RADMILA DJUROVIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 348

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 348

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1849

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RADMILA DJUROVIC

Applicant

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

Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 May 2009  

PlaceSydney

Decision The Decision under review is AFFIRMED.

....................[sgd]..........................

M D Allen
  Senior Member

CATCHWORDS

SOCIAL SECURITY: Payment of arrears of Family Tax Benefit Part A - That Centrelink failed to provide advice as to entitlements not a special circumstance - Decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999: S32; Ss 109E(2)

CASE LAW

Scott v Secretary, Department of Social Security (2000) 65 ALD 79

REASONS FOR DECISION

Senior Member M D Allen

1.      By application made the 10^th day of May 2008, the Applicant sought review of the decision by a Social Security Appeals Tribunal (“SSAT”) which affirmed a prior determination of the Respondent not to pay to her arrears of Family Tax Benefit Part A from 29 November 2002 up to 19 September 2007.

2.      The Applicant came to Australia, together with her son, in 1993 from what was then the Former Yugoslavia in order to escape domestic violence.

3.      As from July 1993, the Applicant had been in receipt of family tax payment in respect of her son however, due to legislative changes in the year 2000, family tax payment was replaced by Family Tax Benefit (“FTB”). The Applicant continued to be paid FTB at the maximum rate due to a temporary extension but on 1 November 2002, the Family Assistance Office (“FAO”) sent a notice to the Applicant stating that in order to receive more than the base rate of FTB Part A she needed to take reasonable action to obtain Child Support from her son’s father.

4.      As the Applicant explained in these proceedings, and I accept, she was reluctant to have any contact with her son’s father and possibly to reveal to him her whereabouts as he had in the past threatened to kill her.

5.      The actual letter from the FAO read inter alia:

“to receive more than the base rate of Family Tax Benefit Part A, you must take reasonable steps to get Child Support from your child’s other parent (the paying parent). Our records show that you have not taken any action for…

We need to talk to you about the action you have taken to get Child Support for…Please contact the Family Assistance Office on 13 61 50 to provide us with some information so we can update your records.”

6.      Apparently the Applicant made contact with the FAO following receipt of the letter dated 1 November 2002. A file note dated 12 November 2002 reads:

“Customer PH0 12/11/2002 at 13:48…cus would like to apply for an exemption from the Maintenance Action Test as the father of her child is overseas and she left her country of origin to flee him under the threat of abuse.

Adv cus that an appointment with SWO is required to obtain exemption. Offered cus appointment on Tues and Thurs between 10:00am and 14:00pm. cus says these times are unsuitable as she works fulltime and would like someone to call her to make arrangements.

Pls try pho or mobile…

cus is aware an appointment is essential to be granted exemption and SWO only have app at the above listed time.”

7.      Apparently the Applicant took no further action to arrange an appointment with a social worker. The FAO (which is part of Centrelink) again wrote to the Applicant on 29 November 2002, that letter stating inter alia:

“You need to talk to the Child Support Agency before contacting us.”

The letter also added:

“Remember, if you do not ask for the decision to be reviewed within 52 weeks of being told about it, any change to that decision, or any back payment can only take effect from the date you asked.”

8.      Similar letters were sent to the Applicant on 22 June 2006, 30 June 2006 and 29 June 2007.

9.      On 19 September 2007, the Applicant contacted Centrelink and was advised to contact the Child Support Agency (“CSA”). This she did and was advised that in the circumstances no further action was required on her behalf. Having advised Centrelink of this, she became entitled to the payment of FTB Part A.

10. Subsection 32-10 of the A New Tax System (Family Assistance) (Administration) Act (1992) (“Family Assistance Act”) reads in alia:

“Effect of maintenance rights

The FTB child rate  for an FTB child of an individual is the base FTB child rate (clause 8) if;

(a)The individual or the individual’s partner is entitled to claim or apply for maintenance for the child; and

(b) The Secretary considers that it is reasonable for the individual or partner to take action to obtain maintenance; and

(c)The individual or partner does not take action that the Secretary considers reasonable to obtain maintenance.”

Whereas subsection 109E(2) of the Family Assistance Act reads:

“The Secretary may, if he or she is satisfied that there are special circumstances that prevented the Applicant from making an Application under subsection 109A(1) for review of the original decision within 52 weeks, determined that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.”

11.     The Applicant complained that at no time did anyone from Centrelink advise her that it was not necessary in her circumstances to actually take action against her husband to recover child maintenance. I agree that this is a manifest error on the part of the Centrelink officers concerned but I do not regard this failure to advise as constituting special circumstances.

12.     In Scott v Secretary, Department of Social Security (2000) 65 ALD 79, the Full Court of the Federal Court held that Secretary of the Respondent department had no general common law duty of care to advise of benefits that might potentially be available to a person. The Court went on to say at paragraph [23]:

“…it is one thing to expect a department (reasonably) to communicate accurately the general range of benefits available, it is another to expect the department to have the sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances…”

13.     Given the file note of 12 November 2002, I am satisfied that the Applicant was advised of the necessity to contact a social worker to discuss her case and although there may have been no follow up by Centrelink, likewise it appears she did nothing more to follow up any appointment with a social worker on her own behalf.

14.     In passing, I must state that where versions of what happened differ, I place more weight on notes that were made at the time, for example the file note of 11 November 2002.

15.     The Applicant also stated that during the relevant period, she had contact with the CSA. I therefore adjourned the hearing of this matter so that the Respondent could make further and better enquiries with that body.

16.     Exhibit R2 is a letter from the CSA dated 2 April 2009. That letter states, inter alia, referring to the period 1 November 2002 to 30 June 2007:

“There are no actual records showing that Ms Djurovic called the CSA during this period”

17.     Given the material before me in this matter, I am satisfied that the Applicant was advised that in order to obtain an exemption from the requirement that she seek child maintenance for her husband she needed to obtain an appointment with a social worker. For whatever reason, she did not do this.

18.     The Applicant may have believed that Centrelink would arrange such an appointment but she took no action to follow up this matter with Centrelink. In these circumstances I cannot see how special circumstances can be said to exist.

19.     Although the Applicant states that she did contact the CSA, no records exist with regard to these contacts but, more importantly, no records appear to exist of the Applicant contacting Centrelink to relay any advice she received from the CSA.

20.     In all the circumstances I am not satisfied that special circumstances exist, therefore the decision under review is AFFIRMED.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ........................[sgd]........................................................
  M Corcoran, Associate

Date/s of Hearing  19 March and 8 May 2009
Date of Decision  15 May 2009       
Solicitor for the Applicant          Appeared on own behalf            
Solicitor for the Respondent     Ms P Sharma, Centrelink Legal Services