Ram and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3238
•8 September 2021
Ram and Secretary, Department of Social Services (Social services second review) [2021] AATA 3238 (8 September 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0689
Re:Rita Ram
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date: 8 September 2021
Place:Sydney
1.The decision under review is affirmed.
2.The Respondent is directed to provide advice to the Applicant of her rights under the Scheme for Compensation for Detriment Caused by Defective Administration.
................................[SGD].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Payments – Family Tax Benefit – Application for Family Tax Benefit made outside claim period - Whether “special circumstances” prevented the Respondent from making a claim for Family Tax Benefit within the claim period – Meaning of “prevented” Found that Applicant may have rights under Scheme for Compensation for Detriment Caused by Defective Administration - Decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21 and 26
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 5 and 10CASES
Kara v Secretary, Department of Social Security [2020] AATA 393
Mesecke v Secretary, Department of Social Services (Social services second review) [2019] AATA 4249SECONDARY MATERIALS
Department of the Prime Minister and Cabinet, The scheme for compensation for detriment caused by defective administration (The CDDA scheme) < >.
REASONS FOR DECISION
Chris Puplick AM, Senior Member
8 September 2021
Ms Rita Ram (the Applicant) is an Australian citizen and the mother of a child (P) who was born in July 2012.
This is an appeal against a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) affirming a decision by an Authorised Review Officer (ARO) from Services Australia related to the Applicant’s eligibility for Family Tax Benefit.
Eligibility and application for Family Tax Benefit
The Applicant was eligible to be paid Family Tax Benefit (FTB) for the child, from the time of his birth, under the provisions of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act). Section 21 provides:
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii) ……..
(b) the individual:
(i) is an Australian resident;
…………….
For the purposes of the Act, P is an FTB child and, at the time of his birth, his mother was an Australian citizen/resident.
However, mere eligibility for a benefit payment is not, in and of itself, sufficient to ensure that such payment is made.
Under the provisions of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act), an application for payment must be made by a potential recipient. Section 5 of that Act provides: (emphasis added)
Need for a claim
(1) The only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision.
Moreover, an application must be made within a certain period in relation to each year for which the benefit is claimed.
Section 10 of the Administration Act relevantly provides:
Restrictions on claims for payment of family tax benefit for a past period
(1) …
Claim must relate to one income year and be made within a certain period
(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 (the relevant income year) but the claim is made after the end of:
(i) the first income year after the relevant income year; or
(ii) such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making the claim before the end of that first income year.
(2A) The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.
Absent a proper claim within time, payment cannot be made.
The Applicant’s narrative
In short, the Applicant states that at the time of P’s birth she was in a state of some distress. During her pregnancy she had separated from the father of the child as a result of his violent behaviour towards her.
The Applicant was advised by a Centrelink officer, with whom she had a telephone call about her entitlements on 3 August 2012, that she should “lodge in [sic] fa100 as soon as she can.”[1] Centrelink records then indicate that the Applicant was in touch with them on 8 August 2012 “regarding [a] claim for baby bonus payment”.[2]
[1] Section 37 Documents (‘T Documents’) at 71.
[2] Ibid at 73-75.
Within days of the birth, on 9 August 2012, she attended the Centrelink office at Liverpool where she was assisted in completing her form FA101 (“Newborn Child, Claim for Paid Parental Leave, Family Assistance and Medicare”).
She states that she was advised by the Officer assisting her that she was not entitled to FTB because she was a “single mother”. [3]
[3] Ibid at 3.
If this advice was tendered, it was incorrect as there is no prohibition on a single parent receiving FTB. It is possible the Applicant misunderstood if, what she was told, was that “only one member” of a couple is eligible to receive FTB.[4] Even so, she was the eligible member of any such couple because she was the primary carer for the child.[5]
[4] See the Act s 26(1): “For any period when 2 individuals who are members of a couple would otherwise be eligible at the same time for family tax benefit in respect of one or more FTB children or regular care children, only one member is eligible.”
[5] Ibid s 26(2)(a).
Whatever the understanding of the Applicant, the FA101 form was completed and lodged including a claim for the Baby Bonus (which was approved on 15 August 2012) but with the box to claim FTB ticked “no”.[6]
[6] T Documents at 26.
There are then three entries in the Centrelink records as follows:
Centrelink System actioned record on _9 AUG 2012 regarding Change in Child Details for Family Tax benefit. Information was obtained via Claim for Newborn Child using System Generated.[7]
Customer contacted LIVERPOOL on _ 9 AUG 2012 regarding General Enquiry for Family Assistance Office. Information was obtained via Counter Statement using Personal – In Office.[8]
Customer contacted LIVERPOOL on 22 AUG 2012 regarding General Enquiry for Parenting Payment Single. Information was obtained via Counter Statement using Personal – In Office.[9]
[7] Ibid at 77.
[8] Ibid at 78.
[9] Ibid at 81.
The Applicant told the Tribunal that she attended the Liverpool office of Centrelink again within a few weeks of that first visit and was given the same advice – namely that she was not eligible for FTB.[10]
[10] Ibid at 5.
There is then no Centrelink record of any contact with the Applicant until 20 June 2018, which relates to a claim for FTB.[11]
[11] Ibid at 82.
In 2018 the Applicant was in contact with the Court in order to secure protection (by way of an Apprehended Violence Order (Domestic) (AVO)) against the abusive behaviour of her ex-partner. While there, she was referred by the court support worker to a social worker at Centrelink who, properly, advised her that she was eligible for FTB.[12]
[12] Ibid at 5, AAT1 decision at paragraph [5].
This resulted in the Applicant at last applying for the FTB which she did on 20 June 2018. In this application she claimed FTB for the financial year 2017/18 and for the immediately preceding financial year 2016/17.[13]
[13] Ibid at 49-54.
These claims were assessed and on 6 August 2018, it was determined that the Applicant was eligible for FTB for both of the financial years in question. It was assessed that she should be paid $6,774.40 for the financial year 2016/17 and $5,629.60 for the financial year 2017/18.[14] Certain other payments were made, and the Applicant was advised of her continuing eligibility for FTB.[15]
[14] Ibid at 55-58.
[15] Ibid at 59-62.
Apparently, the Applicant raised some objection to this and claimed that she should have been paid back to the original date of eligibility in August 2012. There is no record in the papers before the Tribunal of how or when this objection was raised. However, on 1 December 2020, an ARO from Services Australia affirmed that a correct decision had been made and that FTB was only payable as from 1 July 2016.
The Applicant sought a review of this in the AAT1 which, on 27 January 2021, affirmed the ARO’s decision.[16]
[16] Ibid at 4-8.
On 8 February 2021, the Applicant sought a review of that decision in this Tribunal where the matter was heard on 31 August 2021 using the Microsoft Teams platform in line with the Tribunal’s COVID-19 protocols.
Discussion
Section 5(1) of the Administration Act could not be more clear. The “only way” a person may be paid FTB is to “make a claim”.
The Applicant did not make a claim in 2012 nor did she make any claim prior to 2018 when she was able to use the provisions of section 10(2) of the Administration Act to include a claim for FTB in the year preceding her claim, which was granted.
There is a further discretion available to the decision-maker under the section which would allow consideration of payment back to 1 July 2015 but such a discretion may only be exercised where there are “special circumstances” that “prevented” the claimant from making the claim within the specified period (emphasis added).
Enlivening this discretion requires a two-stage process. In the first instance there must be “special circumstances” applying to the Applicant (in a way that distinguishes them from other applicants in a similar position) and then those “special circumstances” must have the effect of “preventing” the Applicant from complying with the legislation.
There is no doubt that the Applicant was in a difficult situation at the birth of her child. She had recently parted from a violent partner, had no independent social support and was dependent upon Centrelink officers for advice about her entitlements. Unfortunately, this is a common situation and in no way “special” in a distinguishing sense. These factors alone did not “prevent” the Applicant from lodging a claim.
On the other hand, being advised by a Centrelink officer that she was not eligible for FTB is a different matter. If she was advised by an official that she could not do something and then she failed to do it, it might be said that the advice “prevented” the course of action. The problem for the Applicant is that the Tribunal only has her claim that this was the case.
The Tribunal hastens to add that it has no reason to disbelieve what the Applicant was saying, namely that she understood the advice to be that she was not eligible. The Applicant impressed the Tribunal as a person of honesty and integrity, but something more probative is required for the Tribunal to be persuaded that there was something more than a mere misunderstanding involved.
It is at this point that the Tribunal expresses its concerns about the matters recorded in the Centrelink records (above at paragraph 16). The first (9 August 2012) suggests that Centrelink was aware of the Applicant’s eligibility for FTB and the second (on the same day) suggests that there was some sort of conversation with the Applicant regarding “family assistance”. This suggests to the Tribunal that if the Applicant did not proceed with lodging a claim, it was because of a misunderstanding on her part rather than her being misled by the Centrelink officer who must have been aware of the Applicant’s FTB eligibility.
The AAT1 very carefully set out the criteria to be used in determining the extent to which an applicant is “prevented” from lodging a claim. In Mesecke the Tribunal said:
I think the word “prevented” means in this context “having so substantially impeded the claimant that the special circumstances caused the claimant to fail to make the claim in time.[17]
[17] Mesecke v Secretary, Department of Social Services and (Social services second review) [2019] AATA 4249 at [33].
The Tribunal has concluded, on balance, that the Applicant genuinely misunderstood the extent of her entitlements for social security support and, as a result, failed to submit a claim, without which she could not be assessed and paid. This does not amount to finding “special circumstances” which would “prevent” her from lodging a claim.
The role of the Department/Centrelink
The Applicant was, at all times, in a highly vulnerable position. She had no family support in Australia (they being in Fiji) and was dependent upon others for advice about matters such as her eligibility for social security support. Between 2012 and 2018, she was subject to violence and abuse at the hands of her then partner resulting in matters being taken to Court where the partner was issued with an AVO prohibiting him from any contact with the Applicant and her son. At no stage has the Applicant been able to receive child support payments from the father of her child.[18] Above all, she was dependent upon Centrelink officers to advise her of her eligibility and entitlement for social security benefits.
[18] T Documents at 59: A Centrelink letter (6 August 2018) states, “Our records show that you have not taken reasonable steps to get child support for P”, but the Tribunal accepts the Applicant’s explanation for this in effect not being possible.
It is hard enough for even the most competent of individuals to navigate their way through the mind-numbing provisions of social security and taxation law and it is incumbent on those who are familiar with the various requirements to advise their “customers” as to exactly what their position may be.
The Tribunal accepts the conclusions of the AAT1 that:
[It is] unlikely that Ms Ram was so unfortunate as to encounter three CSO’s so ignorant of the qualifications for FBT….
[It is] more likely that Ms Ram was simply unaware of her entitlement to FTB until she was advised of it by Centrelink’s social worker in 2018.
[It is] unfortunate that Centrelink staff did not alert Ms Ram to her entitlement to FTB sooner, particularly as she was such a vulnerable client, and was known to Centrelink as a recipient of parenting payment.[19]
[19] T Documents at 8, AAT1 decision at [22], [23] and [25].
The term “unfortunate” is thrown into relief by the Centrelink file note of 9 August 2012 which suggests that Centrelink had amended its records, perhaps once it had cross-checked data related to claims for newborn children and was aware that the Applicant was FTB eligible. There is no evidence that, knowing this, they made her aware of the fact. They should have done so and had occasion either that day when a personal conversation with the Applicant took place or then on 22 August 2012 when another such conversation took place.
In this respect, the administrative procedures of the Respondent are exposed as potentially defective.
Scheme for Compensation for Detriment Caused by Defective Administration
Relevantly, the website of the Commonwealth Department of Prime Minister and Cabinet provides the following information about the Scheme for Compensation for Detriment Caused by Defective Administration (CDDA Scheme).[20]
[20] Department of the Prime Minister and Cabinet, The scheme for compensation for detriment caused by defective administration (The CDDA scheme) < >.
The CDDA Scheme provides a mechanism for government agencies to compensate persons who have experienced detriment as a result of defective actions or inaction, in cases where it has been established that there is no legal liability to pay compensation.
The CDDA Scheme is discretionary as well as permissive. It does not oblige the decision-maker to approve a payment in any particular case.
Payments may be made by the relevant portfolio Minister or authorised officer if a Departmental Officer or the Department has directly caused an applicant to experience detriment as a result of defective administration.
The CDDA Scheme is generally an avenue of last resort and is used only where there is no other viable avenue to provide redress.
That a mistake has been made by an entity or an official of an entity does not automatically mean compensation is payable under the CDDA Scheme.
Defective administration is defined as:
·……...
·……..
·an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
·giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
Detriment means quantifiable financial loss that the applicant has suffered.
There are three types of detriment:
·……..
·economic detriment that is not related to a personal injury (pure economic loss); and
·………
The AAT1 identified this scheme as potentially relevant to the Applicant’s current situation[21] and the Respondent in its Statement of Facts, Issues and Contentions recognised that the Applicant was “entitled to pursue a claim” [22] under the CDDA Scheme.
[21] T Documents at 8, AAT1 decision at [26].
[22] Respondent’s Statement of Facts, Issues and Contentions at [39].
Conclusions
The Tribunal believes that the Applicant proceeded under a misunderstanding of her eligibility for FTB, itself resultant from the Respondent’s acts either of commission (giving incorrect advice) or omission (failing to give correct advice when in knowledge of the facts). The misunderstanding resulted in the failure of the Applicant to lodge an application for FTB at the time when she became eligible.
Failure to lodge an application means quite simply that the benefit cannot be paid. For the Tribunal to hold otherwise would be for it to commit what it has elsewhere described as “an act of impermissible creativity”[23] in relation to the legislation.
[23] Kara v Secretary, Department of Social Security [2020] AATA 393 at [73].
As such the decision under review must be affirmed.
However, the Tribunal has also concluded that, on the balance of probabilities, the Applicant’s failure was a result of defective administration on the part of the Respondent. This is not a matter which this Tribunal can determine, and it must lie with the Applicant to consider if she wishes to avail herself of the opportunity which may be open under the CDDA scheme.
DECISION
1.The decision under review is affirmed.
2.The Respondent is directed to provide advice to the Applicant of her rights under the Scheme for Compensation for Detriment Caused by Defective Administration.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[SGD].........................................
Associate
Dated: 8 September 2021
Date(s) of hearing: 31 August 2021 Applicant: In person Solicitor for the Respondent: Ms B Dzang, Services Australia
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