Foryabee and Secretary, Department of Social Services (Social services second review)
[2020] AATA 4317
•28 October 2020
Foryabee and Secretary, Department of Social Services (Social services second review) [2020] AATA 4317 (28 October 2020)
Division:GENERAL DIVISION
File Numbers: 2020/4224
2020/4227
Re:Mrs Rahellah Foryabee
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO Member
Date:28 October 2020
Place:Melbourne
The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 7 June 2018.
...........................[sgd].............................................
Ms A E Burke AO Member
PRACTICE AND PROCEDURE – application for extension of time – delay of two years in lodging application – whether reasonable excuse for delay – where prejudice would be incurred by respondent and public by allowing extension of time – prospects of success – not reasonable in all the circumstances to allow extension of time
Legislation
Administrative Appeals Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Cases
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Confidential and Secretary, Department of Families, Housing, Community Services and
Indigenous Affairs [2010] AATA 551
Confidential and Secretary, Department of Families Housing, Community Services and Indigenous Affairs [2013] AATA 582
Elgar and Secretary, Department of Social Services [2019] AATA 60
Gidley and Secretary, Department of Social Services [2018] AATA 28
Groth v Secretary, Department of Social Security [1995] 40 ALD 541
Hawkins and Secretary, Department of Social Services [2018] AATA 108
Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049
Hunter Valley Developments Pty Ltd; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment (1984) 3 FCR 433
James and Secretary, Department of Social Services [2014] AATA 802
Kuljic v Secretary, Department of Social Security [1994] FCA 62
Milne and Secretary, Department of Families, Housing, Community Services
and Indigenous Affairs [2008] AATA 689
Secretary, Department of Social Security and Retallack [1998] AATA 424Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO Member
28 October 2020
Mrs Foryabee (the Applicant) sought an extension of time to apply for the review of a decision under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). The decision was made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 7 June 2018. The Applicant lodged her application for review of that decision as well as her application for an extension of time on 13 July 2020.
On 28 September 2017, Centrelink issued a notice to Mrs Foryabee that she had two legally recoverable debts as she had received payments for which she was not entitled, being Carer Payment debt of $12,283.11 for the period from 26 September 2016 to 18 July 2017; and a Carer Allowance debt of $3,228.18 for the period from 26 September 2016 to 18 July 2017. Centrelink is the service provider for the Department of Social Services.
The extension of time application was heard on 24 August 2020. Mrs Foryabee was represented by Mr Romel Nasimi, a family friend, and Ms Felicidade Lay, a lawyer in the Litigation Team of Services Australia, appeared for the Secretary, Department of Social Services (the Respondent).
THE ISSUE IN CONTENTION
The issue in contention is whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for Mrs Foryabee to make an application for review under section 29(7) of the Act.
BACKGROUND
Mrs Foryabee was granted a Carer Payment and a Carer Allowance to provide care to Mrs Sima Mohammed Zayee (the care receiver). Mrs Foryabee is not related to Mrs Zayee nor do they reside in the same home.
On 28 September 2017, a Centrelink officer made a decision to raise and recover a Carer Payment debt in the amount of $12,283.11 for the period 26 September 2016 to 18 July 2017, and a Carer Allowance debt of $3,228.18 for the same period. The total amount of the Applicant’s debt is $15,511.29.
On 25 January 2018, on internal review, a departmental Authorised Review Officer (ARO) affirmed the original decision. The ARO found that Mrs Foryabee was not entitled to the Carer Payment and Carer Allowance between 26 September 2016 to 18 July 2017 to provide care to the care receiver (Mrs Zayee), as she was not providing the required level or amount of daily personal care to Mrs Zayee. This finding was made based on the information that Mrs Foryabee provided to the Secretary on 31 July 2017 that since 26 September 2016 she had been providing care to Mrs Zayee for three or four days per week, and that on 26 September 2016 she had commenced a Family Day Care business. The ARO found that Mrs Foryabee was not entitled to the payments and therefore she was overpaid in Carer Payment and Carer Allowance between 26 September 2016 to 18 July 2017.
On 13 July 2020, Mrs Foryabee sought a review and an extension of time for a review of the AAT1 decision by this division of the Tribunal, stating:
Due to lack of legal knowledge and language barrier I was not aware of a second review being available. Despite the fact that the decision mentions there was an interpreter I did not have an interpreter on the hearing date. I was denied that right by Centrelink officer. I still do not understand the reasons behind this decision and now that I can no longer make any payments and the financial stress has taken its toll on me and my family I have approached a family friend to help. I never had the financial ability to approach a lawyer in the beginning and I was not aware of any other legal help available for me. All the facts in this case have been misinterpreted. My husband and I suffered from sever depression and we had no idea what to do. We just followed the instructions provided by Centrelink Officers. After getting advise and thorough review of my documents I am certain that the decision was made with out consideration of any facts, I have not been able to provide anything to support my case and I would humbly request for a second review and a fair chance.
…
I believe the decision was made without fair consideration for the facts. I was not given a chance to understand why this decision was made and why was there a claim to start with. I was not even given an interpreter, despite it being mentioned in the decision that a Dari interpreter was present.
My communication and information provided to Centrelink does not match anything mentioned in the decision. I believe that a review will certainly override the original decision which was unfairly made. I should have at least been given a chance to understand what I am agreeing to and what I am being accused off.
RELEVANT LEGISLATION AND ISSUES
Section 29(7) to (10) of the Act provides that:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. (emphasis added)
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a)give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b) require the applicant to give notice to those persons.
(10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
Section 198 of the Social Security Act 1991 (the SS Act) sets out the qualification for a carer payment and the requirement to provide “constant care”:
(1) A person is qualified for a carer payment if the requirements of this section are met.
Note: Sections 198AA, 198AB and 198AC allow the person to qualify in certain short-term
circumstances where the requirements would not be met.
Constant care for disabled adult or disabled adult and a dependent child
(2) The person must personally provide constant care for:
(a) either:
(i) if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or
(ii) if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or
(d) a disabled adult and a dependent child of the adult (the care receivers), where:
(i) (i) the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and
(ii) the child is aged under 16; and
(iii) if the child is aged 6 or more—carer allowance is payable for the child; and
(iv) section 197D does not apply in respect of the care receivers.
Note: In a paragraph (d) case, subsection (9) deems certain supervision to constitute care.
Care in home
(3) The care must be provided in a private residence that is the home of the care receiver or care receivers.
…
Deemed personal care of disabled adult and dependent child
(9) For the purposes of paragraph (2)(d) and other references in this Part that relate to that paragraph, if a disabled adult is providing care of a dependent child of the adult at a particular time and another person is supervising the provision of that care at that time, the other person is taken personally to provide care of the adult and child at that time.
Section 954A of the SS Act sets out the provision for qualification for carer allowance—caring for a disabled adult in a private home not shared by the adult and carer:
(1) A person is qualified for carer allowance for a disabled adult (the care receiver) if:
(a)the care receiver is an Australian resident; and
(b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and
(c)the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and
(d)the care receiver receives care and attention that meet the requirements in subsection (2); and
(e)the person is an Australian resident; and
(f)(the person’s work in providing the care and attention is not on wages that are at or above the relevant minimum wage; and
(g)neither the person nor anyone else is qualified for carer allowance for the care receiver under section 954.
Note 1: For Australian resident see section 7. For family member see subsection 23(1).
Note 2: For qualification for carer allowance in circumstances of hospitalisation, see section 955.
Note 3: For the effect of temporary cessation of care and attention on carer allowance, see section 957.
Note 4: For the effect of 2 people being qualified for carer allowance, see sections 964 and 965.
(2) The care and attention:
(a)must address special care needs:
(i) that the care receiver is assessed under the Adult Disability Assessment Tool as having; and
(ii) that relate to the care receiver’s bodily functions or to sustaining the care receiver’s life; and
(b)must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and
(c)must:
(i) be received by the care receiver from the person alone; or
(ii) be received by the care receiver from the person together with another person whose work in providing the care and attention is not on wages that are at or above the wages mentioned in paragraph (1)(f), whether or not both persons are present every day when the care receiver receives the care and attention; and
(d)must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person; and
(e)must not be care and attention of a kind (if any) specified, by legislative instrument, by the Secretary for the purposes of this paragraph.
….
The Guide to Social Security Law (the Guide) outlines the definition of Carer Payment which is paid to someone providing “constant care” as a fortnightly income support payment for people who are unable to support themselves through substantial paid employment due to the demands of their caring role.
It should be noted that the SS Act does not define what constitutes “constant care”, but “care” is defined in section 197(1) of the SS Act as “includes attention and supervision”.
The Guide defines “constant care” as:
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.
CONSIDERATION
Explanation for the delay
The Act provides the Tribunal with a broad discretionary power to grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so. The Act does not provide guidance on what is reasonable, however the Tribunal has been guided by the principles outlined in Hunter Valley Developments Pty Ltd; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment (1984) 3 FCR 433, in which Wilcox J states at 348:
Section 11 of the Administrative Decisions (Judicial Review) Act does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
Given the above, whilst the Tribunal accepts that there is no pre-condition for an acceptable delay to be given, it is expected that an explanation will be provided. As such the Tribunal first explored with Mrs Foryabee’s representative her reason for delay in submitting her application for review.
Mrs Foryabee’s representative advised the Tribunal that it had come to Mrs Zayee’s family’s attention that Mrs Foryabee was very distressed and dissatisfied with the decision of the AAT1 but did not have the language skills or legal knowledge to pursue her claim. Additionally, Mrs Foryabee’s experiences in Afghanistan colour her view about dealing with the legal system and she is genuinely afraid to raise her concerns with the authorities in Australia. Additionally, Mrs Foryabee’s representative emphasised Mrs Foryabee’s husband did not wish her to pursue this matter and this was causing a great deal of friction between the couple, as Mrs Foryabee’s husband is very scared of any ramifications for pursuing this claim. To compound matters, Mrs Zayee’s family is now struggling to provide care for her and this was causing friction in his relationship as his partner is now spending a great deal of time looking after her mother and the situation was becoming untenable for all concerned.
Mrs Foryabee’s representative advised that he had become aware of the stress for all concerned and was attempting to appeal a decision that was in his submission obviously incorrect and faulty, as Mrs Foryabee had at all times acted within the provisions of the SS Act and had been the one to advise Centrelink of her work in Family Day Care. He also argued Mrs Foryabee’s circumstances had not been considered as the decision was placing undue financial stress on her and her family. Additionally, the impact of the decision on Mrs Zayee’s care needs had never been considered by Centrelink or the AAT1.
Mrs Foryabee’s representative advised the Tribunal that Mrs Foryabee was unaware of her appeal rights or the need to lodge within 28 days of receiving the decision as these had not been brought to her attention at any stage by Centrelink. He argued that all her other actions seeking the review of the ARO and AAT1 had been suggested to her by Centrelink and she had followed their advice. So fundamentally the application was lodged at the earliest available opportunity when someone with enough English language skill and legal knowledge had been in a position to assist Mrs Foryabee.
The Respondent contended that Mrs Foryabee’s explanation for the delay was not adequate. The Respondent noted that Mrs Foryabee was seeking a review because she can no longer make payments, which is causing “stress and has taken its toll” on her and her family.
The Respondent contended that Mrs Foryabee’s explanation that she failed to apply for review within the prescribed timeframe due to a “lack of legal knowledge and language barrier”, and because she did not know that a second review was available was not credible. The Respondent observed that Mrs Foryabee had been able to successfully seek review of the Secretary’s decision to the Tribunal on 12 March 2018, so she was aware of the process to seek review to the Tribunal. She further observed that Mrs Foryabee had not explained why she did not contact the Tribunal after the AAT1 decision to enquire about her options, or why she was not able to seek assistance from her family members or friends after receiving the AAT1 decision.
Further, the AAT1 decision would have included information about her right to seek review of the AAT1 decision (consistent with the requirement under section 43(5AA) of the Act), and she could have contacted the Tribunal for further information as to her review rights. The Respondent argued that a large number of applicants in Mrs Foryabee’s situation are able to meet the statutory time limits in relation to lodging appeals to the Tribunal. It would be unfair to other applicants and potential applicants if the discretion to extend time was exercised in this case, given the extensive delay of over two years.
The Respondent contended that Mrs Foryabee’s assertion that the Tribunal failed to provide her with an interpreter at the hearing was factually incorrect as the Tribunal noted in its decision that the Applicant was assisted at the hearing with a Dari interpreter. The Respondent contended that Mrs Foryabee’s assertion she “still [does] not understand the reasons behind this decision”, and that she “was not given a chance to understand why this decision was made and why there was a claim to start with” was also not supported by the evidence. Additionally, the Respondent noted Mrs Foryabee was assisted by Mrs Zayee’s daughter, Mr Nasimi’s partner, at the AAT1 hearing and that she would have been able to assist Mrs Foryabee understand the reason for the decision and the requirement to lodge an appeal in time.
The Respondent submitted that Mrs Foryabee’s complaints about the process for raising the debt were unsubstantiated. Noting Mrs Foryabee’s contentions that:
all the facts in this case have been misrepresented. My husband and I suffered from sever (sic) depression and we had no idea what to do. We just followed the instructions provided by Centrelink officers. After getting advise (sic) and thorough review of my documents I am certain that the decision was made with out (sic) consideration of any facts, I have not been able to provide anything to support my case” and that her “communication and information provided to Centrelink does not match anything mentioned in the decision”, and that the decision was “unfairly made.
The Respondent argued that:
(a)Mrs Foryabee had failed to provide any evidence she was suffering depression at the time she provided information to the Respondent on 31 July 2017 about her Family Day Care business and therefore the information she provided was incorrect and/or incomplete.
(b)The debt was raised as a result of the information she had provided to the Respondent on 31 July 2017, and not due to any administrative error. Noting her oral evidence before the AAT1, had been that she provided care to Mrs Zayee three or four days per week and she was also working as Family Day Care educator for Mrs Zayee’s grandchild.
(c)Mrs Foryabee had not identified what information had been misrepresented and what the correct information should be; which documents or information the AAT1 allegedly failed to consider; which findings of the AAT1 were made on the basis of a misunderstanding of the information and/or on incorrect information; or explain how she was denied an opportunity to provide information or evidence to the AAT1.
Fundamentally, the Respondent argued that it is in the public interest that there is an end to administrative review proceedings and certainty in decision making, that the Respondent had every right to consider the matter closed and it would be an improper use of public resources to address this further application at the Applicant’s whim, given that it is 739 days out of time.
The Tribunal, whilst very sympathetic to Mrs Foryabee, is not satisfied with the explanation for her lengthy delay in submitting her application for appeal of the AAT1 decision. The Tribunal does not find it plausible that Mrs Foryabee had been prevented from submitting an application for over two years. The Tribunal notes that Mrs Foryabee had managed to navigate the process of appealing the Centrelink decision to the AAT1 level and her lack of English language skills, lack of legal knowledge and fear of the system was not a unique situation. Indeed, the Tribunal deals with many such applicants and they are able to bring their matters in time whilst facing the same barriers. The Tribunal finds that the length of delay and lack of plausible reason for such a delay does not make it reasonable on its on to grant the extension of time.
Prospects of success
The Tribunal explored the prospect of any success in respect of Mrs Foryabee’s appeal and explored with her representative any additional information he could offer to the Tribunal that would aid her case. Noting the statement of Wilcox J in Hunter Valley Developments, special circumstances must be shown to grant an extension of time and this guidance was further explored in Kuljic v Secretary, Department of Social Security [1994] FCA 62, where Von Doussa J stated at [6]:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal. Two questions therefore arise on the papers before the Court in this case:
(1) whether an acceptable explanation for the delay has been proffered; and
(2) whether, on the merits, there is any prospect of the appeal succeeding.
Mrs Foryabee’s representative advised the Tribunal that Mrs Foryabee had been connected with Mrs Zayee through the community and had taken on the role of carer as none of Mrs Zayee’s children could provide the care needed because of work and family commitments. This assistance was of enormous benefit to Mrs Zayee and her entire family and they were grateful for the care and support Mrs Foryabee provided.
Mrs Foryabee’s representative argued she had in fact provided more care than was required under the SS Act. He argued that the SS Act and its numerous exemptions in respect of Career Payment and Allowance made the entire system very confusing for anyone, but particularly for someone with limited English language skills and legal knowledge. He submitted that they could provide evidence that Mrs Foryabee had provided the required care as stipulated by the SS Act, as she had attended on Mrs Zayee most days. He also submitted that if Mrs Foryabee had not personally attended, she would deal with Mrs Zayee over the phone to remind her to take medication and to assist with all her needs.
Mrs Foryabee’s representative submitted Mrs Foryabee had “not breached anything” and should never have incurred a debt. He contended that if Centrelink had correctly applied the policy and calculated her weekly provision of 25 hours a week and her entitlement to 63 days break, she was well and truly inside the rules for receiving the payment.
Mrs Foryabee’s representative went on to argue that Mrs Foryabee had only run the Family Day Care business for a period of six months, she had not been performing significant hours of paid work in this position and it was Mrs Foryabee herself who had advised Centrelink of this additional employment. He stressed that at no time had Centrelink utilised an interpreter to assist Mrs Foryabee with discussions of the issue of her breach and debt. The first time an interpreter was utilised was at the AAT1 hearing and by then Mrs Foryabee was so confused she did not know what she was arguing or what in fact Centrelink had accused her of doing.
Mrs Foryabee’s representative submitted Mrs Zayee’s daughter was at the AAT1 as a witness to attest to Mrs Foryabee’s care of her mother and not as Mrs Foryabee’s advocate as she did not have the skills to fulfill that role.
Mrs Foryabee’s representative also submitted that the situation for Mrs Zayee was now untenable as she and her family required the support of Mrs Foryabee to provide her constant care which they could not, nor could Mrs Zayee fund this privately. He argued that all this could be rectified if Mrs Foryabee could resume her career role and receive the Carer Payment for which she was entitled.
The Respondent contended that it was also relevant to consider the merits of the proposed appeal, arguing Mrs Foryabee’s appeal had limited prospect of success, as Centrelink had relied on the information provided by Mrs Foryabee on 31 July 2017 that since 26 September 2016, she had been providing care to Mrs Zayee three days per week on Monday, Thursday, Friday and some Saturdays, and as she had also commenced a Family Day Care business and had also subsequently attempted to retract her earlier evidence, stating that she had been providing care to Mrs Zayee six days per week.
The Respondent contended Mrs Foryabee had not been providing the care required under the Act to be receiving a Carers Payment. It was also submitted that Mrs Foryabee had not been providing care for a significant period of each day such that she was unable to undertake substantial employment. That Mrs Foryabee had not provided care on a daily basis for a total of at least 20 hours a week to Mrs Zayee.
The Respondent drew the Tribunal’s attention to the analogous matter of Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049, where at [83] Deputy President Forgie noted that she would still not exercise the discretion to extend time even if she thought the applicant’s case for review was strong given the delay of approximately four years. The Respondent contended that delay in this matter of over two years, or 739 days, is significant and granting the extension of time would constitute a prejudice to the Respondent given that the Respondent had considered that the matter had ended on 7 June 2018.
In responses to the matters raised by Mrs Foryabee’s representative at the hearing the Tribunal asked the Respondent to provide written submissions on the requirement to provide “constant care” for the purposes of a Carer Payment (section 198(2)), and to provide “care and attention on a daily basis” for at least “20 hours a week” for the purposes of a Carer Allowance (section 954A(2)(b)).
The Respondent provided the following clarification:
Carer Payment – Providing “constant care”
·A carer payment recipient does not need to provide care “every waking moment of the day”. However, in Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Senior Member McCabe said: “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” (emphasis added). This is consistent with the intention of the legislative scheme, that the carer payment is to replace a person’s income when they give up their regular paying job to care for another person.
·The Tribunal in Re Secretary Department of Social Security and Retallack accepted that the legislative intent behind the scheme should be considered, and that in determining whether “constant care” was given, “the fundamental question is one of the amount of time the carer of a severely disabled person is "freed up" for other things”.
·In Elgar and Secretary, Department of Social Services, Member Grigg referred to the decisions in Re Kevin James Kedwell and Secretary to the Department of Social Security, Reidy and Secretary, Department of Social Security, Re Del Vecchio and “constant care” for a significant period each day on the equivalent of a full-time basis”.
·In James and Secretary, Department of Social Services, the Tribunal noted that:
“carer payment is for those who are unable to maintain substantial employment (or study), as result of the care they provide. If the needs of the care recipient are flexible enough that the care can be attended to outside the times when the carer is required to work or study then Carer Payment is not payable.”
·In Hawkins and Secretary, Department of Social Services, Senior Member Stefaniak said, “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”.
·In Confidential and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs, Senior Member Levy said:
“Constant care” implies giving attention and support to a person due to age, maturity or capacity, which is “something more than episodic or spasmodic” (Del Vecchio and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145)…It implies a much higher than normal level of attention, supervision and personal support…The concept of “constant care” is therefore a reflection of the needs of the (care receiver). That must be the primary focus of the valuation of need and whether the applicant is “freed up to do other things”, including employment.” (emphasis added).
·The Social Security Act does not stipulate the threshold on the number of hours of care provided to qualify for a Carer Payment. However, Senior Member Kenny in Confidential and Secretary, Department of Families Housing, Community Services and Indigenous Affairs found that the test for constant care “is not expressed in terms of a specified number of hours of care but whether care is provided for a significant period of each day such that the carer she is unable to undertake substantial employment”.
Carer Payment – Temporary cessation to providing constant care
·The SS Act provides that a carer payment recipient is able to have a temporary cessation to providing constant care for 63 days in a calendar year without losing their qualification for the Carer Payment (sections 198AC(1) and (3)). Further, a Carer Payment recipient is able to temporarily cease to provide care in order to undertake training, education, unpaid voluntary work or paid employment if the cessation does not exceed 25 hours per week (section 198AC(4)). The temporary cessation period provisions set out in section 198AC only apply if the Carer Payment recipient was “personally providing constant care”.
·Whether a person is undertaking training, education or employment would be a relevant consideration, amongst other things, in determining whether the person is providing “constant care” for a significant period each day. A person’s time away from caring to undertake training, education or employment provides some indication of whether the person is providing constant care. The requirement in section 198AC(4) is not about time spent in employment which is specified, but time during which constant care has ceased. It is not a consideration of whether a person is undertaking training, education or employment for less than 25 hours to qualify for Carer Payment, but rather whether the person provides “constant care”.
·In Gidley and Secretary, Department of Social Services, the Tribunal considered sections 198(2)(a) and 198AC(4) and found that:
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, for a significant period each day, on the equivalent of a full-time basis. In terms of the application of the 25 hour rule, it is tempting to find that an applicant provides constant care if they are only absent from the care recipient for 25 hours or less. However, there is no time qualification provided for in section 198(2)(a) of the Act.
Carer Allowance – requirement to provide care on a daily basis and for at least 20 hours of care a week
·A Carer Allowance is supplementary fortnightly payment that recognises the care provided to a person with disability or medical condition in a private home. Where the care receiver and carer do not reside in the same house, the “care and attention…must be received by the care receiver on a daily basis, for a total of at least 20 hours a week”: section 954A(2)(b).
·The Social Security Guide provides that for the purposes of the Carer Allowance, “daily basis means every day. The context in which 'daily' is used in the legislation ensures that the carer provides care and attention to the care receiver because of his or her disability (either alone or with others in a shared care situation) 7 days a week. This is subject to periods when the carer may take periods of temporary cessation of care”.
·The nature of care that is to be provided is ordinarily provided on a face-to-face basis, as care that addresses bodily functions cannot be provided remotely, such as providing telephone reminders about taking medication.
The Applicant’s representative argued that “[d]espite emphasizing clarification on the ruling of section 954 which states 'where a care provider does not live at the same address they are to provide at least 20 hours per week daily care’ this point had still not been justified and explained sufficiently.” He argued that Section 1.1.C.310 of the Guide requires a care provider to provide daily care for at least 8 hours per day but that this does not make sense and contradicts section 954 of the SS Act.
The Applicant’s representative submitted the care payment statements sent regularly by Centrelink states that a care provider can receive payment even if they are doing paid work up to 25 hours per week. It also states that a care provider can receive Carer Payment for up to 63 days each year if they have a break from providing care.
The Applicant’s representative noted Mrs Foryabee's employment started in September 2016 and ended in June 2017. During this entire time, she went over the 25-hour allowance for paid employment on three occasions. Otherwise, she kept her employment under the 25 hours as per instructions received from Centrelink. The three weeks she went over the allowed time should have been considered as part of the 63 days leave per year she was entitled to.
The Applicant’s representative argued that based on the facts above the original claim made by Centrelink was incorrect as they had a duty of care to assess the claim correctly and apply the rules and regulations provided by Centrelink. The Applicant followed all the instructions and abided by the rules set by Centrelink. However, Centrelink failed to assess the claim correctly and as a result Mrs Foryabee lost both her employment at the Family Day Care and stopped providing care. Mrs Foryabee should be refunded all the monies paid back and compensated for loss of income in the past three years.
The Tribunal standing in the shoes of the Secretary as the original decision maker has the discretion to waive all or part of Mrs Foryabee’s debt. For completeness in respect of any issues associated with the merits of Mrs Foryabee’s case, the Tribunal explored the ability to waiver or write off any or all of Mrs Foryabee’s debt.
Section 1237A(1) of the SS Act provides that a decision maker must waive the right of recovery of any part of a debt if it was attributable solely to an administrative error made by the Commonwealth. The Tribunal finds based on all the evidence before it that the debt was not attributed solely to an administrative error.
Section 1236 of the SS Act confers the discretion on the Secretary to write off a debt if and only if the debt is irrecoverable at law; or the debtor has no capacity to repay the debt; or the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or it is not cost effective for the Commonwealth to take action to recover the debt. The Tribunal finds based on the evidence before it that none of these provisions apply to Mrs Foryabee. However, at the Hearing the Tribunal noted Mrs Foryabee’s current financial difficulties and recommended to her representative that she speak to the debt recovery unit to negotiate a repayment plan. Mrs Foryabee’s representative advised that she was too afraid of the authorities to do any such thing and her husband was adamant that she should not raise any concerns as it would simply lead to more trouble for the couple.
Section 1237AAD of the SS Act confers discretion on the Secretary to waive all or part of the debt if there are special circumstances (other than financial hardship alone) that make it desirable to waive. The expression “special circumstances” has not been defined in the SS Act. However, guidance can be found in Groth v Secretary Department of Social Security [1995] 40 ALD 541 where Kiefel J said:
For present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary”.
Mrs Foryabee’s representative again emphasised Mrs Foryabee’s ethnic background and her traumatic experiences in Afghanistan which made her very fearful of dealing with bureaucracy, as in her mind the State had ultimate power and for which she rightly feared given her experiences in her home country. This, he argued, was compounded by her husband’s genuine fear of rocking the boat, causing trouble and in turn this was taking a toll on the couple’s relationship, their health, causing great stress and financial burden. Mrs Foryabee’s representative stressed that there was a genuine language barrier and misunderstanding of the legal system on the part of Mrs Foryabee, and that this all pointed towards prospects of success in this matter as the AAT1 had failed to adequately consider the finding of special circumstances to waiver the debt.
The Respondent submitted there was no substantive reason or evidence provided by Mrs Foryabee or her representative that would impugn the correctness of the decision made at the AAT1 hearing.
The Tribunal finds based on the evidence before it that Mrs Foryabee had not presented any factors to the Tribunal which distinguish her case from others, to take it out of the usual or ordinary case nor demonstrated hardship or unfairness sufficient to justify waiving her Centrelink debt.
The Tribunal finds it would be futile to grant an extension of time as Mrs Foryabee’s substantive case has little prospect of success and all parties would be disadvantaged by progressing to a further hearing of the matter. The evidence before the Tribunal about the level of care provided by Mrs Foryabee’s to Mrs Zayee was conflicting. There was no corroboration of the claims made by her representative of the care Mrs Foryabee provided when she could not attend on Mrs Zayee in person. Indeed her own evidence indicated that she had been undertaking paid work during this period in breach of the spirt of the provision that Carer’s Payment is given in recognition that an individual will be unable to undertake any form of paid work because of the care requirements.
The Respondent contended there are alternative avenues of relief for Mrs Foryabee as she can approach Centrelink directly at any time to request waiver of the debt in whole, or in part, due to special circumstances. However, the Respondent observed that there was no evidence before which supports that there are any special circumstances that justify waiving the debt. Alternatively, Mrs Foryabee can negotiate to reduce her repayments of the debt to reflect her current circumstances. The Respondent advised the Tribunal that Mrs Foryabee had been making regular repayments of the debt and at 16 July 2020, her Carer Allowance debt of $3,228.18 had been paid and she still had a current outstanding debt of $11,375.07 in respect of the Carer Payment debt.
Mrs Foryabee’s representative argued strenuously that this option was not available to Mrs Foryabee as she was simply too frightened to ask Centrelink for assistance and her husband was opposed to her seeking any such assistance, fearing reprisals from the government.
The Tribunal is of the opinion that Mrs Foryabee has alternative options open to her to redress her situation and would encourage her to pursue these avenues to assist with her difficult financial situation. The Tribunal notes that Mrs Foryabee can approach Centrelink directly at any time to request waiver of the debt in whole, or in part, due to special circumstances and can at any time negotiate to reduce the amount of her repayment of her debt based on her current circumstances. The Tribunal is sympathetic to the fact Centrelink had failed to provide an interpreter during Mrs Foryabee’s initial discussion about the impact of her Family Day Care business on her carer’s payment and the consequences of this discussion. As the Tribunal is also mindful of Mrs Foryabee’s genuine concern about approaching Centrelink to have such discussions, it would request Centrelink initiate discussions about reviewing waiver of the debt in whole or in part, with an interpreter to assist Mrs Foryabee explore this option.
The Tribunal notes that Mrs Foryabee can apply at any time to be a carer for Mrs Zayee; and the impact of this decision or any debt to Centrelink does not preclude her from again seeking to be a carer for a suitably qualified individual.
The Tribunal is sympathetic to Mrs Foryabee’s situation and understands the undoubted confusion created by the provisions of the legislation, such as the 25-hour care rule and the provision of 63 days leave for carers, noting the wording of Gidley which recognises this confusion at [35]:
In terms of the application of the 25 hour rule, it is tempting to find that an applicant provides constant care if they are only absent from the care recipient for 25 hours or less. However, there is no time qualification provided for in section 198(2)(a) of the Act.
The Tribunal however agrees with the finding in Milne that the payment for carers allowance is clear 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” .This is consistent with the intention of the legislative scheme, that the Carer Payment is to replace a person’s income when they give up their regular paying job to care for another person. This premise had been made clear to Mrs Foryabee and Mrs Zayee’s family when Mrs Foryabee applied to be Mrs Zayee’s carer.
The Tribunal considers that Mrs Zayee’s family had been utilising Mrs Foryabee’s as a carer to Mrs Zayee, subsidised by the social security system. Indeed, the Tribunal notes that Mrs Foryabee’s debt arose when she started providing family day care services to Mrs Zayee’s grandchildren. Again, it would appear Mrs Zayee’s family was utilising Mrs Foryabee’s services as a child minder subsidised by the social security system to care for their children.
The Respondent submitted it was against the public interest to grant an extension of time and destruct established practices on appeal, which the justice of the case does not warrant. The Tribunal therefore considered whether there was prejudice to the public in allowing Mrs Foryabee’s application, referring to the judgement of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 - 553:
An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates."….
... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
This is particularly relevant where Mrs Foryabee is applying for review two years out of time, and the interests of an orderly conclusion to a process is unsettled by granting of an extension. The Tribunal finds that given the length of time since the AAT1 decision coupled with the fact Mrs Foryabee had been making repayments of her debt were an indication that she had accepted the outcome of the determination and the matter had concluded. The Tribunal therefore finds that Mrs Foryabee had not demonstrated there was a “justifiable exception to the rule that the welfare of the State is best served” by a limitation period and there would be prejudice to the public if an extension of time was granted.
CONCLUSION
The Tribunal, on the basis of its finding that there was no explanation for the extensive delay, is satisfied that it would not be reasonable in all the circumstances to grant an extension of time. There was nothing in the application brought before the Tribunal to indicate prospects of success outweighing the significant, unacceptably explained delay and consequential prejudice suffered by the public if the extension were to be granted.
Whilst the Tribunal is very sympathetic to Mrs Foryabee’s obviously distressing circumstances, and the impact of this decision on Mrs Zayee for whom she was caring, it does not find that in this situation it would be reasonable, in all of the circumstances, to allow an extension of time. Mrs Foryabee lodged her application some two years after the reviewable decision was made. The Tribunal finds that Mrs Foryabee had no valid explanation for the delay, had rested on her rights of which she was fully aware, and had provided no substantive reason or evidence which indicated any prospect of success.
The Tribunal, as outlined, also noted Mrs Foryabee had other avenues by which she could seek redress. It was for these reasons that the Tribunal refuses to exercise its discretion under section 29(7) of the Act.
DECISION
The Tribunal refuses the application under section 29(7) of the Act for an extension of time to lodge an application for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 7 June 2018.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member
..........................[sgd].......................................
Associate
Dated: 28 October 2020
Date of interlocutory hearing 24 August 2020 Date of final submission: 21 September 2020 Advocate for the Applicant: Romel Nasimi Solicitor for the Respondent
Solicitors for the Respondent
Felicidade Lay
Services Australia
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