Sheikh-Abdullahi and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 773

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 773

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2005/875

GENERAL ADMINISTRATIVE  DIVISION		)                 and V2006/263
Re		HODAN SHEIKH-ABDULLAHI

Applicant

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

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date11 September 2006

PlaceMelbourne

Decision The decision under review is affirmed.

..............................................

Senior Member

SOCIAL SECURITY – Family Tax Benefit – payment ceased when child turned 16 – entitlement to youth allowance asserted – arrears sought ‑ benefit not claimed – no decision capable of review – decisions of SSAT concerning Family Tax Benefit affirmed – allegations of breach of Centrelink policies and claim for compensation dismissed

A New Tax System (Family Assistance) Act 1999 (Cth) s 21, s22, s22A, s58, Schedule 1.

REASONS FOR DECISION

11 September 2006   Mr John Handley, Senior Member

1.      The Applicant is a former Somali refugee and the single mother of four children.  She has been in receipt of Family Tax Benefit (“FTB”) with respect of the children for some years.  When the second eldest child, Nuria, achieved her 16^th birthday on 8 November 2005, FTB with respect to her was reduced from $173.74 per fortnight to $44.10 per fortnight.  Centrelink previously invited the Applicant to claim youth allowance (“YAL”) on behalf of Nuria which, if claimed, would otherwise be payable from 8 November 2005 in the sum of $183.20 per fortnight.  The Applicant did not complete a YAL claim form, despite being encouraged to do so by Centrelink officers.  She in fact made representations to Centrelink that YAL should not be paid.

2.      As a consequence of the reduction of FTB with respect to Nuria, and the absence of payment of YAL, the total payment to the Applicant by way of FTB has been reduced.

3.      By this review, the Applicant asserts that Centrelink has failed to comply with its own policies with respect to the provisions of benefits to families with children.  By way of relief, she claims arrears of YAL payable with respect to Nuria from 8 November 2005 or payment of FTB from that date at the YAL rate.

4.      The Applicant’s circumstances are very unfortunate.  But for the seeking and acceptance from agencies and networks providing family support it is likely that the financial predicament now facing the Applicant would not have occurred.

5.      The background to this application may be briefly summarised as follows.

background

6.      The Applicant is a single mother and previously suffered domestic violence.  She presently has four children aged 18, 16, 14 and 11.  She has not had any contact with the father of the children for many years.  She has been dependent on the income received as a sole parent, from FTB and from other income she earns from time to time as an interpreter and translator.  All of the payments of FTB were received by her and used to provide for her children.

7.      The oldest child Amina is presently aged 18 years.  When she achieved her 16^th birthday in 2003, FTB ceased (for her) and YAL was paid.  Initially that payment was made to the Applicant but later Amina left home and made representations to Centrelink that payment should be made to her directly.  Centrelink made such payments and thereafter Amina has resided in Queensland.  This has caused the Applicant considerable distress, anxiety and worry.  The family constellation has been broken.

8.      The Applicant is concerned that should YAL be paid to her with respect to Nuria, she also could leave the family home which would exacerbate the continuing distress, concern and worry that she has with respect to Amina.  Accordingly the Applicant made representations to Centrelink that YAL should not be paid.  Consequently the benefit that would otherwise be paid as YAL, $183.20 per fortnight, has not been paid since 8 November 2005.  Rather, the Applicant has received a reduced amount of FTB in the sum of $44.10 per fortnight.  That has resulted in a loss of FTB income of approximately $130.00 per fortnight.  As the Applicant submitted at the hearing, that loss amounts to $3370.00 per annum.

9.      The Applicant asserted at the hearing that Centrelink failed to understand her domestic situation thereby contravening its own policies with respect to the adequacy of income for families with children.  It was submitted that the combined rates of FTB presently received are insufficient to adequately provide for her children and the policy presently implemented by Centrelink causes “rifts” within families rather than promoting “healthy family relationships”.

10.     Consequently the relief sought by the Applicant was to have Centrelink make payments of YAL in arrears from 8 November 2005 with respect to Nuria.

11.     In the alternative, the Applicant submitted that FTB should be paid to her with respect to Nuria in the sum equivalent to the rate of YAL.

the legislation

12. Family Tax Benefit is payable pursuant to the provisions of Part 3 Division 1 of the A New Tax System (Family Assistance) Act 1999 (“the Act”), more specifically ss 21, 22, 22A, 58 and Schedule 1.

13. The Applicant is entitled to be paid FTB with respect to her children until each achieves the age of 16 years. The FTB ceases at that age because her adjusted taxable income equals or exceeds the cut out amount as prescribed by s 58 and Schedule 1 of the Act. After the age of 16 years, YAL is payable. As described above, the rate of YAL is greater than the rate of FTB.

14.     At the commencement of the hearing on 5 September 2006, the Applicant and her representative Ms Gibbs from the North Melbourne Legal Service conceded that the calculations made by Centrelink with respect to the benefits that have been received to date are correct and no challenge is made to the manner in which those rates have been calculated and paid.

15.     Additionally, having given an indication to the Applicant that I accepted that she and her children had suffered illness, (a medical report had been filed which was not in dispute) there was no need to hear medical evidence from Dr Rawet upon whom she had arranged for a summons to be served.  Dr Rawet attended the hearing but happily left, with the Applicant’s consent, after I gave my indication as above.  The medical evidence would not have been relevant to this review.

conclusions and reasons for decision

16.     I accept and find as a fact that the Applicant is a strong willed, independent person who takes her role as a single mother of four children very seriously.  I have no doubt that she has a caring and loving disposition and is attempting to ensure that her children are given full access to adequate clothing, housing, education, medicines and food, all of which were denied to her as a refugee.

17.     I also accept that she was acutely distressed and continues to be anxious by the absence of Amina.  I also accept that she is very worried that in the event that YAL is paid to her with respect to Nuria that she in turn will, like Amina, come under the influence of other persons and leave home in the belief that payment of YAL will provide adequate means of support.

18.     I also accept that the other two children of the family namely, Mohomad and Marion have suffered illness from time to time which has exposed the Applicant to costs and which she finds difficult to meet by the reduction in quantum of FTB.

19.     However, I am in the circumstances obliged to find as a matter of law that the decisions presently under review namely three decisions of the Social Security Appeals Tribunal made on 10 September 2004, 4 October 2004 and 14 November 2005 are correct and should be affirmed.  Those decisions concern the rate of FTB payable at 10 September 2004, 4 October 2004 and 14 November 2005 respectively.

20.     I am satisfied, as was conceded by the Applicant and her representative, that the calculations made to date by Centrelink of FTB have been correct.

21.     The issue in this case is, in effect, not one of a challenge to the interpretation of the legislation but rather an attack upon the policies of Centrelink and their staff. 

22.     The policies were attacked because it was asserted that the quantum of FTB payable in the circumstances facing the Applicant was insufficient to meet her financial obligations to the children.  That attack is unwarranted.  The policy of Centrelink has, it would appear, been complied with totally because all benefits otherwise payable to the Applicant on her own behalf and on behalf of her children have been paid at the maximum entitlement from time to time.  In exercising its policies and fulfilling its obligations, Centrelink is constrained by the legislation.  It is the Parliament from time to time that determines the rate that a pension or benefit is payable.  It would be unlawful for Centrelink to pay an amount greater than that which has been legislatively been permitted.  Parliament has also decided that the eligibility criteria and the different types of benefits are dependant upon a claimant’s circumstances.  Centrelink has not failed or breached its own policies or service obligations.  It has not failed or been in error in its application of the relevant legislation.  The submission on these issues is without merit.

23.     As a matter of law, the Applicant has not had an entitlement to receive FTB with respect of Nuria since 8 November 2005.  She has had an entitlement to receive YAL but has declined it.  The reasons for doing so are described above.

24.     Centrelink has not failed its obligation to adequately provide for the Applicant and her family.  For Centrelink to pay YAL to the Applicant in the absence of that benefit being claimed would be unlawful.  I know of no mechanism which would permit payment of YAL in arrears to 8 November 2005 or FTB in arrears at the rate equivalent to YAL.  In any event, if there was such an entitlement it would need to be claimed.  It has not been claimed.

25.     Additionally, by reason of YAL never having been claimed, no decision capable of review has ever been made.  Accordingly, there is no scope by these proceedings to even consider entitlement to YAL.

26.     In conclusion, I note that the Applicant also asserted that Centrelink paid FTB to other persons in similar circumstances to the Applicant but in a greater amount.  Such a submission is irrelevant in the absence of evidence and in the absence of any knowledge of the particular circumstances of the persons to whom the Applicant refers.  There is nothing by these proceedings which points to any inconsistency or failure to pay to the Applicant her full entitlement from time to time.  If other persons have been paid an amount greater than they were entitled, no doubt they will be subject to the ordinary audit provisions undertaken by Centrelink.

27.     It also follows from all of the above that a claim made by the Applicant at the conclusion of the hearing for a payment of compensation to her from Centrelink has no validity.  It was submitted that the Applicant as a single mother should not have benefits “suspended”.  If not already clear from the above, benefits have not been suspended, rather, all beneficial entitlement has been paid in full.

28.     The decisions under review should be affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         .....................................................................................
  Personal Assistant

Date of Hearing  5 September 2006
Date of Decision  11 September 2006
Solicitor for the Applicant          Ms L Gibbs, North Melbourne Legal Service
Departmental Advocate            Mr W Zita