Trieu and Department of Family and Community Services - [2002] AATA 143

DECISION AND REASONS FOR DECISION [2002] AATA 143

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1141

GENERAL ADMINISTRATIVE DIVISION         )
           Re      THI KIM LANG TRIEU
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member Ms N Isenberg, Member

Date7 March 2002
PlaceSydney

Decision The Administrative Appeals Tribunal ("the Tribunal"), sets aside the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent"), dated 16 November 1999 as affirmed by the Authorised Review Officer of the Respondent on 20 January 2000, and the Social Security Appeals Tribunal on 2 June 2000 to reject the Applicant, Thi Kim Lang Trieu's claim for Family Allowance. The Tribunal remits the matter to the Respondent to be reassessed taking the findings made in these Reasons for Decision into account. There was no application before the Tribunal with regard to the Health Care Card, and the Tribunal did not make a decision in that regard.

..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Social Security - Family Allowance - notice under Section 1304 – incorrectly given - decision of SSAT set aside and matter remitted for reassessment

LEGISLATION
Social Security Act 1991 ss 838(1) and 1304

CASE LAW
Shiel v Department of Social Security (1999) 56 ALD 465
Ibarcena v Secretary, Department of Family and Community Services [2000] AATA 1141

REASONS FOR DECISION

7 March 2002 Ms G Ettinger, Senior Member Ms N Isenberg, Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of a Centrelink delegate of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 16 November 1999 (T31/88) as affirmed by the Authorised Review Officer of the Respondent on 20 January 2000 (T42/108) and the Social Security Appeals Tribunal ("the SSAT") on 2 June 2000 (T2/6), to reject the Applicant, Mrs Thi Kim Lang Trieu's claim for Family Allowance.
Mrs Trieu's claim for a Health Care Card had been before the SSAT which had set aside the Respondent's decision to reject her claim for a Health Care Card, and had remitted the matter back to the Respondent for Mrs Trieu's claim to be reassessed taking into account information provided at that hearing. This Tribunal did not have before it a claim with regard to the Health Care Card and accordingly did not make a decision with regard to Mrs Trieu's entitlement in that regard.
The Tribunal noted that in its primary decision (T31/88), the Respondent had refused to grant Family Allowance to the Applicant because information, in particular, Mrs Trieu's 1997/98 tax returns, which had been considered necessary for consideration of her entitlement, and had been requested, had not been provided.
The matter had been set down for hearing, but due to Mrs Trieu's ill health, and for other personal reasons, she requested that the matter be dealt with by the Tribunal on the basis of the available material without her attendance before the Tribunal. The Respondent had no objection to this course of action. The Tribunal agreed and gave both parties an opportunity to file further submissions. The Tribunal subsequently received correspondence from both parties before the matter was reserved.
issue before the tribunal
The issue before the Tribunal was whether Mrs Trieu was entitled to Family Allowance for the period from her application on 29 October 1999.
In order to decide the above issue the Tribunal was required to consider:

whether the Department had validly issued a notice under section 1304 of the Social Security Act 1991 ("the Act");
if the Department had not issued a valid notice under section 1304 of the Act, whether it was entitled to rely on the Applicant's failure to comply with that notice in rejecting her claim for Family Allowance.

legislation

The relevant legislation in this matter is the Social Security Act 1991,in particular sections 838(1)(d) and 1304. Those sections, so far as is relevant, provide as follows:
"Qualification for individual family allowance
838.(1) A person is qualified for family allowance if:
(a) …
…
(d) the value of the person's assets does not exceed $410,000"
General power to obtain information
1304(1) The Secretary may require a person to give information, or produce a document that is in the person's custody or under the person's control, to the Department if the Secretary considers that the information or document may be relevant to the question of:
(a)
whether a person who has made a claim for a social security payment (other than pension bonus) under this Act is or was qualified for the social security payment; or
(aa)
whether a person who has made a claim for a pension bonus under this Act is or was qualified for the pension bonus (for the purposes of this question, it is to be assumed that the person started to receive an age pension after making that claim); or
(b)
whether a social security payment under this Act is payable to a person who is receiving it; or
(ba)
…
1304(2) A requirement under subsection (1) must be by notice in writing given to the person.
1304(3) The notice must specify:
(a)
how the person is to give the information or how the document is to be produced; and
(b)
the period within which the person is to give the information, or produce the document, to the Department; and
(c)
the officer (if any) to whom the information is to be given or the document is to be produced; and
(d)
that the notice is given under this section.
1304(4) The period specified under paragraph (3)(b) must end at least 14 days after the notice is given.
1304(5) The notice may require the person to give the information by appearing before a specified officer to answer questions.
1304(6) If the notice requires the person to appear before an officer, the notice must specify a time and a place for the person to appear, and the time must be at least 14 days after the notice is given.
1304(7) A person must not, without reasonable excuse, refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it."

evidence before the tribunal

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence as Exhibit R1.
The Respondent had filed a Statement of Facts and Contentions dated 31 August 2001 to which the Applicant responded in a letter of the same date. These have been marked Exhibits R2 and A1 respectively.
The Applicant filed a further letter dated 24 September 2001 and the Respondent made further submissions by letter dated 28 September 2001. These have been marked as Exhibits A2 and R3 respectively.
The Tribunal noted that the Applicant, who speaks limited English, appeared before the SSAT, and was accompanied by her husband. Both gave evidence at the SSAT. As there was no oral evidence given at the hearing before this Tribunal, the Tribunal took into account the evidence given at the SSAT, as reported in the decision of the SSAT (T2/8).
submissions and conclusions
In coming to the correct and preferable decision, the Tribunal had taken into account all the evidence, submissions, case law and relevant legislation.
The Tribunal noted that there was no dispute between the parties as to the facts, and that the only dispute was in relation to the application of the Act to those facts. However the Tribunal was mindful from the documentation before it, including correspondence and findings of the SSAT, that Mr and Mrs Trieu felt aggrieved about their dealings with Centrelink. The SSAT at paragraph 13 of its decision of 2 June 2000 stated as follows:
"Mr Trieu told the tribunal that he and his wife believe that they have been discriminated against in their dealings with Centrelink. He advised that on several occasions he had requested copies of the relevant sections of the Social Security Act but this information had not been forthcoming. His (sic) stated that he believes that he and his wife had been unfairly treated by Centrelink and have been subject to discrimination and victimisation. He advised that they have the right not to answer questions if they do not understand the questions and that Centrelink's officers have a duty of care to assist them to understand questions and correspondence from that office."
The Tribunal was mindful that the refusal to grant Family Allowance arose because the Respondent having identified from a cross-matching of Commonwealth records, information which suggested that the Applicant had assets which had not been disclosed in the course of her application for various benefits, including Family Allowance, sought tax returns and Notices of Assessment for the financial year 1997/98 from the Trieus.
The Tribunal noted that on 29 October 1999 when the Applicant and her husband attended the Centrelink office at Ryde, they were asked to provide copies of the 1997/98 taxation Notices of Assessment and the corresponding tax returns. On the same date, the interviewing officer issued to the Applicant a Notice under Section 1304 of the Act ("the Notice"), which read as follows (to the extent the Tribunal could decipher the poor copy available to it):
"This is a notice given under section 1304 of the Social Security Act 1991 … To pay you (or your partner) the right amount we need more information. Would you (and your partner) please provide the information indicated by the ticked boxes below.
…
Other, as specified below:
Please provide 97/98 Tax return and tax notice of assessment.
To avoid delay in payment this information should be provided promptly to the address at the top of this letter.
Failure to provide the information requested within 7 days after this notice is given may result in the rejection/suspension/cancellation of benefit/pension/allowance."
(underlining added).
The Notice, which was a type of printed form letter had a field for adding the name of the addressee and the information sought.
The Notice issued to the Applicant, however, had one important alteration of the information on the form. The sender had deleted the printed "14" (days) for compliance and had instead inserted "7", as referred to above.
In response to the Notice the Applicant provided, later that day, the requested 1997/98 Notices of Assessment but not the requested tax returns.
In the letter enclosing the Notices of Assessment (T22/77) the Applicant and her husband brought to the Department's attention:
"In your letter dated 29 Oct 99, you requested us to provide our 97/98 Tax Return and Notice of Assessments for our Family Allowance Application within 7 days whereas the Legislation allows us to supply the information within 14 days."
The letter went on to express concerns about discrimination and victimisation. The Applicant and her husband presumably formed this view after apparently receiving advice from the Centrelink "131 number" that only the Notice of Assessment was usually required. The Tribunal noted that this may be correct information in some cases, but that staff of the Respondent had formed a view due to information obtained from the Deputy Commissioner of Taxation's records, that in the Trieus' case, the actual tax returns were required. The Tribunal did not disagree that it was within Centrelink's power to request the actual tax returns.
The Tribunal noted that on 16 November 1999, the Department rejected the Family Allowance Application because the Applicant had not provided all the requested information (T30/87). On the same day the Applicant was sent a letter (T31/88) in the following terms:
"Rejection of your claim for Family Payments
We cannot pay you Family Allowance because we have not received the information we requested."
On 22 December 1999 the Applicant sought review of that decision (T38/102).
When the decision to reject the Applicant's claim for Family Allowance was reviewed by an Authorised Review Officer on 20 January 2000 (T43/109), it was conceded that the Applicant should have been allowed 14 days to provide the requested information in accordance with the Act:
"To determine your entitlement, following receipt of your claim for Family Allowance on 29 October 1999, Centrelink Ryde requested that you provide your 1997/98 Taxation returns under Section 1304(1)(a) of the Act. This request was in the form of a letter given to you on 29 October 1999. The letter was provided with a warning that if you failed to provide the information requested within 14 days that this may result in the rejection of your claim although I note that the officer issuing the letter changed the time to 7 days. This change was incorrect as Section 1304(4) specifies that the period must be at least 14 days."
In the Statements of Facts and Contentions filed by the parties (Exhibits R2 and A1) much was made of the prior dealings between the parties. This included the previous revocation of Family Allowance by the Ipswich office of the Department, apparently because of failure by the Applicant and her husband to provide certain business records.
In the Applicant's Statement of Facts and Contentions Mr Trieu restated why he believed his wife was entitled to Family Allowance. He concluded:
"In my opinion, Centrelink already knows our true asset and income details for the year ending 1997-1998 or any subsequent years. The dispute (sic) matter has been investigated by Centrelink for many years."
The Respondent submitted in its Statement of Facts and Contentions, relevantly:

as to the Applicant's concerns of discrimination and victimisation, that the Applicant had been treated no differently to other applicants for Family Allowance in comparable circumstances;
that notwithstanding the provisions of Section 1304, it was the responsibility of Claimants to justify their entitlements and to support their assertions with evidence so that the claim could be accurately determined. Where claimants failed to produce relevant information, their claims were liable to rejection;
that the issuing of a valid notice and failure to comply were not prerequisites to a decision to reject a claim and "the evidence required by the respondent to determine the claim was clearly made known to the applicant."

The Tribunal agreed with the submissions of the Respondent to the extent that it is the responsibility of claimants to provide support for their claim for entitlements so that their claims can be accurately determined. The Tribunal accepts that if supporting information is not supplied as required, then claims may be rejected. It follows that the issuing of a (valid) notice under Section 1304 and failure to comply with such a notice, are not prerequisites to a decision to reject a claim.
The Tribunal accepts that this is the general position. However, in this matter, the Respondent decided not to make a decision on the information provided by the Applicant in support of her claim, but to seek further information "bolstered" by the issue of a notice under Section 1304, (see Exhibit R2). It was entitled to do so, but clearly not entitled to alter the legislatively determined 14 day response time to seven days.
The Tribunal has no difficulty in accepting that a copy of the Applicant's taxation return and group certificate for the relevant period could reasonably be considered to be relevant in determining the appropriate rate of payment of the pension, as was the case in Ibarcena v Secretary, Department of Family and Community Services [2000] AATA 1141.
The intention of Section 1304 was addressed in the decision of Sheil v Secretary, Department of Social Security (1999) 56 ALD 465, where Katz J, said:

"First, it is apparent from the context in which s 1304 (1) (c) of the Act appeared that the parliament's purpose in including the provision was to confer a power capable of being used in aid of the prevention or recovery of unjustified payments of social security benefits…"

The Tribunal is mindful that section 1304(4) of the Act is clear in its terms, namely that any notice given under section 1304 must provide at least 14 days after the notice is given, for compliance. The Tribunal noted that the Authorised Review Officer (T43/109) conceded that the Notice was not valid because it specified seven, rather than 14 days.
The Tribunal noted also that the SSAT held that the reference to seven rather than 14 days in the Notice to be of "no bearing on the outcome in that the requested information has still not been provided…"
This Tribunal has taken a different view. The Tribunal has noted that because the oral requests for the tax returns were not complied with, the Respondent adopted a more formal course, that is, the issuing of a Notice under section 1304 of the Act . That Notice was patently invalid. In the Tribunal's view, the Applicant had no obligation to comply with such a Notice. The Tribunal noted that while the decision of 16 November 1999 did not specify whether it was on the basis of failing to supply information generally, or the failure to comply with the Notice, the Authorised Review Officer (T43/109) did specifically refer to the failure to comply with the Notice.
The Tribunal finds that the decision by the Respondent that the Applicant was not entitled to Family Allowance on the basis of failure to comply with the defective Notice, was flawed.
Furthermore, having adopted the course that information was to be provided in response to the Notice, rather than by way of response to a verbal request, the Respondent was not then entitled to rely on the failure to provide information which had been requested verbally to disentitle the Applicant to Family Allowance.
Accordingly, although the inspection and study of the Applicant's tax returns for 1997/98, if she eventually supplies them in response to a correctly given notice may either indicate Mrs Trieu is eligible for Family Allowance, or in the alternative that she is not, Mrs Trieu will have been provided every opportunity of pursuing her case in accordance with the legislation. Therefore the decision which must follow for the moment is as follows.
DECISION
The Administrative Appeals Tribunal ("the Tribunal"), sets aside the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent"), dated 16 November 1999, as affirmed by the Authorised Review Officer of the Respondent on 20 January 2000, and the Social Security Appeals Tribunal on 2 June 2000 to reject the Applicant Thi Kim Lang Trieu's claim for Family Allowance. The Tribunal remits the matter to the Respondent to be reassessed taking the findings made in these Reasons for Decision into account.
There was no application before the Tribunal with regard to the Health Care Card, and the Tribunal did not make a decision in that regard.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Ms N Isenberg, Member
Signed:         .....................................................................................
  Associate
Date of Hearing   4 September 2001
Date of Decision  7 March 2002
The Applicant   Self Represented
Advocate for the Respondent       Mr J Kenny