Elgar and Secretary, Department of Social Services (Social services second review) - [2019] AATA 60

Elgar and Secretary, Department of Social Services (Social services second review) [2019] AATA 60 (24 January 2019)
Division:GENERAL DIVISION
File Number: 2018/2894
Re:Steven Elgar
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:24 January 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Carer Payment –whether satisfied qualification criteria – whether applicant providing “constant care” – decision under review affirmed
LEGISLATION
Adult Disability Assessment Determination 2018 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531
Confidential and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs, Re (2010) 116 ALD 601; [2010] AATA 551
Halls and Secretary, Department of Social Services [2014] AATA 129
Hawkins and Secretary, Department of Social Services (Social services second review) [2018] AATA 108
James and Secretary, Department of Social Services [2014] AATA 802
Johnson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 875
KFNL and Secretary, Department of Social Services (Social services second review) [2016] AATA 68
Madden and Secretary, Department of Social Services (Social services second review) [2017] AATA 782
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
O’Neill; Secretary, Department of Family and Community Services [2002] AATA 253
Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41; [2003] FCA 76
Sekhon v Secretary, Department of Family and Community Services (2003) 76 ALD 105; [2003] FCAFC 190
Smith; Secretary, Department of Social Services and (Social services second review) [2016] AATA 10
SECONDARY MATERIALS
Guides to Social Policy Law (2019)
Explanatory Memorandum to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Bill 2009
Macquarie Dictionary
REASONS FOR DECISION
Member D K Grigg
24 January 2019
BACKGROUND

Mr Steven Elgar’s mother, Ms Lorna Elgar, is 80 years of age. On 5 June 2009 Mr Elgar qualified to receive the carer payment and carer allowance as carer for his mother.[1]
[1] Exhibit 1, T Documents, T 51, page 220, Centrelink record.
On 20 April 2017 the Department of Human Services (“Centrelink”) sent Mr Elgar a notice setting out his current carer payment entitlements. That notice advised Mr Elgar that “if you increase the number of hours you undertake [training or education] or time spent travelling to and from these activities” you must inform Centrelink within 14 days.[2]

Mr Elgar does not dispute receiving this notice. A similar letter was sent by Centrelink to Mr Elgar on 19 May 2017.[3]
[2] Exhibit 1, T Documents, T 18, pages 95 – 96, Letter from Centrelink to Mr Elgar dated 20 April 2017.
[3] Exhibit 1, T Documents, T 21, pages 103 – 104, Letter from Centrelink to Mr Elgar dated 19 May 2017.
Unbeknown to Centrelink at that time Mr Elgar had commenced studying a helicopter pilot’s course in November 2016. Records from TAFE Queensland show that during the first semester of 2017 Mr Elgar was enrolled in a Diploma of Aviation for the purposes of obtaining a commercial helicopter pilot’s licence.[4] According to the academic history provided by TAFE Mr Elgar’s course in semester two of 2017 started on 23 June 2017.[5]
[4] Exhibit 1, T Documents, T 38, pages 150 – 151, Confirmation of enrolment January 2017 to July 2017 from TAFE
Queensland.
[5] Exhibit 1, ST Documents, ST 1, page 10, TAFE records – academic history.
Mr Elgar told the Tribunal that he did not dispute receiving the Centrelink notices but he did not read them. He said that although he was aware of his obligations to keep Centrelink informed of any changes in his circumstances, he was not aware that he had to advise Centrelink that he had commenced studying.
On 15 January 2018 Centrelink undertook a review of Mr Elgar’s entitlements to the carer payment and carer allowance. Centrelink records indicate that Mr Elgar told a Centrelink review officer on 15 January 2018 that he had been studying to obtain a pilot’s licence since 26 January 2017 and that his study involves 30 hours per week. The Centrelink officer recorded that she:[6]
(a)advised Mr Elgar that he had not informed Centrelink that he had commenced studying; and
(b)would be cancelling his carer payment and carer allowance because studying for more than 25 hours per week including travelling no longer qualifies a person for carer payments.
[6] Exhibit 1, T Documents, T 51, page 242, Centrelink record.
Centrelink records indicate that Mr Elgar told the Centrelink officer on 15 January 2018 that his study now involves less than 25 hours per week and that his mother was in hospital and would be coming back into his care.[7]
[7] Exhibit 1, T Documents, T 52, page 241, Centrelink record.
Following Centrelink’s review, Mr Elgar’s carer payment was cancelled on the basis that he no longer provided “constant care” to his mother. The cancellation notice sent from Centrelink to Mr Elgar on 15 January 2018 advised him that constant care meant providing “personal care on a daily basis that is at least equal to a normal working day, except when using temporary cessation of care (respite) provisions. The care may include supervising or monitoring the care receiver”.[8]
[8] Exhibit 1, T Documents, T 29, page 126, Letter from Centrelink to Mr Elgar dated 15 January 2018.
On 19 January 2018 Centrelink determined that Mr Elgar’s carer allowance should be cancelled because his mother did not meet the daily care requirements.[9]
[9] Exhibit 1, T Documents, T 30, page 128, Letter from Centrelink to Mr Elgar dated 19 January 2018.
As a result of the decision to cancel Mr Elgar’s carer allowance and carer payment, Centrelink determined that Mr Elgar had been overpaid.[10]
[10] Exhibit 1, T Documents, T 31, pages 130 – 134, Centrelink debt calculation; T 33, page 137, Centrelink debt
calculation.
On 22 January 2018 Centrelink sent Mr Elgar an account payable letter which provided that “you are not entitled to receive Carer Allowance from 28 AUG 2016. You have, therefore, been overpaid $1,255.91. We are required to recover this amount. 63 days of respite was taken into consideration”.[11] The carer allowance debt of $1,255.91 was for the period 28 August 2016 to 14 January 2018 (“CA Debt”).
[11] Exhibit 1, T Documents, T 32, page 135, Account payable dated 20 January 2018.
On 23 January 2018 Centrelink sent Mr Elgar an account payable letter which provided that “…you were not entitled to receive Carers Payment from 28 AUG 2017. You have, therefore, been overpaid $10262.66. We are required to recover this amount. 63 days of respite has been taken into consideration”.[12] The carer payment debt of $10,262.66 was for the period 28 August 2017 to 14 January 2018 (“CP Debt”).
[12] Exhibit 1, T Documents, T 34, page 138, Account payable dated 23 January 2018.
On 25 January 2018 Mr Elgar told a Centrelink officer that as at January 2018:[13]
(a)his course was now provided through Brisbane TAFE which was an eight minute drive from his home;
(b)his course now only involved two hours per day/five days a week for the next six months;
(c)when he is not at home neighbours look in on his mother, but this was not often;
(d)when his mother travelled to Singleton she:
(i)stays with, and is looked after by, his sister; and
(ii)attends her general practitioners.
[13] Exhibit 1, T Documents, T 52, pages 252 – 254, Centrelink records.
The Centrelink officer asked Mr Elgar why, if his mother had moved to Caboolture had Centrelink not been advised that her address had changed. The Centrelink officer records that “Customer became very vague and didn’t answer this question. Eventually he said he’s been busy, didn’t have the right paperwork, no one gave him the right paperwork, he can’t seem to do it online and was going to do this today. I asked if I could speak with his mother as he said she was there. He advised me she is in bed asleep”.[14]
[14] Exhibit 1, T Documents, T 52, pages 252 – 254, Centrelink records.
The Centrelink officer asked Mr Elgar what care he provided his mother and he said it includes watching her, taking her shopping, watching her medications and monitoring her once she is out of bed. The Centrelink officer advised Mr Elgar that:[15]
(a)given the information he had provided to date he would agree with the original decision to cancel his carer payment as care is, and has been and can be, provided by others, for example his sister and neighbours;
(b)the type of care he provides his mother does not meet the criteria of eight hours per day of active significant supervisory care; and
(c)he had failed to advise that he had commenced full-time study on 26 June 2017.
[15] Exhibit 1, T Documents, T 51, pages 248 – 249, Centrelink records.
After the cancellation of his carer payment Mr Elgar requested a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[16] Mr Elgar contended that he was continuing to maintain primary care for his mother and provided a timetable of events for the period in question.[17] According to Mr Elgar, he and his mother had intended to move to Caboolture on 23 June 2017 but due to his mother’s admission to hospital, resulting from a leg injury, she was not able to travel to Caboolture until 27 July 2017. According to Mr Elgar he travelled to Brisbane on 23 June 2017 and started his course on
26 June 2017. Flight records show that Ms Elgar flew from Newcastle to Brisbane on
[16]     Exhibit 1, T Documents, T 36, page 145, Review of a decision form completed by Mr Elgar on 25 January 2018.
[17]     Exhibit 4, Mr Elgar's timetable of events.
[18]     Exhibit 1, T Documents, T 42, page 164, Flight itinerary; T 47, page 186, Rent certificate completed by Ms Elgar.
28 July 2017 and moved in with her son on that date.[18]
Ms Kim Eather, Mr Elgar’s sister, confirmed Mr Elgar’s information in a statement on
8 April 2018. Ms Eather states that:[19]
(a)her mother was supposed to travel from Singleton to Caboolture in late June 2017 but that due to her leg injury she had been unable to travel; and
(b)her mother was finally well enough to move to Caboolture in late July 2017.
[19] Exhibit 1, T Documents, T 50, page 207, Statement of Ms Eather dated 8 April 2018.
Mr Elgar provided a rent certificate completed by his mother confirming that she began living with him in Caboolture on 28 July 2017 and a general tenancy agreement indicating that Mr Elgar had entered into a tenancy agreement for a property at Caboolture for six months commencing on 21 June 2017 and ending on 14 January 2018.[20]
[20] Exhibit 1, T Documents, T 47, pages 186 – 189, Rent certificate completed by Ms Elgar and general tenancy
agreement.
On 16 February 2018 Mr Elgar completed a new carer payment claim form to claim carer allowance and the carer payment. In that form Mr Elgar declared that:[21]
(a)he undertakes training with TAFE Brisbane Airwork Helicopters 25 hours per week;
(b)his mother lives with him;
(c)he provides personal care and attention to his mother seven days a week for a significant period of time each day; and
(d)he has been caring for as mother since 1 January 2006.
[21] Exhibit 1, T Documents, T 44, pages 169 – 174, Carer payment claim form completed by Mr Elgar on 16 February
2018.
On 16 February 2018 the ARO found that Mr Elgar:[22]
(a)was qualified for the carer allowance and therefore did not have a legally recoverable CA Debt; and
(b)was not qualified for carer payment between 24 June 2017 to 14 January 2018 and that therefore he had legally recoverable CP Debt of $15,411.80.
[22] Exhibit 1, T Documents, T 45, pages 175 – 184, Decision of Authorised Review Officer and notes dated 16
February 2018.
Mr Elgar then sought a further review by the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 6 March 2018.[23]
[23] Exhibit 1, T Documents, T 48, pages 192 – 196, Request for a statement.
On 4 April 2018 Mr Elgar provided a Statement of Financial Circumstances which provided that:[24]
(a)he had been bankrupt between December 2008 and December 2011;
(b)he was now employed;
(c)he receives $1,041 per fortnight from Centrelink;
(d)his weekly expenses total approximately $350;
(e)he has a Centrelink debt of $15,460; and
(f)he is paying off the CP Debt by way of weekly payments of $63.75.
[24] Exhibit 1, T Documents, T 49, pages 197 – 202, Statement of Financial Circumstances completed by Mr Elgar
dated 28 March 2018.
On 13 April 2018 the SSCSD varied the decision deciding that Mr Elgar’s carer payment should be cancelled from 23 June 2017 to 14 January 2018 and that therefore a CP Debt existed for that period.[25]
[25] Exhibit 1, T Documents, T 2, pages 3-13, SSCSD’s Decision and Reasons for Decision dated 13 April 2018.
On 15 May 2018 Centrelink recalculated the CP Debt based on the SSCSD’s decision and advised Mr Elgar that his debt had increased to $15,475.23.[26]
[26] Exhibit 2, Secretary's Statement of Facts and Contentions dated 5 October 2018, Attachment A, Letter from
Centrelink to Mr Elgar dated 15 May 2018.
On 22 May 2018 Mr Elgar lodged an application for review of the SSCSD’s decision by the General Division of this Tribunal.[27]
[27] Exhibit 1, T Documents, T 1, pages 1 – 2, Application for Review dated 22 May 2018.
ISSUES FOR DETERMINATION
Centrelink contends that Mr Elgar did not satisfy the qualification criteria for the carer payment which are set out in section 198 of the Social Security Act 1991 (Cth) (“the Act”).
The issues for this Tribunal are:
(a)whether Mr Elgar’s carer payment was correctly cancelled ;
(b)whether Mr Elgar was paid in excess of his entitlement for career payment during the period 23 June 2017 to 14 January 2018 (“the Period”); and if yes
(c)whether the overpayments are debts owing to the Commonwealth; and
(d)whether all or part of the CP Debt should be waived or written off.
RELEVANT LEGISLATION
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”):
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
If a person is not entitled to the social security benefit they have obtained, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment: section 1223(1) of the Act.
Section 198(1) of the Act prescribes that to qualify for CP for a disabled adult (a care receiver) the following requirements, relevantly, must be met (“Section 198 Requirements”):-
(a)the person must personally provide constant care for the disabled care receiver (section 198(2) of the Act); and
(emphasis added)
(b)if the person is the only person providing the constant care, the care receiver must have been assessed and rated under the Adult Disability Assessment Tool (ADAT) 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 (section 198(2)(a)(i) of the Act); and
(c)the care must be provided in a private residence that is the home of the care receiver (section 198(3) of the Act); and
(d)the carer and care receiver must be Australian residents (sections 198(4)-(5) of the Act).
Section 198AC of the Act provides for circumstances where a person has qualified for the carer payment under section 198 but temporarily ceases to provide that care.
Section 198AC of the Act provides relevantly:
(1) Subject to subsection (3), if:
(a) a person is qualified…for a carer payment:
(i) because the person is personally providing constant care for a care receiver or care receivers; or
(ii) …; and
(b) the person temporarily ceases to provide that care for the care receiver or care receivers;
the person does not cease to be qualified for the carer payment merely because of that cessation.
…
Limit on subsections (1)…
(3) Subject to subsection (3B), the period, or the sum of the periods, for which subsection (1) or (2), or a combination of those subsections, can apply is:
(a) 63 days in any calendar year; or
(b) another period that the Secretary, for any special reason in the particular case, decides to be appropriate.
(4) If:
(a) a person is qualified for carer payment because the person is personally providing constant care for a care receiver or care receivers; and
(b) the person temporarily ceases to provide that care in order to undertake training, education, unpaid voluntary work or paid employment; and
(c) the cessation does not exceed 25 hours per week;
the person does not cease to be qualified for the carer payment merely because of the cessation.
(emphasis added)
Pursuant to section 198AC(4)(b) of the Act, if the carer temporarily ceases to provide constant care in order to undertake education for example, provided that cessation does not exceed 25 hours per week, the person will not cease to be qualified for CP (sometimes referred to as the “25 hour rule”[28]).
[28] James and Secretary, Department of Social Services [2014] AATA 802, at [42].
The Explanatory Memorandum to the Social Security Legislation Amendment (Improved Support for Carers) (Consequential and Transitional) Bill 2009 (“the Bill”) considered and amended section 198AC of the Act. The Bill stated, in part:
Section 198AC provides for situations in which a person may temporarily cease to provide constant care and remain qualified for carer payment. That is, section 198AC allows a person's carer payment to continue while they have respite, or they temporarily cease to provide constant care for up to 25 hours a week in order to undertake training, education, unpaid voluntary work or paid employment.
The temporary cessation period provisions set out in section 198AC of the Act only apply if it is determined that Mr Elgar was “personally providing constant care”. If it is found that Mr Elgar was personally providing constant care then those provisions establish that he will not cease to be qualified for the carer payment merely because he temporarily ceased to provide that care:
(a)for 63 days in a calendar year or some other period the Secretary decides is appropriate given a special reason: section 198AC(3) of the Act; or
(b)due to training or education and the cessation does not exceed 25 hours per week: section 198AC(4) of the Act.
DID MR ELGAR QUALIFY FOR THE CARER PAYMENT DURING THE PERIOD?
It is not in dispute that the eligibility criteria in sections 198(4)-(5) of the Act are satisfied.
Adult Disability Assessment Tool (ADAT) – criteria in section 198(2)(a)(i)
The ADAT is found in the Adult Disability Assessment Determination 2018 (Cth) (“Determination”). Part 1 of Schedule 1 of the Determination sets out the questionnaire that must be completed by the claimant for CP (“Claimant Questionnaire”) and provides a series of questions concerned with identifying the care receiver’s difficulties and care needs. Part 2 of Schedule 1 of the Determination is a questionnaire to be completed by the care receiver’s treating health professional (“Professional Questionnaire”). Schedule 2 of the Determination sets out how the answers to the Professional’s Questionnaire are to be rated.

The minimum score that must be achieved from the Professional Questionnaire for
[29] Section 198(2)(a)(i) the Act.
Mr Elgar to qualify for the CP is 10 points.[29]
Ms Elgar’s ADAT score was 65.75 with a total professional questionnaire score of 27, which is higher than the required score of 10.[30] The criteria in section 198(2)(a)(i) of the Act are satisfied.
Was Mr Elgar “personally providing constant care” to his mother during the Period? [section 198(2)(a) of the Act]
[30] Exhibit 1, T Documents, T51, page 235, Centrelink records.
Mr Elgar contended that:
(a)he provided constant care to his mother and that his attendance at TAFE did preclude him from providing “constant care” to his mother;
(b)the care tasks he provided were in the nature of “constant care”; and
(c)temporary cessation of care days can be used for study purposes pursuant to sections 198AC(3) and(4) of the Act.
Mr Elgar also contended that, he was not attending to his education for more than 25 hours per week, and therefore can be considered to have been providing “constant care” to his mother.
The Secretary contended that:
(a)when Ms Elgar was in Newcastle (Singleton), Mr Elgar was not providing constant care to his mother and therefore fails to satisfy sections 198(2)-(3) of the Act;
(b)at other times, when Ms Elgar was residing with Mr Elgar, the care he was providing his mother was not constant care as required by the Act because he was studying full-time; and
(c)the temporary cessation provision in section 198AC(4) of the Act does not apply to Mr Elgar because he was studying for 25 hours per week.
What is meant by “constant care”?
The Act does not define what constitutes “constant care”. However, “care” is defined in section 197(1) of the Act as “includes attention and supervision”.
“Constant” is defined in the Macquarie Online Dictionary as:
1.invariable; uniform; always present.
2.continuing without intermission.
3.regularly recurrent; continual; persistent.
4.steadfast, as in attachment; faithful.
The Tribunal has considered the meaning of “constant care” on numerous occasions. For example:
(a)In Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 (“Milne”) Senior Member McCabe, as he then was, said (at [7]) (emphasis added):
The requirement that the ‘care’ be ‘constant’ means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.
(emphasis added)
(b)In Hawkins and Secretary, Department of Social Services (Social services second review) [2018] AATA 108, Senior Member Bill Stefaniak AM RFD said (at [16]):
Generally, as a rule of thumb, if a person is working 25 hours plus a week that person is unlikely to be providing constant care.
(c)In Confidential and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs, Re (2010) 116 ALD 601; [2010] AATA 551, Senior Member K S Levy RFD said (at [24]):
the word constant “implies a much higher than normal level of attention, supervision and personal support” and (at [23]) referred to Re Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145 where Senior Member L Hastwell said (at [38]): that “constant care” implies “something more than episodic or spasmodic” care.
(d)In Johnson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 875 (“Johnson”) the Tribunal found, at [31]:
…that to qualify for carer payment, a carer need not be providing care every waking moment of the day
The Tribunal in Smith; Secretary, Department of Social Services and (Social services second review) [2016] AATA 10 helpfully summarised how the concept of “constant care” has been treated in this Tribunal, at [41]:
The concept of “constant care” is not statutorily defined. It has been said (i) to require more than the ordinary activities involved in parental care and household management, (ii) to involve the provision of that care “on a more or less fulltime basis” and in the sense of “devoting a substantial part of each day” to looking after the person, and (iii) possibly to be satisfied by a requirement for “constant supervision” (having regard to the inclusive definition of “care” in SSA 1991 s 197(1): Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 at [7], [8] and [11] (SSA 1991 s 198). Decisions of this Tribunal have held that a requirement for “constant care”
(a) was not satisfied where the care recipient was regularly attending a normal school: Secretary, Department of Social Security and Retallack [1998] AATA 424 (Downs Sydnrome [sic] child attending school five days a week - SSA 1991 ss 197 & 198(2AA)
(b) was not satisfied where the care recipient had reasonably regular school attendance, was cared for by another parent for a substantial number of days a year, and the carer undertook regular, causal, part time employment: Lemon v Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 305 (9 year old child with cystic fibrosis - SSA 1991 s 197)
(c) was not satisfied where the vision impaired adult care recipient was in full time employment, but substantially dependent on the carer for assistance with the activities of daily living and, ordinary household tasks, and the carer also provided regular travel assistance: Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 551; (2010) 116 ALD 601 (2010) (SSA 1991 s 198)
(d) was not satisfied where the carer spent about five hours per day, five to six days a week, and provided companionship as well as some assistance with activities of daily living, to an adult care recipient who otherwise lived alone: Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582 (osteoarthritic elderly mother - SSA 1991 s 198)
(e) was not satisfied where the carer did not live with the adult care recipient and, despite visiting the property and making regular enquiries about the welfare, had no direct contact with her: Del Vecchio and Secretary, Department of Families, Community Services And Indigenous Affairs [2007] AATA 1145 at [37] (SSA 1991 s 198)
(f) was not satisfied where the carer predominantly assisted his mother with the activities of daily living and performed a range of ordinary household tasks, but was able to attend school full time, and had only reduced his hours of school attendance in order to attempt to establish his carer payment qualification: James v Secretary, Department of Social Services [2014] AATA 802 (17 year old whose mother had a significant spinal injury as a result of a motor vehicle accident - SSA 1991 s 198)
(g) was satisfied, even though the care recipient only lived with the carer five days a week and usually attended a special needs program each day, where the attendance was frequently irregular and the carer had to supervise the recipient very closely at home: Halls v Secretary, Department of Social Services [2014] AATA 129 (21 year old incommunicate person with Downs Syndrome - SSA 1991 s 198)
(h) was satisfied where the care recipient required careful monitoring of fluid intake, extensive medication, and regular treatment and surgical procedures (as well as assistance in recovering from them), despite the fact the “ongoing and permanent” care need (apart from monitoring and supervision) was neither daily nor required for significant periods of the day: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harvey [2009] AATA 835; (2009) 112 ALD 216 especially at [26] to [30] & [47] (husband with history of very regular, extensive and ongoing treatment for basal cell carcinoma, and renal failure requiting [sic] thrice weekly home dialysis).
The Tribunal is not bound by previous decisions. However, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision”.[31]
[31] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
The Secretary referred the Tribunal to extracts from the Guides to Social Policy Law 2019 (“the Guide”) which is used by the Department.[32] The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[33]
[32] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 5 October 2018, para 14.
[33] ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
The Guide defines “Constant care” in section 1.1.C.310 — as follows (emphasis added):
A carer is said to provide constant care 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.
Section 3.6.4.70 of the Guide which provides:
"If a carer ceases care for more than 25 hours per week to participate in training, education, employment or voluntary work qualification should be reviewed as they may no longer satisfy the constant care criteria."
Example 1: Kimberly cares for her mother full time in the family home. Kimberly is undertaking an online university degree which she does when not providing care to her mother. The course requirements necessitate her to attend classes twice a year in block sessions on campus. Each session is for 10 days. Kimberly can utilise her 63 days temporary cessation of care provisions to attend these sessions. Kimberly remains qualified for CP as long as she does not exceed 63 days temporary cessation of care days.
Other Tribunal decisions have found that performing household or domestic duties does not constitute care being provided to a person because it is common to the management of any household.[34] Some of these decisions also make the point that general household tasks are generally tasks that can be undertaken at the care giver’s convenience.[35]
[34] Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689; James and Secretary, Department of Social Services [2014] AATA 802.
[35] James and Secretary, Department of Social Services [2014] AATA 802.
Based on the ordinary meaning of the word “constant” and consistent with previous Tribunal decisions, the Tribunal finds that “constant care” in section 198(2)(a) of the Act requires continuing and regular care, rather than intermittent or spasmodic care,[36] for a significant period each day, on the equivalent of a full-time basis.
[36] Re Kevin James Kedwell and Secretary to the Department of Social Security [1987] AATA 323; Reidy and Secretary, Department of Social Security [1986] AATA 538; Re Del Vecchio and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2007] AATA 1145.
In James and Secretary, Department of Social Services [2014] AATA 802, the Tribunal noted [34] that:
“carer payment is for those who are unable to maintain substantial employment (or study), as a result of the care they provide. If the needs of the care recipient are flexible enough that the carer can be attended to outside the times when the carer is required to work or study then Carer Payment is not payable.”
Level/Nature of Care provided by Mr Elgar
Mr Elgar told the Centrelink officer in January 2018 that the care he provides his mother includes watching her, taking her shopping, watching her medications and monitoring her once she is out of bed.
Mr Elgar also gave evidence before the Tribunal. In relation to the care Mr Elgar provides he said that:
·His mother needs to be taken to the doctors when she hurts herself. Mr Elgar took her to the general practitioner in August 2017 but she was unhappy with that doctor and so she did not return to the doctors again until she was back in Singleton;
·his mother sleeps from 1:00AM till 1:30PM each day;
·he watches her, takes her shopping, watches her medications and monitors her once she is out of bed;
·the care is there when it is required;
·for the majority of the time that no care is provided when his mother is asleep;
·the significant care is occurring during his mother’s waking hours;
·he does not go to bed until his mother does which is around 1:30AM-2:00AM in the morning;
·because of his mother’s frailty, age and her medical conditions, she can easily hurt herself when she is engaging in everyday activities and as a result she needs to be supervised and monitored; and
·his mother may need to use some tools, or the use of a chair, in order to engage in some activities such as cooking, making a cup of tea and bathing.
There is no corroborating evidence of the care being provided by Mr Elgar.
On 1 February 2018 Dr Philip Briddon, General Practitioner, provided a medical report to Centrelink in support of Mr Elgar’s new claim for the carer payment. This is the only medical evidence before the Tribunal. Dr Briddon reported that:[37]
[37] Exhibit 1, T Documents, T 39, pages 152 – 158, Carer payment and/or carer allowance medical report completed
by Dr Briddon dated 1 February 2018.
(a)Mr Elgar’s mother suffered from the following medical conditions - osteoarthritis of the spine, depression and anxiety, panic attacks, chronic obstructive pulmonary disease, impaired hearing, left cataract, gastro-oesophageal reflux;
(b)Ms Elgar’s medical conditions began in 2008;
(c)Ms Elgar requires assistance on a daily basis because of her medical conditions to carry out routine personal activities;
(d)Ms Elgar requires care for a significant period each day and is at risk of falls and has anxiety issues;
(e)Ms Elgar’s conditions are permanent and are not likely to improve;
(f)Ms Elgar’s day-to-day needs are best described as follows:
·bowels – occasional accident (once a week);
·bladder – occasional accident (once a week);
·grooming – independent (implements provided);
·toileting – independent (on and off, wiping, dressing);
·feeding – needs help in cutting, spreading butter et cetera;
·transfer – minor help (verbal or physical) (i.e. equals one person easily or needs any supervision for safety);
·mobility – walks with help of one person (verbal or physical);
·dressing – independent (including buttons, zips, laces etc.);
·stairs – unable;
·bathing – dependent;
(g)Ms Elgar is cognitively impaired and:
·shows signs of depression most of the time;
·shows signs of memory loss most of the time;
·withdrawals from social contact most of the time; and
·sometimes displays aggression towards herself or others.
According to Medicare records, Dr Briddon only consulted with Ms Elgar on one occasion between 14 August 2017 and 14 February 2018, and that was on 14 February 2018 when his medical report was prepared.[38] The Tribunal does not know how Dr Briddon could have prepared the medical report, given that he had not consulted with Ms Elgar in the months prior. The medical report must simply be a reflection of what he was told by
[38] Exhibit 1, T Documents, T42, pages 165-166, Medicare report.
Mr Elgar and as a result limited weight is given to it.
Other Tribunal decisions have determined that a guiding principle is that a person cannot be providing constant care if a person is able to engage in full-time study and that the care is not impinging on a person’s ability to engage in full-time study. Mr Elgar said he could understand this principle but that even though he had been attending to study, the care being provided is “daily, constant and faithful” and that he was “not about to go off and leave her to her own devices”. He said he would sometimes go home during the day to check on her if he felt that she was not well “there is no way I could leave her on her own while she is active”.
The Tribunal is not satisfied that the nature of the care Mr Elgar provided his mother was sufficient to constitute the constant care required by the Act. Mr Elgar told the Tribunal that his mother was largely independent in terms of going about her day to day activities and that he provided care “if required”. The nature of the care being provided is not significant continual care. Further, as discussed below, the Tribunal is also not satisfied that Mr Elgar was able to provide constant care while studying fulltime.
The number of hours of care provided may be indicative of whether the care being provided is constant, but the legislation does not specify any particular threshold amount of time. It is preferable to consider the care in terms of its significance and importance to the care recipient, that is, it constitutes personal care, and whether it is provided for a significant period each day.[39] In this regard the nature of the care given is important. As the Tribunal noted in Milne, care can be active, such as helping the care recipient to wash or clothe themselves, and it can be passive, such as supervision and monitoring.[40]
[39] See Confidential and Secretary, Department of Families Housing, Community Services and Indigenous Affairs [2013] AATA 582, at [19]; Re James and Commonwealth of Australia (1986) 11 ALD 273; Cavanagh-Hans and Secretary, Department of Social Services (Social services second review) [2017] AATA 687, at [21]-[23]; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Towse (2008) 103 ALD 688, at [38].
[40] [2008] AATA 689, at [7].
Mr Elgar’s argument is that the care that he provides his mother is primarily supervision and monitoring.
The care Mr Elgar describes providing his mother was regular and daily during the relevant period. It was not for the entire day but Mr Elgar was present in the event that his mother needed help for the majority of time she was awake. While the nature of the care provided by Mr Elgar to her mother is a relevant factor, the fact that Mr Elgar undertook full-time education and was able to complete all of his study requirements is also relevant.
In the circumstances, the Tribunal is not satisfied that Mr Elgar satisfied the requirements of personally providing constant care to his mother pursuant to section 198 of the Act during the Period.
Study Attendance/Relevance of “25 hour rule”
Mr Elgar contends that, during the qualification period he provided “constant care” despite his course attendance and study commitments and relies on the decisions of Halls and Secretary, Department of Social Services [2014] AATA 129 (“Hall”’), KFNL and Secretary, Department of Social Services (Social services second review) [2016] AATA 68, Madden and Secretary, Department of Social Services [2017] AATA 782, and Johnson.

The Guide provides that “the policy intent of providing CP is to recognise that the carer is not able to undertake substantial employment [or education] because of their caring responsibilities”.[41]
[41] The Guide, section 1.1.C.310.
In Halls, the Tribunal found that it could be inferred from the Guide and the Act that 25 hours equated to being engaged in substantial employment.[42]
[42] [2014] AATA 129, at [29].
In Johnson the applicant provided five hours of care per day between 5PM and 10PM. The Tribunal found that:[43]
(a)the applicant was providing 30 to 35 hours per week of care;
(b)it was significant that the applicant had had to give up her job;
(c)even though the applicant had admitted she could have worked as well is caring for the care receiver, it was not reasonable to conclude that she would have had enough time to study or work for more than 25 hours in addition to caring for the care receiver; and
(d)the intensity of the care provided equated to a normal working day and that while in her care the care receiver required regular and consistent care which included meal preparation, house duties, preparing medication, monitoring the care receiver’s medication intake, and on occasion assisting the care receiver to eat, occasionally assisting with showering and assisting with bodily functions between 30 and 90 minutes each day.
[43] [2008] AATA 875 at [19]-[21] and [33]-[35].
The situation in Johnson is different to that here because Mr Elgar was able to engage in work or study for at least 25 hours per week in addition to caring for his mother in the afternoon and evening. His study and training commitments did not have any impact on the nature of care Mr Elgar was providing.
Date Mr Elgar commenced studying
A TAFE confirmation of enrolment form indicates that Mr Elgar commenced a number of his course subjects on 9 January 2017.[44] Mr Elgar told the Tribunal that he did not attend those courses. He said that while he was enrolled, due to medical issues his start date was deferred until semester two of 2017.
[44] Exhibit 1, T Documents, T 52, pages 150 – 151, TAFE records – confirmation of enrolment.
The confirmation of enrolment form provided by TAFE on 5 November 2018 indicates that:[45]
(a)Mr Elgar was enrolled in 6 courses commencing on 14 November 2016; and
(b)Mr Elgar was enrolled in 24 courses commencing on 23 June 2016.
[45] Exhibit 1, ST Documents, ST 1, pages 4 – 6, Confirmation from take Queensland dated 5 November 2018.
Mr Elgar told the Tribunal that he did not attend the courses starting on 14 November 2016 and that he disputed this was the start date because he did not officially start until
26 June 2017.
The SSCSD considered that 23 June 2017 was the date Mr Elgar commenced studying as a result of the confirmation of enrolment form. However, an email from Airwork Helicopters, who conducted the course for TAFE, dated 23 June 2017 confirms that the course that Mr Elgar was enrolled in was due to commence on 26 June 2017.[46]
[46] Exhibit 1, ST Documents, ST 1, page 44, Email from Airwork Helicopters to enrolled students dated 23 June 2017.
The Secretary also accepted in its Statement of Facts and Contentions that Mr Elgar commenced studying on 26 June 2017.[47]
[47] Exhibit 2, Secretary's Statement of Facts and Contentions dated 5 October 2018, para 21(b).
The Tribunal finds that Mr Elgar commenced studying on 26 June 2017.
Mr Elgar’s Study Commitments
Mr Elgar told the Tribunal that his course was a combination of full-time classroom learning and part-time practical training. Mr Elgar agreed that the contact hours are generally between 8:30AM and 3:30PM, plus 10 minutes travel each way, totalling approximately 36-37 hours per week. Mr Elgar acknowledged that he was required to do further study after classroom hours. The TAFE course overview indicates that the course is full-time for 26 weeks and the workload is full time for five days/week plus 16 hours per week of personal study.[48] Mr Elgar agreed 16 hours was an accurate reflection of how much time he spent studying outside of contact hours.
[48] Exhibit 1, ST Documents, ST 1, page 32, Course overview.
Mr Elgar told the SSCSD that:[49]
(a)the first component of the course was full-time classroom study for 11 weeks with contact hours of 8:30AM to 3:30PM, followed by one week of holidays and then 14 weeks of practical training;
(b)practical training component required him to complete 105 hours of flying; and
(c)between 19 October 2017 and 18 December 2017 he spent approximately 14 hours away from home (including travel time) except for the week of 13 to 17 November 2017 when he was engaged in 28 hours of study.
[49] Exhibit 1, T Documents, T 2, pages 3 – 13, Decision of the Social Services & Child Support Division, dated 13 April 2018.
Mr Elgar said exams are usually conducted a location approximately one hour from his home and took between 90 minutes and two and a half hours depending on the subject.
Mr Elgar was taken to the TAFE attendance records.[50] Mr Elgar said he did not agree with those records. Mr Elgar provided his own calendar of his training/education attendance which he says he based on the days he actually attended.[51] The Tribunal notes that Mr Elgar was not able to provide any corroborating evidence of his course attendance days.
[50] Exhibit 5, Extract of TAFE Queensland attendance records.
[51] Exhibit 4, Mr Elgar's timetable of events.
Mr Elgar explained to the Tribunal that all of his classes took place at Airwork Helicopters location. In order for TAFE Queensland to have prepared the attendance record the information regarding Mr Elgar’s attendance must have been provided by Airwork Helicopters. Mr Elgar said he had asked Airwork Helicopters for attendance records but was told they did not have any. There is no corroborating evidence of this. Mr Elgar said he does not know where TAFE obtained their information in order to prepare the attendance records. Given that it is TAFE that issues the Diploma upon completion of the course, records would have to be provided to TAFE by Airwork Helicopters to say that Mr Elgar had satisfied the components of his enrolled courses.
Mr Elgar said Airwork Helicopters do not keep records of attendance other than the helicopter log record. The Tribunal finds that difficult to accept give that information must have had to be provided to TAFE by the course provider for TAFE’s own record keeping purposes.
Mr Elgar told the Tribunal he was compliant with what was required in terms of his attendance and exam attendances.
Period 1 - between 23 June 2017 and 27 July 2017
Ms Elgar was not in Mr Elgar’s care between 23 June 2017 until 27 July 2017, which is a total of 35 days.
Between 26 June 2017 and 27 July 2017 Mr Elgar was engaged in full-time study of approximately 28 to 35 hours per week, which is a total of 32 days.
Period 2 - between 28 July 2017 and 8 September 2017
Between 28 July 2017 and 8 September 2017 Mr Elgar was engaged in full-time study of approximately 28 to 35 hours per week, which is a total of 42 days.
Period 3 between 9 September 2017 and 4 October 2017
Mr Elgar confirmed that during this period he was attending his course and looking after his mother as he has described. He said that at this time he had moved into the training portion of the course which means that he would not do as many hours during the day. He explained that if he had undertaken one hour of flight time than he would have done three to four hours on top of that, equating to a four to five hour day.
Exhibit 7 is a hand written record prepared by Mr Elgar of his flying time. Mr Elgar said he prepared the record based on the number of hours that he had flown according to the helicopter logbook. Exhibit 6 is a record of flight times.
A review of the handwritten flying time record indicates that during this period Mr Elgar had one flying time which was on 19 September 2017 for a period of 0.8 hours. When asked if he was therefore continuing with his normal study during this period he said no as there were no actual classes. However according to TAFE’s records Mr Elgar was attending TAFE for the majority of this period.
Some of the dates that Mr Elgar says he was not at college are confirmed by the TAFE records and some are not. For example, the week beginning 25 September 2017 TAFE records indicate that Mr Elgar was present every day that week. Whereas the record prepared by Mr Elgar based on the Airwork Helicopter logs indicate that he was not present between 20 September 2017 and 11 October 2017.
The official TAFE records do not reflect Mr Elgar’s oral evidence. Mr Elgar did say that one course would have started during the period.
Mr Elgar’s evidence was not all together clear. This is not meant to be a criticism but rather reflects that he would not have anticipated at that time having to reconstruct his actual movements. It is highly unlikely in the Tribunal’s view that Mr Elgar would be able to accurately recall exactly how many hours he was required to attend his course and on which exact days. In the circumstances the Tribunal gives more weight to the attendance records compiled by TAFE.
Period 4 between 5 October 2017 to 4 November 2017
It is not in dispute that during this period Ms Elgar was not residing with Mr Elgar and was staying in Singleton. Mr Elgar accepts that during that period he was not providing his mother with constant care and relies on the 63 day temporary cessation for that period.
Flight records confirm that in October 2017 Mr Elgar’s mother travelled to Singleton for the birth of her great-grandson and remained there until 4 November 2017.[52] While in Singleton his mother had various medical consultations and follow-up treatment on four occasions.[53]
[52] Exhibit 1, T Documents, T 50, page 205, Jet Star flight record confirming Ms Elgar travelled from Newcastle to
Brisbane on 4 November 2017; T 50, page 207, Statement of Ms Kim Eather dated 8 April 2018.
[53] Exhibit 1, T Documents, T 37, pages 147 – 148, Letter from Mr Elgar to Centrelink dated 25 January 2018; T 42,
pages 165 – 166, Medicare records.
Period 5 between 4 November 2017 to 19 December 2017
19 December 2017 is the day that Mr Elgar’s course ended. According to Mr Elgar’s timeline he was attending four days a week to his classes. Contrary to Mr Elgar’s timetable the TAFE attendance records show that Mr Elgar was also in attendance on the 9^th, 15^th, 23^rd and 27^th of November 2017.[54]
[54] Exhibit 5, Extract of TAFE Queensland attendance records.
Mr Elgar says that he did not attend any classes the week beginning 27 November 2017. The TAFE records show that there were no classes from 28 November 2017.[55]
[55] Exhibit 5, Extract of TAFE Queensland attendance records.
Mr Elgar told the Tribunal that in order to determine whether or not he had been in attendance and the amount of time he had been in attendance, he looked to see whether or not he had flown on that day and if he had flown for one hour he added an hour before and after to take into account driving time. For example, on 6 November 2017 Mr Elgar had a flight practice which took approximately 2.2 hours. Mr Elgar had calculated that on that day he had spent approximately seven hours by adding the 2.2 hours of practical training, two hours of travel time each way and the three hours remaining was a guess of how much extra time it spent to take into account debriefings before and after his practical training.
On 8 November 2017 the flight records indicated approximately 1.9 hours of flight time.[56] TAFE records indicate that Mr Elgar was in attendance on that day and Mr Elgar has recorded that day as his having been involved in study or travel to and from study of seven hours to cover pre-flight inspections and debriefings and travel time. The TAFE records do not indicate for how long each day Mr Elgar was engaged in study. The Applicant has accepted that he was studying for 22 hours during the week of

9 November 2017.
[56] Exhibit 7, Extract of Flying Time Log.
The week beginning 13 November 2017 Mr Elgar has indicated he was engaged in 28 hours of study. While an individual is allowed a temporary cessation for study, it is not allowed for in excess of 25 hours. The Secretary submits that the Applicant was not personally providing constant care and that in the week commencing 13 November 2017 the Applicant accepts that he went over the 25 hour per week limit.
Period 6 - between 19 December 2017 and 31 December 2017
Mr Elgar was not engaged in any study or training during this period.
Period 7 - between 31 December 2017 to 17 January 2018
Ms Elgar returned to Singleton again on New Year’s Eve,[57] and returned to Queensland on 17 January 2018. Flight records confirm that on 31 December 2017 Ms Elgar flew from Brisbane to Newcastle.[58]
[57] Exhibit 1, T Documents, T 50, page 207, Statement of Ms Kim Eather dated 8 April 2018.
[58] Exhibit 1, T Documents, T 50, page 206, Jet Star flight record confirming Ms Elgar travelled from Brisbane to
Newcastle to Brisbane on 31 December 2017.
There is no dispute that Mr Elgar was not providing constant care during this period.
Consideration
The Secretary submits that during periods two and three, five and six, the Applicant exceeded 25 hours of studying and therefore, the Tribunal cannot find that he continued to be qualified. The Tribunal agrees there is no discretion in section 198AC(4) of the Act as it specifically provides that 25 hours is the maximum. If there was to be discretion it would not have specified an amount of time.
The Secretary also contended that Mr Elgar did not “temporarily” cease providing care to Mrs Elgar in order to undertake his education and that a 6 month course does not constitute a temporary cessation.
The Tribunal agrees with the Secretary that Mr Elgar exceeded 63 days of respite in the calendar year. The Secretary further notes that the Applicant's daily timeline shows that Ms Elgar was in New South Wales from 23 June 2017 to 27 July 2017 and the Applicant was studying full time from 28 July 2017 to 8 September 2017.
Given the extent of Mr Elgar’s study commitments during the period in question, Mr Elgar cannot take advantage of section 198AC(4) of the Act. As a result, Mr Elgar has exceeded the limited of 63 days of a cessation of care in the calendar period.
Does a special reason exist to extent the 63 day time period?
There are many cases which deal with circumstances where a special reason has been found to exist such that the 63 day limitation for temporary cessation has been extended.
The Federal Court authority is Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18]. In that case the French J, as he then was, found that:
The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course - Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional - Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 108 ALR 322.
In KFNL and Secretary, Department of Social Services (Social services second review) [2016] AATA 68 (“KFNL”) as a consequence of a court’s custody orders the Applicant had not provided care for a period of more than 63 days in a particular calendar year. The issue for the Tribunal was whether or not a special reason existed to extend the number of days that a temporary cessation could be taken to have existed. The Tribunal found that, even with the consequence of the court order resulting from her separation from her husband and in circumstances where she had her own mental health issues, the Applicant continued to be the sole carer of the children of the marriage and that for approximately 70% of the time continued to provide the majority of care for her children with autism spectrum disorders. The Tribunal found that that this was a sufficiently unusual and different situation and should be considered special. As a result the Tribunal found she did not cease to be qualified for carer payment.
There is no similarity between the circumstances in KFNL and Mr Elgar’s situation.
In O’Neill; Secretary, Department of Family and Community Services [2002] AATA 253, the Tribunal found that special reasons existed to extend the number of days of temporary session of care because it was the Applicant’s intention for her mother to return to her home when her condition had become stabilised and because the Department had given the Applicant incorrect advice. The Tribunal does not obtain any real guidance from this matter as it is primarily concerned with a different provision of legislation which relates to a continuation of carer payment during a brief period where a person cared for dies and where a person has been admitted permanently to institution. This matter has limited significance, if any, in relation to this matter and the special reasons that exist in that case have no bearing on whether or not special reasons exist in this case.
Mr Elgar contends that a special reason existed to extend the time because his mother was taken to hospital on 20 October 2017. During this period, Ms Elgar was visiting her great-grandson and had a doctor’s appointment on 9 October 2017 and 12 October 2017. On 20 October 2017 she became ill and was taken to hospital and was seen again by the doctor on 24 October 2017. There is no indication in the Medicare summary for the Tribunal that Ms Elgar attended the general practitioner on 24 October 2017.[59] Mr Elgar said his mother was cleared to return home on 26 October 2017. There are no medical reports before the Tribunal. Medicare records confirm when Ms Elgar attended her doctors. The primary reason she was in Singleton was to see her great-grandson who was born on 5 October 2017. Mr Elgar says that the reason she was away for that length of time was because of the medical conditions. Mr Elgar said his mother had originally intended to stay in Singleton for a week or two. Mr Elgar also reiterated that she prefers the doctors in Singleton. The Tribunal finds that a preference for seeing particular doctors does not constitute a special reason to extend the 63 day temporary cessation period. That was a matter of choice and was not a situation that was out of either Mr Elgar’s, or his mother’s, control. He then said he wasn’t sure why she had actually attended a doctor at that stage. Ms Eather states that in October 2017 her mother had travelled back to Singleton to be with her granddaughter for the birth of her great-grandson and that she had only intended to be there for a week but because of an ulcer on her ankle she had made an appointment for her mother to see a general practitioner. She then had to have a biopsy and wait for the results and treatment options before returning to Caboolture. Ms Elgar then returned to Singleton again on 31 December 2017 for a six monthly osteoporosis injection and returned to Caboolture on 17 January 2018.[60]
[59] Exhibit 1, T Documents, T 42, pages 165-166, Medicare summary.
[60] Exhibit 1, T Documents, T 50, page 207, Statement of Ms Eather dated 8 April 2018.
Ms Eather does not state that an ambulance was called in October 2017 regarding the ankle ulcer.
Mr Elgar ceased providing care to his mother on 23 June 2017 when he travelled to Brisbane. No care was provided to his mother again until 27 July 2017. Between 26 June 2017 and 8 September 2017 Mr Elgar was studying full time more than 25 hours per week. Section 198AC(4) of the Act therefore cannot apply to Mr Elgar.
The threshold of 63 days was therefore met on 5 September 2017. There is no special reason to extend the threshold time period.
IS THE CP DEBT RECOVERABLE?

Even if a debt is owed, the Secretary may write off a debt in certain circumstances set out in section 1236 of the Act which provides:
1236 Secretary may write off debt
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) ...; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
The Secretary must also 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 1237A of the Act.
Further, the Secretary may exercise its discretion to waive the right to recover all or part of the debt if satisfied that:
1237AAD Waiver in special circumstances
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, 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.
SHOULD THE CP DEBT BE WRITTEN OFF? (SECTION 1236 OF THE ACT)
Is the debt irrecoverable at law?
Section 1236(1B) of the Act sets out when a debt is taken to be irrecoverable at law:
(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
Mr Elgar’s CP Debt is currently being repaid through withholdings of his carer payment. None of the circumstances set out in section 1236(1B) of the Act exist in this case and therefore the Tribunal finds that the debt is not irrecoverable at law.
Section 123(1) of the Administration Act states, relevantly, as follows:
123(1) A determination that:
(a) a person’s claim for social security payment is granted; or
(b) the social security payment is payable to a person;
continues in effect until:
…
(c)a further determination in relation to the payment under section 80…takes effect; or
…
Because Mr Elgar was not entitled to carer payment during the Period, the amount of the payment he received during that period is a debt due to the Commonwealth and arose when he obtained the benefit of the payment: section 1223(1) of the Act.
Does Mr Elgar have capacity to repay the debt?
Section 1236(1C)(a) of the Act provides that if a debt is recoverable by means of deductions from the debtor’s social security payment the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
Severe financial hardship needs to involve severe or extreme financial suffering and that a person’s entire financial position would need to be materially less than the current rate of their pension.[61]
[61] Re Lumsden and Secretary, Department of Social Security [1986] AATA 228; Stubbs and Secretary, Department
of Family and Community Services [2003] AATA 729; L and Department of Social Security [1995] AATA 159; Secretary, Department of Family and Community Services and Birgden [2003] AATA 67.
Mr Elgar’s Statement of Financial Circumstances indicates that his current financial position is not materially less than the current rate of his pension.[62]
[62] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, Attachment A,
Statement of Financial Circumstances dated 6 March 2017.
Mr Elgar is currently repaying the debt by way of deductions of $15 per fortnight out of his current carer payments. Mr Elgar has been receiving the carer payment again since
[63] Exhibit 1, T Documents, T 51, page 220, Centrelink records.
16 February 2018.[63]
There is no evidence to suggest that Mr Elgar suffers from severe financial hardship.
Is it cost-effective for the Commonwealth to recover the debt?
There is no indication from the Secretary that it is not cost-effective for it to recover the debt.
Conclusion
There is no basis for the debt to be written off under section 1236 of the Act.
DID MR ELGAR RECEIVE THE OVERPAYMENT IN GOOD FAITH AND WAS THE DEBT, OR A PROPORTION OF THE DEBT, ATTRIBUTABLE SOLELY TO AN ADMINISTRATIVE ERROR? (SECTION 1237A OF THE ACT)
Was the debt attributable solely to an administrative error?
If administrative error was the sole cause for the debt arising, the Secretary must waive the right to recover the debt. The debt must be "attributable solely" to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes”: Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41; [2003] FCA 76, per Wilcox J (at [41]) and on appeal to the Full Federal Court Sekhon v Secretary, Department of Family and Community Services (2003) 76 ALD 105; [2003] FCAFC 190.
The CP Debt arose due to a reconciliation by Centrelink of the carer payment amounts paid during a time when Mr Elgar was not eligible to receive those payments.
As a result the debt owed by Mr Elgar was not ‘attributable solely to an administrative error made by the Commonwealth’ for the purposes of section 1237A(1) of the Act.[64]
[64] See Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108, at [102].
Should the CA debt be waived under section 1237AAD of the Act?
There are a few elements to be satisfied under section 1237AAD of the Act before a debt may be waived. First, the debt must not have arisen from the debtor, that is, Mr Elgar must not have knowingly made a false statement or a false representation or knowingly failed or omitted to comply with a provision of the Act or the Administration Act. Second, there must be “special circumstances” (other than financial hardship alone) that make it desirable to waive. Third, it must be more appropriate to waive than to write off the debt or part of the debt.
The Act does not define what constitutes “special circumstances”. Decisions of the Federal Court make it clear that “special” denotes something different from the usual or ordinary.[65]
[65] See Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545 per
Kiefel J, Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639, at [51], Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18] per French J; Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, at [37] per Barker J.
Mr Elgar does not contend that the debt should be waived on the grounds of the special circumstances that make it desirable to waive.
Although Mr Elgar said he did not know he was under an obligation to inform Centrelink that he had commenced studying, ignorance of the legal requirements is not a “special circumstance”. “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”.[66]
[66] See Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115, at [9], [17]; See also: Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451, at [21]; Barnard and Secretary, Department of Social Services (Social services second review) [2016] AATA 436, at [47]; Scott v Secretary, Department of Social Security (1999) 57 ALD 627; [1999] FCA 1774, at [51] and on appeal Scott and Another v Secretary, Department of Social Security (2000) 65 ALD 79; [2000] FCA 1241, at [23] per Beaumont and French JJ.
DECISION
The decision under review is affirmed.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 24 January 2019

Date of hearing:
Date reserved:

14 November 2018

19 December 2018

Applicant: In Person

Advocate for the Respondent: Jacky Vetter

Solicitors for the Respondent: Department of Human Services, FOI and Litigation Branch

Date of hearing: Date reserved:	14 November 2018 19 December 2018
Applicant:	In Person
Advocate for the Respondent:	Jacky Vetter
Solicitors for the Respondent:	Department of Human Services, FOI and Litigation Branch