Burk and Department of Family and Community Services - [2001] AATA 816

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 816

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/261 & S2000/262

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KAREN BURK
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date10 September 2001
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decisions under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances - Parenting Payment - Family Allowance - whether there are grounds to waive the right to recover all or part of the debt - cancellation of Parenting Payment and Family Allowance - whether applicant's son a dependent child - whether child in her care
Social Security Act 1991 sections 5, 500, 500D, 838, 1237AAD

ORAL REASONS FOR DECISION

10 September 2001 Senior Member WJF Purcell

These are applications for review of two decisions of the Social Security Appeals Tribunal (SSAT) dated 29 May 2000, which affirmed decisions of an Authorised Review Officer. The first decision was made on 7 June 1999, to raise and recover a Parenting Payment debt of $722.80 for the period 3 September 1998 to 26 November 1998; and the second decision of 28 September 1999, was to cancel Parenting Payment Single, and Family Allowance, in respect to Joshua, the child of the applicant.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The applicant did not attend the video link-up arranged at Leigh Creek. I am satisfied that because of a recent Telephone Directions Hearing, other correspondence on file, and the record of conversations between the applicant and the Deputy Registrar, that she was well aware that the matter would proceed today; and that if she did not attend the matter would proceed in her absence. That is the course I have taken. Mr J Underwood represented the respondent (the Department).
The applicant is 45 years of age, a single parent, and was in receipt of Parenting Payment when she began employment with TAFE, at Marree, on 31 August 1998. She did not receive any income from her employment until 18 March 1999. She was advised by a Departmental officer that if she did receive income from her temporary employment with TAFE, she would be required to repay some of the Parenting Payment. Her gross pay for the period 31 August 1998 to 9 December 1998 was $2,479. Her entitlement to Parenting Payment was recalculated, and it was determined that she had been overpaid $817.00.
The applicant sought review of the decision, and on the basis of new information regarding the length of her employment with TAFE, the debt was recalculated resulting in the debt being reduced to $722.88. The debt has been fully recovered. On 7 June 1999 the Authorised Review Officer affirmed the decision and amended the debt to $722.88.
In relation to the second decision. On 23 September 1999 the applicant advised the Department that her son, Joshua, who was then 17 years of age, was living with his father in Victoria on a temporary basis. As she had been receiving Parenting Payment and Family Allowance in respect of her son, her payments were cancelled on 28 September 1999, on the basis that she was no longer qualified to receive such payment, as Joshua had left her care. During a Telephone Directions Hearing held on 13 August 2001, the applicant advised that Joshua had returned to live with her, at Marree, in June 2001.
In relation to the first decision, as to the question of overpayment, the SSAT had the opportunity to hear evidence from the applicant in relation to both matters and regarded her as "… very straightforward in her submissions to the Tribunal and struck the Tribunal as being a very credible and honest person". I have no reason to differ from the SSAT's assessment of the applicant. The question in relation to the overpayment is clear cut, in that she commenced work on 31 August 1998 and ceased work on 9 December 1998. An overpayment arose, and in my view, that was properly raised, and the debt of $722.88 was the appropriate debt for recovery. Looking at the whole of the circumstances, I see no circumstances that would bring the matter within the definition of special circumstances as provided in section 1237AAD of the Social Security Act 1991 (the Act) which provides:
"The Secretary may waive the right to recover all or part of a debt if the Secretary is 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 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."
In relation to the cancellation of the Parenting Payment and Family Allowance. On the evidence, Joshua telephoned his father in Victoria. The father organised a bus ticket for him and on 5 June 1999 he left Marree, to live with his father. He has returned now to live with his mother. With Joshua absent from her home and cared for by his father, the applicant was no longer qualified for receipt of Parenting Payment and Family Allowance. In accordance with the Act, to qualify for a Parenting Payment Single and Family Allowance, she must satisfy section 500 of the Act, which, as far as is relevant provides:
"500 Qualification for parenting payment
(1)       A person is qualified for parenting payment if:
          (a)       the person has at least one PP child (see sections 500D to 500H); and
          (b)       the person is an Australian resident; and
          (c)       *   *   *   *   *
          (d)       at least one of the following conditions is satisfied:
(i)the person is not a member of a couple and the person was not a lone parent at the start of the person's current period as an Australian resident (see subsections (2) and (3));
(ii)the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;
(iii)the person has a qualifying residence exemption for parenting payment.
…"
The definition of the Parenting Payment child is found in section 500D(1) which provides:
"500D PP child
(1)       A PP child of a person is a child who:
  (a)       is a dependent child of the person; and
  (b)       has not turned 16.
Note:   For dependent child see subsections 5(2) to (9).
(2)For the purpose of determining whether a child is a PP child of a person, the child is taken to remain in the person's care if:
(a)at the start of a period not exceeding 8 weeks, the child leaves the person's care; and
(b)throughout the period, the child is the PP child of another person; and
(c)the child returns, or the Secretary is satisfied that the child will return, to the first person's care at the end of the period.
Note:   The definition of dependent child in subsection 5(2) requires a young person to be in an adult's care.
(3)Subsection (2) does not, by implication, affect the determination of whether a child is in the care of a person in cases to which the subsection does not apply (for example, if the period exceeds 8 weeks)."
The qualification for Family Allowance is set out in section 838(1) of the Act which provides:
"838(1) A person is qualified for family allowance if:
          (a)       the person has at least one FA child; and
          (b)       the person is an inhabitant of Australia; and
(c)the person's income for the relevant family allowance period does not exceed the person's income ceiling; and
(d)       the value of the person's assets does not exceed $376,750 ."
The definition of a dependent child is set out in section 5(2) of the Act:
"Dependent child - under 16
5(2)Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the "adult) if:
(a)the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care; or
(b) the young person:
(i)is not a dependent child of someone else under paragraph (a); and
(ii) is wholly or substantially in the adult's care."
I am satisfied, on the evidence, that the applicant was no longer qualified for Parenting Payment Single and Family Allowance. In the whole of the circumstances, having examined the evidence contained in the T documents, I am satisfied that there are no circumstances applicable that would change the view that the applicant did not qualify for Parenting Payment Single and Family Allowance after her son left her home on 5 June 1999.
For these above reasons, the Tribunal affirms the decisions under review.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  10 September 2001
Date of Decision  10 September 2001
Counsel for the Applicant        n/a
Solicitor for the Applicant         -
Counsel for the Respondent    Mr J Underwood
Solicitor for the Respondent    Centrelink