BKJX; Secretary, Department of Social Services and (Social security second review)

[2025] ARTA 980

BKJX; Secretary, Department of Social Services and (Social security second review) [2025] ARTA 980 (8 July 2025)

Applicant/s:  Secretary, Department of Social Services

Respondent:  BKJX

Tribunal Number:                2024/2110

Tribunal:Senior Member M Kennedy

Place:Adelaide

Date:8 July 2025

Decision:The decision of the Administrative Appeals Tribunal of 7 February 2024 is set aside and substituted with a decision that the applicant has debts due to the Commonwealth in the amounts of $37,528.79 and $5,903.13 and no part of the debts are waived.

Statement made on 08 July 2025 at 2:19pm

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999

Catchwords

SOCIAL SECURITY – carer allowance – carer payment – qualification – Secretary’s appeal - evidence leading to inference Respondent could not and was not in same geographical area to provide qualifying levels of care to care receiver – constant care – care and attention – non-participation of Respondent at Tribunal case events – proceeding in absence of Respondent – inferences from documents – rule in Jones v Dunkel – debts found – actual knowledge – false and misleading statements or failure to comply with provisions of the Act – no receipt in good faith - debt waiver not available.

Legislation
Social Security Act 1991

Cases
Jones v Dunkel (1959) 101 CLR 298
McDonald v Director General of Social Security (1984) 6 ALD 6

Re Bessey and Australian Postal Corporation (2000) 60 ALD 529

Re Callaghan and Secretary, Department of Social Security (1996) ALD 435

Statement of Reasons

1. The Secretary of the Department of Social Services has applied for review from a decision of the Administrative Appeals Tribunal (AAT) that had found in favour of Mr BKJX.  The Secretary has undertaken further investigations and introduced further documentary evidence to support Centrelink’s decisions based upon a conclusion that Mr BKJX was paid carer payment and carer allowance when he was not qualified to receive those payments.

2. On 19 January 2018 Mr BKJX applied for carer payment and carer allowance in respect of care he said he was providing to his brother.  He was granted those payments with effect from the same day. He was granted carer allowance on the basis that he lived with the care receiver.

3. On 1 November 2019, Centrelink wrote to Mr BKJX asking him to provide evidence to address certain anomalies it had identified regarding his address and that of the care receiver. On 3 December 2019 Centrelink cancelled Mr BKJX’s carer payment because no reply had been received to the letter that had been sent, and cancelled Mr BKJX’s carer allowance.  Further correspondence on 7 February 2020 advised that carer payment had been cancelled from 20 September 2018 because the geographical distance between Mr BKJX and the care receiver would have prevented him from providing constant personal care.  Invoices were issued the same day.

4. Mr BKJX requested review of the decisions to raise and recover debts on 13 February 2020.  On 28 April 2020 an authorised review officer decided that the payments should have been cancelled from the date of grant,19 January 20218, and increased the debts on that basis.

5. Mr BKJX applied for review in the AAT on 11 October 2023.  After hearing from Mr BKJX and his brother at a hearing, the AAT decided on 7 February 2024 that there was an insufficient basis for a finding that Mr BKJX was not living with his brother and in his care during the period of the debts.  The AAT found therefore that no debts existed.

6. On 28 March 2024, the Secretary of the Department of Social Services applied for second review, subsequently lodging further documentary evidence which the Secretary contends establishes that Mr BKJX could not be providing the necessary levels of care for his brother to qualify for either payment because he was not living close enough to him.

7. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the AAT before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.

8. Hearing arrangements were made by the Tribunal’s registry for the hearing to proceed by telephone.  At the request of the Secretary, I issued directions on 14 May 2025 directing that the hearing was to take place via video hearing, with Mr BKJX to attend the Sydney Registry of the Tribunal for that purpose.  The Secretary wished to cross-examine Mr BKJX and it appeared that the case may turn on Mr BKJX’s capacity to address possible inferences arising from documentary evidence obtained by the Secretary.  In this regard, Mr BKJX’s credibility as a witness may have been put in issue.  I agreed this was not a case where a telephone hearing would be adequate.  Other records available to me suggested Mr BKJX may not have access to equipment to participate in a video hearing and attendance at the Sydney Registry was the only practical alternative.  I am satisfied that these directions, which included liberty to apply, were sent to Mr BKJX by email and by ordinary post.

9. A telephone directions hearing was held on 24 June 2025 to check the matter was ready to proceed as scheduled on 1 July 2025.  Mr BKJX did not answer the phone when contacted by the Tribunal and did not participate in the telephone directions hearing.

10. Mr BKJX did not attend at the Sydney Registry of the Tribunal as directed on 1 July 2025.  The Tribunal’s records show that Mr BKJX has not complied with any directions issued to him, lodged any material, or made any contact with the Tribunal in connection with these proceedings.

11. Section 81 of the Administrative Review Tribunal Act 2024 authorises me to proceed with a Tribunal case event in the absence of a party if I am satisfied that the party has received appropriate notice of the date, time and place of the Tribunal case event.  I am satisfied that the combination of the hearing notice issued to Mr BKJX on 15 April 2024 and my directions of 14 May 2025 sent to Mr BKJX amount to appropriate notice of the date, time and place of the hearing.  At the commencement of the hearing, I resolved to proceed in Mr BKJX’s absence.  I decided to proceed because I infer from Mr BKJX’s failure to engage in any aspect of the proceedings at second review that he did not wish to participate in the proceedings, despite being afforded the opportunity to participate, and taking any further steps to direct or encourage his participation would therefore be futile. I considered the Secretary was entitled in these circumstances to have the review completed and the documentary evidence now relied upon considered.

    Legislative framework

12. Relevantly, qualification for carer payment requires (among other things) that a person personally provides constant care for a disabled adult: subsection 198(2) of the Social Security Act 1991 (the Act).

13. The notion of constant care is not defined in the Act, but is discussed in the Department’s policy which observes that a carer is said to provide constant care if they personally provide care on a daily basis for a significant period of each day, suggesting this should generally equate with at least the equivalent of a normal working day in personal care.  The policy notes that this is to recognise that the carer would not be able to undertake substantial employment because of their caring responsibilities. The discussion of the requirements in the policy accords in my view with the language of the statute.

14. Section 954 of the Act provides that for carer allowance where a person is caring for a disabled person in a home they share, a person will be qualified if (among other things) the carer receiver receives care and attention on a daily basis in a private home that the person and the care receiver share.  Section 954A(2) of the Act provides that where the care is provided in a home that the care giver and care receiver do not share, the person will be qualified if (among other thigs) care and attention must be received by the care receiver on a daily basis for a total of at least 20 hours per week.

15. Subsequent references in these reasons to the ‘requisite level of care’ is a reference to the levels of care described in the preceding three paragraphs, where the lowest threshold may be seen as that applicable to carer allowance, either care and attention on a daily basis, or care and attention on a daily basis for a total of at least 20 hours per week.  Naturally, I consider that if that threshold is not satisfied, the higher threshold for carer payment will not be satisfied either.

16. The Secretary must cancel or suspend a payment where satisfied that a social security payment is being paid to a person who is not qualified for the payment: section 80 of the Social Security (Administration) Act 1999.

17. Section 1223 of the Act provides that if a social security payment is made, and a person who obtains the benefit of the payment was not entitled for any reason to obtain the benefit, the amount of the payment is a debt due to the Commonwealth taken to arise when the person obtains the benefit of the payment.

    Was Mr BKJX providing the requisite level of care for the care receiver?

18. The Secretary’s case is that all of the evidence before the Tribunal, other than Mr BKJX’s own self-reports, indicates that the geographical distance between him and the care receiver prevented him from providing the requisite level of care.

19. In submissions, counsel for the Secretary took me through the documentary evidence that the Secretary says demonstrates that Mr BKJX and the care receiver were living considerable distances from each other from the date of claim, and submitted that Mr BKJX was geographically and logistically prevented  from providing his brother with any level of care, let alone the thresholds required by the legislated qualification criteria for each payment.

20. The evidence pointed to included records from Centrelink’s systems as follows:

    ·      Centrelink’s records of Mr BKJX’s addresses, which included (at material times) two addresses in the south western suburbs of metropolitan Sydney.

    ·      Centrelink’s records of the care receiver’s addresses, which included (at material times) addresses in north central remote New South Wales and inner western rural New South Wales, all of which required many hours of travel by road to or from the south-western suburbs of Sydney.

    ·      The medical report for the care receiver in support of the application for the payments, which was completed by a medical practitioner with an address in inner western rural New South Wales, many hours distance from Mr BKJX’s then address.

    ·      An electronic file note, recording that the care receiver had attended the Centrelink office in person in inner western rural New South Wales to enquire about receiving family assistance on 18 October 2018, in which the care receiver is documented to have told Centrelink that he had left his work[1] to move to that location to care for a child.

    ·      Multiple other electronic file notes documenting that the care receiver had attended in person at Centrelink offices in locations considerable distances from the south-western suburbs of Sydney, including a location in Queensland, during the relevant period.

    [1] A remark which on its face tends to put in question the accuracy of the care needs assessment, but this was neither pursued by Centrelink at the time nor addressed in these proceedings other than by way of passing observation.

21. The Secretary has submitted supplementary papers containing banking records obtained after the AAT proceedings, following the exercise by the Secretary of statutory information gathering powers. These records show:

    ·      Mr BKJX regularly undertaking transactions at businesses containing references to places in the vicinity of south-western Sydney, and no transactions containing references to locations in the vicinity of places identified as the care receiver’s addresses.

    ·      The care receiver regularly undertaking transactions at businesses containing references to places in the vicinity of the locations in rural and remote New South Wales, and on occasion far-western New South Wales, including at times corresponding to Centrelink’s records documenting that he attended Centrelink offices in those locations in person.

    ·      The care receiver only very rarely undertaking transactions at businesses containing references to places in the vicinity of south-western Sydney.

    ·      Mr BKJX receiving deposits of wages for employment from an identified business at material times.

22. In response to the latter-mentioned information, the Secretary has also obtained payslips from the identified employer using the Secretary’s statutory information gathering powers. The payslips show that the postal address for the business (a plumbing business) is in south-western Sydney, and that at times Mr BKJX was working casual hours consistent with full-time employment.

23. The Secretary’s case therefore can be seen to be built upon layers of inference to be drawn from business records, banking records and employment records. It is from the comparison of those records that the Secretary contends a reliable inference can be drawn that Mr BKJX and the care receiver did not reside in the same residence, and nor did they reside in geographical locations amenable to Mr BKJX providing the requisite amount of care for either payment.

24. The inference that Mr BKJX could not provide and was not providing the requisite level of care to the care receiver because they were not even remotely in the same physical location can rationally be drawn from the records relied upon by the Secretary.  Indeed, the inference to that effect is strong. The inference may be drawn even though it may be appreciated, for example, that just because the plumbing business has a postal address in a particular area does not necessarily mean it performs work in the same area, and the nature of the banking system does not necessarily mean in every case that a location mentioned in the narration to a transaction is the location where the transaction is performed.

25. I have assessed the documentary evidence relied upon by the Secretary critically in this regard, particularly as the consequences for Mr BKJX are substantial and he was not present.  Despite approaching the documentary evidence critically, I find myself drawing the inference that Mr BKJX and the care receiver were not living in the same residence and further they were not in proximate locations so as to make the requisite level of care logistically possible even for care being received in a home other than that shared by the care giver and care receiver.

26. Without a persuasive and corroborated explanation as to how these records can be reconciled with Mr BKJX providing the requisite level of care, I will draw the inference from this evidence contended for by the Secretary.

27. I have considered the summary of Mr BKJX’s and the care receiver’s evidence reproduced in the decision of the AAT.  The evidence, in summary, was that the care receiver was living with him, but would occasionally go away with others and stay at their sister’s house in inner western rural New South Wales.  The care receiver’s evidence was that the addresses in Centrelink’s records were for mail receipt only, and not where he was living.  The care receiver denied that he ever attended at the various Centrelink offices identified in the records.  In light of the summary of the documentary evidence relied on by the Secretary mentioned above, that evidence, uncorroborated, carries little weight in my view.  I note that the AAT however had less documentary evidence from sources other than Centrelink than is now before me, or to put it another way, had fewer layers from which inferences might be drawn and records corroborated.

28. In that regard, a further inference might be drawn from Mr BKJX’s failure to introduce any further evidence to these proceedings, to corroborate the evidence given to the AAT, and to attend the hearing for the purpose of giving evidence or cross examination.  In Re Bessey and Australian Postal Corporation (2000) 60 ALD 529[2], the AAT reflected on the applicability of the common law principle in Jones v Dunkel (1959) 101 CLR 298 to the effect that I might draw an inference that evidence from Mr BKJX or from the care receiver would not have assisted Mr BKJX. This conclusion might be reached on the basis that I view his failure to participate in any way in these second review proceedings as a failure to call evidence that he would have reasonably been expected to call. The AAT observed that the rule in Jones v Dunkel is the product of the adversarial mode of common law trials, and the nature of the Tribunal’s review is essentially inquisitorial.

    [2] Overturned on different grounds in Australian Postal Corporation v Bessey [2001] FCA 266

29. The rule in Jones v Dunkel is essentially a rule of practical reasoning, but on occasions could work a practical injustice.[3]  I recognise that the drawing of such an inference is not automatic in administrative review proceedings, and due care must be taken particularly where a party may not be a sophisticated litigant and is, indeed, unrepresented.  However, mindful of the care which must be taken in that regard, I nonetheless draw that inference in this matter.  Mr BKJX’s failure to participate is unexplained and unreasonable. The documentary evidence relied on by the Secretary raises many questions to be answered, and I infer through Mr BKJX’s failure to participate, any answers he may have given would not have assisted him.

    [3] As observed in Moshinsky SC, N. Annotated Administrative Appeals Legislation 5^th Addition at 164,000.130 page 316.

30. Similarly, I am mindful of the observations in McDonald v Director General of Social Security (1984) 6 ALD 6 to the effect that there is no onus of proof in Tribunal proceedings unless the statute imposes one. In my view, the statute in this matter requires that I be satisfied that Mr BKJX is not qualified for the payments in order to affirm the cancellations (and consequently the debts). In practice, where such a state of satisfaction will disturb Centrelink’s earlier finding at grant that Mr BKJX was so qualified, evidence must be adduced in the proceedings to lead to that state of satisfaction, and in reality this will almost always be done by the Secretary. A mere allegation or suspicion would be unlikely to suffice. I take it from the reasons of the AAT that the material then before the decision-maker did not enable forming the necessary state of satisfaction when tested against the sworn evidence of Mr BKJX and the care receiver. It is certainly not the case that upon the making of the allegation any onus is transferred to Mr BKJX to disprove the allegation or suspicion.

31. However, even with that approach in mind, I am satisfied that the layers of documentary evidence now relied upon by the Secretary alone, and not necessarily requiring the additional inference I draw through Mr BKJX not participating to explain or to adduce any evidence to the contrary, demonstrate that Mr BKJX was not providing the requisite levels of care, and therefore was not qualified for either carer payment or carer allowance.

32. The documentary evidence in aggregate covers the entirety of the period that Mr BKJX was receiving the payments, and I am satisfied that he was never qualified for the payments.  In these circumstances the decision to cancel his payments was correct.  I understand the authorised review officer and the AAT may not have appreciated that the calculations had not been adjusted to take into account the period 19 January 2018 to 19 September 2018 when that longer period was identified as the debt period.

1. Following clarification, further calculations and brief written submissions by the Secretary after the hearing to confirm the contentions made at the hearing, I accept the contention that 19 January 2018 is the correct start date for the debts, as it marks the commencement of Mr BKJX’s receipt of carer payment and carer allowance payments he was not entitled to receive.

2. Having examined the calculations provided after the hearing I am satisfied Mr BKJX received total instalments of $37,528.79 in carer payment (including, it would appear, a carer supplement between 25 June 2019 and 8 July 2019) and $5,903.13 in carer allowance between 19 January 2018 and 2 December 2019.  These amounts are debts due to the Commonwealth: section 1223 of the Act.

   Should the debts be recovered?

3. In certain limited situations, debts otherwise due to the Commonwealth must be or may be waived.  One such situation is provided for by section 1237A of the Act. It provides that a debt must be waived where it is attributable solely to administrative error on the part of the Commonwealth and has been received in good faith. Another provision provides for the whole or part of a debt to be waived in the special circumstances of the case: section 1237AAD of the Act.

4. As mentioned, section 1237A of the Act requires that payments giving rise to any proportion of the debt attributable to sole administrative error be received in good faith.  Section 1237AAD contains a proviso that waiver in special circumstances can only be considered if the debt did not result wholly or partly from a debtor or another person knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the Act.  It has been accepted that the reference to knowlingly in this context means actual knowledge.[4]

   [4] Re Callaghan and Secretary, Department of Social Security (1996) ALD 435

5. The Secretary contends that the debts arose because Mr BKJX falsely represented himself to Centrelink as a person providing constant care and care and attention to the care receiver, and also failed to contact Centrelink to provide it with accurate and truthful information about the nature of his relationship with the care receiver.  The Secretary contends that Mr BKJX knowingly made false statements and failed to comply with his obligations to notify Centrelink of any changes to his circumstances.  The Secretary relies on the same evidence and inferences relied upon to establish lack of qualification to establish actual knowledge, and naturally actual knowledge is fundamentally inconsistent with receipt in good faith.

6. In my view, the inferences to be drawn from the documentary evidence support a finding that Mr BKJX did not receive the payments in good faith, and knowingly made false representations and failed to comply with obligations to notify Centrelink of relevant changes to his circumstances.  I have reflected on whether any other inference might be drawn in circumstances where I am satisfied that Mr BKJX and the care receiver were not living together and lived many hours apart, but cannot identify any possible explanation that might point to oversight or inadvertence.

7. As I am satisfied that no part of the funds leading to the debt were received in good faith, and that Mr BKJX knowingly misled Centrelink as to his caring role in respect of his brother and failed to comply with his obligations to notify Centrelink that he was not providing that role, it follows that the debts cannot be waived under these provisions.

   DECISION

   The decision of the Administrative Appeals Tribunal of 7 February 2024 is set aside and substituted with a decision that the applicant has debts due to the Commonwealth in the amounts of $37,528.79 and $5,903.13 and no part of the debts are waived.