Gresswell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 28 (12 January 2011)

Last Updated: 25 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3900

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JULIE DENISE GRESSWELL

Applicant

And

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

Respondent

DECISION

Tribunal

Senior Member R W Dunne

Date 12 January 2011

Place Adelaide

Decision

For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.

..............................................
R W DUNNE
(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances - Family Tax Benefit – claims for annual lump sum payment of Family Tax Benefit – claims lodged out of time – whether Tribunal has discretion to allow claims out of time – decision under review affirmed

A New Tax System (Family Assistance) (Administration) Act 1999 ss 5, 7(1)(b), 10(2)
Re Crook and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1253

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

REASONS FOR DECISION

12 January 2011

Senior Member R W Dunne

INTRODUCTION

1. The applicant, Julie Gresswell, has requested written reasons for my decision which I delivered orally at the conclusion of the hearing in this matter. The following is an edited version of my reasons. However, in order to put my conclusion and findings in context, I will now supplement my oral reasons by referring to certain background facts which were not in contention, and to the relevant legislative scheme.
2. Mrs Gresswell received a Family Tax Benefit (“FTB”) paid as a lump sum for the 2003/2004 financial year, which was paid through the taxation system. On 19 February 2009, she lodged claims for annual lump sum payment of FTB for the 2004/2005 and 2005/2006 financial years. The claims were rejected by the Family Assistance Office (“Centrelink”) as they were considered to be lodged out of time. Following her request for a review, the decision to reject her claims was affirmed by an Authorised Review Officer and the Social Security Appeals Tribunal (“SSAT”). Mrs Gresswell has applied to this Tribunal for review of the decision of the SSAT.
3. At the hearing before me, Mrs Gresswell represented herself (with the assistance of her husband, Mr Stewart Gresswell) and Ms Lee-Anne Odgers (from Centrelink Advocacy Branch) appeared for the respondent, Centrelink. Pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, I received into evidence the T documents (Exhibit R1) and the supplementary T documents (Exhibit R2).

ISSUE FOR THE TRIBUNAL

4. The issue for the Tribunal is whether the claims for FTB for the 2004/2005 and the 2005/2006 financial years were lodged within the time permitted by the family assistance law.

LEGISLATION

5. The legislation that is relevant in this case is found within what is often referred to as the family assistance law, in particular, the A New Tax System (Family Assistance) (Administration) Act 1999 (“Administration Act”). Subdivision A of Division 1 of Part 3 of the Administration Act deals with the making of FTB claims. Under s 5 of the Administration Act, which is part of Subdivision A, the only way that a person can become entitled to be paid FTB is to make a claim in accordance with the Subdivision. Section 7 of the Administration Act explains that an individual may make a claim:

(a) for payment of FTB by instalment; or

(b) for an annual lump sum payment of FTB for a past period. (The reference to “past period” means a prior period in respect of which a person is entitled to make a claim for FTB.)

6. Section 10 of the Administration Act (which is also part of Subdivision A) contains restrictions on claims for payment of FTB for a past period. Section 10 relevantly reads:

“10 Restrictions on claims for payment of family tax benefit for a past period
...
(2) A claim for payment of family tax benefit for a past period is not effective 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 after the end of the 2 income years immediately following that income year.
...”

BACKGROUND

7. The background facts in this case are not materially in dispute. Mrs Gresswell received FTB paid as a lump sum for the 2003/2004 financial year. Her claim was lodged through her 2003/2004 taxation return. On 19 February 2009, she lodged claims for lump sum payment of FTB for the 2004/2005 and the 2005/2006 financial years. On 26 February 2009, she was advised by Centrelink that FTB for the 2004/2005 and the 2005/2006 financial years could not be paid as her claims were lodged too late.

EVIDENCE

8. Mrs Gresswell’s evidence was that she had received a lump sum payment of FTB for the 2003/2004 financial year which was paid as part of her 2003/2004 tax refund contained in her assessment for the year ended 30 June 2004. The 2003/2004 notice of assessment issued on 14 January 2005. She said she had used an accountant to lodge her claim for FTB for the 2003/2004 financial year through her taxation return. She assumed that, when she completed her taxation returns, her claims for FTB would be lodged through the taxation system, following the claim (and the payment for FTB that had been received) for the 2003/2004 financial year. She had been informed by the Family Assistance Office that, as her family circumstances had not changed and as she was already “registered” from the previous 2003/2004 financial year, that data would be used to calculate FTB once her taxation returns were lodged.
9. I questioned Mrs Gresswell about her notices of assessment for the year ended 30 June 2005 (issued on 9 June 2006) and for the year ended 30 June 2006 (issued on 11 May 2007). She acknowledged that the taxation refunds that she had received for those two years of income were considerably less than the refund she had received for the year ended 30 June 2004. However, she believed that she would receive payment for FTB for the 2004/2005 and 2005/2006 financial years, separately from the tax refunds she had received for those years.

CONSIDERATION

Were the claims for FTB for the 2004/2005 and the 2005/2006 financial years lodged within the time permitted by the family assistance law?

10. Mrs Gresswell correctly received a lump sum payment of FTB for the 2003/2004 financial year. In analysing her assessment for the year ended 30 June 2004, the notice included the following tax offsets and other credits and baby bonus:

Label G: Low Income Tax Offset $97.88
Franking Tax Offset $181.00

Baby Bonus $1,058.00

A refund of $4,384.06 formed part of the assessment, which obviously included Mrs Gresswell’s FTB entitlement for the 2003/2004 financial year.

11. Unfortunately, Mrs Gresswell was unable to provide me with a copy of her taxation return for the year ended 30 June 2004. It was anticipated that, had a copy of the return been furnished, it would have been possible to identify the manner in which Mrs Gresswell’s accountant had made the claim for FTB, as part of the return, for the 2003/2004 financial year. In reviewing the taxation returns for the years ended 30 June 2005 and 30 June 2006 that Mrs Gresswell had furnished to the Tribunal, it became apparent that no claims for FTB had been made by her accountant in those returns. As a result of these omissions and the misinformation that appears to have been provided to her by the Family Assistance Office, claims for FTB for the 2004/2005 and 2005/2006 financial years were not made.
12. Pursuant to s 7 of the Administration Act, Mrs Gresswell’s claims for annual lump sum payment of FTB for the 2004/2005 and 2005/2006 financial years were claims for past periods. Under s 10 of the Administration Act, these claims were for periods that did not fall wholly within one income year, but were made after the end of two income years immediately following the relevant income years. In other words, having been made on 19 February 2009, the claims for lump sum payment of FTB for the 2004/2005 and 2005/2006 financial years were made more than two income years after those relevant financial years.
13. In applying to this Tribunal, Mrs Gresswell is seeking an extension of time to enable her claims for the payment of FTB for 2004/2005 and 2005/2006 financial years to be lodged late. Regrettably, I have no discretion under the Administration Act to grant the extension of time that is being sought. Similar circumstances have arisen before other Tribunals when faced with claims for FTB lodged late. In Re Crook and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1253, Dr Christie, Member, said (at paragraphs 15 and 16):

“15. The only finding I can make on the proved facts before me is that Mr Crook’s claim for past FTB payments for the 2003/2004 financial year was made on 12 July 2006 – twelve days after the period when a claim could be made. This means Mr Crook’s claim was out of time and so he was not entitled to receive past payments for FTB for 2003/2004, as a matter of law.
16. It is also unfortunate for Mr Crook that the FAA Act does not give me any discretion to extend the time limits for lodging an “effective claim” for FTB for 2003/2004.”

14. Moreover, in Re Fagan and Secretary, Department of Family, Community Services and Indigenous Affairs [2007] AATA 2038, Dr Campbell, Member, said (at paragraph 21):

“21. I note the absence of any discretion available to a decision-maker in the nominated statutory circumstances that I have outlined. In such circumstances, Ms Fagan’s claim for a lump sum payment of FTB for financial year 2002/2003 must be denied, for failure to lodge the claim within the defined statutory time frame (30 June 2005) results in a claim which is not effective. With such findings, the decision under review is affirmed.”

15. The circumstances in which Mrs Gresswell now finds herself are most regrettable and I sympathise with her. However, I am simply not empowered to grant her the relief she seeks.
16. During the course of the hearing, Ms Odgers referred me to the supplementary T documents (Exhibit R2) and to the unsuccessful application for an act of grace payment that Mrs Gresswell had made in respect of her late FTB claims. Ms Odgers suggested that Mrs Gresswell should make a claim under the Compensation for Detriment caused by Defective Administration scheme (“CDDA”), and she offered to instigate the claim. I strongly support Ms Odger’s suggestion. Given the new material that Mrs Gresswell has also received from Centrelink, I suggest a further application for an act of grace payment, after the CDDA claim has been dealt with, may be warranted.

DECISION

17. For the reasons outlined above and given orally at the hearing of this matter, the Tribunal affirms the decision under review.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed: .............J Coulthard.........................................

Associate

Date of Hearing 12 January 2011

Date of Decision 12 January 2011

Advocate for the Applicant Self-represented

Advocate for the Respondent Ms L Odgers

Centrelink Advocacy Branch