Editors --- "Family tax bene?t: cancellation; service of notice" [2010] SocSecRpr 41; (2010) 12(3) Social Security Reporter, Article 7

• TIRNOVA and SECRETARY TO THE DFHCSIA
• Background
• The law
• The submissions
• Formal decision

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Family tax benefit: cancellation; service of notice

TIRNOVA and SECRETARY TO THE DFHCSIA

(2010/589)

Decided: 10th August 2010 by A.K. Britton

Background

On 10 May 2006, Tirnova sent Centrelink an updated estimate of combined income for the 2006/2007 financial year. The estimate provided by Tirnova for herself was $47,000. This was recorded by Centrelink as $470,000.

Centrelink cancelled Tirnova’s FTB for the 2006/2007 financial year.

Centrelink claimed that Tirnova was sent a letter advising of the cancellation on 22 June 2006. Tirnova claimed that she did not receive this letter and requested a review of the decision. The decision was reviewed and affirmed by Centrelink and the SSAT.

The law

Section 109D of the A New Tax System (Family Assistance) (Administration) Act 1999(the Administration Act) sets out time limits for seeking review under

s.109A. In essence, the application must be made within 52 weeks of notification of the decision.

The key issue in this case related to when Tirnova was notified of the cancellation decision.

Section 224 of the Administration Act states:

Notice of decisions

(1) If a notice of a decision of an officer:

(a) affecting a person’s entitlement to be paid family assistance under the family assistance law; or

...

is:

...

(f) sent by prepaid post to the address of the person last know to the Secretary;

notice of the decision is taken, for the purposes of the family assistance law, to have been given to the person.

(2) Notice of a decision of an officer affecting or about a matter referred to in paragraph

(1)(a), (b), (c) or (ca) may be given to a person by properly addressing, prepaying and posting the document as a letter.

(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.

In addition s.29 of the Acts Interpretation Act 1901 states:

Meaning of service by post

(1) Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2) This Section does not affect the operation of Section 160 of the Evidence Act 1995.

The submissions

The Department argued that where a notice is sent by prepaid post, it is deemed to have been given when ordinarily delivered, unless Tirnova could prove on the balance of probabilities that she did not receive the notice.

The Department relied on a computer printout of the text of the cancellation letter. It argued that this was sufficient evidence that the notice of cancellation was sent to Tirnova. No other evidence was provided.

Tirnova argued that she did not receive written or oral notification of the decision to cancel her payment.

Did Tirnova receive notice of the decision to cancel family tax benefit?

The AAT analysed the cancellation letter and noted that:

• The original letter was not produced in evidence, nor was the copy. It found that the computer printout was far short of being an actual copy of the correspondence allegedly sent.

• There was nothing on the computer printout to indicate that it was sent by prepaid post. There was no postal receipt or affidavit of service.

• Centrelink did not provide any evidence about its practices in terms of despatching notices.

• It was common knowledge that postal articles have been known to go astray or not be received by the recipient. The existence of the computer printout in no way acted to counter this possibility.

• The family tax benefit payment was ‘financially significant’ for Tirnova and it would be unlikely that if she had received a notice she would not have queried this. Also, her evidence in terms of contacting Centrelink when she first became aware of the cancellation was consistent with Centrelink records.

Taking those factors into account, the Tribunal concluded that it could not be satisfied that Tirnova was notified of the cancellation decision. Consequently the 52-week time limit for seeking review did not begin until she was later notified of the decision in November 2009. The Tribunal concluded that the decision made on 26 June 2006 could be reviewed. The Tribunal did not take this matter further as Centrelink provided information after the hearing that even if her eligibility was to be reassessed she would not have been eligible for family tax benefit as her combined taxable income exceeded the threshold for payment. As Tirnova did not have the opportunity to comment on this information, the matter was remitted to the Department for reconsideration.

Formal decision

The decision made on 27 November 2006 to cancel family tax benefit was set aside and remitted to the Department for reconsideration.

[R.P.]