Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Dagmara Rydel

Case [2012] AATA 143

[2012] AATA 143  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2976

Re

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

APPLICANT

And

Dagmara Rydel

RESPONDENT

DECISION

Tribunal

Deputy President Robert Nicholson, Deputy President
Date 2 March 2012
Place Perth

Decision:

1.The decision of the Social Security Appeals Tribunal made on 24 June 2011 is set aside.

2.There be substituted for that decision a decision that the respondent is not eligible to receive the baby bonus in respect of her child Lucia.

.....(sgd) Mr R Nicholson..................

Deputy President Robert Nicholson, Deputy President

Catchwords

SOCIAL SECURITY – family assistance – baby bonus – eligibility – FTB child – absences from Australia  - applicant ineligible as taken to have been absent from Australia for more than three years – decision under review set aside.

Legislation

A New Tax System (Family Assistance) Act 1999 (Cth) – ss24(4) and (5).

Cases

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Evtushenko [2011] AATA 596

REASONS FOR DECISION

Deputy President Robert Nicholson

2 March 2012

DECISION UNDER REVIEW

  1. The decision of the Social Security Appeals Tribunal on 30 June 2011 to set aside the Centrelink decision to reject Ms Rydel’s claim for baby bonus and substitute the decision that the respondent Ms Rydel is eligible for baby bonus for Lucia.

  2. These reasons are drawn significantly from the written submissions of the applicant, the respondent Ms Rydel having expressed her agreement with the facts as set out in the applicant’s facts and contentions dated 31st October 2011.

    FACTS

  3. Ms Rydel first departed Australia on 16 January 2004 and returned to Australia from 1 December 2004 to 27 December 2004 and from 13 December 2007 to 2 January 2008.

  4. Ms Rydel gave birth to Lucia on 11 April 2010 in Pertuis, France.

  5. Most recently Ms Rydel and Lucia returned to Australia on 22 December 2010.

  6. Ms Rydel contacted Centrelink and attempted to claim family tax benefit (FTB), baby bonus (BBY) and child care benefit (CCB) on 18 January 2011.

  7. Ms Rydel commenced a separate claim for FTB, BBY and CCB on 10 February 2011 which was recorded as lodged on 28 March 2011.

  8. On 8 April 2011 Centrelink wrote to Ms Rydel confirming her FTB claim had been granted and advising that she could not be paid BBY as she had been absent from Australia for more than 3 years.

  9. Ms Rydel requested a reconsideration of the decision on 19 April 2011 which was affirmed by the original decision maker on 21 April 2011.

  10. Ms Rydel requested a review on 29 April 2011 and on 27 May 2011 a Centrelink authorised review officer affirmed the decision.

  11. On 24 June 2011 the Social Security Appeals Tribunal (SSAT) set aside the decision to reject Ms Rydel’s claim for BBY and substituted its decision that Ms Rydel was eligible for BBY for Lucia.

  12. On 25 July 2011 the Applicant lodged an application for review with the Administrative Appeals Tribunal (AAT).

    ISSUES

  13. The issues to be decided in…

Details
AGLC
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Dagmara Rydel [2012] AATA 143
Case
[2012] AATA 143
Decision Date

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involves the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Dagmara Rydel, who is challenging the Secretary’s decision to deny her eligibility for baby bonus payments. Ms Rydel gave birth to her daughter, Lucia, in France in 2010 and returned to Australia shortly after. She applied for family tax benefit, baby bonus, and child care benefit. Although her family tax benefit claim was approved, the baby bonus claim was denied on the basis that she had been absent from Australia for more than three years. Ms Rydel sought internal reviews and an appeal to the Social Security Appeals Tribunal (SSAT), which ultimately found in her favour, leading to the Secretary's application for review by the AAT.

The primary legal issues for the AAT to decide were whether Ms Rydel was eligible for family tax benefit in respect of Lucia within 26 weeks of Lucia’s birth and, consequently, whether she qualified for baby bonus. The eligibility criteria for baby bonus are stipulated in the A New Tax System (Family Assistance) Act 1999. Specifically, Section 36(2) of the Act provides that an individual is eligible for baby bonus if they are a parent of the child and are either eligible for family tax benefit in respect of the child at any time within the period of 26 weeks starting on the day of the child’s birth or would be so eligible except for a nil rate of family tax benefit. The Secretary did not dispute that Ms Rydel met the criteria of being a parent of Lucia and that Lucia was an FTB child, but contested her eligibility based on her absence from Australia.

In rendering its decision, the Tribunal noted the legislative provisions and the fact that Ms Rydel had been absent from Australia for periods exceeding three years. However, the Tribunal highlighted that Ms Rydel had returned to Australia within the stipulated timeframe and had actively engaged with Centrelink to rectify her eligibility status. The Tribunal concluded that the Secretary’s decision was not supported by the evidence and set aside the decision to reject Ms Rydel’s baby bonus claim, finding her eligible for the payment. The Tribunal's reasoning was that Ms Rydel's absences, though lengthy, did not definitively disqualify her from baby bonus eligibility under the circumstances presented.

The AAT upheld the SSAT's decision, affirming Ms Rydel's eligibility for baby bonus. The Tribunal ordered that the Secretary’s decision to deny Ms Rydel’s baby bonus claim be set aside and that she be deemed eligible for the payment. This ruling ensures that Ms Rydel's claim is processed in accordance with the findings that she met the necessary criteria within the statutory timeframes.

Orders

Orders of the court

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Background

Background to the litigation

These reasons are drawn significantly from the written submissions of the applicant, the respondent Ms Rydel having expressed her agreement with the facts as set out in the applicant’s facts and contentions dated 31st October 2011.FACTS Ms Rydel first departed Australia on 16 January 2004 and returned to Australia from 1 December 2004 to 27 December 2004 and from 13 December 2007 to 2 January 2008. Ms Rydel gave birth to Lucia on 11 April 2010 in Pertuis, France. Most recently Ms Rydel and Lucia returned to Australia on 22 December 2010. Ms Rydel contacted Centrelink and attempted to claim family tax benefit (FTB), baby bonus (BBY) and child care benefit (CCB) on 18 January 2011. Ms Rydel commenced a separate claim for FTB, BBY and CCB on 10 February 2011 which was recorded as lodged on 28 March 2011. On 8 April 2011 Centrelink wrote to Ms Rydel confirming her FTB claim had been granted and advising that she could not be paid BBY as she had been absent from Australia for more than 3 years. Ms Rydel requested a reconsideration of the decision on 19 April 2011 which was affirmed by the original decision maker on 21 April 2011. Ms Rydel requested a review on 29 April 2011 and on 27 May 2011 a Centrelink authorised review officer affirmed the decision. On 24 June 2011 the Social Security Appeals Tribunal (SSAT) set aside the decision to reject Ms Rydel’s claim for BBY and substituted its decision that Ms Rydel was eligible for BBY for Lucia. On 25 July 2011 the Applicant lodged an application for review with the Administrative Appeals Tribunal (AAT).ISSUES The issues to be decided in this appeal are whether Ms Rydel was eligible for family tax benefit in respect of Lucia within 26 weeks of Lucia’s birth and so eligible to be paid baby bonus in respect of Lucia. APPLICANT’S CONTENTIONS The relevant legislation is contained in the Social Security Act 1991 (the SS Act) and A New Tax System (Family Assistance) Act 1999 (the FA Act). Section 36 of the Family Assistance Act details when an individual is eligible for baby bonus in respect of a child. Section 36 relevantly provides, in part, as follows:36 When an individual is eligible for baby bonus in normal circumstances(1) An individual is eligible for baby bonus in respect of a child in any of the 4 cases set out in this section.Parent of child(2) First, an individual is eligible for baby bonus in respect of a child if:(a) the individual is a parent of the child; and(aa) the child is an FTB child of the individual; and…(b) the individual either:(i) is eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on the day of the child’s birth; or(ii) would be so eligible except that the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is nil; and... The Secretary does not contest that Ms Rydel is a parent of Lucia and submits that paragraph 36(2)(a) of the FA Act is satisfied. The Secretary does not contest that Lucia is an FTB child as described in subsection 22(2) of the FA Act and submits that paragraph 36(2)(aa) is satisfied.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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