Shaw and Ors; Secretary, Department of Families, Community Services and Indigenous Affairs and Ors and

[2007] AATA 1691

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1691

ADMINISTRATIVE APPEALS TRIBUNAL      )          N2006/793

)N2006/1592

N2007/213

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And JAQUELINE SHAW

Respondent

Re JAQUELINE SHAW

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS  

Respondent

Re JAQUELINE SHAW

Applicant

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

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date24 August 2007

PlaceSydney

Decision

In matter N2006/1592 the Tribunal affirms the decision under review.

In matter N2006/793 the Tribunal sets aside the decision of the Social Security Appeals Tribunal and in substitution finds that the debts of Family Tax Benefit raised against Ms Shaw for the years 2000/1,  2001/2  and 2002/3 should not be waived, and must be recovered in full.

Matter N2007/213 was settled by agreement of the parties, Ms Shaw’s Family Tax Benefit debt for 2004/5 was waived, and arrears of Family Tax Benefit have been paid to Ms Shaw.

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

Ms G Ettinger     
  Senior Member

CATCHWORDS

Parenting Payment Partnered – entitlement only from date of application if 13 weeks have passed without appeal from decision of the Secretary – PPP paid from date of reapplication – decision affirmed – Family Tax Benefit – Secretary’s appeal from decision of SSAT- SSAT decision set aside – debt cannot be written off - no waiver due to sole administrative error of the Commonwealth – no special circumstances – FTB debt for 2004/5 waived and settled by agreement of the parties.

A New Tax System (Family Assistance) (Administration) Act 1999 ss 20, 71, 95, 97, 101

Social Security Act 1991 s 1068

Social Security (Administration) Act 1999 ss 37, 107

Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186

Re Wendt and Secretary, Department of Social Security (1998) 53 ALD 153

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Beadle v Director-General of Social Security (1985) 60 ALR 225

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

Austin and Another v Secretary, Department of Family and Community Services (1999) 57 ALD 330

Re Angel and Department of Family and Community Services [2001] AATA 292

REASONS FOR DECISION

24 August 2007 Ms G Ettinger, Senior Member     

1.      Ms Jacqueline Shaw is the recipient of various social security benefits, including parenting payment partnered (“PPP”), and family tax benefit (“FTB”). Her partner, Mr Glenn Daley, who is in business and is self employed, takes care of her financial affairs.  However both he and Ms Shaw seem to have been confused about what information they needed to disclose to Centrelink from time to time, and Ms Shaw has accordingly incurred overpayments of FTB which are debts to the Commonwealth. One of the matters before me also involved an appeal with regard to arrears of PPP.

2.      There have also been errors of the Commonwealth implicated in the confusion, in that for a period of time, Ms Shaw was being treated, for taxation purposes, as another person with the same name, but different birthdate. She was erroneously assigned another person’s tax file number which created difficulties for her.

3.      Ms Shaw was unable to attend the hearing at the AAT, and Mr Daley represented her. He told me that he and Ms Shaw were distressed because Centrelink had known about the tax file number error since 2003, but that Ms Shaw had only been notified in 2005.  We discussed that at the hearing, and I have no doubts about Mr Daley’s sincerity. Mr Daley also wrote a letter to the AAT which I have before me. He said in that letter:

“I have been trying to decide on the correct statement to describe the errors that have caused us so much grief and stress over the last 2 years as a result of Centrelinks (sic) denial to except (sic) responsibility for its own errors.

These errors have come from the ATO and have been transmitted to more than just Centrelink, who have compounded the issue.

…”

4.      The matters I had before me then were:

·     File 2006/793 – In this matter, the Secretary, Department of Families, Community Services and Indigenous Affairs was the Applicant, appealing against the decision of the Social Security Appeals Tribunal (SSAT) which waived Ms Shaw’s debts of FTB for the years 2000/01, 20001/02 and 2002/03 on the basis of sole administrative error of the Commonwealth.

·     File N2006/1592 – In this matter Ms Shaw was the Applicant, appealing the decision of the SSAT which affirmed the decision of the Secretary, Department of Employment and Workplace Relations not to pay arrears of PPP for the period 30 August 2005 to 28 February 2006.

·     File N2007/213 – This was a debt raised by the Secretary, Department of Families, Community Services and Indigenous Affairs in relation to Ms Shaw’s FTB for 2004/5, incurred because Mr Daley had not filed his 2004/5 tax return by the due date. This matter was settled by consent of the parties at the hearing and the debt waived, because by then Mr Daley had filed his 2004/5 tax return. Outstanding moneys amounting to $9,928 have now been paid to Ms Shaw.

5.      Accordingly the two matters which I had to decide were N2006/793 and N2006/1592.

FILE 2006/793

SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS v  SHAW

6.      In this matter the Secretary appealed to the AAT against a decision of the SSAT to waive in full, debts of FTB raised against Ms Shaw for the years 2000/1,  2001/2 and 2002/3, held by the SSAT to have arisen solely due to administrative error. Ms Shaw received FTB for the years 2000/1, 2001/2 and 2002/3 based on estimates of income provided by her, as she was required to do.  She was also receiving PPP during that period, but reported nil income.

7. Section 20 of A New Tax System (Family Assistance (Administration) Act 1999 (“the Administration Act”), provides the mechanism by which the Secretary may use an estimate of adjusted taxable income which the individual provides (where actual information is not available), to calculate the person’s FTB. The payment is designed to assist families with one main income. In a two parent family such as Ms Shaw’s the income of the main earner is not taken into account, however, any income of the secondary or lower income earner, is. That included Ms Shaw’s PPP. Because Ms Shaw was paid FTB at the highest rate for her three children on the basis that her income was nil, she incurred overpayments which are debts pursuant to section 71(2) of the Administration Act As relevant, section 71(2) follows:

8.      Subsection 71(2):

“71  Debts arising in respect of family assistance other than child care benefit and family tax benefit advance

…

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.”

9.      What I had to do was decide:

·     whether overpayments of FTB to Ms Shaw for the years 2000/1 of $1,922.98, 2001/2 of $1,919.90, and 2002/3  of $1,730.78, had occurred; and if so,

·     whether there are grounds to waive recovery of the debts either:

·     by write-off; 

·     for sole administrative error; or,

·     whether special circumstances exist so that a discretion can be exercised to waive the debt in full or in part.

10.     I understand that the amounts of FTB paid for the relevant period are not in dispute and I accept that.

11.     In considering the dispute, I accept that in relation to applications for FTB in 2001, 2002 and 2003, Ms Shaw informed Centrelink that she was receiving nil income because she had not been in paid employment for approximately 13 or more  years. Ms Shaw’s evidence as given by Mr Daley, who represented her at the hearing, was that she assumed, based on his advice, that because she did not derive wages from paid employment, and was not required to lodge a tax return, she understood that she was not required to declare her receipt of PPP as income.

12.     That PPP amounted to $8,222 for 2000/1, $8,541 for 2001/1 and $8,790 for 2002/3, and was income in Ms Shaw’s hands.  Mr Daley said that both he and Ms Shaw found the Centrelink forms to be very confusing, and stressed they did their best to always disclose the correct information. Mr Daley said that he understood for income tax purposes, Ms Shaw was not taxed on her PPP because she did not earn any additional income.  He also said that they had relied on their accountant.

13.     Mr Daley expressed anger and disappointment at the situation in which Ms Shaw’s entitlements were calculated having regard to an incorrect tax file number. In that connection, I was mindful there was a copy of a Centrelink file note at T28 which records that the officer who took Mr Daley’s telephone call on 23 March 2005 advising that if an incorrect tax file number was being used for Ms Shaw, (whose income had erroneously been recorded as $51,000 for 2002/3 and $62,000 for 2003/4), she should seek clarification by contacting the ATO. Mr Daley told me at the hearing that he and Ms Shaw were very annoyed and inconvenienced by the mistakes made, particularly as he understood the tax file number used for Ms Shaw was known by Centrelink to be incorrect as early as 2003.  I noted at T22, a record dated 12 May 2003 which corroborated Mr Daley’s evidence, and noted that Ms Shaw was only officially notified on 29 June 2005 in a letter from the ATO (T39/70).  That letter stated:

“The tax file number that you were previously given by the ATO belonged to another client. The income that was advised to Centrelink under that tax file number belonged to another client.”

14.     In coming to a decision, I must consider whether the debts of FTB were correctly raised, and any discretion which may be exercised to waive them in part or in full.

15.     I noted that Centrelink sent various letters to Ms Shaw during 2001, 2002 and 2003 requesting information about the family’s combined income, and estimates of income, as well as warnings regarding repayments if overpayments occurred.  Copies of those letter are in the T-documents, and ask explicitly about Ms Shaw’s income, and that of other family members. On each occasion when Ms Shaw replied, she gave her income as nil even  though she was receiving PPP (as she accepts).

16.     Relevant extracts of the Centrelink letters follow:

“When to contact us

Under family assistance law, you must tell us about events that may affect your payments as soon as possible after any of these things happen or you become aware that they are likely to happen.

…

If you receive FTB Part B and you are a member of a couple, you should tell us if the secondary earner’s annual income goes over $1,616.00 or if it is over the amount and it changes.

…

Information provided by you to the Family Assistance Office may be used for data matching with other government agencies to detect and prevent incorrect payments and fraud.”   (T12, 9 August 2000)

17.     A further letter dated 6 February 2001 was at T13.  It followed Ms Shaw’s declaration of nil income, provided a telephone number, and advised Centrelink could be contacted for advice.  An extract of the letter follows:

“If you or your partner have given an estimated income amount that is $0.00 and you and/or your partner are:

·receiving any taxable government pension and benefit and/or tax free pension and benefit paid by Centrelink or Veterans’ Affairs, you will need to include the full amount of that taxable government pension and benefit and/or tax free pension and benefit paid by Centrelink or Veterans’ Affairs in your estimate.

…

Remember, that if your estimate is too low, you will receive too much Family Tax Benefit and you will have to repay this money.

…”

18.     There was similar further correspondence on 12 February 2001 (T14), 6 April 2001 (T15) and in the months following, as well as in May and December 2002, and  January 2003. Even though the Centrelink letters by their very nature, cover a number of situations, I am satisfied that the letters clearly ask for details of any income the client receives, and in the one quoted above which is at T13, explicit reference is made to the person including in his or her estimate, “the full amount of any taxable government pension and benefit and/or tax free pension and benefit paid by Centrelink or Veterans’ Affairs”.  Even the statement quoted above which clearly talked about a person receiving a government pension or benefit appears not to have alerted Ms Shaw that she had to disclose her position in regard to receipt of PPP.

19.     Eventually on 19 February 2004, a debt of FTB for the 2001/2 year to the value of $1,919.90 was raised (T55/105), and Ms Shaw was notified of it (T24/52).  On 1 July 2005, this was revised to be $1,922.98 (T54/104).

20.     On 21 July 2004 a debt of FTB for the 2002/3 year to the value of $1,978.30 was raised (T56/112), and Ms Shaw was notified of it (T27/56).  On 3 November 2005, the 2002/3 debt was recalculated to be $1,730.78 (T56/112).

21.     The debt for the 200/1 year was calculated to be $1,922.98. 

22. There was no disagreement, and I accepted that the debts, and the quantum of debt arose due to the application of section 71(2) of the Administration Act.  There is no question that PPP is a taxable payment, and should have been disclosed to Centrelink whether Ms Shaw needed to lodge a tax return or not.

23. Accordingly debts were raised and in dealing with this application, I am mindful that pursuant to section 95(2) of the Administration Act, debts can be written off. 

24. Section 95 of the Administration Act states:

“95  Secretary may write off debt

(1)The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.

Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.

(2)       The Secretary may decide to write off a debt under subsection (1) if:

(a)       the debt is irrecoverable at law; or

(b)       the debtor has no capacity to repay the debt; or

(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.

…

(4)For the purposes of paragraph (2)(b), if a debt is recoverable by means of:

(a)       deductions under section 84; or

(aa)deductions under section 1231 of the Social Security Act 1991; or

(b)       setting off under section 84A arrears of family assistance; or

(c)       application of an income tax refund under section 87; or

(d)       setting off under section 87A against enrolment advances; or

(e)setting off under section 87B against payments in respect of fee reduction;

the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

…”

25. The circumstances for write-off are not available as Ms Shaw’s whereabouts are known, she continues to receive benefits, and any debt can be recovered in instalments. That recovery takes place pursuant to section 95(4) of the Administration Act, and is appropriate unless it would result in severe financial hardship to Ms Shaw. I noted that Ms Shaw receives PPP, and that her partner earns income in his business. I am mindful financial matters in Ms Shaw’s family are not without concern, but am satisfied that there were no indications before me that Ms Shaw would suffer severe hardship if the debt were to be recovered in instalments. I had no evidence of severe health problems in the family which might have contributed to any hardship Ms Shaw may suffer. Accordingly write-off would not be appropriate.

26. I am mindful also that pursuant to section 97 of the Administration Act, debts must be waived if the overpayment occurred solely due to administrative error of the Commonwealth, and that it is on this basis the SSAT found for Ms Shaw.

27. Section 97 of the Administration Act provides:

“97  Waiver of debt arising from error

(1)The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.

(2)The Secretary must waive the administrative error proportion of a debt if:

(a)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and

(b)the person would suffer severe financial hardship if it were not waived.

(3)The Secretary must waive the administrative error proportion of a debt if:

(a)the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and

(b)       the debt is raised after the end of:

(i)the debtor’s next income year after the one in which the eligibility period or event occurs; or

(ii)the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;

whichever ends last; and

(c)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.

(4)For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.”

28.     In considering whether the overpayments occurred solely due to administrative error, I noted that FTB was paid to Ms Shaw for the years 2000/1, 2001/2 and 2002/3 on the basis of estimates she gave. Ms Shaw told Centrelink in reply to its inquiries that her income was nil even though she was receiving PPP. Centrelink then had to consider whether those estimates were reasonable, which, given the continuation of payment of FTB, indicates it did.

29.     I considered the circumstances under which Ms Shaw informed Centrelink about her income.  I accepted that Ms Shaw relied on Mr Daley’s advice that she did not have to lodge a tax return. Accordingly, the evidence was that Ms Shaw did not think that the PPP was taxable income, and had therefore to be disclosed to Centrelink. Mr Daley he told me he was advised by his accountant, and followed that advice. However, that non-disclosure was incorrect, and was the direct cause of the overpayments. 

30.     I considered the wording of the letters Centrelink sent Ms Shaw requesting information about her income. Mr Daley told me that both he and Ms Shaw were confused by the letters, which I note however, included telephone numbers and addresses to which questions could be addressed. There is no evidence before me that Ms Shaw or Mr Daley sought assistance from Centrelink to interpret the meanings of the letters.

31.     I noted that the wording of the letters from Centrelink cover a number of situations, and may accordingly be difficult to navigate, but note that they do warn against incorrect disclosures which may lead to overpayments, which in turn must be repaid. One in particular, the letter of 6 February 2001 (T13), stated explicitly to Ms Shaw that if she was “receiving any taxable government pension and benefit and/or tax free pension and benefit paid by Centrelink or Veterans’ Affairs, you will need to include the full amount of that taxable government pension and benefit and/or tax free pension and benefit paid by Centrelink or Veterans’ Affairs in your estimate”.

32.     I cannot accept that that letter would not have alerted Ms Shaw and/or Mr Daley who is after all a business man, to the fact Ms Shaw had to declare her PPP.  At the very least, it should have prompted either Ms Shaw or Mr Daley to inquire about their situation. They did not, and accordingly their good faith is in question.

33.     The leading case on good faith is Secretary, Department of Education, Employment, Training and Youth Affairs vPrince (1997) 50 ALD 186. Good faith relates to the actual state of mind and knowledge of the recipient. I find from the evidence that Ms Shaw relied on the advice of Mr Daley, and accepted from him that she did not have to lodge a tax return, and did not question the disclosures she made to Centrelink. She may have been inattentive in not making inquiries, but having considered the principles in Prince, I am not satisfied that she accepted the payments other than in good faith.

34.     I also considered whether Centrelink, which was paying Ms Shaw PPP should have known and relied on its own information, or relied entirely on the information Ms Shaw provided. Unfortunately each recipient of benefits has a unique personal situation the details of which are not known to Centrelink, and it is up to each person to correctly advise Centrelink about his or her own situation when asked.  Notwithstanding many opportunities to further inform Centrelink, Ms Shaw continued to declare a nil income in spite of the fact she was receiving PPP.  I consider that Centrelink was entitled to rely on what Ms Shaw advised, and I find that Centrelink was reasonable in doing so.

35.     I was mindful also of the case of Re Wendt and Secretary, Department of Social Security (1998) 53 ALD 153 where the Tribunal held that the applicant had contributed to an error in the calculation of a benefit by incorrectly completing a form. In Wendt the Tribunal held that the debt could not be waived on the basis of sole administrative error of the Commonwealth.  Ms Shaw is in a similar position because she provided incorrect information to Centrelink which contributed to the raising of the debt even though the application of the incorrect tax file number contributed to the confusion. Accordingly Ms Shaw contributed to the error, and there can be no sole administrative error which would put  the Secretary in the position of having to waive the debts.

36.     I was also mindful of the inconvenience and error in recording Ms Shaw’s family income which Ms Shaw experienced due to the application of the incorrect tax file number to her, and noted that this affected only the 2000/1 tax year.  Reconciliations were carried out which are at T54 and T56 which rectified the matter. Further Ms Shaw did not disclose her PPP as income in relation to the 2000/1 year so that sole administrative error of the Commonwealth cannot apply even for that year.

37.     I am satisfied that waiver due to sole administrative error cannot therefore apply to Ms Shaw’s debts of FTB, and moved on to consider the application of the discretion available to waive the whole or part of a debt due to special circumstances.

38. In that regard, I note that pursuant to section 101 of the Administration Act, debts may be waived in whole or in part if special circumstances apply.

39. Section 101 of the Administration Act states:

“101  Waiver in special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)making a false statement or a false representation; or

(ii)failing or omitting to comply with a provision of the family assistance law; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt.”

40.     The term special circumstances is not defined in the Administration Act. However the phrase has been the subject of consideration in courts and the AAT many times. A leading case is Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where Toohey J stated:

“An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend on the context in which they occur.  For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases.  This is not to say that the circumstances must be unique but they have a particular quality of unusualness that permits them to be described as special.”

41.     This approach was approved by the Federal Court on appeal in Re Beadle and Director‑General of Social Security (1985) 7 ALD 670. The Court did note, however, that they would place less emphasis on the dictionary definition of special.

42.     In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, where there was an overpayment of parenting payment, where administrative error (but not sole administrative error), had occurred, Besanko J held that:

“… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word exceptional is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if he words ‘ unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case….”

43.     I considered Ms Shaw’s situation in relation to whether special circumstances applied in her case in order to consider the discretion to waive the debt in part or in full. I am mindful that special circumstances cannot be financial circumstances alone. Indeed in Ms Shaw’s case her partner Mr Daley is in business, and whilst the evidence was that his earnings are not on the increase, I did not have before me evidence of hardship which I could find would constitute special circumstances.  I did not have evidence of other circumstances in Ms Shaw’s life which could be considered special circumstances.

44.     Ms Shaw’s situation is not as in Re Ivovic and Director-General of Social Services (1981) 3 ALN N95 where it was held that the situation of the Applicant was unusual, and that it would be unjust or unreasonable to require the debts to be repaid.

45.     I do not accept that relying on incorrect advice from the accountant should be accepted as a special circumstance in this case, and when considering Ms Shaw’s situation globally, I could not be satisfied that “special circumstances” applied in her case to waive the debts either in part or in full.

46.     Accordingly the decision of the SSAT is set aside. In substitution the decision of the ARO is restored, and the debts of FTB must be recovered in full.

FILE N2006/1592

SHAW v SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

47. In this matter, Ms Shaw was appealing the decision made by the Secretary who rejected Ms Shaw’s claim for PPP made pursuant to section 37 of the Social Security (Administration) Act 1999 (“the SSAA”). The Secretary’s decision was confirmed by the SSAT on 11 October 2006, finding that Ms Shaw cannot be paid arrears of PPP for the period 30 August 2005 to 28 February 2006 (section 107(2) of the SSAA).

48. I had to decide whether the decision to reject Ms Shaw’s claim for PPP made pursuant to section 37 of the SSAA was correct, and whether Ms Shaw can be paid PPP from a date prior to 20 February 2006.

49. What occurred in this case was that Ms Shaw lodged a claim for PPP on 30 August 2005 (T7/33 & T8/34). As part of the application she had to declare her partner’s income. PPP is subject, pursuant to section 1068 of the Social Security Act 1991 to an income test. At the relevant date 3 November 2005, when Ms Shaw’s application was considered and rejected, the threshold income was $29,339.18. Ms Shaw disclosed that her partner Mr Daley was self employed and had a private company, and appended profit and loss statements relating to him, and the company (T9/60). At the AAT hearing Mr Daley corroborated the statement he had made to the SSAT that the financial statement Ms Shaw lodged at that time was incorrect.  He admitted he has had problems with finance and accounting, and could not afford to pay his accountant. He finally came up with a statement he considered was correct at 28 February 2006, and which Ms Shaw lodged in March 2006 (T29).

50.     On the basis of the profit and loss statement lodged by Ms Shaw on 30 August 2005, and other documents lodged by Mr Daley, the Centrelink officer handling the application assessed Mr Daley’s income at $37,949 (T15/90 & T16/92) based on his declaration of a profit in his business of $12,649.70 for the four months from June to September 2005 (T14).

51.     Centrelink sent a letter to Ms Shaw dated 3 November 2005 advising her that her claim for  PPP was rejected because her partner’s income of $76,354.20 (T18/95) was above the threshold for such payment.  The income nominated in the letter at T18 was incorrect, but in any case, both the figures of $37,949 (calculated on the basis of the four months’ profit declared), and the $76,354.20 were above the threshold for PPP.

52.     Mr Daley’s evidence was that Ms Shaw then wrote and faxed several letters to Centrelink, initially on 14 November 2005, asking about the matter. Three further letters in December 2005 were said to have followed, sent by facsimile transmission to the Sutherland office of Centrelink. Copies of those letters form part of the attachments to the Secretary’s Statement of Facts and Contentions, and facsimile transmission verification reports document the sending of the letters.  However the Secretary submits that searches have been made, and there is no record of receipt of the letters at Centrelink.  Mr Daley said that Ms Shaw did not receive replies to her letters.

53.     Even if the letters could be located, I am satisfied in perusing the letters and considering the submission of the Respondent that three of the four letters refer to FTB debts and not to PPP, and that none appends financial data which would be required for an application. I am mindful of the cases Austin and Another v Secretary, Department of Family and Community Services (1999) 57 ALD 330 and Re Angel and Department of Family and Community Services [2001] AATA 292 in which the question of whether a review had been requested were considered. I am satisfied there was no application/review for PPP requested in Ms Shaw’s letters of late 2005 which were just requesting clarification of her situation.

54.     The Secretary further submits that Ms Shaw did not submit any updated profit and loss statements with her correspondence, and further, that the Centrelink file shows no contact from Ms Shaw between 12 October 2005 and 19 February 2006.

55. The record at Attachment H to the Respondent’s Statement of Facts and Contentions indicates that after Ms Shaw again claimed for PPP on 20 February 2006 with an accompanying profit and loss statement for Mr Daley, she was granted PPP. This was subject to section 107 of the SSAA which deals with the date of effect of review determinations granting claims for parenting payment which was originally rejected. Section 107(2) of the SSAA provides that where an application for review is made within 13 weeks of receiving notice of the decision, and a favourable determination is made, the review decision takes effect on the date of the original decision.

56. I noted the submission of the Respondent that the SSAT had erroneously applied section 109 of the SSAA, but had arrived at the appropriate decision. I am satisfied that section 107(2), and not section 109 applies.

57.     In conclusion I note that even if Ms Shaw’s faxed letters were received, I am not satisfied that they could be held to be applications for review of the 3 November 2005 decision which refused her application for PPP. I am satisfied that she did not seek review of the decision until the statutory 13 weeks had passed, and accordingly arrears cannot be paid. When Ms Shaw did correctly seek review on 20 February 2006, PPP was restored.

58.     Accordingly the decision of the Secretary and the SSAT to refuse arrears of PPP from 30 August 2005 to 19 February 2006 must be affirmed.

FILE N2007/213

SHAW v SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

59.     I was mindful that following a Directions Hearing at the Tribunal, and prior to the hearing, Ms J Maclean, Senior Legal Services Officer, Centrelink wrote to Ms Shaw informing her of the offer of settlement in this matter, which concerned an FTB debt for the financial year 2004/5. The debt had arisen because Mr Daley, Ms Shaw’s partner had not, at the time the debt was raised, filed his income tax return for the relevant period. He has since done so.

60.     Following discussion at the hearing, the consent was signed, and has been endorsed as an Order of the Tribunal in the following terms:

“The decision of the Social Security Appeals Tribunal made on 15 January 2007 is set aside.

Ms Shaw’s entitlement to family tax benefit for the period 1 July 2004 to 30 June 2005 has been recalculated based on Ms Shaw’s partner’s, Mr Glenn Daley’s, income tax return for the period.  As a result the previous debt of $8,878.16 has been adjusted to $0.   

Ms Shaw therefore owes no family tax benefit debt to the  Commonwealth for the period 1 July 2004 to 30 June 2005;

On 20 April 2007 the Secretary paid to Ms Shaw the sum of $9,928.02 arrears of family tax benefit for the period 1 July 2004 to 30 June 2005;”

61.     That concluded matter N2007/213.

DECISION

62.     In matter N2006/1592 the Tribunal affirms the decision under review.

63.     In matter N2006/793 the Tribunal sets aside the decision of the Social Security Appeals Tribunal and in substitution finds that the debts of Family Tax Benefit raised against Ms Shaw for the years 2000/1,  2001/2  and 2002/3 should not be waived and must be recovered in full.

64.     Matter N2007/213 was settled by agreement of the parties, Ms Shaw’s Family Tax Benefit debt for 2004/5 was waived, and arrears of Family Tax Benefit have been paid to Ms Shaw.

I certify that the preceding 64 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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

Date of Hearing  25 June 2007
Date of Decision  24 August 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Ms J Maclean, Centrelink Legal Services