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

[2021] AATA 3087

Balcha and Secretary, Department of Social Services (Social services second review) [2021] AATA 3087 (30 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2427

Re:Kokebe Balcha

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:30 July 2021

Place:Melbourne

The Tribunal affirms the decision under review. The Tribunal finds that the Applicant has indebtedness under the Social Security Act 1991 (Cth), in the amount of $21,591.65.

.....................[SGD]...................................................

Dr Damien Cremean, Senior Member

CATCHWORDS

SOCIAL SECURITY — Carer pension — constant care requirement not satisfied —indebtedness — whether waiver or special circumstances apply — decision affirmed

LEGISLATION

Social Security Act 1991(Cth)

SECONDARY MATERIALS

Social Security Guide (10 May 2021)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

30 July 2021

Background

1. The Applicant, Mrs Kokebe Balcha (“the Applicant”), seeks review of a decision made by the Social Services and Child Support Division of this Tribunal (“Tier1”) on 23 March 2020. Tier1 affirmed a decision of the then Department of Human Services, that the Applicant has a carer payment debt of $33,539.19 for the period from 13 June 2012 to 30 June 2014. This debt was established on the ground that she was not providing constant care, and consequently had nil entitlement to carer payments.

2. Originally, the debt raised was in the sum of $4,424.08 for the period from 17 August 2012 to 30 June 2014.  However, following the Applicant’s request for an internal review, an Authorised Review Officer, on 31 March 2017, decided the correct figure was $33,539.19; and that the debt was incurred between those dates of 13 June 2012 to 30 June 2014.

   Hearing

3. A hearing in this matter was held on 9 March 2021, at which the Applicant was self-represented and gave evidence on affirmation but called no witnesses. The Respondent was represented by A. Raveendiran, lawyer of Services Australia.

4. The relevant legislation is to be found in ss 198(1) and (2) of the Social Security Act1991 (Cth) (“the Act”) by which:

   (1) A person is qualified for a carer payment if the requirements of this section are met.

   Note:          Sections 198AA, 198AB and 198AC allow the person to qualify in certain short‑term circumstances where the requirements would not be met.

   Constant care for disabled adult or disabled adult and a dependent child

   (2)The person must personally provide constant care for:

   (a) either:

   (i)  if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

   (ii)  if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or

   (d)  a disabled adult and a dependent child of the adult (the care receivers), where:

   (i)  the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and

   (ii)  the child is aged under 16; and

   (iii)  if the child is aged 6 or more—carer allowance is payable for the child; and

   (iv)  section 197D does not apply in respect of the care receivers.

   Note:          In a paragraph (d) case, subsection (9) deems certain supervision to constitute care.

5. In amplification, Instruction 1.1.C.310 of the Social Security Guide provides that a person is taken to provide “constant care” if:

   “…if they personally provide care on a daily basis for a 'significant period' during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing CP is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day.”

   Issues

6. There are two issues in this matter.

7. The first issue is whether the Applicant has a carer payment (“CP”) debt of $33,539.19 for the period of 13 June 2012 to 30 June 2014.

8. The second issue is whether, if so, a part or all of such debt should be written off or waived. A further issue here is whether “special circumstances” exist.

9. As to the first of those issues, and in light of the Applicant’s concession, I find the debt otherwise existing is at the reduced figure of $21,591.65, following repayments that have been made.

   Evidence

10. The Applicant operated a family day care centre through Azaria Family Day Care Pty Ltd from 15 March 2011 to 25 September 2016.

11. The Applicant lodged a claim for CP under the Act on 13 June 2012. As a result of this claim, she was paid CP until 30 June 2016, on the basis that she provided constant care and attention to her husband, Mr Sultan Adem.

12. The Applicant gave evidence that her husband at the time was “sick” …“so I have to look after him”. She said he had a “work injury”. This occurred in 2006, when he was working at patient services for the Alfred Hospital. He injured his hand and underwent surgery.

13. In confusing evidence, the Applicant said that she told Centrelink that she was working at the Azaria Family Day Care Centre.

14. In cross examination, which was intended to assist me understand the Applicant’s case, the Applicant stated she had not even applied for CP. She said: “They told me to bring the paper, so they have to write down that because I have to bring the paper, so they have to write it I contact them”. She also said:“ They ask me to get evidence, evidence because I’m looking after my husband, that’s why I don’t need another work”. She explained: “The family day care it’s enough money”.

15. The Applicant, when asked to give further detail on this, said of Centrelink personnel: “They’re not accepting I’m home looking after my husband and working this job”. She went on to say: “Because they don’t understand why I’m doing this why I’m working this – the issue is why I’m working family day care and the hour rate is not enough”. Later, the Applicant said in explanation of why she applied for CP: “Carer allowance is because he’s disabled [referring to her husband], I have the patient card too. That’s what’s happened”.

16. The Applicant then said of her husband: “He has depression. He’s on meds, and you can see now he’s talking over everyone, you know”. She said that during the two year period in question: “I cooked for him and when he have shower I have to help him to bathe…and I have to help him to dress up and then if you’ve got shoelace and then driving him, because he wasn’t driving at that time”. She said: “We were living together, whatever he needed, I got coffee for him, I do this and that. I can’t remember”.

17. When asked about her statements regarding the degree of care she gave her husband in the CP form, the Applicant submitted that she had said: “Of course it’s constant. He’s disabled and his mentalistic, so everything, it is constant care, you know what I mean?”.  The care she gave was for seven days a week: “We’re not separated and we live in the same house seven days a week…”. When asked whether she had been providing care every hour of a day, she said: “Who would care every hour unless they are totally disabled?”.

18. As to her work for Azaria Family Day Care Centre, the Applicant denied she was an employee: “I’m subcontractor. I’m subcontractor from them, looking at my own business”. She said: “I have my own everything”. She said she would be looking after “sometimes five, then seven” children in a day. She said she would be working “in the morning two hour then afternoon from three…until six, as the family needs”. She said in the morning, she would pick up the children in her Ford Territory and drop them off at school. She would then go home to her own house and “do stuff of my own”; and then collect the children after school. 

19. Regarding the number of children cared for by her on average during the two-year period, the Applicant said: “I think it was six or five. I’ll have to check because they are — so I – six. I don’t think I remember the whole — it was a long time ago”. Then she said: “I’m entitled to seven, but I think I had five. Five or…..”. She would look after the children in the lounge room when they were at her house because care “can’t be in the bedroom…”.

20. In her answer to further questions, the Applicant agreed she was working 50 hours a week,  but she said: “Listen, I know where you are going. I don’t care what your decision is now. The only thing I want to tell… I’m getting too tired and sick now”.

21. When asked why she had applied for CP from Centrelink if she thought she might be declined, the Applicant said: “Because they asking me to. I have to show them evidence to stop. Don’t you see?”. However, the Applicant agreed that she put a figure of 30 hours in the documentation because she thought she would not get CP without doing so.

22. The Applicant agreed that she had not informed Centrelink every time she had worked more than 30 hours after lodging her CP claim. Her explanation that “this job is not acceptable by Centrelink because of the hours…” appeared to confuse her Newstart Allowance with her CP requirements or allowances. She agreed upon clarification that she had worked more than 30 hours — “Yes, I worked 50 hours”.

23. The Applicant then said “I’ve had enough of this. It’s giving me anxiety and….”. She said “I can’t live my life thinking about Centrelink…. I’ll pay the money”.

24. In her answer to questions from me, the Applicant agreed that she was living in a “brand new” house. She said she was currently working, this time in disability care, and earned $920.00 per week. She also said she receives a childcare, and a carer supplement. She informed me that her husband is on a disability support pension.

25. Further, the Applicant advised that her husband is aged 55 years, and that they have three children who all live at home. She has two motor vehicles registered in her own name, and her husband has a Ford vehicle registered in his name. In addition, she said she had “maybe two, three-thousand” in the bank.

26. The Applicant also agreed that she had repaid $11,000 because, she said: “I have to pay otherwise I’m going to — asking me questions, they say if you don’t pay this, this, this, so I’m scared, I have to pay them”. She denied, however, that by paying the money back, she was acknowledging any indebtedness.

27. The Applicant referred to her husband’s condition and told me that he is paying back a debt of $20,000 for overpayment of disability support pension.

28. With regards to special circumstances, the Applicant said: “It’s very hard to live because it’s only myself making money, paying the mortgage and then dealing with sickness and everything…”. She said the mortgage payments were $1,520.00 per month, and the loan was one for $351,000.00 in total.

    Consideration

29. I have found the evidence of the Applicant, particularly in its early stages, difficult to follow. I do not consider that this is solely due to technical and audio issues.

30. To some extent, however, her evidence was clarified by her written submissions which arrived on 24 March 2021.

31. Nevertheless, and overall, her position is confusing. In particular, I find it confusing how at one point, the Applicant said she did not even apply for CP, but at another point, agreed that she had applied for CP. It could be that she has difficulties with language, but that is not supported by the written submissions which are well expressed and well set out.

32. I am satisfied, in any event, that during the two-year period from 13 June 2012 to 30 June 2014, the Applicant did incur an indebtedness to the Respondent in the sum of $33,539.19, arising from her work activities which exceeded the allowed period of hours under the Act. In evidence, she agreed she had worked for 50 hours, and not the specified 30 hours. I rely also upon the detailed submissions of the Respondent. I find that during the period in question – as defined under the Social Security Guide, the Applicant, for one reason or another, was not providing “constant care” as required by law.

33. I rely further upon the Applicant’s payment of some $11,000 as an acknowledgement of indebtedness. She denied that this constituted an acknowledgement of debt, but I can see no rational explanation otherwise for someone paying such a sum to authorities, unless it is acknowledged to be owing. People do not usually make payments to government of that nature as gifts. I should add for completeness that there is no evidence that the payment has been made as a gift.

34. I do not take into account the reference to her husband having to repay $20,000.00 for indebtedness for overpaid disability support pension. I do not form a view that the Applicant’s husband was never, or is not currently, entitled to that pension. Nor do I form a view that he is not unwell in the way the Applicant described or that she must care for him on a daily basis.

35. There is nothing in the Applicant’s evidence, or in her later written submissions, which satisfies me the indebtedness on her part was not rightly incurred.  The debt may have arisen out of her failure to understand CP requirements properly. However, the Applicant did not give me the impression that she is someone who is not astute. For instance, she said to the Respondent’s Counsel: “Listen, I know where you are going” in reference to the questions she was being asked. And I have referred already to her carefully prepared written submissions.

    Waiver or special circumstances

36. If there has been any error in this matter, I am satisfied it is not of an administrative kind on the part of authorities, which would lead to a ground for waiver of the Applicant’s indebtedness under the Act. Any mistaken belief on the part of the authorities, I consider, was induced by conduct of the Applicant, either in deliberately concealing the true hours she was working; or in carelessly failing to understand or verify the correct requirements which applied to her in connection with CP.

37. Nor is there, in my view, anything which leads me to the view that there are “special circumstances” in this case which justify the indebtedness being overlooked. Nothing unusual or out of the ordinary arises on the evidence. The Applicant mentioned having to meet expenses and deal with illness; but these, unfortunately, are common occurrences. Indeed, I formed a view that economically the Applicant is quite well off, with a brand-new house, cars, and money in the bank; as well as work.

38. I therefore reject any argument that the indebtedness should be waived or disregarded on the ground of special circumstances.

    Conclusion

39. The indebtedness of the Applicant, I find, is in the sum of $21,591.65 and must be repaid.

40. Accordingly, the decision under review is affirmed with the amount being varied on account of repayments made.

    …………………[SGD]……………………………………………..
    Associate
    Dated: 30 July 2021

Date of hearing:	09 March 2021
Date final submissions received:	31 March 2021
Advocate for the Applicant:	Mrs Kokobe Balcha
Advocate for the Respondent:	Mr Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia