Parker and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 98
•11 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 98
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/2250
GENERAL ADMINISTRATIVE DIVISION ) Re MR SIMON PARKER Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal C Walsh, Senior Member Date11 February 2011
PlacePerth
Decision The Tribunal affirms the decision under review. ...(sgd) C Walsh...............
Senior Member
CATCHWORDS
SOCIAL SECURITY – 30% child care tax rebate - child care benefit – work/training/study test – conditional eligibility - backdating provisions – letter allegedly posted by claimant but never received by Centrelink – factual uncertainty – alleged misadministration by Centrelink and the Australian Taxation Office – request for compensation
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) – section 14(1)- section 15(1) - section 42 – section 52(1)
A New Tax System (Family Assistance) (Administration Act) 1999 (Cth) – section 50F – section 50H - section 65D
Evidence Act 1995 (Cth) – section 160(1)CASES
Waller and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 1902 (30 October 2007)
Jeffries and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1693 (17 August 2007)REASONS FOR DECISION
11 February 2011 C Walsh, Senior Member Introduction
1. Mr Parker and his wife are the parents of Luke and Abbey. On 9 January 2002, Mr Parker made a claim with Centrelink for Child Care Benefit (CCB) in respect of his son, Luke, who was attending approved child care at the Curtin University Guild Child Care Centre. Centrelink confirmed that Mr Parker was eligible for up to 20 hours of CCB per week for Luke. Mr Parker subsequently made a claim for CCB in respect of his daughter, Abbey and he was advised by Centrelink that he was eligible for up to 20 hours of CCB per week for each child in approved child care. In March 2006, Centrelink wrote to Mr Parker advising him that, in addition to CCB, he could now claim the new 30% child care tax for ‘out of pocket’ child care expenses, up to a maximum of $4,000 for each child. That letter also stated that to be eligible for the tax rebate he and his wife must meet the ‘work/training/study’ requirements.
2. On 2 December 2008, a Centrelink officer decided that Mr Parker met the ‘work/training/study test’ and that that decision should be backdated for the 2006/2007 financial year but that it could not be backdated for the 2004/2005 and 2005/2006 financial years such that Mr Parker would be eligible for the 30% tax rebate for the 2006/2007 financial year but not for the 2004/2005 and 2005/2006 financial years. Mr Parker requested a review of that decision and on 7 January 2009 a Centrelink authorised review officer (ARO) reviewed and affirmed the decision. Mr Parker then applied for a review of the Centrelink ARO’s decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the Centrelink ARO’s decision not to change Mr Parker’s Centrelink record to show that he and his wife met the ‘work/training/study test’ for the 2004/2005 and 2005/2006 financial years (and were, therefore, entitled to the 30% child care tax rebate in those years). Mr Parker now seeks a review of the SSAT’s decision by this Tribunal.
Can Mr Parker’s Centrelink Record for the 2004/2005 and 2005/2006 financial years be changed to show that he and his wife met the ‘work/training study test’ in those years?
Relevant law & evidence
3. The CCB helps working families with the cost of child care. For the financial years in question (i.e. the 2004/2005 and 2005/2006 financial years), the eligibility conditions for and rates of payment of CCB are contained in Division 4 of Part 3 of the ANew Tax System (Family Assistance)Act1999 (Cth) (Act) and the administration, procedural and technical rules are set out in A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act).
4. A 30% child care tax rebate for ‘out-of-pocket’ child care expenses was introduced by an amendment to the Income Tax Assessment Act 1997 (Cth), effective 1 July 2004. That provided taxpayers who were eligible to CCB for approved child care services, under Division 4 of the Act, and who satisfied the CCB ‘work/training/study test’ (in section 14(1) of the Act) to also be eligible for a 30% tax offset for ‘out-of-pocket’ expenses incurred for approved care up to a maximum amount of $4,000 per child (for the 2004/2005 income tax year), provided they met one of the CCB limits outlined in the Act. Prior to 1 July 2009, eligibility for the child care tax rebate was determined by the Family Assistance Office (FAO) but the rebate was paid by the Australian Taxation Office (ATO). However, since 1 July 2009, the child care tax rebate has been administered solely by the FAO.
5. Section 52(1) of the Act provides that the number of hours of approved child care service available to an eligible individual is limited. Further, section 52(3) of the Act states that for a fee reduction claimant who is an individual, the secretary must determine the limit under section 50H of the Administration Act while the claimant is ‘conditionally eligible’ for CCB fee reduction.
6. Section 50F of the Administration Act provides that if the Secretary is satisfied that the claimant, at the time the Secretary makes the determination, is ‘conditionally eligible’ for CCB by fee reduction for care provided by an approved child care service under section 42 of the Act, he must determine that the claimant is ‘conditionally eligible' for CCB by fee reduction in respect of the child. Once the Secretary has made a determination under section 50F of the Administration Act that a person is ‘conditionally eligible’, he must determine the weekly limit of hours applicable to that person and his or her child: section 50H(1) of the Administration Act.
7. The weekly limit of hours applicable to a fee reduction claimant are a limit of 20 hours, 50 hours, more than 50 hours or a 24 hour care limit: section 53(1) of the Act. Section 53(3) states that a 20 hour limit applies to a claimant in circumstances where no other limit applies. To be entitled to CCB for a limit of up to 50 hours per week, the claimant and their partner (if any) must satisfy the ‘work/training/study test’ (set out in section 14 of the Act) at some time in the week: section 54(2) of the Act.
8. Section 14(1) of the Act provides that an individual will satisfy the ‘work/training/study test’ if:
“(a) the individual has recognised work or work related commitments; or
(b) the individual has recognised training commitments; or
(c) the individual has recognised study commitments.” [Emphasis added]
9. An individual has “recognised work or work related commitments” if that individual is, among other things, in paid work (whether or not that individual performs the work as an employee”;”: section 15(1) of the Act.
10. Section 65D of the Administration Act limits how far a determination of ‘conditional eligibility’ under 50H of the Administration Act may be backdated (and thereby limits how far back satisfaction of the ‘work/training/study test’ requirements may be backdated).
11. Section 65D of the Administration Act states:
“(1) If:
(a) determinations of conditional eligibility under setion 50F and a weekly limit of hours under section 50H are made in respect of a claimant who is an individual; and
(b) after the determination is made, an event occur; and
(c) the determination of conditional eligibility has, at some time after the event, the effect that the claimant is conditionally eligible; and
(d) when the Secretary becomes aware of the change, the Secretary considers that, if he or she were making the determination of a weekly limit of hours immediately after the event, the weekly limit of hours would be different to the weekly limit of hours previously determined;
the Secretary must, subject to subsection (3), vary the determination of a weekly limit of hours so as to determine the weekly limit of hours with effect from the day of the occurrence.
………………..
(3) If:
(a) the Secretary does not become aware of the occurrence in the claimants circumstances until after the end of the income year (the second income year) following the one in which the event occurred; and
(b) the claimant did not notify the Secretary of the event before the end of the second income year; and
(c) apart from this subsection, the Secretary would be required by subsection (1) to vary the determination so as to increase the claimant’s weekly limit of hours under the determination;
the Secretary must vary the determination so that it has the effect only from the beginning of the income year that precedes the one in which the Secretary becomes aware of the event.”
12. In other words, where, in an income year, an event occurs which brings about a change in a person’s circumstances which affects their eligibility to CCB and the Secretary does not become aware of that change until after the end of that income year, section 65D of the Administration Act restricts backdating to the end of the income year following the one in which the event occurred (i.e. to the second income year).
Background facts
13. As noted in the Introduction, Mr Parker was advised by Centrelink on 1 April 2004 that he was eligible for up to 20 hours of CCB per week for each child in approved child care services. That letter also stated that Mr Parker would be entitled to up to 50 hours of CCB per week for each of his children if he or his wife worked, looked for work, studied or undertook training (or had a disability or cared for someone with a disability) and that he would qualify for more than 50 hours of CCB per week for each of his children if the hours were used for work, training or study. Centrelink also sent letters to Mr Parker on 2 July 2004, 30 June 2005 and 21 September 2005 respectively which contained similar information as the letter dated 1 April 2004. Each of those letters contained a paragraph titled “When to contact us” which provided that “Under family assistance law, you must tell us about events that may affect your payments as soon as possible after any of these things happen or you become aware that they are likely to happen”. Further, under the heading “About your family’s income” those letters stated:
“You should tell us about changes in your and/or your partner’s income when you know they are going to happen. This is important because your and your partner’s income will be checked with the Australian Taxation Office at the end of each income year to make sure you have been paid the right amount. You should continue to check that the estimate you gave is accurate……
You can change your estimate as often as you need by phoning us.”
14. Following a telephone call from Mr Parker, on 11 October 2005 Centrelink posted Mr Parker Centrelink booklets titled ‘Family Assistance Office Guide to Payments’ and ‘The what, why and how of Family Assistance’. Those booklets set out the qualification criteria and various other information regarding family assistance payments, including CCB. The ‘Family Assistance Office Guide to Payments’ booklet set out (at pages 5 to 7) the eligibility requirements, hours and payment in regard to CCB. Page 7 also contained a short paragraph titled “30 per cent Child Care Tax Rebate” which referred the reader to the ATO internet website for further information. ‘The what, why and how of Family Assistance’ booklet contained information about, among other things, CCB. Page 18 of that booklet stated that 20 hours per week for each child was currently available for all eligible families, which could be increased to 50 hours of approved care per child per week providing the care was for work, study, training-related care activities. Page 19 of that booklet contained information about the child care tax rebate and referred the reader to the ATO internet website for further information. Further, page 30 of that booklet listed the changes which it was expected would be implemented from 1 July 2006. One of those expected changes was an increase of up to 24 hours of CCB per week per child for eligible families which would be available to families without the claimant and his or her partner having to meet the ‘work/study/training test’. On 11 October 2005 Centrelink notified Mr Parker that he continued to be eligible for up to 20 hours Child Care Benefit for Luke and Abby and that he could claim up to 50 hours per child if the hours were being used for work, training or study purposes.
15. In the 2002/2003 Mr Parker’s wife commenced a Tupperware business. Mr Parker claimed that he posted a letter to the FAO/Centrelink on 6 October 2004 advising it, among other things, “My wife, Beverly Parker has recently registered for GST and is working as a manager of Tupperware. She has been working approximately 30 hours a week.” Mr Parker told the Tribunal that whilst he “knows in his own heart” that he posted that letter he simply cannot recall physically putting it in an envelope, stamping an envelope and walking across the road from his place of business and placing an envelope in the post box (as was his usual practice with his mail). There was evidence of an unsigned copy of that letter before the Tribunal. In contrast, Centrelink asserted that there was no evidence, on Mr Parker’s Centrelink record, of it ever receiving the letter dated 6 October 2004. The Secretary advised the Tribunal that for every letter, facsimile, e-mail, telephone call it receives from a person, a notation is entered on its computer system under that person’s record (unless the enquiry is general in nature). According to the Secretary, had Centrelink received Mr Parker’s letter dated 6 October 2004, a note acknowledging its receipt would have been made on Mr Parker’s Centrelink record and that no such notation existed.
16. On 22 March 2006 Centrelink wrote to Mr Parker informing him that he could claim the new 30% child care tax rebate in his 2005/2006 tax return (in addition to CCB) which would cover 30% of out of pocket expenses (i.e. the total child care fees less CCB) up to a maximum of $4,000 per child. That letter stated that in order to be eligible to the tax rebate Mr Parker must have been working, training or studying. That letter added that Centrelink’s records showed that neither he nor his partner had met the work/training/study requirements “for all of the 2004-05 financial year”. There was no evidence before the Tribunal that Mr Parker responded to that letter and advised Centrelink that both he and his wife were, at that time, working (i.e. him as a chiropractor and his wife as a Tupperware sales manager).
17. Centrelink wrote to Mr Parker again on 31 March 2006 informing him of changes to CCB, commencing 3 July 2006, and enclosing a fact sheet and a “Changes to Child Care Benefit Form” for him to complete and return to Centrelink by 3 July 2006. Alternatively, that letter invited Mr Parker to update his details online via the internet. That letter also noted that if Mr Parker did not respond to the form by 3 July 2006, he would only be able to receive up to 24 hours CCB for each child using approved care. Mr Parker informed the Tribunal that he believes that he did respond to Centrelink’s survey request dated 31 March 2006 and that he would have referred to his wife being employed in a Tupperware business in his response. However, Mr Parker did not produce a copy of that survey to the Tribunal. Further, Mr Parker told the Tribunal that whilst he is certain he posted the survey response to Centrelink, he could not recall physically placing that response in an envelope, stamping that envelope and walking across the road from his place of business and placing it in the post box (as was his usual practice with his mail). On the other hand, Centrelink claimed that it never received a response to the 31 march 2006 survey request from Mr Parker and that since there was nothing on Mr Parker’s Centrelink record acknowledging its receipt, his CCB details were never updated accordingly.
18. On 29 June 2006 Centrelink advised Mr Parker that he was entitled to receive up to 24 hours of CCB per week per child. That letter also said that Mr Parker could get reduced fees for up 50 hours of CCB if both he and his partner spent at least 15 hours per week or a total of 30 hours per fortnight working, looking for work, studying, training or participating in a combination of those activities.
19. Centrelink wrote to Mr Parker again on 11 November 2006 to inform him, among other things, that in order to be eligible to be paid the 30% child care tax rebate both he and his partner must have been working, training or studying and that Centrelink’s records showed that he and his wife had not met those requirements for all of the 2005/2006 financial year.
20. Mr Parker advised the Tribunal that he claimed the 30% child care tax rebate in his income tax returns for the 2004/2005 and 2005/2006 income tax years. He said that the Notice of Assessment he received from the ATO, dated 16 November 2006, made no reference to the ‘work/training/study test’. Mr Parker asserted that he had made numerous phone calls to the ATO concerning his eligibility for the child care tax rebate child but he kept being told “not to worry about it” and that the “system would work it out” and that he would eventually be paid automatically. He claimed that the ATO never informed him that he had not met the ‘work/training/study test’. Following the receipt of his notice of assessment, Mr Parker said that he continued to make phone calls to the FAO/Centrelink and the ATO concerning his eligibility for the child care tax rebate. There was no evidence of those phone calls on his Centrelink record. Mr Parker claimed that Centrelink inadvertently failed to record those telephone calls on his Centrelink record.
21. Centrelink sent Mr Parker further letters on 12 November 2006, 4 December 2006 and 27 June 2007 respectively. All of those letters notified him that he was entitled to 24 hours of CCB and that he should advise Centrelink about any events which may affect his payments as soon as possible after those things happen of if he became aware that they were likely to happen and of his right of review.
22. Mr Parker contended that despite having made many phone calls to the FAO and the ATO concerning his eligibility to the child care tax rebate, he had never received anything back from them formally explaining the situation. According to Mr Parker, that lack of response prompted Mrs Parker to write to the FAO on 30 July 2007, concerned that neither she nor her husband had received the 30% child care tax rebate for the 2004/2005 financial year. Centrelink claimed that it was unsuccessful in attempting to contact Mrs Parker by telephone on 8 August 2007, but left messages on her mobile phone and home answering machine to the effect that she must claim the child care tax rebate through the ATO and not through the FAO/Centrelink. Mrs Parker wrote to the ATO on 25 August 2008 setting out how much child care tax rebate she believed she should be paid. Mrs Parker subsequently wrote to Centrelink on 24 October 2008 requesting payment of the child care tax rebate for the 2004/2005 and 2005/2006 financial years. Centrelink wrote to Mr Parker on 28 October 2008 explaining that he was not entitled to the 30% child care tax rebate for the 2004/2005 and 2005/2006 financial years because Mrs Parker had not met the ‘work/study/training test’ in those years. Mr Parker responded by letter dated 12 November 2008, which letter set out his reasons why he believed he should be paid the tax rebate as follows:
“My work as a full-time self-employed chiropractor satisfies my obligations relating to the test for both years.
….In 2004/05 Beverly established a sales business with a first year turnover of $73,000. She did however make a loss of $2,295 for the first year due to start-up costs. This work required her to commit time sufficient enough to easily satisfy the test.
In 2005/06 Beverly had a turnover of $107,000 and a net income from business of $21,230 from doing her sales job. This sales work also involved many sales meeting which clearly constitute work related obligations as outlined in the test. In 2005/06 Beverly easily would have satisfied all requirements of the test.”
23. On 2 December 2008 Centrelink notified Mr Parker that he had been paid a child care tax rebate of $1,049.45 for the 2006/2007 financial year but was not eligible to be paid one for the 2004/2005 and 2005/2006 financial years. On 4 December 2008 Mr Parker requested a review of Centrelink’s decision not to pay him the 30% child care tax rebate for the 2004/2005 and 2005/2006 financial years on the basis that he should have been eligible since he and his wife met the ‘work/training/study test’ for those years. Centrelink wrote to Mr Parker that same day explaining why he could not be paid the tax rebate for those financial years. In particular, that letter stated:
“For Child Care Benefit purposes, eligibility for the CCTR can only be backdated to the start of the previous income year to which we are currently in. You requested a review after the 30 Jun 2008, the limit to which your eligibility for the WTST can be backdated is the 1 Jul 2007. As your record shows that you queried your entitlement to CCTR and the ATST on the 8 Aug 2007, I am able to backdate the ATST to the beginning of the 2006-07 financial year.”
24. That letter also noted that Centrelink’s records for Mr Parker indicated that Mr Parker had not returned the “Changes to Child Care Benefit Form”, dated 23 March 2006, which had been posted to him under cover of a letter dated 31 March 2006 and which he had been requested to complete and return to Centrelink by 3 July 2006.
25. On 10 December 2008 Mr Parker requested a review of that decision by a Centrelink ARO. On 7 January 2009 the ARO affirmed Centrelink’s earlier decision not to retrospectively update the determination such that Mr Parker satisfied the ‘work/training/study test’ for the 2004/2005 and 2005/2006 financial years. The ARO decided that although Mr and his wife met the ‘work/study/training test’ during the 2004/2005 and 2005/2006 financial years, a “careful search” of Mr Parker’s Centrelink record found that no evidence existed that the FAO/Centrelink was advised of the change in Mrs Parker’s work situation prior to 30 July 2007 (at which time Mrs Parker wrote to the FAO/Centrelink concerned that neither she nor her husband had received the tax rebate for the 2004/2005 financial year). According to the ARO, since that date was outside the legislative backdating provisions, he could not retrospectively update Mr Parker’s Centrelink record to show that he and his wife met the ‘work/training/study test’ in the 2004/2005 and 2005/2006 financial years (such that they would be retrospectively eligible for the 30% child care tax rebate for those financial years). The ARO’s decision was subsequently affirmed by the SSAT on 22 April 2009.
Conclusion
26. It is not disputed that Mr Parker met the eligibility requirements for CCB in respect of his children Luke and Abbey and that his family was entitled to 20 hours of CCB each week for each child in the period 9 January 2002 to 30 June 2006 and to 24 hours of CCB each week for each after 3 July 2006. What is in dispute is Centrelink’s decision not to retrospectively update Mr Parker’s Centrelink records to show that he and his wife met the ‘work/training/study test’ in the 2004/2005 and 2005/2006 financial years such that they would have been eligible for a 30% child care tax rebate for ‘out of pocket’ child care expenses incurred by them (up to a maximum of $4,000 for each child) in those years.
27. Centrelink claimed that it did not become aware of Mrs Parker’s changed employment circumstances until it received Mrs Parker’s letter, dated 30 July 2007, which it received on 8 August 2007. On the other hand, Mr Parker asserted that he sent a letter to the FAO/Centrelink on 6 October 2004 informing Centrelink that his wife was working approximately 30 hours a week as a GST registered Tupperware sales manager. Mr Parker also maintained that he did respond to Centrelink’s survey request dated 31 March 2006. There is no evidence in Centrelink’s record for Mr Parker that it received Mr Parker’s letter dated 6 October 2004 or his response to Centrelink’s survey request dated 31 March 2006. Accordingly, Centrelink did not update Mr Parker’s Centrelink record to indicate that he and his wife met the ‘work/training/study test’ for the 2004/2005 and 2005/2006 financial years (with the effect that they were not eligible for the 30% child care tax rebate in respect of those financial years). Consequently, central to the determination of this case is whether Centrelink received either Mr Parker’s letter dated 6 October 2004 or his response to Centrelink’s survey request dated 31 March 2006.
28. Before the Tribunal, Mr Parker sought to rely on the Tribunal’s decision in Jeffries and Secretary, Department of Families Community Services and Indigenous Affairs [2007] AATA 1693 (17 August 2007). Broadly, that case concerned the effectiveness of Mrs Jeffries claim for maternity payment under section 39(2) of the Administration Act, which section provides that a claim for payment of maternity payment is not effective if it is made later than 26 weeks after the birth of the child. In that case, Mrs Jeffries claimed to have posted her first maternity payment claim, dated 27 June 2005, by posting it to the Medicare/FAO office at Karrinyup. She subsequently lodged that claim at the Centrelink office in person on 29 June 2005. However, since parts of the claim form had been left incomplete by Mrs Jeffries, namely her bank account details and her husband’s tax file number (TFN), Centrelink wrote to Mrs Jeffries on 29 June 2005 requesting that she either mail her bank account details and her husband’s TFN to Centrelink’s office at Mirrabooka or personally deliver that information to the nearest Centrelink office. Mrs Jeffries contended that after she had obtained her husband’s TFN she hand wrote the TFN and her bank account details on Centrelink’s letter dated 29 June 2005 and posted that letter to Centrelink at Mirrabooka. Mrs Jeffries said that she specifically recalled posting that letter and that she remembered placing a stamp on an envelope and affixing a sticker to the back of that envelope which recorded her name. She also noted that that letter was never returned to her. However, according to the Secretary, there was no evidence, based on Centrelink’s record for Mrs Jeffries, that Mrs Jeffries’ letter, dated 29 June 2005, was ever received by Centrelink.
29. In finding for Mrs Jeffries, Senior Member Handley relied on the presumption set out in section 160(1) of the Evidence Act 1995 (Cth) (Evidence Act) to reach the conclusion that Mrs Jeffries did post the letter of 29 June 2005 to Centrelink such that her claim for maternity payment was within time and effective. In reaching that conclusion, Senior Member remarked (at [45] and [46][):
“45.
……There is nothing by these proceedings which satisfies me that the envelope which was properly addressed and which was not returned did not reach its destination in the ordinary course of post. In those circumstances, I am satisfied that the letter was mislaid or misplaced by some unknown means after it was delivered to [Centrelink’s] mail exchange.
46. The presumption available by s160(1) of the Evidence Act is fettered by evidence sufficient to raise doubt about the presumption (being) adduced. The letter of 29 June 2005 was not returned. Its loss or destruction was not proved. That it was not recorded on the document list……is not proof of non- receipt. I am not satisfied there is a doubt raised sufficient to dispel the presumption.”
30. Section 160(1) of the Evidence Act states:
“It is presumed (unless evidence sufficient to raise doubt about the presumption is adduce) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.”
31. However, section 4(1) of Part 1.2 of the Evidence Act, headed “Application of this Act”, provides that:
“This Act applies to all proceedings in a federal court or an ACT court,…….
Note 2: ACT court and federal court are defined in the Dictionary. The definitions include persons or bodies required to apply the laws of evidence.”
32. The Evidence Act’s “Dictionary” defines “federal court” to mean the High Court or any other court created by Parliament (other than the Supreme Court of a Territory) and includes a person or body (other than a court of or magistrate of a State or Territory) that “in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.” The definition of “ACT court” is irrelevant for present purposes. The Tribunal is neither the High Court nor any other “court” created by Parliament, it is a tribunal. Further, section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) makes it clear that the Tribunal is not a person or body that is bound by the rules of evidence. That subsection relevantly provides:
“(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
33. Accordingly, the Tribunal is not bound by section 160(1) of the Evidence Act. Thus, the fact that Mr Parker claims that he posted a letter to the FAO/Centrelink on 6 October 2004 advising it of his wife’s changed working circumstances (i.e. that she was working around 30 hours a week at that time as a GST registered Tupperware manager) does not mean that Centrelink should disregard the backdating provisions in section 65D of the Administration Act and retrospectively amend Mr Parker’s Centrelink record to show that he and his wife met the ‘work/training/study test’ in the 2004/2005 and 2005/2006 financial years (thereby making them eligible for the 30% child care tax rebate in respect of those years).
34. In Waller and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 1902 (30 October 2007) Member Frost made the following comments (at [23]) concerning the issue of factual uncertainty:
“The general principle to be applied in resolving factual uncertainty is set out in ACT
Department of Health and Nikolovski and Comcare (1996) 42 ALD 599 at 601:... analysis rests on the proposition that a decision-maker, and a
tribunal standing in the shoes of a decision-maker, should not exercise
a power to make a decision unless it is satisfied that the facts warrant
the exercise of the power. If the decision-maker or the tribunal cannot
be satisfied on the balance of probabilities that facts exist which
warrant an exercise of the power, then the decision-maker or the
tribunal should not exercise the power. This approach accords with the
view stated by the AAT in Re Twyman and Commonwealth of Australia
(1987) 13 ALD 402: “the status quo must remain unchanged unless the evidence establishes that it should be changed” (citing McDonald v
Director-General of Social Security (1984) 1 FCR 354).”
35. In that case, Member Frost accepted that there was some corroborating evidence that Mrs Waller had lodged a claim for maternity allowance in relation to her son, Brayden, but not for her daughter, Jasmine. For that reason, Member Frost found that Mrs Waller was entitled to receive maternity allowance only in respect of Brayden and not Jasmine.
36. Based on the evidence, the Tribunal considers that Centrelink did not become aware of Mrs Parker’s changed employment circumstances until 8 August 2007, when it received Mrs Parker’s letter dated 30 July 2007. There is no evidence that Centrelink received Mr Parker’s letter of 6 October 2004, notifying Centrelink of his wife’s changed working circumstances, or that he responded to Centrelink’s survey request dated 31 March 2006, which, if received by Centrelink, would have made Centrelink aware of Mr Parker’s changed circumstances (i.e. that his wife was working around 30 hours a week as a Tupperware sales manager). Although Mr Parker produced an unsigned copy of what he says was the letter he posted dated 6 October 2004, there was no evidence of that letter ever being received by Centrelink. As already mentioned above, Mr Parker told the Tribunal that whilst he “knows in his own heart” that he posted the 6 October 2004 letter he simply could not recall physically putting that letter in an envelope, stamping an envelope and walking across the road from his place of business and placing that envelope in the post box (as was his usual practice with his mail). In that sense, the Tribunal finds that Mr Parker’s factual circumstances can be distinguished Mrs Jeffries’ factual circumstances. That is, in Mrs Jeffries’ case, she told the Tribunal that she specifically recalled posting the letter concerned and that she remembered placing a stamp on an envelope and affixing a sticker to the back of that envelope which recorded her name: cf Jeffries. Consequently, in the circumstances of Mr Parker’s case, the Tribunal cannot be satisfied, on the balance of probabilities, that the 6 October 2004 letter (or his response to Centrelink’s survey request dated 31 March 2006) was, in fact, ever posted to Centrelink by him: Waller applied. Therefore, applying the backdating provisions in section 65D of the Administration Act, it follows that Mr Parker’s Centrelink record for the 2004/2005 and 2005/2006 financial years cannot be retrospectively updated to show that he and his wife met the ‘work/training/study test’ in those years (so as to make him retrospectively eligible for the 30% child care tax rebate in respect of those financial years).
37. Mr Parker told the Tribunal that he felt that he and his wife deserved compensation for ‘faulty administration’ arising from the relationship between the FAO and the ATO and their handling of his claim for the child care tax rebate. That is, in Mr Parker’s opinion, great uncertainty on his part (as a lay person), in relation to when and how to claim the 30% child care tax rebate, arose from the fact the FAO was responsible for determining a claimant’s eligibility (and, in particular, whether that person and his or her partner satisfied the ‘work/training/study/test’) but that the tax rebate was actually administered (i.e. paid) by the ATO. He made the observation that that problem has since been rectified as the FAO is now solely responsible for the administration of the child care tax rebate. As regards Mr Parker’s claim for compensation for alleged misadministration on the part of the FAO/Centrelink and the ATO in their handling of his claim for the child care tax rebate, such a claim is outside the Tribunal’s jurisdiction and Mr Parker would need to make such a claim in a different forum.
38. For the above reasons, the Tribunal affirms the decision under review. Specifically, the Tribunal affirms the SSAT’s decision of 21 April 2009 affirming the decision made by an ARO of Centrelink on 7 January 2009 not to retrospectively update Mr Parker’s Centrelink record for the 2004/2005 and the 2005/2006 financial years to show that he and his wife met the CCB ‘work/training/study test’ for the purposes of determining his eligibility for the 30% child care tax rebate in those years.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of C WALSH, SENIOR MEMBER
Signed:..(sgd) T Freeman...................
AssociateDate/s of Hearing 3 February 2011
Date of Decision 11 February 2011
Representative for the Applicant Mr S Parker (Self-represented)
Solicitor for the Respondent Ms M Conlan (for the Secretary)
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