Hng; Secretary, Department of Education and (Social services second review)
[2023] AATA 4369
•28 March 2023
Hng; Secretary, Department of Education and (Social services second review) [2023] AATA 4369 (28 March 2023)
Division:GENERAL DIVISION
File Number: 2023/1057
Re:Secretary, Department of Education
APPLICANT
Su Yi HngAnd
RESPONDENT
DECISION
Tribunal:Member R West
Date:28 March 2023
Place:Melbourne
The Application by the Applicant for a Stay Order pursuant to section 41 of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.
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Member R West
CATCHWORDS
SOCIAL SECURITY – child care subsidy – application to stay decision of Administrative Appeals Tribunal (Social Services & Child Support) Division – factors relevant to the granting of a stay – stay application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)CASES
Andre and Secretary, Department of Social Services [2016] AATA 205
Berges and Secretary, Department of Social Services [2020] AATA 3507
Fedigan and Secretary, Department of Social Services [2016] AATA 211
Fischer and Department of Families, Housing, Community Services and Indigenous Affairs, Re [2010] AATA 920
Iskenderian and Secretary, Department of Social Services [2016] AATA 717
Knapp; Secretary, Department of Social Services and [2018] AATA 1839
Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146
Merage Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 713
Nicholson and Secretary, Department of Social Services [2016] AATA 630
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Robson and Secretary, Department of Social Services [2016] AATA 1012
Secretary, Department of Social Services and Cannon [2015] AATA 1028
Secretary, Department of Social Services and Elrington [2016] AATA 169
Secretary, Department of Social Services and McNamara [2016] AATA 189
Wildlife Protection Association of Australia Inc and Minister for the Environment and Heritage [2006] AATA 29
WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177REASONS FOR DECISION
Member R West
28 March 2023
BACKGROUND
Prior to July 2021 the Applicant was in receipt of the child care subsidy (CCS) under Part 4A of the A New Tax System (Family Assistance) Act 1999 (FA Act) in relation to the fees charged by a child care service for her child. Under Schedule 2 to the FA Act, a person’s combined adjusted taxable income is a factor in calculating the amount of CCS. During a tax year, a person’s entitlement may be calculated using estimates of their and their partner’s likely adjusted taxable income for that year which is then reconciled using the process prescribed in Part 5 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act).
Under section 103B of the Administration Act, the first deadline for the lodgement of tax returns is normally the end of the first income year after the relevant year. However, this deadline can be extended if the decision-maker is satisfied that special circumstances prevented the person meeting the reconciliation conditions by the normal date. Where a person does not lodge their tax return by the first deadline, section 105E of the Administration Act requires a decision-maker to determine that the person is no longer entitled to CCS for the year in question[1].
[1] A person’s ongoing entitlement to child care subsidy will also cease as they are taken to no longer meet the information requirements under s.67CD of the Administration Act.
If a person later lodges their tax return, section 105E requires those decisions to be reviewed under section 105 of the Administration Act.
On 15 July 2021 Centrelink decided to cease paying the CCS to the Respondent from 12 July 2021 on the basis that she and her partner had not lodged income tax returns for the 2019/2020 year and their incomes had not been confirmed (Initial Decision).
The Respondent’s partner, Mr Leang, lodged his 2019/2020 income tax return with the ATO on 15 October 2021 and the Respondent lodged her return on 16 November 2021. On 29 November 2021 the Respondent advised Centrelink of the lodgement and her CCS was reinstated from that date (Initial Decision). The Respondent then sought internal review of the Initial Decision seeking reinstatement of the CCS withheld for the period from 12 July 2021 to 28 November 2021.
On 22 June 2022 an authorised review officer (ARO) affirmed the Initial Decision and found that the Respondent’s CCS could only be reinstated for the period after she contacted Centrelink on 28 November 2021 (ARO Decision).
On 19 February 2022 the Respondent sought review of the ARO Decision by the Social Services and Child Support Division of this Tribunal (AAT 1 Review).
On 20 January 2023 the AAT 1 Review set aside the ARO Decision and remitted the matter to the Applicant for reconsideration with a direction that the Respondent was to be paid the CCS for the period 12 July 2021 to 28 November 2021 (AAT 1 Decision).
On 21 February 2023 the Applicant applied to the Tribunal for review of the AAT 1 Decision (Substantive Application) and lodged a Request for Stay Order seeking an order staying the effect of the AAT 1 Decision pending determination of the Substantive Application (Stay Application).
A hearing of the Stay Application was held by telephone on 27 March 2023. The Applicant was represented by Ms Aarabi Raveendiran, a solicitor from Services Australia. The Applicant appeared with her partner Mr Kenneth Leang.
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PRINCIPLES
The power to impose a stay is contained in section 41(2) of the AAT Act which provides:
The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
The specific section 41(2) limitation for the Tribunal to stay a part of a decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review, is not to be read narrowly. As Deputy President Forgie observed in Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs[2], to do so:
…would be to ignore Parliament's requirement that the interests of any person who may be affected by the review be taken into account. If, in making an order under s. 41(2), regard may only be had to what will secure the processes of the hearing and the processes of the determination, there can be no room to take the interests of other persons into account. The interests of persons affected by the review are likely to transcend matters relating to the processes of the hearing and those of determination. ……Regard can be had to the interests of persons affected by the decision only if the limitations upon the orders that the Tribunal may make are given the broader meaning as has traditionally occurred in the application of s. 41(2). That is to say, regard can be had if s. 41(2) is interpreted as permitting the Tribunal to make orders having regard not only to what is necessary to secure the processes of the hearing and determination but also to what is necessary to ensure that the review of the decision is not rendered nugatory or ineffective from the point of view of any person affected by the operation or implementation of the decision.
[2] [2004] AATA 146 at [34].
The Tribunal has determined that the following considerations may be taken into account when determining whether to exercise the power generally to grant a stay.
a.the prospects of success;
b. the consequences for the applicant of the refusal of a stay;
c.the public interest;
d. the consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not;
e. whether the application for review would be rendered nugatory if a stay were not granted; and
f.other matters that are relevant include the length of time that the ban has been in place already and the gap between the day of the application and the day of the hearing of the application.
Such principles were stated in Re Scott and Australian Securities and Investments Commission[3] and referred to by Cowdroy DP in Merage Group Pty Ltd and Australian Skills Quality Authority.[4]
[3] [2009] AATA 798
[4] [2019] AATA 713 at [28] and the cases there cited – see also Wildlife Protection Association of Australia Inc and Minister for the Environment and Heritage [2006] AATA 29 and WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177.
Significantly, before a stay is granted the Tribunal must determine whether it is of the opinion that it is “desirable” to do so after taking into account the interests of any persons who may be affected by the review. The word 'desirable' connotes a 'positive aspiration' and that it is 'something worthy of achievement' rather than 'merely advisable'.[5]
[5] Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 at [47]
CONSIDERATION
The prospects of success
It is not proper at this point for the Tribunal to attempt to definitively assess the merits of the Applicant’s case and determine whether the AAT 1 Decision is the correct or preferable decision. That is the task for the Tribunal at the hearing of the substantive appeal. It is appropriate, however, for the Tribunal to make a general assessment of the parties’ prospects of success and in particular to decide whether the Applicant has at least an arguable basis for the appeal.
The Applicant lodged with the Tribunal a detailed written submission setting out the substance of its appeal. The Applicant argued that s67CD(2)(b) of the Administration Act requires that, in determining an Applicant’s entitlement to the CCS for a particular week, the Secretary must be satisfied that an Applicant has met the information requirements specified in s67CD(10) for that week. Subsection 67CD(10)(d) requires that an Applicant meet the CCS reconciliation conditions for the previous income year, which include the lodgement of income tax returns before the end of the first income year following the relevant income year unless extended due to special circumstances under s103B. In the Respondent’s case, this required her returns to be lodged by 30 June 2021. As the Respondent and her partner did not lodge their returns until October and November 2021 the Applicant asserted that the Respondent had not met the information requirements in any of the weeks in the relevant period from 12 July to 28 November 2021.
The Respondent asserted that there were special circumstances which had prevented the Respondent meeting the reconciliation conditions, namely that their accountant had suffered a heart attack and almost died and they were unable to contact him due to the COVID restrictions then in place. The Applicant denied that these circumstances were sufficient to constitute special circumstances for the purpose of s103B and cited a number of Tribunal decisions to support its submission.[6]
[6] Secretary, Department of Social Services and Elrington [2016] AATA 169; Nicholson and Secretary, Department of Social Services [2016] AATA 630; Secretary, Department of Social Services and McNamara [2016] AATA 189; Fedigan and Secretary, Department of Social Services [2016] AATA 211; Berges and Secretary, Department of Social Services [2020] AATA 3507; Andre and Secretary, Department of Social Services [2016] AATA 205; Iskenderian and Secretary, Department of Social Services [2016] AATA 717; Robson and Secretary, Department of Social Services [2016] AATA 1012; Knapp; Secretary, Department of Social Services and [2018] AATA 1839; Secretary, Department of Social Services and Cannon [2015] AATA 1028; Fischer and Department of Families, Housing, Community Services and Indigenous Affairs, Re [2010] AATA 920.
The Tribunal notes that the AAT 1 Decision did not consider the weekly assessment under s67CD(2)(b) of the Administration Act and the information requirements specified in s67CD(10). In addition, the Tribunal did not find it necessary to consider the special circumstances provisions of s103B. The issues to be raised on appeal were therefore not fully considered in the AAT 1 Decision.
Having considered the Applicant’s submissions on s67CD and having regard to the decision referred to in relation to the special circumstances in s103B the Tribunal is satisfied that the Applicant has at least an arguable basis for its appeal.
The consequences for the Applicant in carrying out its functions depending upon whether a stay is granted or not.
The Applicant assessed the amount of arrears of CCS payments for the period from 12 July to 28 November 2021 due to the Respondent under the AAT 1 Decision to be $11, 126.14.
The Applicant argued that without a stay on the AAT 1 Decision the Respondent would become liable for a debt to the Commonwealth of $11,126.14 if the appeal was successful. This would at least require the Applicant to expend administrative costs in raising and recovering the debt and may expose the Commonwealth to default. The Respondent asserted that they have adequate financial resources and could repay the debt if that became necessary, although the Respondent’s partner conceded that he had lost his job in November 2022 and this had reduced their annual income by around $180,000. Nevertheless he asserted that the Respondent’s income and their combined savings meant that they were able to adequately meet their financial responsibilities and were not in financial hardship. The Respondent also conceded that they were currently in receipt of the CCS to subsidise their current child care costs.
The Tribunal accepts that any difficulty there may be in recovering monies paid as a result of a refusal to grant a stay order is a relevant consideration,[7] but in this case this consideration attracts limited weight. The Tribunal is satisfied that the Respondent has reasonable financial resources notwithstanding the loss of Mr Leang’s job and that there is a very small risk that the Respondent would not be able to recover any debt resulting from a successful appeal. The administrative cost of recovery is also unlikely to be significant.
The public interest
[7] Re Repatriation Commission and Delkou (1985) 8 ALD 454
The Tribunal accepts that there is a public interest in avoiding overpayment of public monies in circumstances where there is a question regarding the recipient’s entitlement to the payment. However, in assessing the public interest, the consideration which must be foremost in the Tribunal’s mind is the scheme embodied by the relevant legislation.[8] In this case the purpose of the Act and the Administration Act is to provide assistance to families including making available subsidies to defray the cost of child care services. The public interest in protecting public monies from risk is to be balanced against the public interest in making funds available to parents to offset the cost of child care. In the instant case, given the limited risk of default if the appeal is successful, the public interest weighs against a stay.
The consequences for the Respondent of the refusal of a stay
[8] Australian Securities and Investments Commission (ASIC) v Administrative Appeals Tribunal [2009] 181 FCR 130 at [52]
The Respondent asserted that she is entitled to the benefit of the AAT 1 Decision and has already suffered a delay of some 18 months in receiving the CCS to which she said she was entitled. The loss of the Respondent’s partner’s job in November 2022 had reduced their combined income from approximately $250,000 per annum to around $70,000 as a result. However, the couple asserted that they were not currently facing financial hardship but were relying on their savings to supplement the Respondent’s income. They insisted that they were able to readily repay any debt should the appeal go against them.
The current absence of financial hardship for the Respondent does weigh against refusing the application for a stay.
Whether the application for review would be rendered nugatory if a stay were not granted
The Applicant conceded that the application for review would not be rendered nugatory if a stay were not granted.
Conclusion
Taking these matters into account, the Applicant has not demonstrated a pursuasive case for the granting of a stay on the AAT 1 Decision and the Tribunal is not satisfied that the granting of a stay is desirable or appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
DECISION
The application for a Stay Order, pursuant to section 41 of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.
29. I certify that the preceding twenty-eight (28) paragraphs are a true copy of the written reasons for the decision of Member R West
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Associate
Dated: 28 March 2023
Date of hearing: 27 March 2023 Advocate for the Applicant:
Applicant via telephone Advocate for the Respondent: Ms Aarabi Raveendiran, Services Australia
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