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

[2011] AATA 927

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 927

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              No 2011/3898

GENERAL ADMINISTRATIVE DIVISION		)
Re		FIONA TULLY

Applicant

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

Respondent

DECISION

Tribunal Mr P Wulf, Member

Date22 December 2011  

PlaceBrisbane

Decision The decision under review is affirmed.

.................[Sgd].......................

Member

CATCHWORDS

SOCIAL SECURITY – Child care benefit – Claim lodged three years after relevant financial year – No discretion to extend time – Decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth) s 37

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 49, 49C 49J

Fagan and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 2038

Crook and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1253

REASONS FOR DECISION

22 December 2011 Mr P Wulf, Member 

1.      Ms Fiona Tully (“the applicant”)[1] submitted a claim for an annual lump sum payment of Child Care Benefit for the 2006/2007 financial year on 12 October 2010.  The claim was rejected on the same date because the claim was lodged out of time. The decision was reviewed and affirmed twice by a Centrelink Authorised Review Officer (“ARO”) on 15 March 2011[2] and 11 April 2011.[3] The applicant then appealed to the Social Security Appeals Tribunal (“SSAT”) which affirmed the final decision 12 August 2011.[4]

[1] Exhibit 1, T-Document 1/1 – 2.

[2] Exhibit 1, T-Document 7/33 – 38.

[3] Exhibit 1, T-Document 5/25 – 30.

[4] Exhibit 1, T-Document 2/3 – 14.

ISSUE

2.      The relevant issue in this matter is whether Ms Tully’s claim for Child Care Benefit for the financial year 2006/2007, lodged on 12 October 2010, was an effective claim.

LEGISLATIVE SCHEME

3. In relation to claims for payment of Child Care Benefit for past periods, ss 49 and 49C of the Administration Act detail the need for a claim to be made and the requirements necessary for an effective claim. Section 49C(1) states:

(1)       To be effective:

(a)a claim (other than a claim that is taken to be made under subsection 49(2)) must:

(i)        be made in a form and manner; and

(ii)subject to subsections (2), (3), (4) and (6), contain any information; and 

(iii)      be accompanied by any documents;

required by the Secretary; and

…

4.      More importantly, s 49J(2)(b) of the Administration Act provides that in relation to claims for child care benefit for a past period of care:

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.

EVIDENCE

5. The only evidence before the Tribunal was comprised of the “T-Documents” lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).[5]

[5] Exhibit 1, T-Document 1 – 8/1-64.

Background

6.      The SSAT decision set out the relevant facts in this matter and, accordingly, this Tribunal does not consider it necessary to repeat those facts here. It is noted that the applicant provided no additional evidence or submissions of any kind to this Tribunal than was provided to the SSAT and therefore this Tribunal relies on those facts and the evidence in the T-Documents.

Consideration

7.      For Ms Tully to lodge an effective claim for Child Care Benefit for the financial year 2006/2007, and satisfy s 49J(2)(b) of the Administration Act, any such claim would have to be lodged by the end of the two income years immediately following the relevant income, which is 30 June 2009. Irrespective of any issue relating to her accountant’s alleged negligence, which is not a matter for this Tribunal to consider, Ms Tully is responsible for making a claim within the relevant time periods. She did not do so and therefore her claim does not comply with the time requirements set out in the Act.

8.      There is no discretion available to a decision-maker to permit a claim for Child Care Benefit that does not meet the requirements in s 49J(2) of the Administration Act. In such circumstances, Ms Tully’s claim for a lump sum payment of Child Care Benefit for financial year 2006/2007 must be denied.  As there was a failure to lodge the claim within the defined statutory time frame (30 June 2009), the claim is not effective.

9.      These matters were also discussed in Fagan and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 2038 and Crook and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1253. While they relate to Family Tax Benefit payment and discretion, this Tribunal concurs with those decisions that no discretion exists to extend the time period for lodgement of past period claims. The decision as it was made is correct.

DETERMINATION

10.     The Tribunal affirms the decision under review.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

Signed: ..........................[Sgd]................................................
              Danielle Armstrong, Research Associate

Hearing on the Papers
        Date of Decision   22 December 2011