Hine and Secretary, Department of Family and Community Services

[2005] AATA 594

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 594

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/60

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KAREN HINE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date22 June 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

L HASTWELL     
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit – entitlement after daughter left home – definition of “care” – decision affirmed

A New Tax System (Family Assistance) Act 1999 ss 3, 22

Family Assistance Guide s 1.1.C.90

Re Barrett and Secretary, Department of Family and Community Services [1999] 29 AAR 131

REASONS FOR DECISION

22 June 2005   Senior Member L Hastwell    

1.      On 21 September 2004 Centrelink made a decision to reduce the rate of Family Tax Benefit (FTB) payable to the applicant from that date.  The decision was based on a determination that the applicant was no longer entitled to FTB in respect of her daughter, Sarah, as Sarah was no longer in her care as defined in the legislation. 

2.      The Social Security Appeals Tribunal (the SSAT) considered the matter, and on 7 February 2005 affirmed the decision under review.  The applicant has applied to this Tribunal for review of that decision.

issues for determination

3.      The issues to be determined by the Tribunal are:

(a)whether the applicant is entitled to payment of FTB in respect of her daughter, Sarah;

(b)whether Sarah remained a FTB child of the applicant between the period 21 September 2004 until Sarah turned 16 years of age on 9 December 2004;

(c)whether Sarah could be said to be in the care of the applicant as defined in the legislation during the relevant period; and

(d)whether after the date that she turned 16 years of age she was in the care of any other person.

legislation

4. The relevant legislation is contained in s 3(1) and s 22(1), (2), (3) and (4) of the A New Tax System (Family Assistance) Act 1999 (the FA Act). The relevant provisions in this instance are as follows:

“22(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

Individual aged under 18

(2)       The individual is an FTB child of the adult if:

(a)       the individual is aged under 18; and

(b)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and

(c)       the individual is in the adult’s care; and

(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.”

5.      At the hearing, the applicant asked that the Tribunal consider her eligibility for FTB in the closed period 21 September 2004 until Sarah turned 16 years of age on 9 December 2004.  Thereafter she wanted the Tribunal to determine whether any other person was eligible for the FTB.

discussion of the evidence

6.      At the hearing the applicant represented herself.  The respondent (the Department) was represented by Ms Powell.  The T documents were received into evidence as Exhibit A1, and where relevant other exhibits will be referred to. 

7.      The applicant gave evidence that her daughter, Sarah, had run away from home in June 2004, and had been residing at the home of her boyfriend’s parents since that time.  It would appear that the reason Sarah ran away from home was that the applicant and her husband had declined to allow her to continue what they believed was an inappropriate relationship with her boyfriend, and they did not want her to have contact with him again.  The applicant believed that her daughter had planned to run away.  She and her husband were very distressed by the loss of their relationship with their daughter.

8.      Centrelink continued FTB payments to the applicant in accordance with the legislation for a period of 14 weeks after Sarah left home, as they were satisfied that the applicant was endeavouring to reconcile with Sarah and attempting to persuade her to return home [T4/9].

9.      Since leaving home, Sarah has had minimal contact with her parents, and is currently refusing any contact.  The applicant and her husband are extremely traumatised by their daughter’s refusal to resume a relationship with them, or to negotiate with them in any way the terms of returning home.  The applicant and her husband consider themselves legally responsible for Sarah, for example, if the school requires permission for an excursion, they contact the applicant.  The applicant has endeavoured to make contact with Sarah through mediation, with the assistance of the Uniting Church Youth and Parent Service, but currently Sarah refuses to make any contact with the counsellor, despite requests that she do so.  The applicant has endeavoured to see her daughter at her workplace, but has been told not to come back to the premises as the child risks losing her job if she returns. 

10.     Sarah continues to attend Croydon High School, and the applicant understands that she is also working on a part-time basis, and paying a board payment to the parents of her boyfriend from her earnings.  She has no idea as to the moral situation that Sarah is in.  The applicant has no relationship with the people that Sarah is now living with.  She is concerned that Sarah is not appropriately supervised given her age.  She is aware that Sarah sometimes comes home late, gets off the bus in the dark, and walks home through the back streets.  When Sarah was in her parents’ care, the applicant and her husband would ensure that she was collected and driven home from the bus stop.  She believes that Sarah may be in need of dental treatment which is not being provided.  The applicant has offered to provide this treatment, but Sarah has not accepted the offer.  She pointed out that Sarah has her own Medicare card, and so receives no medical support from the people with whom she resides.  She is aware that they receive FTB for Sarah.

11.     The applicant acknowledged in the course of the hearing that currently Sarah is not in her care as defined by the legislation, but she considers that until Sarah turned 16 years of age the Department should have treated Sarah as though she was in the applicant’s care.  She emphasised that her application for review was not about money, but about principles.  She felt strongly that the people with whom Sarah now resides should not be entitled to the FTB as they are not “caring” for Sarah within the meaning of that term as understood by the applicant.  She acknowledged that there has been a complete relationship breakdown between herself and Sarah, and with her boyfriend’s parents, and there are no financial arrangements between the applicant, her husband and the family with whom Sarah now resides.  Her other daughter maintains some contact with Sarah.

submissions

12.     The applicant’s submissions were clearly set out in Exhibit A2, her argument being that Sarah remained in her care legally and morally until she achieved the age of 16 years, and that thereafter she was not in anyone’s care as the people with whom she resides do not care for her within the term as understood by the applicant.

13.     The Department’s submission was that the child has not been in the day-to-day care of the applicant since June 2004.  The Department acknowledged the applicant’s wish was to have her child back in her care, but that in fact the applicant had not been involved financially, or in the day-to-day care of the child, or in decision making with respect to Sarah since June 2004.  The Department submitted that the Tribunal cannot look at the eligibility of any other person for FTB for Sarah. 

considerations

14. It is quite clear that ss 22(2)(a) and (b) of the Act are satisfied in that Sarah is under 18 years of age and the applicant remains legally responsible for Sarah. To be entitled to FTB, the applicant must also satisfy ss 22(c) and (d) of the Act.

15.     The applicant was a straightforward witness.  The Tribunal accepts her evidence. 

16. The issue for the Tribunal to determine is whether the applicant was entitled to FTB with respect to her child, Sarah, between the period 21 September 2004 and the date when the child turned 16 years of age, on 9 December 2004. For the purposes of determining that, the Tribunal must have regard to the definition set out in s 22(2) and s 22(4) of the FA Act. The sole issue that remains for consideration is whether Sarah was in the care of the applicant during the relevant period within the meaning of s 22(2)(c) of the Act.

17.     “Care” is not defined in the legislation, and one must look to common sense notions of care, to previous authorities and to policy guidelines as set out in the Family Assistance Guide at s 1.1.C.90 to determine the meaning of the concept.

18.     It is noted that “care” in the Family Assistance Guide is referred to as being physical care, and includes mental, moral and emotional support including love, comfort and discipline.  It gives examples of day-to-day care as including:

·having major daily responsibility for caring for the child and making the major decisions;

·           bearing the costs of the child’s daily care;

·           looking after the child’s daily needs;

·making arrangements for the daily needs and appointments for the child; and

·being the main person for the crèche, school, or college to contact in emergencies.

19.     The Department referred to a number of authorities with respect to the issue of the definition of “care”.

20.     In Re Barrett and Secretary, Department of Family and Community Services [1999] 29 AAR 131, Deputy President Forgie provided an exhaustive discussion of the relevant authorities in relation to the issue of whether someone was in the “adult’s care”. After considering the authorities, she made the point that the issue of whether someone is in another individual’s care must be considered on the basis of “what is rather than on the basis of what should be”. The day-to-day reality of who is caring for the child is what must be considered by the Tribunal. Deputy President Forgie commented as follows:

“…

For the purposes of this case, I am satisfied that Mrs Barrett would very much like to care for Breanne.  She does not understand why Breanne left home in the first place.  She has not agreed that Breanne should live with Mr Barrett.  She has wanted to continue to be involved in Breanne’s life and in making decisions about her current and future care.  She has not contributed financially to Breanne’s support.  She has not been permitted to do so for reasons which it is not my role to explore.  Mr Barrett, on the other hand, has been involved in such decisions, has provided for her financially and has been involved in Breanne’s life.  Again, the reasons as to why that should be so and whether or not it is in Breanne’s interests at this stage is not within my role to explore. …”

21.     The Tribunal is faced with a similar set of facts in this case.  It is clear that the applicant wishes to be involved in Sarah’s life, and has not been permitted to do so because Sarah has run away from home, and is declining any contact with her family.  There is no doubt that the applicant has bent over backwards to try to re-establish contact with Sarah, but with no success.  Nevertheless, it is not possible to say that Sarah has been in the care of the applicant since June 2004 in the ordinary meaning of the word. 

22.     The Tribunal makes the following findings:

·Sarah has not been in the physical day-to-day care of the applicant or her husband since she ran away from home in June 2004.

·Sarah has been residing with the parents of her boyfriend since running away from home, and continues to reside with them.

·The FTB is being paid to the adults with whom Sarah resides.  This is based on information provided to the applicant by Sarah.

·The applicant has continued to endeavour to reconcile with Sarah since she left home, but with no success.

·During the relevant period the applicant was the person legally responsible for the day-to-day care, welfare and development of Sarah.

·During the relevant period Sarah was not physically in the care of the applicant.  She was not physically residing at the applicant’s premises, and was residing with her boyfriend’s parents.

·The applicant has not been able to contribute financially to Sarah’s support since she left home as Sarah declines financial support and there is no financial arrangement with the people with whom she is residing.

·The applicant has been excluded from decision making with respect to Sarah’s life since she left.  The applicant is distressed at this exclusion, but Sarah refuses to allow her parents to be involved.

·The applicant has been excluded from decision making related to day-to-day issues in Sarah’s life, including health, and to a large extent with respect to her education and issues such as clothing, hygiene, etc since Sarah left home.

23. The Tribunal is satisfied that Sarah has not been in the actual care of the applicant since she left home, and that there is nothing in the legislation that deems a child to remain in care until she is 16 years of age. The legislation is quite clear that for a period of 14 weeks during which a parent endeavours to persuade a child to come home, the FTB can be paid, but thereafter the determination as to who is eligible for FTB is based on criteria set out in the FA Act which looks, inter alia, at actual care.  The application for review must fail based on the terms of the legislation. 

24.     In these circumstances the Tribunal affirms the decision under review, and this means that the application is not successful.

25.     The Tribunal has no jurisdiction to consider the eligibility of any other third party to receive the FTB for Sarah.  If a third party qualifies according to the criteria as set out in the legislation, then they may be eligible.  That is not a matter before the Tribunal. 

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  16 June 2005
Date of Decision  22 June 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms J Powell
Solicitor for the Respondent     Centrelink Legal Services Branch