Segran and Secretary, Department of Education, Employment and Workplace Relations and Anor

[2008] AATA 799

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2546

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTINE SEGRAN (formerly CHRISTINE SINGH)

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

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

Respondents

DECISION

Tribunal Mr S E Frost, Member

Date9 September 2008

PlaceSydney

Decision The decision under review is set aside.  I decide instead that the applicant has neither a parenting payment debt nor a family tax benefit debt.

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

Mr S E Frost
  Member

CATCHWORDS

SOCIAL SECURITY – parenting payment and family tax benefit debts – application for parenting payment made by spouse without knowledge of applicant – whether applicant obtained the benefit of the parenting payment – whether family tax benefit paid to applicant – decision under review set aside

Social Security Act 1991 – ss 18, 23, 1222A, 1223

A New Tax System (Family Assistance) Act 1999 – s 3

A New Tax System (Family Assistance) (Administration) Act 1999 – s 70, 71

REASONS FOR DECISION

9 September 2008 Mr S E Frost, Member        

Introduction

1.      Over a period of time Christine Segran (who was formerly known by her married name, Christine Singh) was paid parenting payment and family tax benefit in circumstances where Centrelink ultimately thought that she was not entitled to those payments.  After internal review, the matter was considered by the Social Security Appeals Tribunal (“SSAT”) and decided against her.  The SSAT decision established a parenting payment debt in excess of $12,000 and a family tax benefit debt which could not readily be quantified, but was likely to be around $10,000.

2.       Ms Segran seeks review in this Tribunal of the SSAT decision.  Because her name has changed since she commenced these proceedings, it is convenient for me to refer to her in the remainder of these reasons as “the applicant”.

Issues

3.      The issues before me are:

(i)    Whether the applicant has a parenting payment debt;

(ii)  Whether the applicant has a family tax benefit debt;

(iii) Whether any such debts should be waived or written off.

Issue (i) – Does the applicant have a parenting payment debt?

4.      Centrelink started paying parenting payment to the applicant in response to a claim for the payment made in the applicant’s name and dated 27 April 2004.  The applicant did not make that claim.  The signature on the claim form is not that of the applicant.  The applicant was not even aware that the claim had been made.  The most likely explanation is that her then husband, either by himself or with the assistance of one or more other people, arranged for the completion and lodgement of that form.  I also consider it likely that the husband deliberately set out to keep some distance between himself and Centrelink, and so render himself less open to sanction by Centrelink, by having himself nominated on the claim form not as the primary “claimant” but as the “partner”.

5.      The parenting payment was deposited into a Westpac bank account that the applicant held jointly with her then husband.  The evidence that the applicant gave, which was not challenged and which I accept, was that her then husband refused her access to that account without his permission.  He insisted that any amounts withdrawn from the account for her use (generally to provide necessities for the three children of the couple) were to be spent for the particular purpose that she specified at the time she sought that permission.  If she was ever allowed access to money from that account, she was always required to account to him for the money she had accessed. 

6.      The applicant has indicated that, while the parenting payment was being paid by Centrelink, the applicant’s then husband was earning a significant income, apparently in excess of the upper income threshold for parenting payment entitlement.  There can be no entitlement to parenting payment in those circumstances.  Although there is no direct evidence of the level of income the husband was earning, I am content to proceed on the assumption, but without finding, that the parenting payment has been overpaid.

7.      By reference to the various definitions in s 23(1) and s 18 of the Social Security Act 1991 (“the Act”), parenting payment is a “social security payment”.

8. As far as relevant, s 1222A of the Act says:

If an amount has been paid by way of social security payment, … , the amount is a debt due to the Commonwealth if, and only if:

(a)a provision of this Act … expressly provides that it is …

9. It is then provided in s 1223(1) of the Act:

Subject to this section, if:

(a)a social security payment is made; and

(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

10.     There being no other provision in s 1223 that is relevant, the preliminary question is whether the applicant “obtain[ed] the benefit of” the parenting payment.

11.     There is no doubt that the payments were made into the bank account that the applicant held jointly with her then husband.  However, that is not to say that she obtained the benefit of the payments that were made into that account.  She was not aware that the claim form had been lodged, and, of course, it follows that she did not know that this was the account nominated on the claim form as the account into which payments would be made.  Furthermore, given the control that the husband exercised over the account, she could not know that the amounts were being paid in.  It is by no means clear that the applicant obtained the payments, but even if she did, that is not enough – she must have obtained the benefit of the payments before the amounts paid can become a debt due by her to the Commonwealth.

12.     The use of the expression “a person who obtains the benefit of the payment” rather than simply “a person who obtains the payment” suggests a requirement that the person is in some way advantaged – better off, or in an improved state – by the fact of the payment.  Ordinarily a person into whose account a payment is made will obtain the benefit of the payment, by being immediately entitled to use the money that it represents for his or her own purposes.  But it will not always be so. 

13.     In this case, the evidence shows that the person who obtained the benefit of the payment was the applicant’s then husband.  Apart from the purely financial aspect of the payment, he also obtained an additional level of authority and control over the applicant.  It was he who controlled the account; it was he who decided how much would be withdrawn from the account, and when.  He required his wife to account to him for each individual sum of money he chose to make available to her.  If she was ever unable to do so, he was physically violent towards her.

14.     The applicant, on the other hand, did not obtain the benefit of the payments made by Centrelink.  She was not “better off” as a result of the payments.  Although she was theoretically entitled to fifty cents in every dollar deposited to the joint bank account, the true situation was that money was only ever sparingly doled out to her from that account.  It is likely that her husband made no more money available to her than he would have made available if the parenting payments had not been received. 

15.     I find that the applicant did not obtain the benefit of the parenting payments.  As a result, even assuming that parenting payment was overpaid, the applicant does not have a parenting payment debt to the Commonwealth.

Issue (ii) – Does the applicant have a family tax benefit debt?

16.     The history of the payment of the family tax benefit is somewhat different.  Centrelink had evidently been paying the benefit for some time, but continued the payments in response to the answers provided in a form entitled “Request for income details (2003-2004 income (financial) year) Family Tax Benefit/Child Care Benefit” (T7).  Once again the applicant was (at least notionally) the claimant, referred to in the form as “you”.  Her then husband signed the form as “your partner” (T7, page 95), but neither he nor the applicant provided any information at item 4 of the claim form, dealing with “Partner details”.

17.     Perhaps the reason for the omission of any “Partner details” is that the form, signed on 27 February 2004, bears the same date as a parenting payment claim form lodged by the applicant and her then husband (T4) – this claim was rejected – and an accompanying form described as “Parenting Payment (partnered) – Partner’s details” (T5) completed and lodged by the husband alone.

18.     The claim form at T4 includes at item 6 the question “Where do you want your payment made?”.  The option selected is the one marked “The account into which my other payments from Centrelink are made”.  That is the account that the applicant held jointly with her then husband, as mentioned in paragraph 5 above.  The circumstances surrounding the nomination of that account as the one into which Centrelink payments would be made were described by the applicant in paragraph 18 of her written statement (Exhibit A1) as follows:

At all times during the marriage [my husband] had complete control of our accounts.  At one time, I had an ANZ account that was just in my name.  Even then, [my husband] had my pin number and the card.  If I wanted money out of my account, I asked him and he would get it for me.  He also controlled our joint Westpac account.  At the end of 2003, [my husband] forced me to close my ANZ account and arrange for all my Centrelink payments to go into our joint Westpac account.  He said “I do not want payments going into an account in just your name”.  I did as he asked.

19.     The amount of family tax benefit payable is determined by the income earned by the family: the more income the family earns, the less family tax benefit is payable.  The amount payable, and eligibility for payment, is also reduced if the person to whom it is payable is outside Australia. 

20.     The only evidence before the Tribunal as to the amount of income earned by the husband during the period in which the family tax benefit was paid is the applicant’s indication that the husband was earning a significant income.  As far as the applicant’s location is concerned, the evidence is that the applicant was outside Australia from 6 March 2004 to 26 June 2005 (apart from two short return visits).  She says that she notified Centrelink prior to her departure from Australia, but there is no record in her Centrelink file that that notification was made.

21.     Against that background, it is difficult to establish whether the correct amount of benefit has been paid.  Once again, as with the parenting payment, I will proceed on the assumption, but without finding, that the family tax benefit has been overpaid.

22.     The provisions dealing with family tax benefit are in the A New Tax System (Family Assistance) Act 1999 (“the FA Act”) and the A New Tax System (Family Assistance) (Administration) Act 1999 (“the FA Admin Act”).

23. By reference to the definition in s 3 of the FA Act, family tax benefit is a form of “family assistance”.

24.     As far as relevant, s 70 of the FA Admin Act says:

If an amount has been paid by way of family assistance … , the amount is a debt due to the Commonwealth only to the extent to which a provision of:

(a)       this Act; or

(b) the Data‑matching Program (Assistance and Tax) Act 1990;

expressly provides that it is.

25.     It is then provided in s 71 of the FA Admin Act:

No entitlement to amount

(1)       If:

(a)an amount has been paid to a person by way of family tax benefit, baby bonus or maternity immunisation allowance (the assistance) in respect of a period or event; and

(b)the person was not entitled to the assistance in respect of that period or event;

the amount so paid is a debt due to the Commonwealth by the person.

Overpayment

(2)       If:

(a)an amount (the received amount) has been paid to a person by way of assistance; and

(b)the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.

26.     The question in either case is whether “an amount [of family tax benefit] has been paid to [the applicant]”.

27.     The account into which the family tax benefit payments were deposited is the account held jointly by the applicant and her then husband.  The applicant had notified Centrelink that this was the account into which all Centrelink payments were to be made (paragraph 18 above).  Centrelink complied with that notification.  However, it should be emphasised that that notification was given by the applicant on the strict instruction of her then husband. 

28.     The applicant’s husband, on her account, is a domineering and violent man who has made her life miserable.  The husband has not lived with the applicant since late 2006, and it seems that he no longer has any contact with his three children.  He had become so violent towards the applicant that in early 2006 she obtained an Apprehended Violence Order (“AVO”) against him.  That was revoked after he placed pressure on her to do so, but in March 2007, after further violent episodes, she obtained a second AVO against him.  They divorced earlier this year.

29.     I mention those matters not for the purpose of maligning a person who has had no opportunity to defend his name or reputation in these proceedings, but to throw some light on the applicant’s perspective of how she came to be in the position in which she finds herself. 

30.     Although the payments of family tax benefit were made in accordance with the notification the applicant had given Centrelink, the applicant was compelled by her then husband to make that notification.  One of the consequences of the notification was that the husband, with apparent impunity, was able to intercept the payments and apply them to his own purposes.  It seems to me that, in a practical sense, the amounts were never actually paid to her.  The husband’s practice of denying the applicant access to the joint bank account, although not known to Centrelink, interrupted the expected flow of the benefit from Centrelink to the applicant.  I have no doubt that one of the desired outcomes of the set of circumstances that the husband had created was that he would be the one enriched by the amount of the payments, while she would be the one primarily exposed to Centrelink in the event of overpayment. 

31.     This is an extreme case in which the applicant’s husband preyed on his vulnerable wife.  He has now left her to face the consequences of his actions.  In the circumstances I find that the various amounts of family tax benefit were not paid to the applicant.  As a result, even assuming that family tax benefit was overpaid, the applicant does not have a family tax benefit debt to the Commonwealth.

Issue (iii) – Should any such debts be waived or written off?

32.     As I have found that the applicant has neither a parenting payment debt nor a family tax benefit debt, this third issue does not need to be considered.

Conclusion

33.     The decision under review is set aside.  I decide instead that the applicant has neither a parenting payment debt nor a family tax benefit debt.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         ...............[sgd].................................................................
  Associate

Date of Hearing  5 June 2008
Date of Decision  9 September 2008
Solicitor for the Applicant  Mr S Hodges
Representative for the Respondent          Mr K Bullock, Centrelink Legal   Services Branch