Andrews; Secretary, Department of Social Services and (Social services second review)

[2018] AATA 3197

Andrews; Secretary, Department of Social Services and (Social services second review) [2018] AATA 3197 (8 August 2018)

Division:                  GENERAL DIVISION

File Number(s):      2018/1526

Re:Secretary, Department of Social Services

APPLICANT

AndDianne Andrews

RESPONDENT

DECISION

Tribunal:  Bill Stefaniak AM RFD, Senior Member

Date:8 August 2018

Date of written reasons:        3 September 2018

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter:

1. The decision of the Social Services & Child Support Division Tribunal dated 8 February 2018 is set aside.

2. In substitution, it is decided that the Respondent owed a Newborn Supplement (NBS) Debt for the period 26 September 2016 to 29 November 2016 and a Family Tax Benefit (FTB) Debt for the period 12 November 2016 to 29 November 2016; and

3. the NBS Debt for the period 26 September 2016 to 29 November 2016 is waived pursuant to Section 101 the A New Tax System (Family Assistance) (Administration) Act 1999; and

4. the Applicant is to repay the sum of $577.76 to the Respondent as a result of the waiving of the NBS debt for overpayments already made by the Respondent to the Applicant.

5. It is further noted that the Respondent has paid in full the FTB debt she owed to the Applicant for the period 12 November 2016 to 29 November 2016

.........................[sgd].....................................

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Newborn Supplement – whether Applicant entitled to Newborn Supplement – parent for the purposes of Family Assistance Act – whether special circumstances exist – reviewable decision set aside and substituted

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999

A New Tax System (Family Assistance) Act 1999
Family Law Act 1975
Social Security Act 1991

WRITTEN REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

3 September 2018

Reasons for decision

1. This matter related to the question of recovery of a Family Tax Benefit debt (FTB) and Newborn Supplement debt (NBS) from the Respondent. The debt was initially calculated at $2,771.87 and related to the period 26 September 2016 to 29 November 2016 inclusive.

2. On 8 February 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal decided to vary the decision under review so that Mrs Andrews was required to repay only so much of the debt as represented overpayments of FTB and NBS in respect of the period after 11 November 2016 and the matter was remitted to the Secretary to recalculate the debt accordingly. The Secretary subsequently appealed that decision with this Tribunal.

3. At the time of hearing, the Respondent had re-payed some $1,260.50 to the Secretary, with the next payment due on 22 August 2018.

THE FACTS

1. The Respondent is the 72 year old great grandmother of twin boys that were born on 26 December 2015. At all relevant times the boys were less than 1 year old. She is currently receiving the Age Pension.

2. The Respondent had the boys placed in her care by the Director General of Community Services NSW (NSW Department of Family and Community Services). The boys were in her full-time care from 26 September 2016 to 11 November 2018, a period of 46 days (6 weeks and 4 days). On 30 November 2016 the Respondent informed Centrelink by phone that she had ceased caring for the boys on 11 November 2016.

3. The Respondent had applied for FTB on 7 October 2016 and in answering question 105 of the claim form which asked “Will you have this child in your care for at least 13 consecutive weeks?” The Respondent very truthfully and accurately answered “Not sure” for each boy.

4. The Applicant was granted FTB and NBS with effect from 26 September 2016

5. After notifying Centrelink on 30 November 2016 that the twins were no longer in her care, Centrelink sought repayment of FTB payments made to the Applicant for the period   12 November 2016 to 29 November 2016.  There is no dispute about this overpayment by either party.

6. The component of the debt that is in dispute relates to the NBS received by the Respondent. This was raised by the Applicant for the period 26 September 2016 to 29 November 2016 because the twins had not been in the Respondent’s care for 13 consecutive weeks.

THE LAW

1. During the hearing, the Applicant conceded after hearing the Respondent’s sworn evidence that section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 applied in this case and the Secretary would waive the NBS debt in its entirety due to “special circumstances”  that applied in this case.

2. Section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 provides for a discretion to waive all or part of a debt in ‘special circumstances’ if the three elements in section 101 are satisfied:

   (a) the debt did not result wholly or partly from the debtor or another person knowingly:

   (i) making a false statement or a false representation; or

   (ii) failing or omitting to comply with a provision of the family assistance law; and

   (b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

   (c) it is more appropriate to waive than to write off the debt or part of the debt.

3. The Respondent conceded sole administrative error[1] and accepted that the Applicant at all times acted in good faith, was truthful and stepped in at a crucial time to care for the two little boys. Legally, the Secretary made an error in paying the Applicant NBS as she was an individual and not entitled to the supplement because the boys were not in her care for 13 consecutive weeks. It was therefore deemed appropriate to waive the NBS debt in full.

   [1] Tribunal Documents at p. 121.

4. Naturally the Respondent was very happy to agree to this and the Tribunal agrees that special circumstances do apply because of the above and Section 101 is correctly invoked.

5. The net effect of this is that the Applicant has been overpaid by the Respondent who now is only responsible for repaying the FTB paid from   12 November to 29 November, which she has done. She is also now entitled to a reimbursement of $577.76 from the Applicant as she has repaid too much. The Tribunal notes this may occur as early as 22 August 2018 which is the next due date for her age pension payments. 

ELIGIBILITY FOR NEWBORN SUPPLEMENT

1. On 20 March 2018, the Secretary applied for a second level review of the AAT1’s decision on the ground that the AAT1 erred by finding that the term “parent” in subclause 35A(2) in Schedule 1 of the A New Tax System (Family Assistance) Act 1999 includes Mrs Andrews as a foster parent.

2. The Tribunal accepts the Applicant’s submission on the law in regards to the NBS contained in paragraphs 5.1 to 5.36 of the Applicant’s Statement of Facts, Issues and Contentions dated 4 July 2018 and adopts paragraphs 5.8 to 5.36.

3. In a nutshell, the Applicant argued that the Social Services and Child Support Division of the Administrative Appeals Tribunal erred in coming to the conclusion it did because the Respondent was  a carer for the boys under State law and not a parent or Relationship parent for the purposes of Commonwealth law. She was “an individual” under Commonwealth law and as such could not qualify for NBS until she had had the boys in her care for over 13 consecutive weeks.

4. Had she been in the category of “Parent” or “Relationship parent “she would be entitled to the payment from day one on 26 September 2018.

5. The Social Services and Child Support Division of the Administrative Appeals Tribunal erred in finding that the term “parent” in subclause 35A(2) in Schedule 1 of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) includes a foster parent.   

6. As the Applicant ably submitted, the Commonwealth Acts are clear that individuals who are not parents/relationship parents cannot get the NBS until after they have had the subject child in their care for 13 consecutive weeks.

7. In essence, a parent/relationship parent includes anyone who is classed as a parent in accordance with the laws applicable to the institution of marriage. Accordingly, the child has to be the natural child of a couple, an adopted child of a couple, a step child, an IVF child or, a surrogate child .The parents can be either married (including same-sex unions) or in a de facto relationship.

8. The only time “foster child “is mentioned specifically in Commonwealth legislation is in section 1207A of the Social Security Act 1991, which deals with “Means test treatment of private companies and private trusts.”

9. The full definition in section 1207A of the Social Security Act 1991 provides:

   child: without limiting who is a child of a person for the purposes of this Part, each of the following is the child of a person:

   (a) an adopted child, step-child or foster child of the person;

   (b) someone who is a child of the person within the meaning of the Family law Act 1975”

10. A foster child is not a child under the Family Law Act 1975 and the above subsection is evidence of that Section 1207A of the Social Security Act 1991  is the only place where foster child is mentioned and in other parts of the Act and in other Commonwealth  Acts  and regulations it is specifically left out in definitions of “child”

11. Foster children are covered under State legislation in NSW. FaCTs are responsible for allocating children in need to carers. The carers are often described as foster parents as they stand in loco parentis to the child.

12. Usually, there are two categories of carers; kinship carers such as the respondent who are related to the child but who are not the child’s parent or relationship parent and other carers who are not related to the child. Under Commonwealth law they are “individuals”

13. A great grandmother is a kinship carer, as would be a grandmother, an aunt or a cousin.

REPAYMENT OF THE NBS

1. As the Respondent only had the boys in her care for 6 weeks and 4 days (46 days) she is not entitled to any NBS. It is not a question of her having to repay the money she received from 11 November to 29 November 2016, because she was not entitled to receive any money at all as she did not have the boys for 13 consecutive weeks. She could only be entitled to it after 13 weeks had expired.

2. It is a different situation to FTB which she was entitled to from day one (26 September 2016) and ceased to be entitled to on 11 November 2016 when the boys left her care.

3. Accordingly, as the NBS debt has been waived due to special circumstances, the Applicant is entitled to keep all the money she received between 26 September 2016 and 29 November 2016 (9 weeks and 2 days) in respect to NBS as the period did not amount to 13 weeks.

4. As was mentioned at the hearing, the only written or spoken reference to how long the Applicant was going to have the children for was her answer to question 105 where she ticked “Not sure”. At all times she acted truthfully in terms of her interactions with Centrelink and  stepped into the breach at very short notice to look after her 2 needy great grandsons until such time as a longer  term carer ( an aunt  in her 50’s as it turned out ) could be found  .

5. She should never had been paid the NBS in the circumstances as she was an individual and not  a parent /relationship parent  and she did not know how long she would have the children and as it turned out, only had them in her care for 46 days.

DECISION 

1. Accordingly ,the following orders will be made:

   1)The decision of the Social Services & Child Support Division Tribunal dated 8 February 2018 is set aside.

   2)In substitution, it is decided that the Respondent owed a Newborn Supplement (NBS) Debt for the period 26 September 2016 to 29 November 2016 and a Family Tax Benefit (FTB) Debt for the period 12 November 2016 to 29 November 2016; and

   3)the NBS Debt for the period 26 September 2016 to 29 November 2016 is waived pursuant to Section 101 the A New Tax System (Family Assistance) (Administration) Act 1999; and

   4)the Applicant is to repay the sum of $577.76 to the Respondent as a result of the waiving of the NBS debt for overpayments already made by the Respondent to the Applicant.

   5)It is further noted that the Respondent has paid in full the FTB debt she owed to the Applicant for the period 12 November 2016 to 29 November 2016.

I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

..............................[sgd]..........................................

Associate

Dated: 3 September 2018

Date(s) of hearing:	8 August 2018
Solicitors for the Applicant:	Dr S Thompson
Respondent:	Attended by phone