Walters and Secretary, Department of Social Services (Social services second review)

[2017] AATA 517

Walters and Secretary, Department of Social Services (Social services second review) [2017] AATA 517 (28 March 2017)

Division:GENERAL DIVISION

File Number(s): 2017/1175

Re:Snezana Walters

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:28 March 2017

Date of written reasons:        21 April 2017

Place:Brisbane

The application is dismissed.

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Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – Baby bonus – claim made after legislation repealed – application dismissed

LEGISLATION

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

Family Assistance and Other Legislation Amendment Act 2013 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)

CASES

Attorney-General v Wentworth (1988) 14 NSWLR 481

Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

21 April 2017

BACKROUND

1. The applicant gave birth to her child, Chanel, on 15 March 2009. The applicant’s partner at the time made a claim for and was granted the baby bonus on 2 April 2009. The applicant informed Centrelink on 28 August 2009 that she had separated from her partner from 25 July 2009.   

2. On 6 September 2016 the applicant made a request to Centrelink for baby bonus and Centrelink informed her on the same day the applicant that her application for baby bonus was unsuccessful.

3. On 27 September 2016 an Authorised Review Officer of Department of Human Services affirmed the initial decision.

4. The applicant then sought review in the Social Services and Child Support Division of the Administrative Appeals Tribunal (the “AAT1”).

5. On 14 February 2017 AAT1 affirmed the decision to reject the Applicant’s claim for baby bonus.

   LEGISLATION

6. Prior to 1 March 2014 it was possible to claim baby bonus under section 36 within Part 3, Division 2 of A New Tax System (Family Assistance) (Administration) Act 1999.

7. With effect from 1 March 2014, Division 2 was repealed by the Family Assistance and Other Legislation Amendment Act 2013. Since 1 March 2014, it is not possible to claim baby bonus.

8. Section 42B(1) of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”) states:

   The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or
   (b)  has no reasonable prospect of success; or

   (c)  is otherwise an abuse of the process of the Tribunal.

   SUBMISSIONS

9. The Tribunal received an application for dismissal from the respondent on the basis that the application is frivolous or vexatious, has no reasonable prospects of success or is otherwise an abuse of process: see section 42B(1) of the AAT Act.

10. The Tribunal invited the applicant to make submissions as to the authority under which it could grant the applicant baby bonus, in the absence of legislation making provision for the scheme since March 2014.

11. The applicant stated that she was unable to make a claim for baby bonus at the time because she was traumatised. She stated her ex-partner made a claim without her knowledge and she did not know he was paid the baby bonus in 2009.

12. The applicant further stated she was unaware the baby bonus scheme had ceased to exist and had “only just got her head around it”.

    CONSIDERATION

13. The respondent referred to an extract of Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 in the decision of Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950 at [14]. An application may be deemed frivolous or vexatious “…if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless”[1].

    [1] Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950 at [14]

14. The legislation did not provide for the making of a claim or for payment of baby bonus in 2016.

15. The applicant did not articulate any legislative grounds under which she could make a valid claim for baby bonus or the authority that the Tribunal could exercise to make a decision in her favour.

16. Despite the difficult circumstances the applicant outlined, the application has no reasonable prospects of success. There is no legislative mechanism under which a person may apply for or be granted a baby bonus. This has been the case since 1 March 2014.

17. The application is dismissed under section 42B(1).

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 21 April 2017

Date(s) of hearing:	28/03/2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services