Editors --- "Child care benefit and child care rebate: whether special circumstances prevented applicant seeking review within 52 weeks" [2014] SocSecRpr 1; (2014) 16(1) Social Security Reporter, Article 1

• MCCORMACK and SECRETARY to the DEEWR
• Background
• Legislation
• Issue
• Evidence
• Consideration of the issues
• Formal decision

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Child care benefit and child care rebate: whether special circumstances prevented applicant seeking review within 52 weeks

MCCORMACK and SECRETARY to the DEEWR

(2013/647)

Decided: 12th September 2013 by N Bell

Background

McCormack’s daughter was born in February 2007. On 26 August 2008 she claimed childcare benefit and childcare rebate in respect of her daughter and it was granted for up to 24 hours per week of care. On 1 August 2011 she requested a review of this decision and Centrelink decided she was entitled to up to 50 hours per week of care because of her disabilities. The decision took effect from 1 July 2010. McCormack asked for the decision to take effect from the date of the original decision, 29 August 2008. This was rejected and McCormack sought a review of this decision.

Legislation

Section 109D of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Act) provides that, generally, a person must request a review within 52 weeks of being notified of a decision.

Section 64EA of the Act provides that where, in a case such as this, an application for review is made after the end of the income year following the one in which the original decision was made, any variation of the original decision only has effect from the start of the income year before the one in which the application for review was made. In this case, the relevant date of effect was 1 July 2010.

Section 109D(2) recognises that there may be special circumstances that prevent a person from making an application for review of a decision within 52 weeks of being notified of an original decision. In such circumstances the provision allows for an application for review to be made after the end of 52 weeks.

Issue

The issue in this case was whether McCormack’s circumstances were special and prevented her from making an application for review within 52 weeks of being notified of the original decision.

Evidence

McCormack gave evidence that following a severe spinal injury in 2006 her mobility was affected and she suffered intense pain. She had surgery in 2007 and was prescribed morphine. She suffered depression, mixed with bouts of anxiety, until the end of 2009. During this period she had no sense of how her rent or bills got paid. She was having suicidal thoughts. She and her husband had separated, but he stayed nearby to help with their child and to care as best he could for her.

McCormack recalled telephoning Centrelink in August 2008 to find out what payments she could obtain in relation to her child. She was given information including advice that, because she and her husband were not both working, she could not obtain the full 50% childcare rebate. McCormack recalled telling Centrelink that she was disabled but she said that in the state she was in she simply accepted what she was told until she saw her accountant to have her tax done in 2011 and he questioned why she was not getting the 50% child care rebate.

McCormack’s ex-husband gave evidence of her serious physical and mental health issues throughout 2007 and 2008 leading to their separation in July 2008. He told the Tribunal all her bills were addressed to him and he made sure rent and other necessities were paid. He did not read her Centrelink letters. He gave evidence that had his wife read and understood the letter of 29 August 2008 she would have raised it with him for assistance in dealing with it.

Ms McCormack’s general practitioner Dr Young gave the following evidence:

• McCormack had suffered a lumbar spine injury in 2007;

• she had become reliant on very strong narcotics for pain relief;

• a dosage of narcotic at the level McCormack was taking affects a person’s ability to think and reason;

• McCormack developed severe depression throughout 2008 and 2009 and the combination of narcotics and severe depression affected her cognitive capacity;

• Dr Young thought it likely that her husband was assisting her in her dealings with Centrelink and doubted very much that McCormack understood matters fully at that stage as her comprehension was impaired.

Consideration of the issues

The Secretary submitted that the fact McCormack had made contact with Centrelink on a number of occasions throughout 2008 and had requested a review of another decision in 2009 showed she was not prevented from requesting a review of the August 2008 decision.

The Tribunal considered the evidence of McCormack’s seriously impaired physical and mental state from August 2008 to August 2009 was persuasive. The

Tribunal noted that the decision sought to be reviewed in 2009 was a decision to suspend her parenting payment which radically affected her income and that Mr

McCormack assisted her to request this review. The Tribunal noted that this was not evidence of her ability to exercise her rights in relation to a decision about an ancillary payment made in 2008.

The Tribunal considered that in the relevant period McCormack’s physical and mental condition created circumstances that prevented her from making an application under s.109A of the Act for review of the August 2008 decision and she should be permitted to make an application for review of that decision up to and including 1 August 2011 in accordance with s.109D(2) of the Act.

Formal decision

The decision was set aside and in substitution a decision was made that McCormack should be paid arrears of child care benefit and child care rebate asif she had requested a review within 52 weeks of the decision having been made.

[C.E.]