Stevens and Secretary, Department of Family and Community Service S

[2003] AATA 1185

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION  [2003] AATA 1185

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/420

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JENNIFER STEVENS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date3 November 2003

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Family Tax Benefit - Family Allowance - whether applicant received notice advising of cancellation of Family Allowance - whether applicant sought review within 13 weeks of date of notice - whether applicant and partner were required to lodge tax returns to be paid additional entitlement to Family Tax Benefit

Social Security Act 1991 sections 887, 1302A
A New Tax System (Family Assistance) (Administration) Act 1999 section 28

Acts Interpretation Act 1901 section 29

Tsantis and Secretary to the Department of Family and Community Services [2003] AATA 835

ORAL REASONS FOR DECISION

3 November 2003   Senior Member WJF Purcell         

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 26 May 2003, which affirmed 2 decisions of an Authorised Review Officer of 9 April 2003.  The first was to refuse to pay the Family Tax Benefit top up in respect of the 2001 financial year; the second was to refuse to pay arrears of Family Allowance for the period 1 July 1999 until 30 June 2000. 

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The applicant appeared on her own behalf and gave oral evidence. Ms Pugsley represented the respondent (the Department).

3.      On 10 May 1999 the applicant, who was in receipt of Family Allowance, advised Centrelink that she had become partnered, and that her income had increased.  As a result of this advice, she was sent a questionnaire regarding her changed circumstances, and in particular her change in income for Family Allowance purposes.

4.      On 3 July 1999 a letter was sent to the applicant at 8 Rawson Street, Kingscote, SA 5223, advising her that her Family Allowance had been cancelled “because we have not received the information we requested”.  The last payment was on 17 June 1999.  The letter also advised the applicant of her right to request a review of this decision, and stated that “… if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you can only get back payment from the date you ask”.  [T6/23]

5. There is no record of contact between the applicant and the Department until 25 January 2001, when she lodged an application for Family Tax Benefit. On 14 March 2003 she requested payment of arrears of Family Allowance for the period 1 July 1999 to 30 June 2000. She was advised that, pursuant to section 887 of the Social Security Act 1991 (the Act), she had not asked for review of the cancellation within 13 weeks, and therefore she could not be paid arrears.  On 9 April 2003 this decision was affirmed by an Authorised Review Officer, and by the SSAT on 26 May 2003.

6. Section 887(3) of the Act provides:

“(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)subsections (6), (7) and (8) do not apply to the determination;

the determination takes effect on the day on which the recipient sought the review.”

7. The Department contends that the letter dated 3 July 2003 represents a notice of decision for the purposes of section 887 of the Act; that this letter was properly addressed, pursuant to the requirements of section 1302A of the Act, and section 29 of the Acts Interpretation Act 1901, and therefore is deemed to have been received.

8. The applicant did not request of review of the decision within 13 weeks of receipt of the notice dated 3 July 1999, the first contact being on 25 January 2001. The Department contends therefore that, pursuant to section 887(3) of the Act, no arrears of Family Allowance are payable to her for the period 1 July 1999 to 30 June 2000.

9.      Turning to the second decision in regard to Family Tax Benefit.  On 25 January 2001 the applicant lodged an application for Family Tax Benefit, which was granted as and from 1 July 2000 on an estimated combined income for the applicant and her partner, of $43,450, and the benefit was paid on a fortnightly basis.  On 30 April 2002 a notice was forwarded to her advising of the requirement for her and her partner to lodge taxation returns for the 2001 financial year before 30 June 2002.  The notice advised also that this was needed in order to ensure she had been paid the correct amount of Family Tax Benefit, and that if the returns were not lodged by that date she may have to pay back the Family Tax Benefit already paid to her for the 2001 financial year.  The notice advised also that if the returns were not lodged by that date, no “top up” payment could be made for the 2001 financial year. [T10/35]

10.     A further notice was sent on 5 June 2002, noting that as yet no taxation returns had been lodged, and reminding the applicant of the possibility she might be asked to pay back the Family Tax Benefit already paid to her, for the 2001 financial year.  The notice also stated that if the returns were not lodged by 30 June 2002, no “top up” payment would be payable for the 2001 financial year [T11/37].  Neither the applicant nor her partner lodged their taxation returns prior to 30 June 2002.

11.     On 24 October 2002 the Department wrote to the applicant informing her that as no tax returns had been lodged,  it was unable to check that she had received the right amount of Family Tax Benefit. On 2 December 2002 the applicant advised that there were difficulties with the lodgement of tax returns [T13/39].

12.     On 26 March 2003 the applicant queried why she was not entitled to the Family Tax Benefit “top up”..  She was advised that she was unable to receive the payment as she and her partner had failed to lodge taxation returns prior to 30 June 2002.  This decision was affirmed by an Authorised Review Officer on 9 April 2003, and by the SSAT on 26 May 2003.

13. Section 28 of the A New Tax System (Family Assistance) (Administration) Act 1999 sets out the legislation for a variation of instalment and past period entitlement for Family Tax Benefit where an income tax return is not lodged.  The section provides as follows:

“(1)     This section applies if:

(a)a determination under section 16 or 17 is in force at, or was in force before, a particular time; and

(b)there are one or more days (the cancellation days) before the particular time in respect of which the following conditions are satisfied:

(i)the cancellation days occur in the income year (the cancellation income year) that began 2 years before the beginning of the income year in which the particular time occurs;

(ii)the claimant is entitled to be paid family tax benefit under the determination for the cancellation days;

(iii)the claimant, or the claimant’s partner at the particular time (if he or she was also the claimant’s partner at some time in the cancellation income year), or both, are required to lodge an income tax return for the cancellation income year but have not done so by the particular time;

(iv)by the particular time, an assessment has not been made under the Income Tax Assessment Act 1936 of the taxable income for the cancellation income year of everyone to whom subparagraph (iii) applies.

Consequence of section applying

(2)If this section applies, the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to family tax benefit for the cancellation days.

Consequence where income tax returns are later lodged

(3)       If:

(a)after the Secretary varies the determination under subsection (2), an assessment is made under the Income Tax Assessment Act 1936 for the cancellation income year for everyone:

(i)who was required to lodge an income tax return as mentioned in subparagraph (1)(b)(iii); and

(ii)in respect of whom an assessment had not been made before the determination was varied; and

(b)the Secretary is satisfied that the claimant was eligible for an amount of family tax benefit for the cancellation days;

the Secretary must again vary the determination so that it has the effect that, for the cancellation days, the claimant is entitled to be paid the lesser of:

(c)that amount of family tax benefit; and

(d)the amount that the claimant was entitled to be paid before the variation under subsection (2) was made.”

14.     The question of whether a top up payment can be made where a person lodges taxation returns after the due date has been considered in the matter of Tsantis and Secretary to the Department of Family and Community Services [2003] AATA 835. In this matter the applicant was also seeking a “top up” payment for the 2001 financial year. The Tribunal said at paragraph 5:

“… section 28 of the family Assistance (Administration) Act 1999 (the Act) is quite specific.  To be entitled to a top up amount, the Act requires lodgement of the income tax return by the end of the year ended 30 June 2002, and no later.  It must be accepted that, if one day’s delay can be ignored, why not two days or seven days or some other period of time.  There is no discretion within the Act given to the decision maker, the SSAT, this Tribunal or to the Federal Court.”

15.     The applicant outlined in her oral evidence some of the quite horrendous domestic events which occurred during this period, when conflict with her former husband and her partner’s former wife led to her inability to concentrate on anything but “survival” for herself and her 4 children.  In the light of these events, her failure to comply with the requirements of the legislation is entirely understandable, but regrettably the legislation is specific, and it provides no discretion to the Decision-Maker, nor to this Tribunal, to take into account the applicant’s special circumstances and waive compliance with the time limits.  It is most unfortunate for the applicant, but she cannot succeed in this application.

16.     For these reasons, the Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

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

Date of Hearing  3 November 2003
Date of Decision  3 November 2003
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Centrelink Service Recovery Team