Rebecca Von Perger and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 486
[2013] AATA 486
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0841
Re
Rebecca Von Perger
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Professor Robin Creyke, Senior Member
Date 9 July 2013 Place Perth The decision under review is affirmed
..(Sgd) Robin Creyke.......................
Professor Robin Creyke, Senior Member
CATCHWORDS
Family Assistance and Social Security - Family Tax Benefit - Whether Effective Claim Made - Notification of Refusal not Received - Request for Further Information not Received - Effective Claim not made
LEGISLATION
Acts Interpretation Act 1901 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) 1999 (Cth)
CASES
Re Jefferies and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1693
REASONS FOR DECISION
Professor Robin Creyke, Senior Member
On 26 July 2010 Mrs Rebecca Von Perger made a claim for family tax benefit (FTB) for the financial year 2009-2010. The claim was rejected by Centrelink on 29 July 2010, a decision affirmed on review by an authorised review officer on 30 November 2012. That decision was in turn affirmed by the Social Security Appeals Tribunal (SSAT) on 22 January 2013.
Mrs Von Perger appealed to the Tribunal on 21 February 2013. The matter was heard in Perth on 24 June 2013. Mrs Von Perger did not attend the hearing and was represented by her husband, Mr Von Perger.
Background
As at July 2010, Mrs Von Perger had three children, a daughter born 2004, a son born 2006, and another daughter, born 2008. Two further children were born in 2010 and 2012.
Mrs Von Perger lodged a claim online for FTB on 26 July 2010. Mrs Von Perger said at the SSAT that she intended the claim to apply to the 2009-2010 tax year, as well as the 2010-2011 tax year. Centrelink responded on 29 July 2010 notifying her that FTB would be paid on a fortnightly basis from 1 July 2010 for the 2010-2011 tax year. No mention was made in that letter of her claim for the 2009-2010 tax year.
In a separate notification letter dated 29 July 2010, Centrelink advised Mrs Von Perger that FTB could not be paid for the 2009-2010 tax year because all relevant questions on the claim form had not been completed. She was advised to phone Centrelink to request a new claim form but did not do so. Mr Von Perger said that this is not a clear case of a form not being filled in on time since Mrs Von Perger was under the impression that she had lodged the form for the 2009-2010 tax year as required.
The reasons of the SSAT record Mrs Von Perger saying she did not recall receiving the letter notifying her of the need for further information but it was possible that she had done so. She also confirmed that the letter was addressed correctly. However, at the hearing, Mr Von Perger said that Mrs Von Perger is now convinced that she did not receive the letter.
He explained that their house is at 6 Stoner Place which runs into Stoner Street and it is not uncommon for mail not to arrive, or for the Von Pergers to receive mail for 6 Stoner Street. He said it is difficult to know how often this occurs, but it has done so at least once in the last twelve months. If the couple receive mail for 6 Stoner Street, he takes the mail to that address. The dwelling at 6 Stoner Street is a large aged care facility with multiple residents, many of whom would receive letters from Centrelink. He said he had assumed that in an aged person’s facility it would be easier for mail to be mislaid, and it is less likely that staff would bother to either return mail to the post office, or deliver it to the correct address.
In further support of his belief that the letter of 29 July concerning the 2009-2010 FTB claim had not been received, he instanced another occasion when the family returned home to find that a window of their house had been broken by the police. The police had sought to enter the house following a call that an elderly resident was in distress. He said the police had left a note explaining the break-in but had refused to pay for a replacement window. In his view this incident supported the confusion which occurs between 6 Stoner Place and 6 Stoner Street, and explains why the letter from Centrelink may have been misdelivered and not received by the Von Pergers.
Mr Von Perger said the receipt of the letter concerning the 2010-2011 year did not trigger the couple’s concern about the previous income year. That was because the 2009-2010 financial year had finished and the couple knew that validating the estimate of income Mrs Von Perger had provided for that year required checking with the Tax Office as to Mr Von Perger’s actual income for the period. They thought this process would take some time. That belief was reinforced because the couple were still receiving fortnightly payments from the 2010-2011 year and this suggested to them that processing of an earlier claim was not complete.
There is some support for her belief. On 10 November 2010, Centrelink had sent Mrs Von Perger a letter requesting information in support of an income estimate for the six month period between September 2010 and March 2011. The deadline in the letter for providing the information was 24 November 2010. Mrs Von Perger’s evidence to the SSAT was that she thought the further information related to her husband’s income and that the Australian Tax Office would provide this information to Centrelink once her husband’s tax return had been completed. She said to the SSAT that she had been confused by the process. Mr Von Perger’s tax return was completed in February 2011, and on 25 March 2011, Mrs Von Perger provided Centrelink with an amended estimate of income for 2010-2011 tax year.
On 8 November 2010, Mrs Von Perger lodged a newborn child claim for family assistance and Medicare eligibility in relation to a child born in September 2010. On 10 December 2010, Mrs Von Perger was paid FTB in respect of her latest child, but her claim for Baby Bonus was not accepted as she had not supplied the documents requested in the letter of 10 November 2010.
Mrs Von Perger contacted Centrelink on 25 March 2011 concerning her family assistance claim. Following this contact, Centrelink sent Mrs Von Perger a notice requesting supporting documents for her claim for family assistance. The FTB claim for the 2009-2010 tax year was also discussed and on 25 March 2011,Centrelink posted a lump sum claim form for FTB for the that tax year to Mrs Von Perger for completion. The form noted on page 2 in bold type that she had to return the claim form on or before 30 June 2012, that is, within two years after the end of the relevant financial year of the FTB claim.
Mrs Von Perger said she had not realised that there was a deadline of 30 June 2012 to lodge the form. In evidence to the SSAT, Mrs Von Perger said as she had four young children to care for at that time, she had to give priority to their needs. As a consequence, she had not provided the extra information sought by Centrelink for the baby bonus and missed the deadline for lodging the 2009-2010 FTB claim. [SSAT, [24]] She was not told in the 25 March 2011 conversation with Centrelink about the deadline and she did not detect any urgency from Centrelink about the need to do so. Mr Von Perger confirmed that of necessity caring for their young children was Mrs Von Perger’s priority and may have led her to neglect to notice details on forms or to meet deadlines for seeking available financial assistance. In his view, as the FTB is designed to help mothers, Centrelink should take further steps to make mothers aware of the requirements.
On 30 November 2012, in a conversation with Mrs Von Perger, a Centrelink officer explained that ‘generally to claim FTB for a past tax year either a paper claim form …or … an online lump sum claim for 2009/2010 should have been lodged’. Mrs Von Perger was also told ‘that she had [had] until 30 June 2012 to lodge her lump sum claim for the 2009-2010 tax year in order to be considered effective’.
At the hearing, Mr Von Perger confirmed that Mrs Von Perger had yet to lodge the form. He also submitted that the scheme was designed to help mothers and he would have expected more assistance to be offered. He referred to Re Jefferies and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1693 (Re Jefferies) where Senior Member Handley had said: ‘the applicant should not be denied her entitlement because information that was not sought by Centrelink was not provided’: at [44].
Legislation
The relevant legislation is found in the A New Tax System (Family Assistance) Act 1999 (Cth), section 21 which provides the criteria for eligibility for family tax benefit, and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the FA Administration Act). Part 3, ‘Restrictions on Claims for Payment of family tax benefit for a past period’. The key provisions follow.
5 Need for a claim
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.
7 How to claim
7(1) An individual or approved care organisation (a claimant) may make a claim:
…
(b) for payment of family tax benefit for a past period
Form etc. of claim
(2) To be effective:
(a) a claim must:
(i) be made in a form and manner; and
(ii) contain any information; and
(iii) be accompanied by any documents;
required by the Secretary.
…
10 Restrictions on claims for payment of family tax benefit for a past period
…
Claim must relate to one income year and not be made after the end of the next income year
(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 but the claim is made after the end of the 2 income years immediately following that income year.
13 Secretary must determine claim
(1) If an effective claim is made, the Secretary must determine the claim in accordance with this Subdivision. If a claim is not effective, it is taken not to have been made.
Other relevant legislation is the Acts Interpretation Act 1901 (Cth). The relevant provisions of the Acts Interpretation Act 1901 (Cth) are section 28A and 29 concerning when a notice sent by post is deemed to have been received. The relevant provisions are as follows:
28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document.
29 Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Issue
The sole issue is whether Mrs Von Perger lodged an ‘effective claim’ for FTB for the 2009-2010 tax year.
Consideration
The FA Administration Act provides in section 5: ‘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’.[1] The claim must be in the form, contain the information, and be accompanied by any documents required by the Secretary.[2]
[1] A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (FA Administration Act) s 5.
[2] FA Administration Act s 7(2).
In July 2010 when she lodged an online claim form for 2009-2010, and 2010-2011, Mrs Von Perger did not make a claim which contained all the information required by the Secretary for the 2009-2010 financial year. In particular the claim did not contain the information about her partner’s income. On 29 July 2010, Centrelink posted a letter to Mrs Von Perger at her address informing her that she had not answered all the questions on the claim form. Mrs Von Perger was told in the letter that she needed to contact Centrelink to obtain a new claim form or to submit an online lump sum claim for FTB for the 2009-2010 tax year, or that she should lodge a paper form ‘Claim for an annual lump sum payment of FTB for the 2009-2010 tax year’. Mrs Von Perger did not respond.
Mrs Von Perger claimed to the SSAT that she thought that as her husband’s income tax return had not been complete, being completed by a tax agent in early 2011, that when this had been lodged, the Tax Office would automatically send the income tax details to Centrelink. As a consequence, she thought she did not have to provide further information.
At the hearing by the Tribunal Mr Von Perger said his wife is now convinced she did not receive this letter. The representative of the Secretary submitted that despite that claim, section 28A of the Acts Interpretation Act 1901 (Cth) provides that where a statute requires that a document, including a notification, be served, given or sent, service by post is permitted. In turn section 29 of the Acts Interpretation Act 1901 (Cth) provides that where service by post is provided for by statute, a prepaid letter posted to the last known address of the person is deemed to have been received within the normal course of post.[3] The representative relied on those provisions for her claim that the letter of notification of 29 July 2010 had been received by Mrs Von Perger.
[3] See also Evidence Act 1995 (Cth) s 160.
The Tribunal notes that service is only deemed by law to have occurred in accordance with sections 28A and 29 of the Acts Interpretation Act 1901 (Cth). Non-receipt of the letter of 29 July 2010 can be disproved by evidence. Mr Von Perger provided evidence at the hearing about problems the couple had experienced with receipt of mail. He pointed out that it was not uncommon for there to be confusion in mail deliveries between 6 Stoner Place and 6 Stoner Street. He supported this claim with an account of other misunderstandings illustrating that confusion of address. A Centrelink record of 24 November 2010 refers to a ‘Return to Sender Processing’ suggesting that Centrelink too had had notification problems with mail to the Von Pergers.
The Tribunal found Mr Von Perger to be an honest witness and was impressed by his testimony. Accordingly it accepts that these difficulties occurred. As a consequence the Tribunal finds that the evidence provided has displaced the legal presumption of receipt of the Centrelink letter of 29 July 2010 notifying Mrs Von Perger that her claim for FTB for 2009-2010 had not been effective. That means the Tribunal has found that Mrs Von Perger did not receive the notification of the rejection of her claim for FTB for 2009-2010, or the request for further information to be provided in July or August 2010.
That does not conclude the matter. Mrs Von Perger spoke with an officer of Centrelink in March 2011 during which her failure to make an effective claim for the 2009-2010 tax year was discussed. On 25 March 2011, Centrelink posted to Mrs Von Perger a lump sum claim form for her to complete an effective claim for FTB for the 2009-2010 year. At that time she had some 15 months in which to complete the form for it to be an effective claim.
Mr Von Perger said that his wife had not understood that there was a deadline for lodgement with Centrelink of the lump sum claim form. He also said she was not told by Centrelink that there was a deadline for submission of the form. However, the form does indicate the 2 year time period. He also pointed out that Mrs Von Perger then had four children to care for and as a consequence was too busy dealing with their needs to focus on the issue. Accordingly she did not then lodge the form claim nor has she yet done so according to Mr Von Perger as the couple have been focusing on the review process.
The Tribunal notes that the FA Administration Act section 5 states ‘The only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivison’. There is no discretion. Section 7(2) provides that an effective claim must be in the correct form, contain all the information requested and be accompanied by any documents required by the Secretary. Again there is no discretion. Section 10(2)(b) provides that a claim for a past period is not effective if ‘the claim is made after the end of the 2 income years immediately following that income year’. The two income years immediately following the 2009-2010 income year ended on 30 June 2012. The Tribunal notes that a two year time limit for lodgement of an FTB claim for a past period is a reasonable period. Finally, section 13 provides that ‘If a claim is not effective, it is taken not to have been made’.
Mrs Von Perger did not comply with the lodgement requirement within the 2 year time period for her claim for a past period, nor did she complete the form as required. Accordingly she did not comply with the terms of the FA Administration Act. In those circumstances since section 5 is in absolute terms, no discretion is permitted under the FA Administration Act, and the Tribunal is bound to apply the provisions of that Act, the Tribunal finds that Mrs Von Perger has not lodged an effective claim.
Mr Von Perger referred to the statement by Senior Member Handley in Re Jefferies. However, in that claim, unlike the circumstances applying to Mrs Von Perger, the applicant for maternity payment had responded to Centrelink and provided all but one piece of information. However, the letter, although properly addressed and posted, had not been received by Centrelink. Despite the quoted comment by Senior Member Handley from Re Jeffries, the Tribunal notes that the outcome in that case was that the refusal of payment was confirmed. This outcome, although harsh, illustrates the strict terms of the relevant legislation.
Senior Member Handley did recommend the applicant be paid compensation for detriment caused by defective administration in Re Jeffries given his acceptance that the information had substantially been provided and it was solely the exigencies of the postal system which caused the failure of lodgement of the claim No such recommendation can be made in this instance since Centrelink had provided correct and adequate information to Mrs Von Perger and it was Mrs Von Perger’s failure to appreciate a deadline and to comply with it which caused the claim not to be effective.
While the Tribunal understands the pressing demands of having many young children to care for, there are obligations on applicants for benefits which cannot be fulfilled by Centrelink, failure to comply with which disentitles individuals to those benefits. The terms of the legislation are strict in this regard. Mrs Von Perger did not lodge an effective claim. As the Act says in section 13: ‘If a claim is not effective, it is taken not to have been made’. Accordingly, that means the decision under review must be affirmed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Professor Robin Creyke, Senior Member ..(Sgd) M Sunits.......................
Administrative Assistant - Legal
Dated 9 July 2013
Date of hearing 26 June 2013
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