STOCKLEY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2011] AATA 342

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 342

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0481 

GENERAL ADMINISTRATIVE DIVISION		)
Re		INGRID STOCKLEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date23 May 2011 

PlaceSydney

Decision The decision under review is affirmed

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

Ms N Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY – Lump sum child care benefit –effective claim not made – no discretion – decision affirmed 

A New Tax System (Family Assistance)(Administration) Act 1999: s 49, 49A, 49C, 49J
Financial Management and Accountability Act 1997: s 33

Croker v Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1136

REASONS FOR DECISION

23 May 2011 Ms N Isenberg, Senior Member

BACKGROUND

1.      On 15 September 2010 Mrs Stockley lodged a claim for child care benefit as a lump sum in respect of her daughter, for the 2007/2008 year.  The claim was rejected on the basis that it was not effective, having  not been received within the required time limit.  That decision was affirmed on internal review and by the Social Security Appeals Tribunal (SSAT).  Mrs Stockley now seeks review by this Tribunal.

2. The parties agreed that, pursuant to section 34J of the Administrative Appeals Tribunal Act 1975, the Tribunal’s consideration should occur ‘on the papers’. 

ISSUE BEFORE THE TRIBUNAL

3.      The issue before the Tribunal is whether Mrs Stockley’s claim for a lump sum child care benefit payment for the 2007/2008 financial year was effective.

LEGISLATION

4.      The legislation applicable to this matter is contained with the A New Tax System (Family Assistance)(Administration) Act 1999 (the Act). The relevant part of the Act is in Subdivision B – Making Claims.

5.      Section 49 of the Act provides that the only way that a person can become entitled to be paid child care benefit is by making a claim in accordance with the subdivision.  Section 49A of the Act sets out who can make a claim and section 49B provides what can be claimed.

6.      Section 49C of the Act sets out the requirements of an effective claim, namely that it be made in the manner and form required by the Secretary and contain certain required information.

7.      Section 49J of the Act sets out a number of restrictions on claims for payment and relevantly states:

"Claims to which section applies

(1)        This section applies to a claim by an individual for payment of child care benefit for a past period for care provided by an approved child care service to a child (a past period claim).

Claim period must fall within one income year etc.

(2)  A past period claim is ineffective if:

(a)the period does not fall wholly within one income year; or

(b)the period does fall wholly within one income year but the claim is made before the end of that income year or after the end of the 2 income years immediately following that income year."

CONSIDERATION

8.      I had before me documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"). 

9.      The basic facts surrounding this unfortunate matter are not in dispute:

·On 4 September 2008, Mrs Stockley lodged with Medicare a 'Claim for Child Care Benefit as annual lump sum payment for the 2006-2007 financial year' form. 

·On 3 December 2009, Mrs Stockley contacted Medicare to obtain a claim form for a lump sum of Child Care Benefit for 2008-2009 financial year and on 26 March 2010 lodged her claim.  (It is unclear why, at that time Mrs Stockley did not claim in respect of the 2007-2008 year.)  On 30 March 2010, Mrs Stockley's claim for 2008-2009 was finalised, pending details from the Approved Child Care Provider, and on 13 August 2010 the Family Assistance Office sent Mrs Stockley a letter advising her of the amount of her child care benefit for 2008-2009.

·On 16 August 2010, Mrs Stockley contacted Medicare to advise that she was claiming for Child Care Benefit as a lump sum for 2007-2008, and proposed using the 2008-2009 claim form.  Mrs Stockley was advised that the cut-off for lodging for 2007-2008 was 30 June 2010, so she would need to lodge an appeal.  On 17 August 2010, Mrs Stockley lodged an appeal regarding her claim for child care benefit as a lump sum for 2007-2008, but on 19 August 2010, Mrs Stockley agreed to withdraw her appeal and lodge a lump sum claim for child care benefit for 2007-2008. 

·On 15 September 2010, Mrs Stockley lodged a 'Claim for Approved Child Care payments an annual lump sum payment for the 2008-2009 financial year' form.  Mrs Stockley had changed the years on the form to be 2007-2008.  On 20 September 2010, Mrs Stockley's claim for 2007-2008 was rejected as it was outside the allowable time frame.

10.     If there was no further information before me, it would be a very straightforward matter: Mrs Stockley lodged her 'Claim for Approved Child Care payments an annual lump sum payment for the 2007-2008 financial year' form on 15 September 2010, which was not within the time limit specified in s 49J of the Act.  As s 49J of the Act does not provide a discretion to extend the time within which a person can lodge a claim, Mrs Stockley's claim for child care benefit for the 2007-2008 financial year was correctly rejected.

11.     As far as the issue before me is concerned, that is the end of the matter, and the decision under review is necessarily affirmed.

12.     Somewhat bizarrely though, I am caught up, in my view quite unnecessarily, in an application for review, brought it seems, with the sole purpose of recording that, as far as findings of fact at least are concerned, Mrs Stockley has reached the end of the legal road, and that any payment she might receive in respect of her claim can only be made pursuant to s 33 of the Financial Management and Accountability Act 1997 (FMA Act). This section of the Act allows for the Finance Minister to approve an act of grace payment.

13.     The SSAT decision states that Mrs Stockley was spoken to by the Family Assistance Office about putting in a claim for an act of grace payment, ie Compensation for Detriment caused by Defective Administration (CDDA).  It was in fact the Authorised Review Officer (ARO) who ‘registered’ a CDDA for Mrs Stockley.  Apparently she was assured it would be considered after the SSAT’s decision, but obviously this has not occurred.

14.     The SSAT referred to the ARO’s statement of reasons wherein it appears to have been accepted that Mrs Stockley had foreshadowed her claim for child care benefit, within time, but was sent the wrong forms.  There were further observations that Mrs Stockley had been required to clear up a problem with the Department of Education, Employment and Workplace Relations (DEEWR) about the hours of usage at the child care centre and that this had also contributed to the delay in lodgment of the claim.  As the SSAT observed, it was unclear why Mrs Stockley, rather than the FAO, was obliged to make the enquiries of DEEWR. 

15.     Mrs Stockley gave no evidence and made no submissions to this Tribunal.  She was reported as having given detailed evidence before the SSAT and was found to be a credible witness.  For my own part, I am unable to comment.  Sometimes, in matters where a CDDA claim is foreshadowed, the Tribunal is invited to make some appropriate remarks that may lend weight to an applicant’s claim.  In this matter, I am unable to provide any independent comments and can take the matter no further than the SSAT.

16.     It is disappointing that this matter has come this far, when, by the time of the ARO decision of 2 November 2010, the Respondent was already inviting Mrs Stockley to make a CDDA because of its conduct.

17.     In Croker v Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1136  , handed down on 8 October 2010, Rares J was critical of the Respondent’s predecessor Department and the Department of Finance. His Honour commented :

Suggestions by an agency of the Commonwealth…that there is a reasonable basis to make an act of grace payment…must be approached intelligently and sensitively. In such cases, the Minister for Finance and Deregulation or her delegate should consider the consequences of making a decision on a claim…immediately as opposed to requiring the person seeking the act of grace payment to pursue to the end any claim or legal proceedings brought or foreshadowed by him or her.

His Honour went on to say:

It may be that the delegate ultimately might have decided that no act of grace payment should be made in the proper exercise of the discretion. But, good public administration, one might think, should involve a timely, realistic and intelligent consideration of whether or not to grant applications under s 33 for very small sums of money by indigent persons when they are supported by the responsible instrumentality of the Commonwealth under the s 33 Scheme

18.     I accept that access to the public purse by way of an act of grace payment should be made cautiously and only permitted after appropriate investigation.  The policy may well be to exhaust legal avenues for review but, in circumstances where the Respondent and in its shoes, this Tribunal, has no discretion in the legal issue at hand, a more commonsense approach should have been adopted. In the circumstances, there is little wonder the SSAT described Mrs Stockley as demonstrating a level of ‘(contained) frustration’. 

DECISION

19.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:         …………[sgd]………………………………
           Associate

Date of Decision  23 May 2011
Applicant on own behalf           
Representative of Respondent:    Keely Horan, Centrelink Advocacy Branch