Shane Moroni and Secretary, Department of Social Services

[2014] AATA 704

[2014] AATA 704

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4088
Re	Shane Moroni
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P W Taylor, SC, Senior Member
Date	26 September 2014
Place	Sydney

The application for an extension of time to apply for a review of the 29 April 2014 decision of the Social Security Appeals Tribunal is refused.

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Mr P W Taylor, SC, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – explanation for delay – merits of substantive application – application refused

LEGISLATION

A New Tax System (Family Assistance) Act 1999 ss 3, 21, 22, 35B

Administrative Appeals Tribunal Act 1975 s 29

REASONS FOR DECISION

Mr P W Taylor, SC, Senior Member

26 September 2014

1. Mr Moroni has two young step sisters. During a period of his father’s forced absence, between November 2012 and February 2014, he supported his step mother in caring for them.

2. In October 2013, after making initial enquiries at Centrelink and, in particular, unsuccessfully requesting an appointment for assistance, he lodged an application on a Centrelink “FA100.1308” claim form. It is the appropriate form for claiming Paid Parental Leave and Family Assistance.

3. Centrelink treated this as an application for Family Tax Benefit (FTB) relating to Mr Moroni’s care responsibilities for his two step sisters. That characterisation of the application doomed it to failure – because neither of Mr Moroni’s step sisters was his “FTB child” for the purposes of the relevant legislation: see A New Tax System (Family Assistance) Act 1999 s 22.

4. Centrelink according rejected Mr Moroni’s application (on 25 November 2013) and this decision was affirmed by an Authorised Review Officer. On 29 April 2014 the Social Security Appeals Tribunal (SSAT) upheld Centrelink’s decision.

   THE SSAT RECOMMENDATIONS

5. Significantly, however, the SSAT noted Mr Moroni’s complaint he had at all times disclosed to Centrelink that he lived with his step mother and step sisters and had been assured that this would not disentitle him. The SSAT also noted that whilst these assurances were wrong, there were other benefits that may in fact have been payable – in response to a properly characterised application. The SSAT recommended that Centrelink give consideration to both a compensatory payment to Mr Moroni (on the basis of apparently defective administration) or an ex gratia payment, in recognition of a moral obligation to support the children in question.

6. The SSAT’s astute observations and recommendations were consistent with the Centrelink records – which disclosed Mr Moroni’s request for assistance. They were also consistent with the confusion evident in the form lodged by Mr Moroni in October 2013. The form, as completed by Mr Moroni, is an eloquent testimony to the inherent complexity of the form, and to Mr Moroni’s obvious (and understandable) difficulty in completing it accurately. In the end result the actual purport of the application was not entirely clear.  It relevantly included these indications:

   (a)that it was a claim for Parental Leave Pay – and not FTB (page 3 of 47),

   (b)that it was not a claim for Parental Leave Pay (page 9 of 47),

   (c)that Parental Leave Pay was to be paid to his existing bank account (page 10 of 47),

   (d)that he was claiming Parental Leave Pay for two children (page 10 of 47),

   (e)that he did not intend to transfer any Parental Leave Pay to anyone else (page 11 of 47),

   (f)that he was not employed and Parental Leave Pay was to be paid by Centrelink (page 15 of 47),

   (g)that he would like Parental Leave Pay to be paid from the 7 November 2012, the date when he became the children’s primary carer (page 16 of 47),

   (h)that he was not claiming Parental Leave Pay or Baby Bonus for either of the children (pages 23 and 31 of 47),

   (i)that he was not claiming Parental Leave Pay for only one of the children (pages 24 and 32 of 47),

   (j)that he was claiming FTB for the children (pages 27, 35, 38 and 46 of 47).

7. The confusion and inconsistencies to which I have referred seem, in my view, to highlight not only the very real need that Mr Moroni had for assistance, but also the wisdom of the SSAT’s observations and recommendations. Nevertheless, the SSAT’s recommendations were not actively (or at least not timeously) pursued.

   THE REVIEW APPLICATION

8. And so it was that on 12 August 2014 Mr Moroni lodged his review application with the Tribunal. That application was well outside the 28 day period in which an application for review can validly be lodged, in the absence of an extension of time: see Administrative Appeals Tribunal Act 1975 (AAT Act) s 29(2). The Tribunal has a general discretion to extend the review application time, subject to being “satisfied that it is reasonable in all the circumstances to do so”: see AAT Act s 29(7).

   OPPOSITION TO EXTENSION OF TIME

9. The Respondent, understandably, opposes Mr Moroni being granted any extension of time. The Respondent says:

   (a)Mr Moroni was given notice of the SSAT decision and, in particular, notice that any review application had to be lodged within 28 days,

   (b)there is a significant delay (about 76 days) in bringing the application extension of time,

   (c)the review application itself has no prospects of success.

10. Mr Moroni does not dispute he was given notice of the prospect of a review, and the time limits that applied. He explained that, nevertheless, he did not appreciate there was any practical course he could take. He changed his mind, and lodged the review application, only when another family member, an aunty somewhat more astute than himself, pointed out the prospect of obtaining a review decision.

11. If the delay in lodging the review application was the only basis for the Respondent’s opposition, I would not regard it, in the light of Mr Moroni’s personal circumstances (a carer for two very young children, and with limited appreciation of the potentially complex issues involved) as a matter that made an extension of time unreasonable. But it is not the only basis for the Respondent’s opposition.

12. The substance of the Respondent’s contention about no prospects of success is that Mr Moroni does not have “an FTB child”.

    THE CONCEPT OF AN FTB CHILD

13. The Respondent says that the two children to which the applicant’s FTB application relates are his two infant step sisters. He is not legally responsible for them. Nor is he a person with whom the girls are supposed to live or spend time. Neither is he a person with legal responsibility for their “day-to-day care, welfare and development”. The Respondent says Mr Moroni cannot claim FTB for either of the children under s 21 of the A New Tax System (Family Assistance) Act 1999.

14. FTB eligibility depends on satisfying various criteria, including having “at least one FTB child”: s 21(1)(a)(i). A child less than 16 years old is an adult’s “FTB child” if the adult both has the child’s care and either (i) “legal responsibility” for the child’s day-to-day welfare, (ii) an authorised access responsibility (for example, under a court order or parenting plan), or (iii) care responsibilities exclusive of any person with “legal responsibility” for the child: A New Tax System (Family Assistance) Act 1999 s 22(5).

15. None of those criteria applies to Mr Moroni. He was only the girls’ sibling. He had no “legal responsibility” for them. He had no formally authorised access responsibilities. He shared the care responsibilities with his step mother, who herself had “legal responsibility” for their day-to-day welfare.

16. The Respondent submitted that the conclusion in the preceding paragraphs was not altered by the apparently facultative deeming provided for in s 22(7) of the A New Tax System (Family Assistance) Act 1999. The Respondent’s contention is that the provision only deals with the apportionment of care, and the characterisation of the care period, where the circumstances demonstrate that a child is an “FTB child” of more than one adult. The Respondent points to A New Tax System (Family Assistance) Act 1999 s 3(1) (the definition of “care period”) and s 35B(1) (the Secretary’s obligation to determine a “care period”). Those provisions support the Respondent’s contention, and demonstrate that the purpose and effect of s 22(7) is not to create an additional criterion for establishing that a child is “an FTB child” as an alternative to the “legal responsibility”, “authorised access” and “exclusive responsibility” criteria to which I have referred above, and which are derived from A New Tax System (Family Assistance) Act 1999 s 22(5).

17. The Respondent’s argument is correct. It is a conclusive answer to Mr Moroni’s applications – both his review application and his application for extension of time. His substantive review application has no prospect of success. In those circumstances it would not be reasonable to grant any extension of time for such a review application to be made.

    INACTION ON THE SSAT RECOMMENDATIONS

18. The Respondent noted the comments made in the SSAT decision that the Department may not have provided the applicant with information about special benefit and that such a payment may have been available for the children up until the time when the applicant’s father (and their father) returned home.

19. The Respondent’s submissions in opposition to the application for an extension of time suggest that the Department may be willing to entertain a claim for compensation either under the scheme for “Compensation for Detriment Caused by Defective Administration” or as an “act of grace” payment.

20. I raised this matter when the extension of time application first came before me. I was told at that time the Departmental policy was not to consider such a discretionary payment until such time as any formal review process had taken its course.

21. I fully appreciate the general desirability of a policy of the kind described above. But it is a policy that should be applied with due regard to the actual circumstances, and to the Applicant’s particular needs. In the present case, the Applicant’s application was lodged well out of time. The Applicant’s extension of time application was resisted, quite correctly, as futile. The reality, as it seems to me, is that within the Departmental assessment, Mr Moroni’s FTB application had taken its course, and was actually regarded as hopeless. It would have been better, that is to say consistent with proper exercise of Centrelink’s statutory functions, if that reality had been recognised sooner rather than later, and much more prompt steps taken to expedite practical implementation of the SSAT’s recommendations.

22. In the end result, the Respondent’s representative at the adjourned extension of time hearing, informed me that the Department had responded to my enquiries by expediting the process of implementing the SSAT’s recommendations. I was assured that, subject to formal approval, active consideration was being given to making an appropriate payment. I record my appreciation of the contribution made by the Secretary’s representative – Ms Amanda McLeod – in responding to my requests for information. Ms McLeod assured me that she would provide Mr Moroni with details of the claim period presently under consideration, and the contact details of the responsible Departmental officer. Such co-operation from the Secretary’s representative is to be commended – for many obvious reasons – and I have no hesitation in so doing.

    DECISION

23. The application for an extension of time is refused.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor, SC, Senior Member

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Associate

Dated 26 September 2014

Dates of hearing	10 and 24 September 2014
Applicant	Self-represented, assisted by Mr M Moroni
Solicitor for the Respondent	Ms A McLeod, Department of Human Services