Pitcher and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 109 (18 February 2009)

Last Updated: 18 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 109

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3054

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ROBBIE PITCHER

Applicant

And

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

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 18 February 2009

Place Melbourne

Decision

The decision of the Social Security Appeals Tribunal made on 19 June 2008 is affirmed.

(Sgd) John Handley
Senior Member

SOCIAL SECURITY - Applicant has custody of two children – notified by a letter from Centrelink in 2002 he must take reasonable action to obtain maintenance - FTB payments then reduced – applicant did not make any application until 2007 and FTB payments then increased – claim for arrears between 2002 and 2007 – whether reasonable to take maintenance action against other parent receiving a pension – whether letter in 2002 was a decision – decision affirmed

A New Tax System (Family Assistance) Act 1999 (Cth) s 58

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 109E(1)(f), s 224, s 224(1)(f)

Administrative Appeals Tribunal Act 1975 (Cth) s 3(3), s 3(6), s 3(d) and s 3(e)

REASONS FOR DECISION

18 February 2009

Mr John Handley, Senior Member

1. Mr Pitcher, the Applicant in these proceedings, applies to review a decision made by an Authorised Review Officer (ARO) of Centrelink which was subsequently affirmed by the Social Security Appeals Tribunal (SSAT) to deny payment of Family Tax Benefit (FTB) at a rate greater than the rate that was being paid.
2. The circumstances of the application may be briefly described as follows.
3. Mr Pitcher is the father of two daughters, Robyn born 4 June 1997 and Kayla born 6 March 1995.
4. Legislation entitling the parents in certain circumstances to FTB commenced its operation on 1 July 2000. The legislation is known as A New Tax System (Family Assistance) Act 1999 (the FTB Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (the FTB Administration Act). The rate of FTB payable is, in part, dependent upon whether a single parent is entitled to claim or apply for maintenance from the other parent and whether it is reasonable to do so.
5. At the hearing of the application which was convened in Bendigo, Mr Carson on behalf of the Respondent, advised that by reason of the overwhelming volume of applications made to Centrelink for FTB after 1 July 2000, it was decided to impose a moratorium against insistence on persons making maintenance applications. Rather, Centrelink paid FTB at a rate dependent on the number of dependent children only.
6. Prior to 25 October 2002, the Applicant was receiving FTB calculated at a rate payable by reason of the dependency upon him of his two daughters Kayla and Robyn. At that time maintenance action had been taken by him with respect to Kayla but not Robyn.
7. On 25 October 2002, Centrelink wrote to Mr Pitcher and advised him that in order to avoid being paid the base rate of FTB, he must taken reasonable steps to get child support from your child’s other parent. The letter also recorded that records observed by Centrelink indicated that no such action had been taken with respect to Robyn. The letter concluded by advising if you do not get in touch with us by 22 November 2002, we cannot pay you more than the base rate of FTB for Robyn.
8. On 22 November 2002 (when the moratorium period expired) and not having been advised by the Applicant that he had taken maintenance action, Centrelink decided to reduce the rate of FTB previously being paid in the absence of any advice or evidence that maintenance action had been taken.
9. On 19 December 2007, the Applicant applied for a maintenance assessment with respect to Robyn from the Child Support Agency (CSA). From that date, Centrelink has decided to increase the rate of FTB payable.
10. By this application the Applicant seeks arrears of FTB at a rate being the difference between the base rate and the rate that would have been payable with respect to Robyn for the period 22 November 2002 to 18 December 2007.

THE LEGISLATION

11. Section 58 of the FTB Act provides that the rate of FTB is to be calculated having regard to the Rate Calculator found in Schedule 1. Clause 10 of Division 2 of Schedule 1 provides that the FTB rate shall be the base rate if a parent does not take reasonable action to obtain maintenance despite there being an entitlement to claim or apply for maintenance and it is considered reasonable that such a claim should be made.
12. Section 224 of the FTB Administration Act provides that Notice of a Decision with respect to an entitlement of FTB may be given by post if left at the person’s last place of address and sent prepaid.
13. In the event that a person succeeds in setting aside or varying a decision with respect to the rate of FTB that has been paid and the application is made more than 52 weeks after a person was given notice of the original decision with respect to the rate of FTB payment, the entitlement to arrears is confined to the first day of the income year before the income year in which the application was made . . . (s 109E(1)(f)) (FTB Administration Act).

CONCLUSION AND REASONS FOR DECISION

14. Having regard to the above legislation I am satisfied that at October 2002, the Applicant then resided at an address in Rosebud. That address is found also at T12, page 31 being a summary of the addresses where the Applicant has resided from time to time and which had been notified to Centrelink. The address appearing in that list is the same address at the commencement of the letter which gave notice to him of the requirement to take maintenance action found at T5, page 15.
15. For the purposes of s 109E above any entitlement of the Applicant to arrears of FTB will not be payable from the date that the rate of FTB was reduced in November 2002. The entitlement will be in accordance with the above provisions which will have the effect of giving an entitlement from 1 July 2006 only (it being the first day of the income year before the income year in which the application was made).
16. In evidence the Applicant said he could not recall ever receiving the letter of 25 October 2002. He did agree that at that time he lived at the Rosebud address. I am satisfied that the letter was correctly addressed and having regard to s 224(1)(f) I am satisfied that the letter was given to him.
17. Section 224 refers to notice of a decision of an officer. The letter of 25 October 2002, in my view was a decision as defined. The FTB Administration Act adopts the meaning of decision as given by the Administrative Appeals Tribunal Act 1975 (the AAT Act). At s 3(3) of the AAT Act, a decision includes a reference to a direction (s 3(6)), imposing a condition (s 3(d)) and making a demand or requirement (s 3(e)).
18. The letter of 25 October 2002 explains the requirement to take reasonable steps to obtain maintenance and concludes (T-documents page 15):

If you are not receiving child support for Robyn you need to take action to get child support. There may be reasons why you cannot get any child support from their other parent. If this is the case, you will need to talk to our social worker.
If you do not get in touch with us by 22 November 2002, we cannot pay you more than the base rate of Family Tax Benefit Part A for Robyn.

19. The paragraph reproduced above is a decision within the meaning described earlier. It is a requirement by the legislation concerning the quantum of payment and imposes a condition of entitlement.
20. The letter was sent to the Applicant by Centrelink and was a decision of an officer as defined by s 3 of the FTB Administration Act, being an employee of an agency. An agency as defined in part includes the Commonwealth Services Delivery Agency (Centrelink).
21. The Applicant said that he understood that his FTB payment was reduced in late 2002 because Robyn then turned 6 years of age. He understood that payments were reduced when children reached that age but could not recall whether the payments made to Kayla were also reduced when she turned 6.
22. Between 2002 and 2007, the Applicant said that he made a number of personal and telephone contacts with Centrelink but was not ever advised that he should make a maintenance application nor was he ever advised that his payments were being made at a rate below that to which he was entitled but for the making of a maintenance application. He said it was not until he was interviewed in connection with his employment obligations as a Centrelink recipient that the penny dropped. He said that he was then advised by a Centrelink officer that he was not receiving a greater rate of FTB because he had not made a maintenance application.
23. It appears from the T-documents that the Applicant did make a number of representations to Centrelink but they were in association with his Parenting Payments (refer T-documents at pages 67 – 77), however there is a reference of a telephone enquiry on 17 October 2007 (page 73) where the FTB entitlements were discussed and an estimate was given of the Applicant’s income.
24. The Applicant said that he should have been advised between 2002 and 2007 by Centrelink that his FTB payments had been reduced because a maintenance application had not been made. He said that he did not initially make a maintenance application to Robyn’s mother because she was a single parent receiving a Centrelink pension. It was his belief that she had no capacity to pay maintenance. Additionally he said that Centrelink would have known of her financial circumstances and would be aware that she was not in a position to pay maintenance.
25. Mr Carson on behalf of the Respondent submitted that Clause 10 of Schedule 1 is concerned with the making of a maintenance application, not with receipt of maintenance. He said that had a maintenance application been made, it was likely that Robyn’s mother would have been assessed as having a capacity, if only minimal, to pay some maintenance which would have been withdrawn from her pension payment.
26. I am satisfied that having been advised by letter in 2002 of the consequences of not making a maintenance application, Centrelink lawfully reduced the FTB payment. Thereafter, the Applicant did not make any maintenance application until 2007. When he did the FTB payment increased. Between 2002 and 2007, the enquiries made of Centrelink were primarily concerned with Parenting Payment and it would appear that specific enquiry with respect to the rate of FTB payment was not made until towards the end of 2007. Centrelink was entitled to make the FTB payment at the base rate, because such a maintenance application had not been undertaken by the Applicant. I agree with the submissions made by Mr Carson that Schedule 1 Clause 10 is concerned with the making of a maintenance application and not with the receipt of benefit. From the submissions also made by him, it is likely that Centrelink would have assessed Robyn’s mother as having a capacity to make a maintenance payment which would have been withdrawn from her pension payment.
27. In the circumstances I am satisfied that the Applicant was entitled to claim or apply for maintenance and it was reasonable for him to take action to obtain maintenance. In the circumstances described above I am satisfied that it was not reasonable for the Applicant not to take action to obtain maintenance (refer Schedule 1 Clause 10). It follows that the Respondent was lawfully entitled to reduce the FTB payment in 2002 but was obliged, as it did, to increase the FTB payment in 2007 when the maintenance application was made.
28. In the circumstances I am not satisfied that there is any entitlement to arrears of FTB before 2007. Even if the Applicant was successful in this review, his arrears would be confined to a period commencing on 1 July 2006 (refer s 109E(1)(f) FTB Administration Act). The decision under review must be affirmed.
29. The Applicant also alleged that Centrelink owed him a duty of care. He said that Centrelink was obliged to look after people and look after me and should have advised him by written notice to make contact so that he could be advised of his proper entitlements.
30. I am satisfied that the Applicant was advised of his entitlements. He was put on notice in October 2002 of the consequences of not making a maintenance application. He acted to his detriment by not claiming maintenance because he assumed that the exercise would be futile. He was aware that a maintenance assessment had been made against him in the late 1990s when he was in receipt of unemployment benefit where Centrelink proposed to withdraw $20.00 per month from his payments. It appears that the payments were not ever made because he successfully applied for an Order for custody. Nonetheless the Applicant had knowledge that maintenance assessments can be made against persons in receipt of Centrelink payments.
31. I am satisfied that Centrelink did put the Applicant on notice of the consequences of not making a maintenance application and it would appear that enquiries made by him of Centrelink between 2002 and 2007 were principally concerned with Parenting Payment. When enquiry was specifically directed towards the rate of FTB, the Applicant was advised of his proper entitlement and his obligations. He made a maintenance application and payments were restored to the appropriate rate.
32. In the circumstances it would appear that Centrelink did at all relevant times act properly.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed: Grace Carney Personal Assistant

Date of Hearing 10 February 2009

Date of Decision 18 February 2009

Solicitor for the Applicant Applicant Self Represented

Departmental Advocate Mr Andrew Carson, Centrelink