Taufaao and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 662

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 662

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: 2009/1427     

GENERAL ADMINISTRATIVE DIVISION        )   

ReMr SIESI TAUFAAO

Applicant

AndSecretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

TribunalMs N Isenberg, Senior Member

Date02 September 2009

PlaceSydney

DecisionThe decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – Economic Security Strategy Payment – applicant not entitled to Family Tax Benefits for period including 14 October 2008 – decision under review affirmed.

RELEVANT ACT/S:

A New Tax System (Family Assistance) Act 1999 (Cth) s89(2)-(4)

A New Tax System (Family Assistance) (Administration) Act 1999 s16

CITATIONS

Re De Waal and Secretary, Department of Families, Housing, Community Services and indigenous Affairs [2009] AATA 635

REASONS FOR DECISION

02 September 2009 Ms N Isenberg, Senior Member

REVIEWABLE DECISION

1.      Decision of Social Security Appeals Tribunal (SSAT) made on 4 March 2009, affirming a decision made by Centrelink on 9 December 2008 not to pay Mr Taufaao the economic security strategy (ESS) payment to families in respect of the two children in his care.

BACKGROUND

2.      The Federal Magistrates Court of Australia issued Consent Orders on 17 October 2008 that three of Mr Taufaao’s five children were to reside with their father.  He subsequently claimed and was granted Family Tax Benefits (FTB) for those two children from 17 October 2008.

3.      On 25 November 2008 Mr Taufaao made a claim to Centrelink for the ESS payment in respect of the two children in his care.  On 8 December, Centrelink rejected the claim on the basis Mr Taufaao was not entitled to the ESS payment because he was not receiving FTB on the qualifying date of 14 October 2008.  That decision was affirmed on internal review and by the SSAT.

LEGISLATION

4. Section 89 of the A New Tax System (Family Assistance) Act 1999 (“the FA Act”) contains the qualification criteria for the ESS payment. In particular, s89(2) requires FBT must be payable to Mr Taufaao for a period including 14 October 2008.

89When is an individual entitled to an economic security strategy payment to families?

FTB category

(2)This subsection applies to the individual if:

(a)in relation to 14 October 2008, a determination under section 16 of the Family Assistance Administration Act was in force in respect of the individual as a claimant; and

(b)the rate (the applicable rate) of family tax benefit payable under the determination in relation to 14 October 2008 consisted of or included a Part A rate greater than nil worked out taking into account one or more FTB children.

16Determination of instalment entitlement claim

(1)This section applies if the claim is one for payment of family tax benefit by instalment.

(2)If the Secretary is satisfied that the claimant is, at the time the Secretary makes the determination on the claim, eligible for family tax benefit in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act, the Secretary must determine that the claimant is entitled to be paid family tax benefit for each day on which the determination is in force at the daily rate at which the Secretary considers the claimant to be eligible.

Additional entitlement in subsection (2) cases

(4)If:

(a)the Secretary is satisfied as mentioned in subsection (2); and

(b)the Secretary is also satisfied that the claimant was eligible for family tax benefit in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act during the whole or part of the period since the claim was made;

the Secretary must determine that the claimant is entitled to be paid that amount of family tax benefit.

ISSUES BEFORE THE TRIBUNAL

5.      The issue before the Tribunal is whether Mr Taufaao is entitled to receive the ESS payment to families in respect of the two children in his care.

THE APPLICANT’S EVIDENCE

6.      In his oral evidence, Mr Taufaao stated he and his wife separated in July 2007 but they continued living under the same roof with their five children.  In August 2008 Mrs Taufaao moved away with the two youngest children.  The three older children, iremained living with Mr Taufaao so they could continue to attend the same school and sporting activities.

7.      Following a weekend access visit with their mother, the two children were not returned to Mr Taufaao for two months and were enrolled in new schools without his consent.  As a result, Mr Taufaao made an urgent application to the Federal Magistrates Court of Australia and on 17 October 2008 the Court ordered that the two children were to live with Mr Taufaao, and they were returned to him on that date.

8.      Mr Taufaao gave evidence that he bears the costs of raising his children as his wife had not contributed to half of their school fees at Trinity Catholic College as agreed in the Consent Orders of 17 October 2008, and that he is responsible for driving all the children to and from their access visits between both homes as Mrs Taufaao does not hold a drivers’ licence. 

CONSIDERATION OF THE EVIDENCE

9.      In De Waal v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 635 (26 August 2009) the words in s89 of the FA Act “in respect of a period that included 14 October 2008” were considered and found that they expressly require there to have been a payment for that period and that eligibility for receipt of the ESS payment is dependent on receiving payment of a relevant pension on the 14 October 2008.

10. It is unfortunate that Mr Taufaao’s circumstances fall just three days outside of the qualifying period of 14 October 2008, particularly as the children were not with him through no fault of his own. After a thorough examination of the applicable legislation, the FA Act, I find that it strictly determines the eligibility criteria and provides no opportunity for discretion to vary the date on which payment of FTB is to have been made.

11.     The Tribunal acknowledges the frustration of being unable to qualify for the ESS payment, based on an arbitrary date being 14 October 2008.    

12.     The Tribunal also acknowledges the financial difficulties faced by Mr Taufaao in caring for his two children, and it remains open to Mr Taufaao to submit another claim to Centrelink should he be able to provide evidence to show his entitlement to receive FTB for the period including 14 October 2008.

13.     After reviewing all the evidence, case law and legislation, I conclude that as the Applicant Mr Taufaao was not receiving FBT payments for the period including 14 October 2008 he is unable to successfully claim the ESS payment.

DECISION

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:   .......................[sgd].......................................................
K. Lynch, Associate

Date of Hearing:  31 August, 2009
Date of Decision:  02 September, 2009
Applicant Representative:                  Self
Respondent Representative:            Ms Stephanie Memmott