete and lodge this form by 30 June 2011...
You can return your completed form to any Financial Assistance Office, located in all Medicare Offices and Centrelink Customer Services Centres.
The requirement to “lodge” a form would ordinarily require a person to deliver the form to a Family Assistance Office.[1] There is no evidence that the Secretary has, pursuant to
s 7(2) of the Act, stipulated that a claim may be made by post.
[1] Abidin v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 237.
CONSIDERATION
On 7 November 2013 Centrelink received the applicant’s claim for a lump sum payment of FTB for the 2008-2009 financial year. The operation of s 10(2) of the Act has the consequence that a claim for a lump sum payment of FTB for the 2008-2009 financial year has to be made by 30 June 2011 to be an effective claim. The claim is not an effective claim under the Act.
The case of the applicant is that in October 2009 she commenced the completion of the form. However, the applicant could not complete the form as she then answered some questions including what was the taxable income. The applicant had been advised by her husband that she should complete the form as this was a time of change in the administration of FTB. Future claims for FTB had then to be lodged to Centrelink rather than the Australian Tax Office.
The applicant contacted Centrelink on 19 February 2010 for a paper claim form which was sent by Centrelink to the applicant and received by her. The applicant requested that her accountant lodge the form with Centrelink. Her accountant gave evidence that this claim form was posted on 17 December 2010. Centrelink does not have any record of ever receiving the claim. Her accountant referred to a work in progress list[2] which records that the claim was started, completed as well as “lodged” on that date: however, the reference to being “lodged” means that the claim was posted on that date and not physically lodged at a Centrelink office. Her accountant did not personally post the claim form.
[2] Exhibit B.
Even if the claim form had been posted on 17 December 2010, the applicant's claim for a lump sum payment of FTB for the 2008-2009 financial year could not be “made” to Centrelink. This is because the claim was not effective because it was not made within the time prescribed by s 10(2) of the Act which is within the period of two years following the income year for which the claim is made. To be made the form would have to have been returned by 30 June 2011 to any Family Assistance Office in accordance with the instruction on the claim form. Section 13 of the Act provides that if a claim is not effective, it is taken not to have been made.
On 6 October 2011 the applicant had assumed that payments of $4329.64 and $3451.21 which she had received had related to her claim for the 2008-2009 financial year. The applicant advised the SSAT it was in October 2012 that she realised that no claim for FTB had been received by Centrelink for the 2008/2009 income year. My search of the file notes reveals that it may well have been in November 2012 (rather than
October 2012) that the nominee of the applicant learned that no claim for FTB had been received by Centrelink for the 2008/2009 income year.[3] However, it was not until
7 November 2013 that a claim form for that year was lodged by the applicant.
[3] T11, page 93.
I do not consider that s 10(2) of the Act confers any discretion upon the Secretary to extend the time within which a person can lodge a claim. I have also considered that other legislation which is part of social security law, such as the Social Security (Administration) Act 1999 (Cth), does not also confer any such discretion upon the Secretary.
The applicant has raised some matters which, while not relevant to the determination of this application, may be relevant if the applicant was to make a claim under
The Scheme for Compensation for Detriment Caused by Defective Administration (the CDDA Scheme). This scheme is not a statutory (legislative) scheme; it has been established under s 61 of the Commonwealth of Australia Constitution Act (Cth). In these circumstances the Finance Minister may approve an act of grace payment under s 65 of the (Cth).
DECISION
I affirm the decision under review.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member. ............................[Sgd]............................................
Associate
Dated 20 November 2014
Date of hearing 15 October 2014 Solicitors for the Applicant Jody Collin, L S COLLIN & CO Solicitors for the Respondent Chris Bishop, Department of Human Services
0
1
0