Howe and Secretary, Department of Social Services (Social services second review)
[2024] AATA 262
•26 February 2024
Howe and Secretary, Department of Social Services (Social services second review) [2024] AATA 262 (26 February 2024)
Division:GENERAL DIVISION
File Number(s): 2021/2452
Re:Tracey Howe
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:26 February 2024
Place:Perth
The Tribunal affirms the decision that the Applicant has a Carer Payment debt due to the Commonwealth and varies the debt period to be 30 August 2016 to 12 March 2019. The debt is to be recalculated and is to be fully recovered.
..........................[Sgd]......................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – Carer Payment debt - distinction between Carer Allowance and Carer Payment – constant care – whether Applicant has a Carer Payment debt – debt period – whether write off or waiver provisions are available – sole administrative error - good faith - special circumstances – notional entitlement - Carer Payment debt affirmed – debt period varied – debt to be recalculated – recalculated debt to be recovered
LEGISLATION
Social Security Act 1991 (Cth) – ss 198(2), 198(3), 1223(1), 1236, 1236(1A)(a)-(d), 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) – ss 68(2)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director-General of Social Security [1984] AATA 176
Cox and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 350
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Oberhardt v Secretary, Department of Education, Employment, and Workplace Relations (2008) 174 FCR 157
Re Callaghan and Secretary of Social Security [1996] AATA 413; (1996) 45 ALD 435
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419
Secretary, Department of Education, Employment, Training & Youth Affairs v Barry Prince [1997] FCA 1565
Secretary, Department of Social Services v Hales (1998) 51 ALD 695
Timothy Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Ward and Secretary, Department of Families and Community Services (2000) AATA 212
SECONDARY MATERIALS
Family Assistance Guide – Guides to Social Policy Law, Version 1.252
Social Security Guide – Guides to Social Policy Law, Version 1.315
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
26 February 2024
INTRODUCTION
The Applicant seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 2 March 2021, which:
(a)affirmed the decision to raise and recover a Carer Payment debt against the Applicant, on the basis that the Applicant ceased to provide “constant care” to the care receiver (her son, Mr Matthew Howe); and
(b)varied the decision such that the debt period increased, on the basis that the AAT1 found the Applicant ceased providing “constant care” to Matthew from an earlier date of 30 September 2016.
The original decision, affirmed by an Authorised Review Office (ARO) determined a debt of $45,907.30 for the debt period 10 July 2017 to 12 March 2019. The AAT1 decision increased the debt to $65,191.94 and varied the debt period to 30 September 2016 to 12 March 2019 (AAT1 debt period).
The hearing was conducted in Perth on 28 June 2023. The Applicant attended and was represented by Mr J Clarkson, and gave evidence on affirmation.
Ms C Campbell of HWL Ebsworth Lawyers appeared for the Respondent by video conference.
HISTORY OF THE MATTER
Before outlining the protracted history of this matter, it is useful to look at the social benefits germane to the consideration of this matter:
(a)Carer Payment. Carer Payment is an income support payment if you give constant care to someone who has a disability, has a severe medical condition, or is an adult who is frail aged. There is no requirement for the carer and the care receiver to live together, but the period of care must be equivalent to a normal working day.
(b)Carer Allowance. Carer Allowance is a fortnightly supplement if you give additional daily care to someone who has a disability, has a medical condition or is frail aged. If the carer and the care receiver do not live together, the carer must provide at least 20 hours care each week. Carer Allowance normally stops when a child turns 16 years of age.
(c)Carer Payment and Carer Allowance can be paid at the same time.
On 1 September 2003, the Applicant commenced receiving Carer Allowance for the care she provided to her daughter, Ms Corina Howe (T2/17; Exhibit R4, Attachment D/43) and continued to receive Carer Allowance for such care until 29 June 2016, when Corina turned 16 years of age (T8/63; Exhibit R4, Attachment D/42, 44). (There is no evidence that the Applicant has ever received Carer Payment for care provided to Corina.)
On 11 May 2009, the Applicant commenced receiving the maximum rate of Carer Payment for the “constant care” she provided to her son, Matthew, with whom she resided at the family home in Coolbellup (T2/9; T49/239, 247; T49/263-265; Exhibit R4, Attachment D/41). The notice to the Applicant advising the grant of Carer Payment provided in part: "Thank you for your recent claim for Carer Payment. After careful consideration of your circumstances, a decision has been made to grant this payment from 11 May 2009 for the care you provide to Matthew Howe" (T49/263).
On 2 June 2011, the Applicant submitted a "Review of Care provided Carer Payment and/or Carer Allowance" form, and an accompanying medical report, in which she provided information to establish her ongoing qualification for benefits for the care provided to Matthew (T6/49-60). Relevant information included that:
(a)the Applicant normally lived with Matthew, and Matthew was living at home with her (T6/53);
(b)the Applicant was providing care to Matthew for seven days of each week (T6/53); and
(c)Matthew’s disability and/or medical condition(s) requiring care included a learning delay and attention deficit hyperactivity disorder (ADHD) (T6/56).
Whilst in receipt of Carer Payment, the Applicant was issued with a number of notices, including those on 2 September 2016, 30 November 2016, 29 September 2017 and 12 October 2017 (T9/65-67; T12/75-77; T17/89-91; T19/95-97). Under s 68(2) of the Social Security (Administration) Act 1999 (Cth) (Administration Act), which notified her of the obligation to advise Services Australia (as it is now known) (Agency) of changes to her circumstances within 14 days, the notices relevantly provided in part (see, for example, T9/66; T12/76):
What you must tell us
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one) or the person(s) for whom you provide care.
This request is an information notice given under social security law.
If you no longer provide care for this person, they no longer require care on a daily basis for a significant period, either temporary or permanent or no longer would be considered to have a disability as their health has improved or if they pass away….
The Applicant was also sent a notice on 3 October 2016 in relation to her Carer Allowance during the AAT1 debt period, which specifically included that it was a "PAYMENT FOR MATTHEW HOWE" (T10/69).
On 2 September 2016, the Applicant attended a social worker interview and lodged a Claim for Crisis Payment with the Agency in which she indicated that exceptional circumstances had forced her to leave her family home (Exhibit R4, Attachment A). The Claim for Crisis Payment was accompanied by a letter of support dated 1 September 2016 from the Applicant's general practitioner, Dr Renu Mary John, in which Dr John confirmed that the Applicant had moved out of her home and intended to separate from her husband from 3 September 2016 (Exhibit R4, Attachment B). On the same date, the Agency granted the Applicant's Claim for Crisis Payment, providing her with a one-off crisis payment of $397.40 (Exhibit R4, Attachment A).
On 12 December 2016, the Applicant attended an office of the Agency to seek an advance payment of Carer Payment, which was granted on the same date (Exhibit R4, Attachment A). Again, on 9 August 2017, the Applicant attended an office of the Agency to seek an advance payment of Carer Payment, which was granted on the same date (T48/210).
On 28 November 2017, the Applicant provided the Agency with a Rent Certificate dated 12 October 2017, providing information in relation to a new residential address (T18/93-94). The information included that the Applicant:
(a)started living at the new residential address on 16 August 2017 (T18/93); and
(b)shared the new residential address with two other people: Mr Jeremy Clarkson (Mr Clarkson) (identified as a friend) and Corina, both of whom moved into the new residential address on 16 August 2017 (T18/94). (No reference to Matthew was made.)
On 15 February 2018, the Applicant attended an office of the Agency to seek an advance payment of Carer Payment, which was granted on the same date (T48/212).
On 28 February 2019, the Applicant submitted a Claim for Carer Payment and/or Carer Allowance, and an accompanying medical report, for the care she provided to Mr Clarkson (T32/129-135; T33/137-143; T48/209). Relevant information included that:
(a)Mr Clarkson had a L3/L4 nerve root impingement, ADHD and bipolar that required the Applicant's care (T32/131);
(b)Mr Clarkson's disability or medical conditions began on 22 February 2017 (T32/131); and
(c)The Applicant commenced providing care for Mr Clarkson's disability or medical conditions on a daily basis from March 2017 (T33/139).
On 25 March 2019, the Applicant contacted the Agency via phone to determine the status of her Claim for Carer Payment and/or Carer Allowance made in respect of the care provided to Mr Clarkson (T48/215). The Agency's file note of the conversation provides in part:
Cust initially contacted today to check POC for CAR/CDA/NCL for caree/ex-partner Jeremy Leigh. SA332a and SA406 (can) lodged: 28.02.2019. Advised cust that there is no actual claim for CAR/CDA. Advised cust to go online to make claim asap.
In the meanwhile discussed CAR/CDA as I noticed that cust is Carer Payment and Carer Allowance current for Matthew Howe. Cust states that she stopped caring for Mathew when he claim his own payment years ago. SA010 review forms lodged for Matthew in 2011 cust was still providing care
Cust advised that she ceased caring for Matthew 10.07.17. CAR/CDA cancelled from 10.07.17. Advised that debt team will determine and that she will receive letter with payment options.
The above file note is the Agency's first record of the Applicant specifically advising of a change of circumstances concerning the care arrangements for Matthew. Because of this conversation:
(a)on 25 March 2019, the Applicant was issued with a notice that her Carer Payment had been cancelled, due to the Agency becoming aware that she was no longer providing “constant care” to Matthew (T38/155);
(b)on 28 March 2019, the Applicant's Claim for Carer Payment and/or Carer Allowance for the care provided to Mr Clarkson was approved, with effect from 28 February 2019 (T39/157); and
(c)on 14 February 2020, the Agency raised a Carer Payment debt in the amount of $45,907.30 against the Applicant for the period 10 July 2017 to 12 March 2019, during which she received Carer Payment in relation to Matthew with no entitlement (T41/165).
On 13 March 2020, the Applicant requested that an ARO of the Agency review the decision to raise a Carer Payment debt in the amount of $45,907.30 (T48/219), and on 14 April 2020 an ARO affirmed the decision under review (T42/169-176). The Applicant then sought review of the decision by the AAT1 on 23 November 2020 (T45/181-189).
On 25 February 2021, the Applicant and Mr Clarkson participated in the AAT1 hearing (T2/8). The AAT1 summary of their evidence includes the following:
(a)the Applicant ceased caring for Matthew when she moved out of the family home on 30 August 2016. She told the Agency about this change (T2/10);
(b)the Applicant believed she was receiving Carer Payment for the care provided to Mr Clarkson throughout the debt period – “she received her last carer payment for Matthew on 30 August 2016 and that is when she started receiving carer payment for Mr Clarkson”. The Applicant commenced residing with Mr Clarkson in September 2016 (T2/10);
(c)whilst the Agency required the Applicant to make a claim for Carer Payment for the care provided to Mr Clarkson, which she initially did in September 2016 (despite the Agency having no record), she was told by the Agency that it would “change the names over” in the interim such that she could continue to receive Carer Payment from 30 August 2016 (T2/10); and
(d)the Agency has made “so many mistakes; it has sent letters with incorrect information (regarding Corina) and has lost documents and treated them badly” (T2/10).
On 2 March 2021, the AAT1 affirmed the decision to raise and recover a Carer Payment debt against the Applicant, and varied the debt period such that it commenced on 30 September 2016, rather than 10 July 2017 (T2/7-15). It did so on the basis of evidence before it which suggested that the Applicant moved out of the family home and ceased providing care to Matthew from 30 September 2016, rather than 10 July 2017, as the Applicant had previously advised the Agency (T2/10, 12). In reaching its decision, the AAT1 found that:
(a)the Applicant, “(even after providing updated accommodation details by means of the rent certificate), had continued to receive carer payment in circumstances where she was aware that she was no longer had care of Matthew”, and had no reason to believe that she was receiving Carer Payment for the care provided to Mr Clarkson (T2/13-14);
(b)the Carer Payment debt could not be waived on the basis of sole administrative error as the Applicant contributed to the debt by failing to advise the Agency of a change of circumstances concerning the care arrangements for Matthew. In any event, the overpayment was not received in good faith, for the reasons identified above (T2/14);
(c)even if a conclusion was reached that the Applicant did not knowingly make a false statement or false representation or knowingly fail or omit to comply with a provision of the Social Security Act 1991 (Cth) (Act), there were no special circumstances that made it desirable to waive recovery of the Carer Payment debt (T2/14-15); and
(d)overall, the evidence and submissions provided by the Applicant and Mr Clarkson were unsatisfactory – “at times, their evidence and recollection of events was confusing and inconsistent”. The AAT1 confirmed that it preferred the evidence as presented by the Agency (T2/11).
As a result of the AAT1 decision, the Applicant's Carer Payment debt was recalculated by the Agency to be $68,347.04. However, the debt was correctly recalculated on 30 June 2021 as $65,191.94, as detailed in the MultiCal - Centrelink Debt Calculator (Exhibit R4, Attachment C).
On 19 April 2021, the Applicant submitted an Application for Review of Decision with this Tribunal (T1/1-6). She gave the following reasons for her application (T1/4):
The decision made by the review officer is wrong because, the review officer failed to allow us to put forward all of the information that was important, stating that the time frame had expired for us to provide the relevant information for her decision making process.
Also after we received the decision in the post, we noted 21 inconsistencys (sic) and possibly more that had occurred as a direct consequence of her not having all the facts regarding the matter, stating that the time frame had expired for us. We were unaware that there was a time frame, no one ever told us that one existed.
We mentioned several times to the board and the officer that it was quite a lengthy amount of vitality (sic) important facts and information regarding the matter, this however was not recognised during the review, reason being that there was a time limit.
I fail to see how a review officer can possibly make an informed and lawful decision based on the very limited information that we were able to supply in the small time window that we were subjected to. The request for extra time to explain was met with almost a hostile manner by the officer, who at one point threatened to have us …”removed from the building by security” when we tried to explain that only a small portion of our evidence had been tabled.
We found her to be rude and uninterested in our attempt to explain the circumstances surrounding this matter. As a direct consequence of her not having all the correct information, she found on the side of centrelink and recalculated the debt to an even greater amount than was previously stated. Subsequently the decision was incorrect and unlawful.
A substantive hearing was conducted on 28 June 2023 (see [3] above). The Respondent summarises, accurately in the Tribunal’s view, that the Applicant and Mr Clarkson submitted that (Exhibit R4, para 23):
(a)the AAT1 decision incorrectly described the evidence given by them at the AAT1 hearing on 25 February 2021, except for the evidence that the Applicant moved out of the family home on 30 August 2016;
(b)instead, their evidence was that:
(i)the Applicant was never in receipt of Carer Payment for the care provided to Matthew during the relevant period. Once Matthew turned 16 years of age in 2007, the Applicant had only ever acted as his "guardian". Matthew did not require a carer - he made his own money working at KFC and had not lived with the Applicant since 30 August 2016. In support of this position, the Applicant and Mr Clarkson relied upon a notice issued by the Agency to the Applicant dated 23 July 2007, in which the Applicant was notified that "Your Carer Allowance for Matthew has been cancelled because he is 16 or over" (Exhibit A1);
(ii)instead, the Applicant was in receipt of Carer Payment for the care provided to her daughter, Corina, during the relevant period. Corina moved out of the family home with the Applicant on 30 August 2016 and continued to reside with her until around November 2017;
(iii)as such, the Applicant did not advise the Agency of a change in the care arrangements concerning Matthew when she moved out of the family home on 30 August 2016 as she had no reason to. Mr Clarkson submitted that doing so would have been "a stupid thing to do" given that "Centrelink told [the Applicant] in 2007 that they weren’t providing her with money any longer for his care"; and
(iv)Mr Clarkson did not move in with the Applicant in September 2016, as stated in the AAT1 decision. At this time, he continued to reside with his wife in their home. He did not move in with the Applicant until at least 6 months later.
In light of the new evidence and submissions raised by the Applicant and Mr Clarkson at the hearing regarding the basis on which the Applicant received Carer Payment during the relevant period, the Tribunal made the following directions at the conclusion of the hearing:
1.On or before 17 July 2023 the Respondent must file with the Tribunal further evidence to include clear information about any carer payments the Applicant was receiving effective from 2003 and serve a copy on the Applicant.
2.On or before 24 July 2023 the Respondent must file with the Tribunal an updated Statement of Facts, Issues and Contentions and any further evidence on which the Respondent proposes to rely at the hearing and serve a copy on the Applicant.
3.On or before 14 August 2023 the Applicant must file with the Tribunal written submissions in reply and any further evidence on which the Applicant proposes to rely at the hearing and serve a copy on the Respondent.
4.The matter to be listed for a telephone directions hearing as soon as practicable after 14 August 2023.
On 13 July 2023, the Respondent complied with the first direction above by providing the Tribunal and Applicant with further evidence (Exhibit R4, Attachment D). This evidence verified, amongst other things, that the Applicant received Carer Payment during the period 11 May 2009 to 12 March 2019 on the basis of the constant care provided to Matthew as the care receiver, rather than her daughter, Corina.
Due to the circumstances of the matter, including a request from the Applicant to hold the matter in abeyance whilst she obtained further evidence under freedom of information requests, the Tribunal issued an amended direction on 22 November 2023, to the effect:
1.On or before 8 December 2023, the Applicant to file with the Tribunal any additional information upon which [s]he relies and serve a copy on the Respondent.
2.On or before 12 January 2024, the Respondent to file with the Tribunal an updated Statement of Facts, Issues and Contentions and serve a copy on the Applicant.
3.On or before 26 January 2024, the Applicant to file with the Tribunal any submissions in reply and serve a copy on the Respondent.
4.That given the consent of the parties, the application will be determined on the papers filed with the Tribunal to date, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
On 15 December 2023, the Applicant responded to the first direction above by providing a bundle of documents (494 pages), apparently received under freedom of information. The bundle contained, amongst other documents, various notices and forms issued by or submitted to the Agency and various bank statements. The bundle was not accompanied by any written submissions or explanations. The Respondent notes (Exhibit R4, para 28) that “Most of the documents in the Applicant's bundle are either already in evidence before the Tribunal or do not appear to be relevant to the issues under review”.
In response to the amended Tribunal direction (see [27] above), the Respondent provided an Updated Statement of Facts, Issues and Contentions (Exhibit R4) which addresses both the new evidence and oral submissions made by the Applicant and Mr Clarkson at the hearing. The Respondent advises (Exhibit R4, para 29) that Exhibit R4 supersedes Exhibit R1 filed on 25 November 2022.
As of the date of this decision, and despite reminders by Tribunal staff, the Applicant has not filed any submissions in reply consequent to the Respondent filing Exhibit R4 and as provided by the Tribunal’s amended direction dated 22 November 2023 (see [26] above).
The Tribunal notes the Respondent’s advice that the Applicant is currently in receipt of Carer Payment and Carer Allowance for the constant care provided to Mr Clarkson and that the recovery of her Carer Payment debt with respect to Matthew is paused until 18 April 2024 (Exhibit R4, para 30).
ISSUES
The issues to be determined in this Application are:
(a)whether the Applicant has a Carer Payment debt, which requires particular consideration of whether the Applicant was providing “constant care” to Matthew;
(b)if a Carer Payment debt exists:
(i)the amount of the Carer Payment debt; and
(ii)whether the Carer Payment debt may be waived or written off.
LEGISLATION AND POLICY
The relevant legislation is contained in the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth).
Relevant policy is contained in the Family Assistance Guide – Guides to Social Policy Law (the Guide) and the Social Security Guide – Guides to Social Policy Law (Social Security Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guides unless there are cogent reasons for departing from its application (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-5).
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T-Documents’ (T1-T49, pages 1 to 317);
·Applicant’s documentary evidence filed 10 May 2023 (Exhibit A1);
·Respondents’ Statement of Facts, Issues and Contentions dated 25 November 2022 (Exhibit R1);
·Respondent’s Documents filed on 25 November 2022 (Exhibit R2);
·Respondent’s letter to Applicant dated 21 June 2021 and Applicant’s response dated 6 October 2022 (Exhibit R3);
·Respondent’s Updated Statement of Facts, Issues and Contentions dated 12 January 2024 (Exhibit R4); and
·The oral evidence of the Applicant.
CONSIDERATION
Does the Applicant have a Carer Payment debt?
Care Payment and Carer Allowance are described briefly at [6] above.
In order to qualify for a Carer Payment, s 198(2) of the Act provides, most relevantly, that a person must personally provide "constant care" for a disabled adult who has been assessed and rated under the Adult Disability Assessment Tool (ADAT) and given a score under the ADAT of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10. The care must be provided in a private residence that is the home of the care receiver or care receivers, pursuant to s 198(3).
The term “constant care” is not defined in the Act. However, the Social Security Guide, at topic 1.1.C.310, provides relevant guidance for the purpose of s 198(2), noting that:
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 [constant care] 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.
The Respondent also relevantly cites Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419, where the Tribunal commented at [24] that Exhibit R4, para 33):
… the Tribunal in Re Reidy (unreported, 1986, No 2817) said that ‘what is required is care which is continually recurring but with some regularity rather than spasmodically. Watchful or preventative care may be part of the care and attention which recurs and may give it the character of being constant’. In a subsequent case, Re James (1986) 11 ALD 273, when the words ‘constant help and attendance’ in the Compensation (Commonwealth Government Employees) Act 1971 were being interpreted, the Tribunal said: ‘It is obviously contemplated that the affected person requires significant assistance every day. This should be contrasted with the notion of regular or routine assistance’.
The Care Receiver
At the hearing, the Applicant sought to challenge the basis on which she received Carer Payment between 11 May 2009 and 12 March 2019 (relevant period), noting that it related to the care provided to Corina, not Matthew.
Whilst there is evidence that Applicant has historically received a benefit for the care provided to Corina, the benefit was limited to the period 1 September 2003 to 29 June 2016 (Exhibit R4, Attachment D/43-44; T2/17), and was a Carer Allowance rather than Carer Payment.
The Respondent relies on the following relevant evidence in making the contentions that the Applicant was paid Carer Payment during the relevant period on the basis that she provided "constant care" to Matthew as the care receiver, not Carina (Exhibit R4, para 36):
(a)the Agency's Carer General Information Screens, which confirm that the Applicant was found to be qualified to receive Carer Payment on 11 May 2009 for "HOWE, MATTHEW R" as the care receiver (Attachment D/41). The Applicant qualified for Carer Payment for "CLARKSON, JEREMY L" as the care receiver on 28 February 2019 (Attachment D/40). The Applicant has never received Carer Payment for Corina;
(b)the Agency's file note dated 11 May 2009, in which it provides caree details for the Applicant's Claim for Carer Payment granted on that date. They are: "CAREE DETAILS: HOWE…MATTHEW…" (Attachment D/51);
(c)the Agency's response to the AAT1's targeted questions on 25 February 2021, which include that "[the Applicant] was in receipt of Carer Payment for Matthew Howe for the period: 11/5/196 to 12/3/2019. [The Applicant] was in receipt of Carer Allowance for Corina Howe for the period: 1/9/2003 to 29/6/2016" (T2/17). The Agency's response is supported by the Applicant's Carer Allowance Action and Assessment Result Screens for Corina, appearing at Attachment D/43-44, as well as the Carer General Information Screens at Attachment D/41-42;
(d)the Agency's notice to the Applicant dated 29 June 2016, which confirms that the Applicant was notified that she had ceased receiving Carer Allowance for the care provided to Corina as at that date (T8/63);
(e)the Agency's notice to the Applicant dated 11 May 2009, which confirms that the Applicant successfully submitted a claim for Carer Payment for the care provided to Matthew. The notice provides in part: "Thank you for your recent claim for Carer Payment. After careful consideration of your circumstances, a decision has been made to grant this payment from 11 May 2009 for the care you provide to Matthew Howe" (T49/263);
(f)the completed forms and medical evidence provided by the Applicant to the Agency to prove her ongoing eligibility to receive benefits for the care provided to Matthew after receiving the abovementioned notice. In particular, the completed "Review of Care provided Carer Payment and/or Carer Allowance" form, and accompanying medical report, provided to the Agency on 2 June 2011, which confirms, amongst other things, that the Applicant was providing care to Matthew for seven days of each week for his learning delay and ADHD (T6/53; T6/56). In providing such information, a General Practitioner, Dr Laurie Ukalovich at Kelso Medical Group, was required to assess Matthew under the ADAT (T6/51-52);
(g)the fact that the Applicant's evidence to this Tribunal cannot be reconciled with her evidence as recorded in the AAT1 decision (T2/9-11). It is implausible that the AAT1 would incorrectly record all aspects of the Applicant and Mr Clarkson's evidence given at the hearing on 21 February 2021, except for the date the Applicant left the family home on 30 August 2016; and
(h)the fact that there is no evidence before this Tribunal to support the Applicant's contention that she was ever receiving Carer Payment for the care provided to Corina (rather than Matthew). For example, there is no assessment and rating of Corina under the ADAT (as required to prove qualification for Carer Payment in s 198(2) of the Act), nor any records held by the Agency or notices issued to the Applicant. The Agency gave the Applicant no reason to believe that she was ever receiving Carer Payment for the care provided to Corina.
The crux of the Applicant’s contention that she was not in receipt of Carer Payment for the care provided to Matthew is the notice issued by the Agency to the Applicant dated 23 July 2007, in which the Applicant was notified that "Your Carer Allowance for Matthew has been cancelled because he is 16 or over" (Exhibit A1). However, the notice does not support her contention because it relates to Carer Allowance rather than Carer Payment, which is dated approximately two years before the Applicant on 11 May 2009 successfully submitted a claim for Carer Payment for the care provided to Matthew as a disabled adult (T49/263), and was issued some four years before the Applicant submitted medical evidence to confirm her ongoing eligibility to receive benefits for the care provided to Matthew as a disabled adult on 2 June 2011 (T6/49-60).
The Applicant’s reliance on this notice was evident at the very start of the hearing when Mr Clarkson told the Tribunal (Transcript/2):
I’ve got everything we need right here on this one piece of paper, which I was about to ask if you would be able to view this piece of paper before we go into what Claire is going to say and everything else, because this piece of paper here will finalise everything before we have to go into anything else. So without wasting anybody’s time…
Although Mr Clarkson told the Tribunal that he understood the distinction between Carer Payment and Carer Allowance (Transcript/18), his submissions during the hearing suggested that he did not (see for example Transcript/28, 41, 49, 50). This despite attempts by Ms Campbell to make the difference clear as it relates to the present matter (Transcript/14-15, 17).
Ceasing "Constant Care" of the Care Receiver
The Applicant Told this Tribunal on 28 June 2023 that she ceased to provide care to Matthew when he turned 16 years of age in 2007 and thereafter she “was only his guardian”. The Applicant said that Matthew had his own payments through Youth Allowance and then New Start and was working at KFC, and she confirmed that Matthew has not lived with her since 30 August 2016 (Transcript/30, 34). The same evidence was repeated by Mr Clarkson on multiple occasions throughout the hearing.
Further, the Respondent cites relevant evidence which corroborates the Applicant's evidence that she left the family home where Matthew was residing on 30 August 2016, despite continuing to receive Carer Payment for his "constant care" until 12 March 2019 (Exhibit R4, para 40):
(a)notes from the Social Work Report, in connection with the Applicant's Claim for Crisis Payment, dated 2 September 2016, in which it records the Applicant as leaving the family home with her daughter on 30 August 2016 (Attachment A); and
(b)the letter of support from the Applicant's general practitioner, Dr Renu Mary John, dated 1 September 2016, in which Dr John confirms that the Applicant had already moved out of home and intended to separate from her husband from 3 September 2016 (Attachment B).
The evidence is that the sole basis on which the Applicant qualified for Carer Payment was for the "constant care" she provided to Matthew, after the required assessment and rating of him was undertaken under the ADAT. For the purpose of determining the existence of the Carer Payment debt in this matter, it is immaterial that the Applicant may have been providing care to another individual or individuals at any point during the relevant period.
With respect to Corina, the Tribunal has already stated at [7] above that there is no evidence that the Applicant has received Carer Payment for care provided to Corina in the relevant period. There is no evidence before the Tribunal to suggest that Corina was ever assessed and rated under the ADAT, and received "constant care" from the Applicant for the purpose of s 198(2) of the Act, at any point during the relevant period. Further, in evidence before this Tribunal on 28 June 2023, the Applicant conceded that she had stopped living with Corina around November 2017 when “she moved back in with her dad” (Transcript/50), well within the relevant period.
The Tribunal notes the submissions by the Applicant and Mr Clarkson that consequent to Matthew turning 16 years old, the Applicant was “allowed to have a carer payment and a carer allowance for Corina” (Transcript/50), and that these were “transferred over” (Transcript/52) without application or assessment. These submissions are not supported by evidence and the Tribunal finds them implausible.
Turning to Mr Clarkson, the Respondent contends that the evidence does not suggest that the Applicant was providing him with "constant care" at any point during the relevant period, and supports that contention as follows (Exhibit R4, para 42):
(a)in the Claim for Carer Payment and/or Carer Allowance for the care provided to Mr Clarkson, the onset of Mr Clarkson’s disability or medical conditions is recorded as 22 February 2017 (T32/131). That is, approximately eight years within the relevant period, at which point the level of his care needs is unknown. Onset of a condition can be very different from a condition’s impact being sufficient to require “constant care” for the purpose of satisfying s 198(2) of the Act;
(b)in the Claim for Carer Payment and/or Carer Allowance for the care provided to Mr Clarkson, the commencement of the Applicant providing care for Mr Clarkson’s disability or medical conditions on a daily basis is recorded as March 2017 (T33/139). That is, approximately eight years within the relevant period, at which point, the extent and nature of such care are unknown. There is no evidence before the Tribunal to suggest that the Applicant met the threshold of providing “constant care” for the purpose of satisfying s 198(2) of the Act at that time;
(c)Mr Clarkson’s assessment and rating under the ADAT occurred on or around 28 March 2019, when the Applicant’s Claim for Carer Payment and/or Carer Allowance for the care provided to Mr Clarkson was approved (T39/157). That is, outside of the relevant period. There is no evidence of Mr Clarkson meeting the threshold score under the ADAT such that s 198(2) could be met at any time prior to 28 March 2019; and
(d)Mr Clarkson's evidence to this Tribunal at the hearing on 28 June 2023 is that he did not move in with the Applicant in September 2016, as recorded in the AAT1 decision (T2/10). Rather, this occurred at least 6 months later, noting that he was still residing with his wife in their home in September 2016. This is another factor suggesting that “constant care” was not provided by the Applicant to Mr Clarkson during the relevant period.
Having regard to the material before it, the Tribunal agrees with the Respondent’s contention.
The Respondent submits that it is open to the Tribunal to find that the entire period between 11 May 2009 and 12 March 2019, in which the Applicant was paid Carer Payment for the "constant care" provided to Matthew is a debt due to the Commonwealth, pursuant to s 1223 of the Act because the Applicant concedes that she provided no care to Matthew upon him turning 16 years of age in 2007 (Exhibit R4, para 39). At Exhibit R4 at [46], the Respondent suggests that in the alternative, the Tribunal might vary the debt period such that it commences no later than 30 August 2016, being the date the Applicant moved out of the family home.
The AAT1 found the evidence and submissions provided by the Applicant and Mr Clarkson to be unsatisfactory with their evidence and recollection of events being confusing and inconsistent (T2/11). This Tribunal finds similarly regarding the hearing on 28 June 2023. At times Mr Clarkson blurred the distinction between advocate and witness and on occasion corrected the Applicant or answered questions directed to her. Mr Clarkson accused the Tribunal of refusing them a lawyer, but then accepted that Legal Aid refused their request (Transcript/57). He also told the Tribunal that Ms Campbell had “put a stop” to the Applicant “being allowed to access her file at Centrelink to recover evidence to present to the tribunal” (Transcript/59). This statement was without foundation and the Tribunal accepts Ms Campbell’s rejection of it without reservation.
Having careful regard to the quality of the evidence, the passage of time, the failure of the Applicant to reply to the Respondent’s Updated Statement of Facts, Issues and Contentions (see [29] above), the Applicant’s advice of 25 March 2019 to the Agency that she ceased caring for Matthew on 10 July 2017 (T48/215; see [16] above), and the absence of evidence as to the type and level of care the Applicant provided to Matthew in her role as mother and guardian during the period between him turning 16 years of age and the Applicant leaving the family home, the Tribunal is not satisfied that the debt period should be varied to the period 11 May 2009 to 12 March 2019. Rather, the Tribunal is satisfied that the debt period commences on the date, supported by the evidence, that the Applicant moved out of the family home, 30 August 2016.
The Tribunal finds that the Applicant has a Carer Payment debt due to the Commonwealth for the period 30 August 2016 to 12 March 2019 (varied debt period) because she was not providing “constant care” to Matthew as required by s 198(2) of the Act.
Amount of the Applicant's Carer Payment debt
Consequent to the AAT1 decision (T2), the Applicant’s Carer Payment debt for the period 30 September 2016 to 12 March 2019 has been correctly calculated by the Agency as $65,191.94, as contained in the "MultiCal - Centrelink Debt Calculator" appearing at Exhibit R4, Attachment C. However, this Tribunal’s finding means that the overpayment of Carer Payment needs to be recalculated by the Agency on the basis that the Applicant ceased to provide “constant care” to Matthew from an earlier date than that determined by the AAT1, that being 30 August 2016. The application of subs 1223(1) of the Act means that the amount of the recalculated debt is a debt due to the Commonwealth. The Respondent submits that “the recalculation can occur at the time of the Agency implementing the Tribunal's decision” (Exhibit R4, para 46).
The Respondent notes for completeness that (Exhibit R4, para 44):
…the Applicant also has a Carer Allowance debt arising as a result of her ceasing "constant care" of Matthew during the AAT1 debt period. The Carer Allowance debt has not been the subject of administrative review by either an ARO or the AAT1, and therefore, the Tribunal has no jurisdiction to consider the Carer Allowance debt for the purpose of this Application. The Applicant will need to request review of the Carer Allowance debt by an ARO if she wishes for it to be the subject of further administrative review.
Should all or part of the Applicant's Carer Payment debt be recovered?
Subsection 1223(1) of the Act provides that if a social security payment is made and a person who obtains the benefit of the payment was not entitled for any reason to that benefit, the amount of the payment is a debt due to the Commonwealth by the person.
In the Federal Court decision of Secretary, Department of Social Services v Hales (1998) 51 ALR 695, Justice French, as he was then, stated at [155]:
…The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which lead to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
There are only two mechanisms available under the Act that allow for a properly raised debt of social security overpayment not to be recovered: waiver and write-off under Part 5.4 of the Act.
The Applicant told the AAT1 that the Agency, through a series of errors and mishandling of her information, incorrectly raised the debt. She submitted that there is no debt because at all times she was entitled to receive Care Payment albeit for another person or persons rather than Matthew (T2/12). The Applicant and Mr Clarkson maintained the tenor of this submission through the hearing on 28 June 2023 and did not make specific submissions regarding recovery of the debt.
Waiver - Sole Administrative Error
Section 1237A of the Act provides:
(1)Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
(1A) Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
The existence of an administrative error is not sufficient to meet the requirement and the debt must arise from administrative error to the exclusion of all else. The Federal Court considered sole administrative error in the decision of Secretary, Department of Family & Community Services v Sekhorn (2003) 73 ALD 41 and stated at [41]:
However, it seems to me, the Tribunal failed to consider the significance of the inclusion, 1237A(1), of the word “solely”. For the subsection to have effect, the “proportion” of the debt – in this case, it is common ground, that would be the whole of it – must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.
In Ward and Secretary, Department of Families and Community Services (2000) AATA 212, Deputy President Forgie held at [47]:
This means that the Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor.
The Respondent relevantly cites Secretary, Department of Education, Employment, Training & Youth Affairs v Barry Prince [1997] FCA 1565 to explain the concept of “received in good faith” (Exhibit R4, para 53):
The Federal Court found that it concerns the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received – i.e. is not entitled to use the moneys receives as his or her own – that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.
The Family Assistance Guide (The Guide) at 7.3.2.10 further explains the meaning of good faith in the present context:
Receiving a payment in good faith implies that an individual has no knowledge or reason to believe, that they were not entitled to receive a payment and they have not directly or indirectly contributed to the debt situation. If a person knew or had reason to know that they were not entitled to a payment they had received, they cannot be said to have received the payment in good faith.
…
It is important to consider whether the person has been ‘wilful’ or ‘negligent’ in relation to the overpayment.
The Respondent contends that the sole administrative error waiver in s 1237A cannot apply in this case as the Applicant did not receive Carer Payment in good faith (Exhibit R4, para 54). Cognisant of the authorities and policy guidance above and having regard to the following considerations, the Tribunal agrees:
(a)The Applicant was in contact with the Agency in relation to other matters during the varied debt period when Matthew was not residing with her. These contacts included for example, requests for advance payments for Carer Payment on 12 December 2016, 9 August 2017 and 15 February 2018 (T48/210; T48/212), during which she had the opportunity to clarify the basis upon which she was receiving Carer Payment and to ensure the accuracy of the Agency’s records, but failed to do so.
(b)The Applicant also made a Claim for Crisis Payment on 2 September 2016 (see [9] above) when she left the family home on 30 August 2016, yet failed to update her details with the Agency for the purpose of her Carer Payment entitlement.
(c)The Applicant failed to respond to the Agency's notices issued to her throughout the varied debt period (including for example T11/71, T12/75, T14/83) and a notice in relation to Carer Allowance dated 3 October 2016, which specifically stated that it was a "PAYMENT FOR MATTHEW HOWE" (T10/69). The Applicant was therefore alerted to the fact that she was continuing to receive benefits during the relevant period in relation to the care provided to Matthew, despite her no longer residing with Matthew and not providing such care.
(d)During the hearing, the Applicant was unable to provide a clear answer to questions regarding any advice she may have given the Agency about caring arrangements for Matthew when she left the family home on 30 August 2016 (Transcript/34-35).
(e)The Guide notes that consideration of whether a person has been negligent in receiving an overpayment of benefits is important in determining the question of good faith. In this case where the Applicant has failed to advise the Agency of her circumstances and assumed that an entitlement for Carer Payment transferred from one care receiver to another without due process, negligence is apparent. Putting that assumption aside, the Tribunal notes the Applicant’s evidence that Corina, who she claimed was the care receiver, returned to live with her father in the previous family home in November 2017 (Transcript/50).
The Respondent contends that in any event, the Applicant’s Carer Payment debt is not attributable solely to an administrative error made by the Agency, rather, the debt arose due to the Applicant (Exhibit R4, para 55):
(a)Representing herself to the Agency as providing "constant care" to Matthew, notwithstanding her evidence to this Tribunal that care was not provided upon Matthew turning 16 years of age in 2007;
(b)Failing to advise the Agency of the change in the care arrangements concerning Matthew. The only record the Agency has of the Applicant doing so is on 25 March 2019 outside of the relevant period (T48/215); and
(c)Failing to clarify the basis upon which she was receiving Carer Payment and ensuring the accuracy of the Agency’s records during the relevant period. The Agency gave the Applicant no reason to believe that she was ever receiving Carer Payment for the care provided to Corina and/or Mr Clarkson during the relevant period.
The evidence is that the Applicant was issued with notices under s 68(2) of the Administration Act which notified her of the obligation to advise the Agency of changes to her circumstances within 14 days. The notices include those dated 29 September 2016, 30 November 2016, 29 September 2017 and 12 October 2017 (T9/65-67; T12/75-77; T17/89-91; T19/95-97). The notices relevantly provide in part (see, for example, T9/67; T12/76):
What you must tell us
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one) or the person(s) for whom you provide care.
This request is an information notice given under social security law.
If you no longer provide care for this person, they no longer require care on a daily basis for a significant period, either temporary or permanent or no longer would be considered to have a disability as their health has improved or if they pass away….
Despite these notices, there is no evidence before the Tribunal that the Applicant advised the Agency of her ceasing "constant care" of Matthew until 25 March 2019, which is outside the relevant period (T48/215).
The Respondent submits that “the Agency has no record of the Applicant advising of any existing care arrangements between herself and Mr Clarkson until submitting a Claim for Carer Payment and/or Carer Allowance on 28 February 2019, almost outside of the debt period” (T32/129-135; T33/137-143) (Exhibit R4, para 60). In the absence of evidence to the contrary, the Tribunal accepts that submission.
Similarly, the Respondent advises that the Agency has no evidence of the Applicant making a Claim for Carer Payment with respect to "constant care" provided to Corina at any time (Exhibit R4, para 60). During the hearing, Mr Clarkson submitted that the Agency had not taken into account the fact that the Applicant and Corina had moved from the home and that the Applicant was still receiving money “for a carer’s payment and carer’s allowance for Corina only’ (Transcript/11). The Tribunal has already found such an arrangement to be implausible (see [49]).
The Tribunal is satisfied that the Applicant’s Care Payment debt did not arise from sole administrative error by the Commonwealth and that the benefit was not received in good faith. It follows that waiver of the debt under s 1237A of the Act is not available.
Waiver - Special Circumstances
Section 1237AAD of the Act states:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(v)making a false statement or a false representation; or
(vi)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
The term "special circumstances" in s 1237AAD is not defined in the Act, but has been extensively considered in case law.
In Groth and Secretary, Department of Social Services (1995) 40 ALD 541, 545 the Federal Court stated:
The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss…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.
Beadle and Director-General of Social Security [1984] AATA 176; (1984) 6 ALD 1 states:
…An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special…
Timothy Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, at [80], states in part:
…."special circumstances" are not merely directed to the person's own circumstances. Rather, they are directed to those that are "special circumstances…that make it desirable to waive". That necessarily requires a consideration of the person's individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. … He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement. … The system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 , Besanko J stated , at [33]:
…There is less risk of overstatement if the words ’unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case…
There is no definition of “knowingly” in the Act. However, the Respondent notes that a number of Tribunal decisions have considered the meaning of the word in this context and cites two relevant examples.
In Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996) 45 ALD 435 (Re Callaghan), the Tribunal commented at [48]:
There is nothing in section 1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
In Cox and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 350, the Tribunal cited Re Callaghan and concluded at [38]:
Whilst it is clear from this passage that actual (as compared to) constructive knowledge is required, the Tribunal has recognised that the presence of actual knowledge may be inferred from the circumstances where a debtor had the opportunity to gain that knowledge, and there were no obstacles preventing him acquiring that knowledge: see also Anderson and Department of Family and Community Services [2002] AATA 239; (2002) 68 ALD 494, Secretary, Department of Family and Community Services and Temesgen [2002] AATA 1290; (2002) 72 ALD 563 at 564-565 and Balancio and Secretary, Department of Family and Community Services [2003] AATA 466; (2003) 74 ALD 204 at 209.
The Respondent contends “that the Applicant cannot satisfy s 1237AAD(a)(i) and (ii) of the Act because there is evidence of her Carer Payment debt arising wholly from her knowingly making a false representation and failing or omitting to comply with provisions of the Act, such that the "special circumstances" discretion in s 1237AAD cannot apply” (Exhibit R4, para 68). Having regard to the considerations above, the Tribunal agrees.
The Federal Court, in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) 174 FCR 157, at 163 [32] described the expression “notional entitlement” as referring to “an unclaimed benefit; a benefit which was not actually claimed by the person, but to which that person would have been entitled had they applied for it” and held that: “…notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are ‘special circumstances’ to waive a debt under s 1237AAD”
Accordingly, and helpfully, the Respondent addresses the relevance of notional entitlement in submissions regarding the Applicant’s access to a waiver because of special circumstance (Exhibit R4, para 73):
In respect of any submission made by the Applicant as to her having a “notional entitlement” to Carer Payment during the relevant period, having regard to the care provided to Mr Clarkson and/or Corina, the Respondent contends that such an entitlement cannot be established. To find as such would require the Tribunal to be satisfied that all of the qualification requirements for the Applicant to receive Carer Payment for the care provided to Mr Clarkson and/or Corina were met during the relevant period, notwithstanding the evidence that:
(a)the onset of Mr Clarkson’s disability or medical conditions was 22 February 2017 (T32/131). That is, approximately eight years within the relevant period, at which point the level of his care needs are unknown. Onset of a condition can be very different from a condition’s impact being sufficient to require “constant care” for the purpose of satisfying s 198(2) of the Act;
(b)the commencement of the Applicant providing care for Mr Clarkson’s disability or medical conditions on a daily basis was March 2017 (T33/139). That is, approximately eight years within the relevant period, at which point, the extent and nature of such care is unknown. There is no evidence before the Tribunal to suggest that the Applicant met the threshold of providing “constant care” for the purpose of satisfying s 198(2) of the Act at that time;
(c)Mr Clarkson’s assessment and rating under the ADAT occurred on or around 28 March 2019, when the Applicant’s Claim for Carer Payment and/or Carer Allowance for the care provided to Mr Clarkson was approved (T39/157). That is, outside the relevant period. There is no evidence of Mr Clarkson meeting the threshold score under the ADAT during the relevant period such that s 198(2) could be met; and
(d)similarly, for Corina, there is no evidence before the Tribunal to suggest that Corina was ever assessed and rated under the ADAT, and/or received "constant care" from the Applicant for the purpose of s 198(2) of the Act, at any point during the relevant period. Further, in the Applicant's evidence before this Tribunal on 28 June 2023, she conceded that she had stopped living with Corina around November 2017, well within the relevant period.
Having regard to the totality of the evidence, the Tribunal agrees with the Respondent’s contention in the preceding paragraph and finds that the consideration of any notional entitlements in this matter does not enliven the availability of waiver provisions pursuant to s 1237AAD of the Act. (See also [60].)
Although the Tribunal has found already at [81] that the special circumstances discretion under s 1237AAD is not available to the Applicant, the Tribunal also notes her evidence to the AAT1, including that she has no dependants to provide for, but has regular income by way of a Carer Payment, shared rental responsibilities and no debts, apart from those owed to the Agency (T2/14). No further relevant evidence was heard during the hearing of this matter on 28 June 2023. On the basis of the evidence before it the Tribunal is not satisfied that the Applicant’s circumstances are special or such as to distinguish this case from the ordinary, and sees no injustice in requiring the Applicant to repay the Carer Payment debt of which she has had the benefit but not the entitlement.
Write Off
Section 1236 of the Act provides for the possibility of writing off or delaying recovery of a debt for a period:
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery;
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
The write off provisions pursuant to s 1236 of the Act have no application in this matter because none of the circumstances described in s 1236(1A)(a) – (d) exist. The Applicant has capacity to repay the debt by way of modest fortnightly withholdings from her Carer Payment, having regard to her financial circumstances to determine an appropriate rate of recovery. She told the AAT1 that she has no debts, apart from those owed to the Agency, with no dependents to provide for (T2/14-15), and did not provide further contrary evidence or submissions to this Tribunal.
CONCLUSION
The Tribunal is satisfied that the Applicant has a debt due to the Commonwealth for the receipt of Carer Payment for which she had no entitlement during the period 30 August 2016 to 12 March 2019. The Tribunal finds that the overpayments were not received in good faith, the debt was not due solely to administrative error and that special circumstances have not been established so as to make it desirable that the recovery of the debt be waived. Further, the Tribunal finds that the discretion to write off the debt is not enlivened.
DECISION
It follows from all the above that:
(a)The decision that the Applicant owes a Carer Payment debt to the Commonwealth is affirmed.
(b)The Debt is to be recalculated in accordance with the Tribunal’s finding that the debt period is 30 August 2016 to 12 March 2019, and the recalculated debt is recoverable.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member
.........................[Sgd].......................
Associate
Dated: 26 February 2024
Date of determination on the papers: 26 February 2024
Date of hearing:
28 June 2023
Applicant Representative:
Mr J Clarkson
Representative for the Respondent:
Ms C Campbell, HWL Ebsworth Lawyers
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