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

This matter concerned an appeal by the Secretary of the Department of Social Services (DSS) against decisions made by the Administrative Appeals Tribunal (AAT) regarding the respondent's alleged indebtedness for overpayments of Child Care Benefit (CCB) and Child Care Rebate (CCR). The dispute centred on the existence and extent of any debt owed by the respondent to the Commonwealth in relation to CCB and CCR payments received during specific periods.

The court was required to determine whether the respondent was indebted to the Commonwealth for overpayments of CCB and CCR. This involved assessing whether the amounts paid to the respondent exceeded the amounts that should have been paid, and for CCR, whether the respondent was entitled to the rebate during the periods in question. The court also needed to consider the legislative framework governing CCB and CCR entitlements and the conditions under which a debt could arise, particularly in relation to determinations of eligibility and the weekly limits of hours for childcare.

The court reasoned that indebtedness for CCB arises when the amount paid exceeds the amount that should have been paid, creating a debt to the Commonwealth. Similarly, for CCR, a debt arises if an amount is paid when the recipient was not entitled to it. The eligibility for CCB, particularly by fee reduction, requires a determination to be in force under the relevant legislation. The court noted that the legislation applicable was the A New Tax System (Family Assistance) (Administration) Act 1999 and the A New Tax System (Family Assistance) Act 1999, in their form prior to 2 July 2018. The court found that there had been no variation to the determination of the weekly limit of hours and no notice of such variation was given.

The court set aside the AAT's decisions and substituted its own. It found that the respondent was not indebted to the Commonwealth for any overpayment of CCB or CCR in the period from 6 July 2015 to 21 July 2016. However, it determined that the respondent was indebted to the Commonwealth for overpayments in the subsequent period from 22 July 2016 to 2 July 2017.