Whiting and Secretary, Department of Family and Community Service S

[2003] AATA 870

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/376

GENERAL ADMINISTRATIVE DIVISION		)
Re		KATRINA WHITTING

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date5 September 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements - family assistance – whether effective claim for benefits made – whether claim lodged within relevant time-frame

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999 ss 49J, 50

REASONS FOR DECISION

5 September 2003  Mr RG Kenny, Member      

Background

1.      During the financial year 2000/2001, the children of Katrina Whitting (the applicant) and David Whitting attended approved child care and, on 22 July 2002, the applicant lodged a claim with the Family Assistance Office for a lump sum child care benefit for that period.  That benefit is paid in accordance with the terms of the A New Tax System (Family Assistance) Act 1999..  The application was rejected and, on 9 January 2003, a Customer Service Officer with Centrelink wrote to the applicant advising her of that rejection.  That decision was affirmed by an Authorised Review Officer on 29 January 2003.  The decision was further affirmed by the Social Security Appeals Tribunal on 24 March 2003 and, on 28 March 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

2.      The applicant attended the hearing and was represented by her husband, Mr David Whitting.  Mr James Howard appeared for the Secretary, Department of Family and Community Services (the respondent).

3.      At the hearing, the following were taken into evidence:

§Exhibit 1 The “T” Documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T30);

§Exhibit 2       Claim form notes for approved child care for 2000/2001 financial year; and

§Exhibit 3       A letter from the Family Assistance Office to the applicant headed “Important Changes to your Family Payments”.

Issues and Legislation

4.      It is not disputed in this case that the claim for the lump sum child care benefit was lodged on 22 July 2002 or that the period covered by the claim was the financial year ending 30 June 2001.  The issue for the Tribunal is whether the claim was lodged in accordance with the relevant time-frame as provided for in the A New Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act). The relevant provisions are subsection 49J(2) and section 50 of the FAA Act which read:

“49J(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 following income year.

…

50(1)  This Subdivision deals with the determinations the Secretary must make on claim, if an individual (the claimant) has made an effective claim for payment of child care benefit by fee reduction for care provided by an approved child care service to a child (the child).

50(2)  If a claim is not effective, it is taken not to have been made.

50(3)  The Secretary makes these determinations in respect of each child for whom the claimant has made a claim.

50(4)  The service uses these determinations as a basis for reducing the claimant’s fees for sessions of care provided in an income year in respect of which a determination of conditional eligibility is in force. After the end of the income year, a determination of entitlement, or no entitlement (as the case may be), is made under Subdivision D in respect of the individual’s claim.”

Applicant’s Evidence

5.      The applicant conceded that, to be effective, the claim for the child care benefit had to be made prior to the end of the financial year 2002 and that, by lodging the claim on 22 July 2002, this was outside of the time-frame provided by the legislation. The basis of her application for review was that no advice had been given to her in any form that the claim had to be lodged by 30 June 2002. 

6.      Mr Whitting referred the Tribunal to the claim form notes which were published by the Family Assistance Office in respect of the 2000/2001 financial year (Exhibit 2) and to a complete absence of any reference to the lodgment date in that document.  He also referred to the letter which was forwarded to the applicant (Exhibit 3) which, he submitted, was misleading in the sense that it included the following information:

“You can pay full child care fees to your child care service and claim a lump sum from the Family Assistance Office after the end of each financial year.  If you will be claiming a lump sum at the end of 2000-2001 financial year you do not need to complete the enclosed claim form.”

7.      Mr Whitting submitted that this document meant that the Family Assistance Office was not only a body which omitted to give relevant information but which also gave information that was incorrect. He submitted that the manner in which the Commonwealth agency had dealt with the matter amounted to mal-administration which meant that he and the applicant had suffered a financial loss which he quantified in the order of $1,214. 

8.      Mr Whitting also referred to a request that was made by the applicant prior to the end of the financial year 2002 whereby, on 20 May 2002, she requested relevant documentation be sent to her.  Whilst conceding the documentation was sent in response to that request by the Family Assistance Office, he submitted that, even at that late stage, no further information was given concerning the time-frame within which a claim had to be lodged.

9.      Mr Whitting advised the Tribunal that he and the applicant had lodged their claim for compensation from the Commonwealth in respect of the monies they had lost but said that, as yet, this matter had not been finalised.

Respondent’s Case

10. Mr Howard submitted that this was a matter which was to be determined in accordance with the terms of the FAA Act which admitted no discretion in relation to the extension of the time for making a claim beyond 30 June 2002. He submitted that, because the claim was out of time, it was ineffective in accordance with subsection 49J(2) of the FAA Act and that, as it was ineffective, it was deemed, by the terms of section 50 of the FAA Act, not to have been made.

11.     Mr Howard conceded that the Family Assistance Office had not published the claim date in its claim form notes (Exhibit 2) but submitted that various other avenues had been utilised by the Family Assistance Office during that year to make the information about the lodgement date available to the public.  He said that these comprised articles in various magazines, media releases, entries on the Family Assistance Office web site, posters sent to child care providers and newspaper advertisements in a wide range of newspapers including The Australian, Financial Review, Sydney Morning Herald, Canberra Times, Melbourne Age, Brisbane Courier Mail, Adelaide Advertiser, Perth West Australian, Hobart Mercury, NT News, Sydney Daily Telegraph and Melbourne Herald Sun (see T4).

Other Material

12.     After the hearing, written submissions from Mr Howard (dated 29 July 2003 and 21 August 2003) and the applicant (dated 12 July [sic] 2003, 12 August 2003 and 26 August 2003) were exchanged and copies were forwarded to the Tribunal.  Mr Howard provided copies of a “flyer” which had been sent to all approved child care centres in April 2002 for circulation to parents using those centres.  He also referred to an extract from a publication “Child Care News” produced by the respondent and which is also sent to approved child care centres throughout Australia.  He pointed out that each of those documents clearly nominated 28 June 2002 as the closing date for lodgment of a claim for child care benefit paid in 2000/2001. In the applicant’s responses, it was stated that the Balmoral Family Day Care Centre which had been utilised by her children had not received the documentation referred to by Mr Howard at the end of the financial year 2001. The applicant referred to a document entitled Parent Statement of Child Care Usage which had been provided by the child care centre and which she said had also been provided by the centre to the respondent on a quarterly basis. She said that this meant that the Family Assistance Office should have been aware of who was claiming a rebate and who was not. The applicant submitted that none of the means used by the respondent to advertise the closing date for the claim had been seen by her or her husband and that it was not enough for the Family Assistance Office to rely on other agencies, such as child care centres, to pass on information to parents.

Consideration

13. It is not disputed and I am satisfied that the claim by the applicant for child care benefit for the 2000/2001 financial year was made after the end of the 2002 financial year. This was on 22 July 2002. In accordance with subsection 49J(2) of the FAA Act, the claim is ineffective if it is not made before the end of the 2002 financial year. I am satisfied that the claim in this case was ineffective in accordance with that provision. I am also satisfied that, in accordance with section 50 of that Act, the claim was deemed not to have been made. In that situation, I am satisfied that the decision under review must be affirmed.

14.     Submissions were made on behalf of the applicant that the Tribunal should take some steps because of what was contended to be negligence or mal-administration on behalf of the Commonwealth agency.  Provision is made in regulation 9 of the Financial Management and Accountability Regulations 1997 for steps to be taken by the Commonwealth agency for the payment of compensation for detriment caused by defective administration.  However, that is not a matter over which the Tribunal has jurisdiction and the evidence before the Tribunal is to the effect that this matter has already been commenced by the applicant and is currently being considered by the respondent.  Indeed, Mr Howard submitted that the determination of the matter had been suspended pending the outcome of the Tribunal’s decision.  In that case, the Tribunal declines to make any recommendation beyond those matters over which it has jurisdiction.  

Decision

15.    The Tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .......................................................................................
  Associate

Date of Hearing  28 July 2003
Date of Decision  5 September 2003

For the Applicant  Mr Whitting
For the Respondent                  Mr Howard, Departmental Advocate