Glachan; Secretary, Department of Family and Community Services

[2004] AATA 1424

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1424

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/474

GENERAL ADMINISTRTIVE DIVISION		)
Re		SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And KRISTY ANN GLACHAN

Respondent

DECISION

Tribunal Deputy President Don Muller

Date25 August 2004

PlaceBrisbane

Decision  The Tribunal orders that the operation or implementation of the decision of the Social Security Appeals Tribunal dated 31 May 2004 be stayed until the hearing and determination of the application for review or until further earlier order.

.................SIGNED.............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

Social Security – if no stay of decision under review, payment of arrears of benefits unlikely to be recovered in the event that the application for review is successful – stay granted

Administrative Appeals Tribunal act 1974 s 41 (2)  

REASONS FOR DECISION

25 August 2004 Deputy President Don Muller        

1.      This is an application for a stay by the Secretary, Department of Family and Community Services (the Applicant), of a decision of the Social Security Appeals Tribunal (SSAT) dated 31 May 2004.

2.      The SSAT decided on 31 May 2004 to set aside a decision of an authorised review officer to raise and recover an overpayment of $33,791.77 for the period 2 June 2000 to 30 October 2003 from the Respondent, Kristy Glachan.

3.      The SSAT substituted a new decision that Ms. Glachan was not a member of a couple with Sean Jenkins from 2 June 2000 nor at any time since that date and that no overpayment should be raised.

4. The Applicant made an application to the AAT on 24 June 2004 for a review of the SSAT decision and also applied to have the SSAT decision stayed pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (the Act).

5.      The Tribunal heard submissions on 23 July 2004 from Ms. Helen Wallis-Dunn for the Applicant and Mr. John Stannard of Welfare Rights Centre for the Respondent.

6.      Mr. Stannard informed the Tribunal that if the stay was not granted Kristy Glachan would be entitled to approximately $10,000.00 in arrears of parenting payment (single).

7.      The Tribunal gave oral reasons and stayed the operation of the decision of the SSAT on 23 July 2004.  The Respondent’s representative requested written reasons for this decision on 27 July 2004.

8. The Tribunal granted the stay pursuant to section 41(2) of the Act for the following reasons:

(a)Kristy Glachan was born on 28 April 1977 and is currently 27 years of age.  She has two daughters, Taylor, aged six years, and Shai aged four years.  She currently shares accommodation with Sean Jenkins in a house located in Beaudesert.

(b)Ms Glachan had been in receipt of parenting payment (single) since 23 May 2000.  Her parenting payment (single) was suspended on 2 July 2003 and later officially cancelled on 30 October 2003.  A debt of $33,791.71 was raised for the period 2 June 2000 to 2 July 2003 on the basis that Ms Glachan was a member of a couple from 2 June 2000.

(c)After 2 July 2003 she did not receive any income from Centrelink until 22 January 2004 when her parenting payment single was reinstated by Centrelink, notwithstanding her living arrangements were unchanged.

(d)The SSAT decided on 31 May 2004 that Ms Glachan was not a member of a couple with Sean Jenkins from 2 June 2000, nor at any other time, and that she was therefore entitled to parenting payment (single) and no debt should be raised for the period 23 May 2000 to 2 July 2003.

(e)On 2 June 2004 the criminal prosecution of Ms Glachan for Centrelink fraud began at Beaudesert Magistrates Court.  The Director of Public Prosecutions sought a two month adjournment of the matter and it was listed for a mention on 4 August 2004.

(f)The decision to reinstate her parenting payment (single) on 22 January 2004 was cancelled on 7 June 2004 by M. Rebeckkah Douglas a member of the prosecutions team at Centrelink.

(g)Currently, Ms. Glachan is not in receipt of any parenting payment.  However, she is in receipt of $303.00 per fortnight Family Tax Benefit on the basis she is the non-working spouse of Mr Jenkins plus $30.00 in child support payment from Mr. Jenkins.  Her Family Tax Benefit fluctuates depending on Mr Jenkins’ income.

(h)The Tribunal acknowledged that Ms. Glachan has to provide for herself and her two daughters on $303.00 per fortnight.  However, she shares accommodation with Sean Jenkins and he has assisted her in the past with paying rent and other bills.  The Tribunal was aware that she may have to pay Mr. Jenkins back for any overdue rent or bills in the future and she claims she has a debt of $2,900.00 in rent arrears.

(i)If a stay of the SSAT decision had not been granted, the Applicant Department would have had to pay Ms Glachan arrears of parenting payment (single) from 22 January 2004 to 4 June 2004, in the sum of approximately $10,000.00.

(j)If the Applicant Department is ultimately successful in this review, Ms Glachan will not only have to pay the originally assessed debt of over $30,000.00, but she would have also had to refund the arrears of $10,000.00.

(k)The Tribunal took the view that in the event that the Applicant Department is successful in this review, there is only a remote possibility that the Applicant will recover $30,000.00 and similarly a remote possibility that Ms. Glachan would be able to repay the $10,000.00 arrears of parenting payment (single).

(l)If the Applicant Department is not successful in the review, Ms Glachan will receive the arrears.

(m)Therefore the Tribunal took the view that ordering a stay was required to secure the effectiveness of the hearing and determination of the application for review.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           C M O’Donovan Associate

Date/s of Hearing  23 July 2004
Date of Decision  23 July 2004
Written reasons for decision     25 August 2004
Advocate for the Applicant       Ms Helen Wallis-Dunn    
Solicitor for the Respondent      Mr Stannard of Welfare Rights