Richards and Department of Family and Community Services - [2000] AATA 1121

DECISION AND REASONS FOR DECISION [2000] AATA 1121

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/269

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ANDREW RICHARDS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date19 December 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
SOCIAL SECURITY – family allowance – whether SU19 form an approved form – application of Section 1069 Module G.

Administrative Appeals Tribunal Act 1975 s 39
Social Security Act 1991 ss 851, 852, 1069

REASONS FOR DECISION

19 December 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision of the Social Security Appeals Tribunal made on 28 February 2000 to affirm a decision of an Authorised Review Officer on 14 January 2000 not to back-date family payments from 1991.
The matter was heard before me on 28 July 2000 in Brisbane. The applicant, Andrew Richards, represented himself while the respondent was represented by Mr S Letch, Departmental Advocate.
The applicant made oral submissions at the hearing and the "T" Documents were placed into evidence as Exhibit 1. After the decision was reserved, the applicant requested that the matter be re-opened as he had put in an FOI application to get access to his social security file so he could prove that he filled in the correct form in 1991.
The matter was re-listed for 19 September 2000 but had to be vacated as the applicant had been involved in an incident which had resulted in him sustaining concussion. The matter was re-listed for 23 October 2000 but the applicant again requested the matter be adjourned. He said he had mixed up the dates as to when he was to appear. He also said his FOI application had not turned up the information he was looking for and requested the opportunity to put in a statutory declaration setting out the material which he had expected to be on his file. This request was granted and he was told to furnish the statement to the Tribunal within two weeks.
At the time of writing these reasons, no such statement has been forthcoming. Given Mr Richards' recent political activity, it would appear he is no longer impeded by the concussion he suffered and was in a position to have complied with the request. The Tribunal is of the view that given the length of time these proceedings have been continuing, the applicant has had a reasonable opportunity to present all of his evidence and submissions to the Tribunal. The Tribunal has therefore complied with its obligations under Section 39 of the Administrative Appeals Tribunal Act 1975 and will proceed to hand down its decision on the facts before it.
The appeal involved the questions of whether an SU19 form was an approved form for the purposes of claiming family payment and if so, whether Mr Richards should receive back-payment to 1991. Mr Richards' son was born in 1989 and since 1991 his son has visited him during school holidays.
The relevant legislation in this matter is the Social Security Act 1991. Section 851 of the Act requires that a person who wants to be granted family allowance must make a proper claim for that allowance. Section 852 states that for a claim to be regarded as a proper claim it must be made in writing and in accordance with a form approved by the Secretary. The Assistant Secretary for the Family and Children's Branch has the delegation under Section 852 to approve forms. The only forms which have been approved by the Secretary for family allowance, are the SC1 and the RA14.
Until January 1998, family payment was only divided between parents if the non-resident parent had 30% or more of the care. Since January 1998 the policy has been to calculate the actual periods of time of contact so that the non-resident parent is paid that percentage of the parenting allowance.
The applicant's son was born in 1989 and the applicant separated from his wife in 1990. In 1991 the applicant obtained a court order granting him custody during some of the school holidays. The applicant filled in an SC1 form in 1991 when his son came to visit him but was deemed ineligible to receive the payment as he had custody for less than the required 30%. From that time on he recorded the duration of his son's visits on his SU19 form (Newstart application). He filled out another SC1 form in 1992 but was again refused on the basis of the time requirements.
In May 1999 the applicant, as usual, notified Centrelink on his SU19 form that his son was residing with him but no action was taken on the basis of that. Again, in September 1999, the applicant noted his son's residence with him on his SU19 form. As a result of this he was sent an SC1 form which he filled in and returned on 24 September 1999. It was found that he was eligible for family payment at that time and was duly paid. The original decision-maker noted that Mr Richards would have been eligible in May according to the information contained in his SU19 form and decided to back-date his payment on the basis that there had been a clerical error in not sending out an SC1 form at that time. Due to the restriction on back-payments to 13 weeks under the legislation, the payments were not back-dated further.
On review, it was found that the decision to allow back-payments was actually an error in itself. An SU19 form is not an approved form and therefore a valid claim had not been made and the back-payments could not be made on the basis of the SU19 form. However, since this back-payment was in itself an administrative error solely on the part of Centrelink, the back-payment was not recovered.
The SU19 form is not an approved from on which family payment can be claimed. Mr Richards was well aware that there was another form, the SC1, which had to be filled out to receive the family payment. He had filled it out in 1991 and 1992 but had been ineligible both times. Mr Richards' approach was to record the information about his son's residency with him on his SU19 form and expect Centrelink to send him the appropriate family payment forms.
While it would be nice if Centrelink acted on every piece of advice that individuals gave them, no matter what form it was on and ensured that people not only got paid everything they were eligible for, but also were sent forms for everything they might be eligible for, this is not the way our welfare system works. Firstly, with the number of payments and claims being processed each day by Centrelink it is just not feasible for them to analyse every claim that comes in for other potential claims that the applicant might make. Secondly, if that were the case, there would be no point in having different forms for different payments.
The procedure in Australia is that if you believe you are eligible for a welfare payment you have to lodge a claim on the correct form and that claim is then assessed. Mr Richards could not plead ignorance as to the correct family payment form. He had used it in the past. All he needed to do was to get a copy of the correct form and fill it out when he lodged his Newstart form.
There was no valid application at a time when the applicant was eligible, on an approved form, until 24 September 1999 and it is from this date that Mr Richards is entitled to receive family payment. Although he was paid family payment back to 22 May 1999, this involved a clerical error on behalf of Centrelink. Therefore, while the amount is not recoverable by Centrelink, it in no way forms the basis for further back-payments.
One final point worth mentioning is the application of Section 1069 Module G of the Social Security Act. The applicant raised this and said that Centrelink had breached its duty of care in not applying it to him. There is a key requirement before payment is made that both parents must qualify for family payment in respect of the child. In order to qualify for the payment, a valid application must have been lodged and the applicant must be eligible. As stated above, no such application had been made until 24 September 1999 so that Section of the Act could have no application until that date.
For the above reasons the Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  28.7.00
Date of Decision  19.12.00
Rep. for the Applicant              Applicant appeared in person
Solicitor for the Respondent    Mr S Letch, Department Advocate