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

Bai and Secretary, Department of Social Services (Social services second review) [2018] AATA 1247 (8 May 2018)
Division:GENERAL DIVISION
File Number: 2017/0691
2017/0692

Re:Xuexia Bai
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:8 May 2018
Place:Sydney

The Tribunal affirms the decisions under review.
...........................[sgd].............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – cancellation of carer payment – cancellation of carer allowance with carer supplement – debt raised for carer payment and carer allowance – whether the carer payment and carer allowance were correctly cancelled – whether the Applicant was overpaid for the relevant period – whether the overpayment is a debt owed to the Commonwealth – whether all or part of the debt should be written off or waived – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 198, 954, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth), ss 68, 72
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
8 May 2018
The reviewable decision

Ms Bai seeks the review of the decision to cancel her carer payment (CP) (file number 2017/0692) and carer allowance (CA) with carer supplement (file number 2017/0691), and to raise and recover a CP debt of $25,319.92 and a CA debt (with carer supplement) of $4,820.27 for the period of 28 July 2014 to 30 November 2015 (the relevant period).
The Department of Social Services (the Department) raised the CP debt of $25,319.92 on 13 February 2016 and the CA with carer supplement debt of $4,820.27 on 15 February 2016.
On 27 May 2016, an authorised review officer (ARO) of the Department affirmed the Department's decisions.
On 9 January 2017, the Social Security and Child Support Division of this Tribunal (AAT1) affirmed the Department's decisions.
On 8 February 2017, the Applicant made an application to this Division, the General Division, of this Tribunal for second review of the decisions.
The issues to be decided
The issues to be decided in this case are whether:
(a)the Applicant's CP and CA were correctly cancelled;
(b)the Applicant has been overpaid CP and CA for the relevant period;
(c)the overpayment is a debt owed to the Commonwealth; and
(d)all or part of the debt should be written off or waived.
Background facts
The Applicant was born in 1955 and her partner was born in 1950. She arrived in Australia on 17 April 2010. Her partner had lived and worked here for many years before that.
On 13 November 2012, the Applicant was granted CA from 14 September 2012 for her partner.
On 23 January 2013, the Applicant was granted CP from 18 December 2012. The carer supplement was added on 13 July 2015.
The Applicant’s partner has had two “Medical Adviser’s Reports” prepared for the purpose of applying for a carer visa for his daughter, in August 2013 and January 2015. He satisfied the medical criteria on both occasions. The second was necessary because the validity of the first had expired.
On 25 July 2014 and 11 December 2015, the Applicant contacted Centrelink about CP.
On 14 December 2015, the Applicant attended Centrelink's Campsie office and reported that she had been separated from her husband and had stopped providing care for him since July 2014 but did not know that she had to notify Centrelink as she was too busy with divorce. She indicated that she was no longer living with her husband at the Roselands address. She also inquired about Newstart Allowance.
A letter dated 14 December 2015 advised the Applicant that here carer payment had been suspended “pending enquiries about your future entitlement”. Notice of cancellation of the carer allowance was dated 16 December 2015.
On 16 December 2015, the Applicant attended Centrelink's Campsie office and:
(a)reported that she had been separated from her husband since 28 July 2014;
(b)said that she had not reported the cessation of caring earlier, as she had been concentrating on divorcing her husband; and
(c)Inquired about a newstart allowance claim.
On 16 December 2015, the Applicant lodged a claim for Newstart Allowance, in which she stated that her home address was in Campsie and her relationship status was "separated" since 28 July 2014. On the same day, she lodged a separation details form listing Campsie as her "permanent address", Roselands as the home of her “former partner'', and 28 July 2014 at the date the relationship ended.
On 31 December 2015, the Applicant attended Centrelink's Campsie office and inquired about a widow allowance claim. She provided a bank statement for a joint account with her partner addressed to the Roselands address, for the period 6 November 2015 to 2 December 2015, and an application for divorce signed by her and her partner on 18 November 2015, in support of an assertion that she was divorced, but Centrelink left the record reflecting the Applicant's status as "separated" and requested a divorce certificate. She lodged a claim for widow allowance on the same day, listing Campsie as her permanent address since 28 July 2014, and Roselands as the address of her 'former partner".
On 12 January 2016, the Applicant lodged with Centrelink an application for divorce that had been filed with the Federal Circuit Court of Australia on 7 January 2016. It stated that the date of separation was 28 July 2014, her residential address is Campsie, and they married in China on 16 April 2009. The court date was 17 March 2016.
A letter dated 14 January 2016 notified the Applicant that she had been granted Widow Allowance from 13 January 2016. The letter included information about what the Applicant had to tell the Department about changes in her circumstances.
On 9 February 2016, the Applicant informed Centrelink that she never lived at the Campsie address, which was just her postal address, and that she actually lived at various places from 24 July 2014 until 21 January 2016, including Roselands where her ex-partner lives. She also said that she did not pay rent at either Campsie or Roselands and slept on the lounge at both places. She said that she was living at a Canterbury address and had been living there since December 2015 and paid $125 per week. She did not know the names of the other people who lived there. The Applicant said that Campsie was a rental property and the main tenant was “Arlong”.
In the case note of the conversation between the Applicant and Centrelink on 9 February 2016, the case officer wrote that “verification was required” following the above conversation and set out the reason:
Customer could not provide coherent consistent information during contact and customer also was hesitant to provide detailed information as she did not want to get people in trouble.
On 15 February 2016, Centrelink sent two letters to the Applicant at the Canterbury address notifying her of the CP and CA debts.
On 2 March 2016, the Applicant provided Centrelink with a rent certificate for the Canterbury address, and indicated that she began living at that address on 23 January 2016. She also provided an accommodation certificate that stated that she had been living at the Canterbury address since 1 November 2015. Consequently, a debt was raised for rent assistance paid in relation to Campsie from 16 December 2015 to 21 January 2016.
On 11 March 2016, the Applicant contacted Centrelink about Widow Allowance and, on 14 March 2016, she contacted Centrelink about Newstart Allowance. On that date, the note was made “current circs have changed and she is now partnered”. Carer payment was restored on 18 March 2016.
On 18 April 2016, the Applicant contacted Centrelink about a review of the decisions to cancel her payments and raise the debts. The Centrelink record for that conversation notes the Applicant said the following:
·She never stopped caring for her partner.
·He is on DSP and they had a major argument. Domestic violence was involved but she did not contact police because it would not be beneficial if her partner was in gaol.
·Every time they argued, her partner would tell her to leave the house because it was his.
·She was fed up “and therefore withdrew the CAR & CDA but returned home that day to continue to provide care for him.
·She was also in the process of applying as a guarantor for her son to come to Australia and thought being on payments would affect his application.
·She can provide statements and evidence to support her claim that she never ceased caring for him.
The Applicant told the ARO on 27 May 2016 that:
·She did not file for divorce and only said that because she was angry with her husband who is disabled and very difficult due to depression.
·She did not leave the house although he hit and scolded her. She was angry and wanted to live with a friend.
·When the ARO said that that event occurred on 28 July 2014 and she told the Department in December 2015, she said that she was always angry.
·She agreed that she had signed the affidavit in the divorce application.
On the same day, the ARO spoke to Dr Shi, the Applicant’s General Practitioner, who told him that he was not informed of any separation and sees both, either together or separately.
On 16 July 2016, Dr Luo, Aged Care Specialist/Geriatrician provided a letter certifying that the Applicant was her husband’s carer and they have been living in the same house. The doctor concluded: “Please do not hesitate to contact me if there are any concerns”.
Relevant legislation
The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Relevant government policy is set out in the Guide to Social Security Law (the Guide) and should be applied in the absence of cogent reasons not to follow such policy.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
CP and CA qualification
Section 198 of the Act provides the qualification criteria for CP. Relevantly, to qualify for CP:
(a)a person must "personally provide constant care" to a care receiver; and
(b)the care must be provided in a private residence that is the home of the care receiver.
Section 954 of the Act sets out the qualification criteria for CA. Relevantly, for a person to qualify for CA:
(a)the care receiver is a family member of the person; and
(b)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, “in a private home that is the residence of the person and the care receiver” (emphasis added).[2]
[2] For the purposes of this application, a care receiver is a disabled adult who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, and must also pass certain income and assets tests and residency requirements (which are not matters in dispute in this application).The Secretary accepts that the Applicant's husband qualified as a care receiver during the relevant period, for both CA and CP purposes.
Section 992X of the Act provides the qualification criteria for the carer supplement. Relevantly, a person must qualify for CA or CP in order to qualify for the carer supplement.
Debts to the Commonwealth
Sections 68 and 72 of the Administration Act relate to the Secretary's power to issue notices requiring persons receiving a social security payment (such as CA and CP) to:
(a)inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
(c)give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 38 in relation to the person.
(extract from s 68 of the Administration Act)
Section 1223 of the Act provides that if a social security payment is made, and a person who obtains the benefit of that payment was not entitled to obtain that benefit, the amount of the payment is a debt due to the Commonwealth, and the debt is taken to arise when the person obtains the benefit of the payment.
Section 1236 of the Act provides, essentially, that the Secretary may write off a debt for a stated period or otherwise if, and only if, the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor, or it is not cost effective for the Commonwealth to take action to recover the debt.
Section 1237A of the Act provides, essentially, that the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Section 1237AAD of the Act provides that the Secretary may waive the right to recover all or part of a debt if satisfied that:
(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 this Act, the Administration Act or the 1947 Act; 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.
Consideration and findings
The Applicant first advised Centrelink that she never left the marital home and continued to care for her husband on 18 April 2016 when she sought review of the decisions raising the debts. She maintained that position when she spoke to the ARO, at the AAT1 hearing and at the hearing of this matter.
She has failed to satisfactorily explain why she provided to Centrelink and the Federal Circuit Court information about her separation date and accommodation, summarised above, which is inconsistent with her claim to have never separated from her partner.
The Applicant blamed various people for giving incorrect information, including translators and the migration agent who witnessed the affidavit in the application for divorce. She blamed her “messy” mind, and forgetting things when unable to answer questions. She repeatedly said that she acted because she was angry. She claimed that she did not complete the documents. That may be true, but the Tribunal finds that she provided the information.
At first the Applicant told the Tribunal that she “clearly remembered” the incident when her partner became very violent and abusive and beat her. She wanted to call the police. That was one occasion on 17 or 18 May 2015. When she was asked about the date of separation being 28 July 2014, the Applicant said that she chose that day because it is her daughter’s birthday and she will never forget that day because her partner hit her with a stick and shoes; it was very bad. When asked about the divorce application, she repeated that she chose 28 July 2014 because it was her daughter’s birthday. Later at the hearing, she said that she just said that date and gave no other explanation. Other answers she gave suggested that the incident occurred in December 2015 and caused her to go to Centrelink straight away and tell them she had separated from her partner because she was angry and she wanted a divorce at that time.
She initially said that the affidavit in the divorce application filed in the Federal Magistrates Court had been translated to her and she had affirmed that everything was true, but then said that the information was not true. Under further questioning, she said the migration agent did not tell her the details and just asked her to sign. Later, she said that she did tell the migration agent the separation date was 28 July 2014 and that she had not lived in the same home as her partner because she had to say that because she wanted a divorce.
The Applicant said at one point that she had made a mistake and provided incorrect information to Centrelink. She said that she really wanted a divorce at that time. Her husband was sponsoring his daughter, and she was sponsoring her son, to come to Australia and others had told her that being divorced would help.
She denied giving the 28 July 2014 date so she could claim to have been separated for more than 12 months to apply for divorce and denied that that the divorce was to assist her husband’s carer application for his daughter.
The Applicant claimed that she had provided various statements from her, her landlord and neighbour, to an office near Central. The Applicant was assisted by Legal Aid, whose officers are near Central, in May 2017 when Legal Aid sent a copy of the 2015 Medical Adviser’s Report to the Tribunal. However, no evidence of the kind the Applicant described was provided to the Tribunal.
The Tribunal gives little weight to the evidence of Dr Shi and Dr Luo. That Dr Shi was not told of the separation does not persuade the Tribunal that it did not happen. There is no evidence as to when or how frequently either the Applicant and/or her partner had seen Dr Shi in the relevant period. Dr Luo’s statement was correct when he wrote it, which was after the Applicant had returned to live with her partner.
The Tribunal finds that the Applicant intentionally provided the information that she and her partner had separated in July 2014 to Centrelink and the Federal Circuit Court over a period of two months. On its face, the application for divorce had been signed by the Applicant and her partner on 18 November 2015, almost a month before she advised Centrelink of the separation.
The Applicant’s case relies on the Tribunal accepting that the position she has maintained since 18 April 2016 is correct and that the information she provided to Centrelink and that she and her partner provided to the Federal Circuit Court, is not correct.
The Tribunal finds that the Applicant would say or do anything to achieve what she wants, contrary to her claims to being a Christian and to always tell the truth. Her claim not to have separated was made after substantial debts had been raised. She does not want to have to pay them back.
The Tribunal finds that:
·the Applicant was not personally providing constant care to a care receiver from 24 July 2014 until 30 November 2015;and
·the care receiver was not receiving care and attention on a daily basis from the Applicant, or the Applicant together with another person.
The Tribunal finds that the Applicant‘s Carer Payment and Carer Allowance were correctly cancelled and that she was overpaid for both during the relevant period. The overpayment is a debt to the Commonwealth.
The Tribunal finds that there is no suggestion that the debt is irrecoverable at law, it finds that the Applicant has the capacity to repay the debt because she is receiving the CP and CA, her whereabouts are known, and there is no suggestion that it is not cost effective for the Commonwealth to take action to recover the debt. There is no basis for the debt being written off pursuant to s 1236 of the Act.
There has been no administrative error and therefore there is no basis for waiving the debt or part of the debt for that reason (s 1237A of the Act).
There is no basis for waiving the right to recover the debt pursuant to s 1237AAD of the Act. The Applicant failed to comply with the reporting requirements of the Act by not advising Centrelink that she was no longer caring for her partner.
Decision

The Tribunal affirms the decisions under review.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..........................[sgd]..............................................
Associate
Dated: 8 May 2018

Date of hearing: 8 August 2017

Applicant: In person

Solicitors for the Respondent: Mr A Baril, Department of Human Services

[2018] AATA 1247

8 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	8 August 2017
Applicant:	In person
Solicitors for the Respondent:	Mr A Baril, Department of Human Services