Selman and Department of Family and Community Services

[2001] AATA 528

DECISION AND REASONS FOR DECISION [2001] AATA 528

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 1999/1591

GENERAL ADMINISTRATIV DIVISION           )          
           Re      DEBORAH SELMAN        
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Dr J D CAMPBELL, Member        

Date14 June 2001  

PlaceSydney

Decision      The Tribunal determines that the decision under review be affirmed.       

[sgd] Dr J D Campbell
  Member
CATCHWORDS
SOCIAL SECURITY - family allowance - change of circumstances - letter of notification received - further letter not received - subsequent claim for increase of family allowance - claim for arrears of family allowance

Social Security Act 1991 - sections 878, 887

REASONS FOR DECISION

DR J D CAMPBELL

1. In this application, Mrs Deborah Selman ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal (' the SSAT') dated the 16 September 1999, which affirmed a decision of a Centrelink delegate of the Secretary Department of Family and Community Services dated 25 February 1999, that arrears of family allowance was not payable to the Applicant because a request had not been made for a review of the decision to pay at the lower rate within 13 weeks of the rate decreasing.  This latter decision was reviewed by an authorised review officer ("ARO") and affirmed in a decision dated 9 April 1999.

2. A hearing was held before the Tribunal in Dubbo on 6 March 2001 at which the self represented Applicant presented oral evidence.  The Respondent was represented by Ms Fahey, an advocate from the Advocacy and Administrative Law Team at Centrelink.

3. The following material was placed into evidence before the Tribunal:
   Exhibit No  Description         Date      
   T1-T20 pp1-44         Documents prepared pursuant to section 37 of the Administrative Tribunal Act 1975              
   R1      Respondent's Statement of Facts and Contentions     1 March 2001          
   R2      Claim form by Mr Selman (Partner's details)     15 June 1998           
   R3      Application for disability support pension by Mr Selman         17 June 1998           
   R4      Compensation and damages module     15 June 1998           
   R5      Computer generated activity history of  changes of address             
   R6      1997/1998 Tax Return for Mr Selman                
   R7      Changes to income and assets form      20 January 1999     
   R8      Letter to Ms Selman 25 February 1999   
   R9      1996/1997 Tax Return for Mr Selman                
   R10     Review of family allowance answer sheet, completed by Mr Selman 6 October 1999       
   R11     1998/1999 Tax Return for Mr Selman                
   R12     State Rail Authority letters dated   29 November 1999, 1 March 2001          

issues           

1. The relevant issue in this matter is whether the Applicant is entitled to be paid arrears of family allowance for the period from 13 August 1998 to January 1999.

legislation

1. The relevant legislation in this matter is the Social Security Act 1991 ('the Act') and in particular sections 878 and 887.
   background

2. The Applicant was in receipt of parenting payment at the single rate until 23 July 1998.  The Applicant also received family allowance at the maximum rate until 30 July 1998, without regard to the separate family allowance income and assets tests,

3. On 15 June 1998 the Applicant completed a Partner's details form to accompany that of Mr Selman who was claiming disability support pension ("DSP"), Exhibit R2.  The Applicant detailed her address as 94 Govetts-Leap Road, Blackheath.

4. On 17 June 1998 Mr Selman completed an application for DSP in which he stated that he was living in a de facto relationship, with the Applicant, and with three dependant children in a home owned jointly with the Applicant.  Further, he stated that his weekly income was a compensation payment of $516.40 (Exhibit R3).

5. On 15 June 1998 the Applicant and Mr Selman completed a compensation and damages module in which it was stated that the Applicant ceased to have a regular fortnightly compensation of $1279.60 on 19 June 1998.  A notation dated 28 July 1998 indicated "await decision" (Exhibit R4).

6. On 20 July 1998 both the Applicant and Mr Selman attended the Katoomba Customer Service Centre of Centrelink ("CSC") and handed in the forms detailed in paragraphs 7, 8 and 9, which had previously been provided by Lithgow CSC when they attended in the first two weeks of June 1998.  The Applicant and her partner advised of a reconciliation on that day, as well as Mr Selman lodging an application for DSP and the Applicant a claim for a parenting payment.

7. On 28 July 1998 the Applicant was advised that she would be paid family allowance at the rate of $112.84 starting on 13 August 1998.  The Applicant was also advised that if the family's income and assets were to change that she should contact Centrelink to establish whether she was entitled to payment of more family allowance(T3).

8. On 29 July 1998 Centrelink advised that the Applicant's parenting payment at the single rate would stop after 23 July 1998 because she had become a member of a couple (T5). The Applicant's parenting payment (single) was transferred to parenting payment (basic) because of Mr Selman's compensation payment, but the claim was not processed until February 1999 when full arrears were paid (T18).

9. On 11 August 1998 Mr Selman was advised that he could not be paid DSP because of an absence of a tax file number and the level of compensation payment (T6).

10. On 28 August 1998 Centrelink again advised the Applicant of a family allowance payment of $112.84.Centrelink also advised the Applicant to contact the office if circumstances changed or if their combined income exceeded $27,112.80, for either the 1997/98 or 1998/99 financial years, with any request for a review of a decision to be made within 13 weeks if arrears of payment are to be made (T7).

11. On 11 October 1998 the Applicant is recorded as notifying a change of address to 616 Ridge Road, Cooks Gap and Mr Selman to a Lithgow address, with the effective date of change being 14 August 1998 (Exhibit R5).

12. On 8 January 1999 the Applicant completed a request for income and assets details, in which she provided an estimate of combined taxable income of $25,000 for financial year 1998/99 (T8, P20).  This resulted in an increased payment of family allowance to $335.49 per fortnight.

13. In a letter to Centrelink dated 25 January 1999, the Applicant detailed the circumstances of how she and Mr Selman visited Lithgow in the first two week of June 1998 and received forms which they took away and completed.  The forms were then taken to Katoomba where an appointment had to be made to discuss all aspects of the form's completion.  Shortly after a visit to the Katoomba Office, the Applicant stated that she received a letter from Centrelink detailing that she was to receive a $112.00 per fortnight family allowance for the two children.  She also stated that her husband also received a telephone call from Centrelink (T9).

14. A decision not to pay arrears of family payment was made on 25 February 1999  (Exhibit R8).  This decision was affirmed by the ARO on 9 April 1999 (T18) and by the SSAT on 16 September 1999 (T2).
    evidence of the applicant

15. The Applicant informed the Tribunal that she agreed with the facts that had been detailed and that have been set out earlier in this decision, but that she had some difficulty in remembering dates.  In particular, the Applicant made the following points:

• she and her partner did approach Centrelink at Lithgow to obtain information about what claims they could lodge for themselves and three dependent children in June 1998, and they were told that she would receive only a family allowance of approximately $99 a fortnight;

• that her general attitude is to approach Centrelink – request advise at interview, be given some forms to complete and accept the advice given;

• on 20 July 1998  she lodged the completed forms at Katoomba and was advised by letter some time later that she was to receive $112 per fortnight family allowance;

• that she did not receive the correspondence of 28 August 1998, as she had changed address;

• that she believed that she advised Centrelink of the change of address long before October 1998;

• that the estimate made in the income and assets form on 8 January 1999 was one calculated by Centrelink on advice given, with the calculation being in error; and

• that she was unable to understand why, with no change of income, that family allowance was increased in January 1999.

applicant's submissions

1. The Applicant contends that she is entitled to arrears of family allowance for the period 13 August 1998 to January 1999, for throughout this period she had provided Centrelink with all the necessary documentation to pay the correct amount.
   respondent's submissions

2. The Respondent  notes that, subsequent to the increased payment of family allowance, an overpayment of family allowance occurred for the period 14 January 1999 to 2 November 1999 because of the underestimate lodged on 8 January 1999, with any debt arising being waived on account that special circumstances were found to exist by the SSAT on 23 May 2000. The Respondent contends that regardless of which approach is taken, as to when reconciliation of the Applicant and her partner did occur, no circumstances exist in which the Applicant would be entitled to arrears of payment for the period in question.
   considerations and findings

3. In addressing the issue of reconciliation of the Applicant and her partner, the Tribunal acknowledges that there is some evidence to suggest that the reconciliation occurred in mid June 1998, if not earlier.  However, this documentation was presented to Centrelink Katoomba on 20 July 1998 and a decision was made that reconciliation occurred from the 24 July 1998.  The Tribunal does not have access to the reasons why that decision was made, nor to the information that was told to the decision maker at that time.  In the absence of any particular evidence indicating that the decision maker had made a wrong decision in the light of the facts before him/her,including the forms completed in mid June 1998, the Tribunal is not in a better position, other than to concur with the date of the reconciliation as being the date of interview or shortly thereafter, when the decision was made.

4. In considering the evidence of the Applicant and the facts of this matter which have been detailed earlier in this decision, and with which the Applicant is in agreement, apart from particulars to which she has alluded, the Tribunal concludes the following:.

   (a)      that the Applicant did receive the Respondent's letter of 28 July 1998, which did advise of the quantum of family allowance of $112.84 per fortnight; to seek advice if there was a change of circumstances whereby more family allowance may be payable; that where circumstances have changed which lead to an increase of family allowance, arrears of payment can only be paid when the request is lodged within 13 weeks of the original decision being made.  In this matter this would mean within 13 weeks of 28 July 1998;
   (b)      that the Applicant was advised in the letter of 28 July 1998 that she must notify the Respondent within 14 days of any change of address;
   (c)       that the Applicant did not receive the letter from the Respondent dated 28 August 1998;
   (d)    that the Applicant did effect a change of address on 14 August 1998,  but did not notify until 11 October 1998; and
   (h).     that no adverse inference should be drawn from the underestimate provided by the Applicant on 8 January 1999, in light of the fact that a subsequent debt relating to the underestimate was waived by the SSAT due to special circumstances.

statutory framework

1. Section 878 of the Act sets out that:

   "If the Secretary is satisfied that the rate at which family allowance is being, or has been, paid, is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination."

2. It is evident that in this matter such a determination was made when the rate of family allowance was increased to $335.49 per fortnight, as a consequence of the lodgement of the estimate of $25000 for financial year 1998/99, on 8 January 1999.

3. The date of effect of such a favourable determination is provided by ss887(1) and (3):

   "Date of effect of favourable determination
   887(1) The day on which a determination under section 878 or 883 (the "favourable determination") takes effect is worked out in accordance with this section.
   Notified decision – review sought after 13 weeks
   887(3) If:
   (a)       a decision (the "previous decision") is made in relation to a family allowance; and
   (b)       a notice is given to the recipient advising the recipient of the making of the previous decision; and
   (c)       the recipient applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and
   (d)       a favourable determination is made as a result of the application for review; and
   (e)       subsection (6), (7) and (8) do not apply to the determination;
   the determination takes effect on the day on which the recipient sought the review."

4. The Tribunal, in addressing the facts of this matter against the statutory framework, concludes that the previous decision was made and notified to the Applicant on 28 July 1998 and that the Applicant did not seek review of this decision until in effect 8 January 1999, despite having been informed of such matters.  As this was more than 13 weeks after the previous decision, the Tribunal finds that the determination does take effect on the day the review was sought, namely 8 January 1999.

5. As a consequence, the Tribunal concludes that the Applicant is not entitled to arrears of payment of family allowance for the period 13 August 1998 to 7 January 1999.
   determination

6. The Tribunal determines that the decision under review be affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  6 March 2001
Date of Decision  14 June 2001
Counsel for the Applicant        Self-represented
Counsel for the Respondent    Ms S Fahey