Inglis and Secretary, Department of Education, Employment and Workplace Relations
[2010] AATA 711
•17 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 711
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2791
GENERAL ADMINISTRATVE DIVISION ) Re Jason Inglis Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
And
Samara Mabbott
Third Party
DECISION
Tribunal Mr G L McDonald, Deputy President Date17 September 2010
PlaceMelbourne
Decision The decision under review is set aside and the parenting payment should be reinstated in favour of the applicant father.
.....(sgd. G L McDonald)...........
Deputy President
CATCHWORDS
Social Security - Parenting Payment - Who is the principal carer of a child - Guidelines to determine who is the principal carer when separated parents share the care of a child equally - Paramount consideration is who provides the best care for the child – decision set aside.
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) ss 5(2), 5(18), 5(19), 500 and 500DGuide to Social Security Law
REASONS FOR DECISION
17 September 2010 Mr G L McDonald, Deputy President 1. The applicant, the father of Jacob Inglis is appealing a decision of the Social Security Appeals Tribunal dated 25 June 2010, which determined that Samara Mabbott, the mother of Jacob, was entitled to be paid the “parenting payment single”.
2. The Tribunal heard from both the father and the mother. Ms A Bramley represented the respondent. It determined that it should assess the evidence as at the date when the decision is given. The documents filed for purposes of s 37 of the Administrative Appeals Tribunal Act 1975 and exhibits tendered during the course of the hearing were part of the evidence considered by the Tribunal.
3. Section 500 of the Social Security Act (1991) (the Act) provides for the payment of a benefit (”parenting payment”) to the principal carer of a child. Section 5(18) of the Act provides that only one person can be the principal carer of a child. Section 5(19) of the Act directs the Secretary to determine who, between those who may be the carers, should be specified as the principal carer: that is, the payment of the benefit cannot be split in circumstances when the parents, although separated, share the care of a child equally. The Act gives no guidance to decision makers when, as in this case, the care is shared equally between the two separated parents as to who is to be the principal carer.
4. The only guidance available is that contained in the Guide to Social Security Law, which is in the following terms:
1.1.P.416 Principal carer – shared care
Summary
The provisions of subsection 5(18) of the SSAct mean that only one person at a time can be the principal carer… of a child. In all shared care situations (PP, NSA, YA (job seeker) and SpB), it is necessary to determine which of the carers is the principal carer.
Example: A couple have separated and have joint legal responsibility… for, and share the care of, their child who is under 6. One of the parents previously received PPP under subsection 500D(1) of the SSAct. Subsection 5(19) requires that a determination be made stating which person is the principal carer of the child, and therefore has the PP child.
In all cases where care is shared a written determination must be made which:
·specifies one of the adults as the principal carer of the child,
·is provided to each adult, and
·is made EVEN if only one person has claimed income support.
…
Principal carer status & legal responsibility
Care should be taken to ensure that it is not assumed that a child is always the dependent child of their parent, but the assessment should fully explore whether the person legally responsible for the child is actually providing care for the child. In some cases grandparents or relatives who have taken on responsibility of caring for the child where the parent is unable or unwilling to care for the child can be determined to be principal carers.
…
Equal care
If the difference in the level of care provided by the 2 carers is less than 10%, care is considered to be shared equally.
Example: Where care is shared 54/46% or 50/50%.
In situations of equal care where only one of the carers is claiming or receiving income support, that person should be determined as the principal carer. If both carers are claiming or receiving income support, the carer who is most in need of a favourable determination should be deemed principal carer.
A decision maker MUST take into account the following factors when deciding which carer is in most need of a favourable determination:
·whether one carer already qualifies as principal carer or another child…,
·whether only one carer would be eligible for PP,
·which carer would receive the higher rate of payment,
·any other sources of income the carers may have, whether actual or potential, including both employment and investment income,
◦Note: If either carer has income that fluctuates, the assessment officer may need to look at average income levels over an extended period of time, such as 12 weeks, and
·the asset levels of each carer.
The following factors MAY be taken into consideration by the decision maker, if further information is required to make the determination:
·the expenses of each carer,
◦Example: Rent, child care,
·workforce experience, education levels and future employment prospects of each carer,
·the duration that each carer has been on income support and their principal carer status during this time. If there are no substantial differences between the parties, then generally the determination should be favoured which maintains the ‘status quo’, and
·any other factors considered relevant by the decision maker.
Example: Mary and John are separated and equally share the care of their daughter Cathy. Mary has been receiving NSA with principal carer status since August 2006, and John lodges a claim for NSA in October 2007. The rate that would be payable to John is approximately the same as that being paid to Mary. Neither John nor Mary owns any substantial assets such as a house or car. John has recent workforce experience, which increases his employment prospects in the area. It is fair to argue that a decision that cancelled Mary’s status as principal carer would have a more significant impact than a decision to reject John’s claim to be deemed principal carer, especially as John has greater employment prosects than Mary. Therefore Mary should continue to be specified as the principal carer of Cathy while John should have generic NSA requirements/concessions.[1]
[1]Guide to Social Security Law .(Version 1.167- Released 2/8/10) , para 1.1.P. 416 Principal carer- shared care. (original emphasis)
The Social Security Appeals Tribunal adopted these guidelines as being in the interests of consistency of policy making and applied them to the facts as it found them.
5. The Tribunal did not find the guidelines entirely helpful. The general statement that when both parents otherwise qualify, then ”the carer who is most in need of a favourable determination” must be taken as a reference to the carer who is able to provide the child with the better care. The benefit is paid to place the child in the best possible position and not to subsidise the carer who has the most economic need. Presumably, this factor is included in an attempt to ensure the child receives the maximum benefit from the carer being paid the benefit. That benefit relates to the quality of care provided to the child which, in the view of the Tribunal, must be the paramount consideration. There may be circumstances where despite one carer having greater means it is the other carer with lesser means (including any payment of the single parent benefit) who provides the better quality of care for the child.
6. In this case the parents have agreed to share the care of Jacob on alternate weeks. Each parent therefore shares equally in the care of Jacob. This is an interim measure pending proceedings in the Family Court of Australia.
7. The financial circumstances of the parents are similar. Both are exclusively reliant on the receipt of social security benefits, specifically newstart allowance and family tax benefit, to meet rental and other necessary expenses (for example, food, electricity gas, clothing, etc). Mr Inglis, since being in a steady relationship with a partner who also has a daughter from another relationship, told the Tribunal he receives the benefits at the combined rate. He said Jacob enjoyed a brother-sister relationship with his partner’s daughter. Miss Mabbott said that she has a partner who does not live continuously with her, and that she was therefore paid the benefits at the single rate. Ms Mabbott described having a “partnership relationship” as being exclusive, though not sharing all friendships, bank accounts or living continuously together. Mr Inglis maintained that Ms Mabbott lived in a de facto relationship with her partner.
8. Both parents have substantial debts, particularly when compared to their income level. For example, Mr Inglis has debts for gas ($700), electricity ($1,000), GE Capital Finance ($3,000) and outstanding fines (concerning which he claimed no apparent action for collection had been recently been undertaken) of $6,500. Ms Mabbott has an outstanding telephone account ($2,500), a fine ($330) and a debt to be repaid to her aunt of $3,500. Part of the money borrowed from her aunt was used to purchase a car.
9. Both parents pay rent. Ms Mabbott told the Tribunal that she lives with Mr Inglis’ mother during the weeks she has the care of Jacob. At other times she lives in a caravan at the rear of her partner’s mother’s house for which she pays $20 per week, and at the houses of two friends for which she pays a total of $50 board per fortnight. Mr Inglis lives in a three bedroom house that he rents with his partner and her child.
10. Ms Mabbott moved to Wangaratta where she could access family support, apparently after receiving legal advice that it may advantage her claim to gain custody of Jacob. With the assistance of her aunt she secured rental accommodation on a six-month lease with rent of $230 per week. Because of a less than perfect rental history, Ms Mabbott’s aunt arranged the accommodation and guaranteed the payment of the rent. After interim Family Court proceedings, in which it was determined that for her to have access to Jacob she would have to live within a 100 kilometre radius of Geelong, Ms Mabbott returned to live in Geelong. The rent on the Wangaratta house remains payable, as Ms Mabbott told the Tribunal that it was unlikely to be sublet prior to the expiration of her six-month lease in January 2011.
11. Ms Mabbott has a car in respect of which she pays $30 to $40 per week for petrol. Mr Inglis does not own a car - although his partner does.
12. Ms Mabbott told the Tribunal that she is six months into a real estate agents’ course by correspondence, and she hopes to finish it in another six months. Meanwhile, she has been trying to secure a position as a receptionist in a real state agency. Mr Inglis told the Tribunal that he was proposing to undertake a two year course in community services.
13. Jacob attends day care on Monday and Friday of each week. Recently, Ms Mabbott arranged, at $46 per fortnight, for Jacob to attend another day care agency in the week she cares for him. She claimed that she had lost confidence in the day care centre, which Mr Inglis arranged, following the unsatisfactory resolution of claims that Jacob was being hit by another child. Ms Mabbott also pays for Jacob to attend an active child gymnasium ($80 per term) and swimming lessons ($140 per term). The day care centre arranged by Mr Inglis reported that Jacob is well settled and that, until recently, both parents had shared the costs of Jacob attending the centre. The report continues, ”[t]he fees have risen on the 5/7/10. [the mother] informed the centre that she would not be paying the increased fees”[2]. Mr Inglis continues to pay for Jacob to attend the Centre that he selected at $40 per week, including for the weeks when Jacob is in Ms Mabbott’s care.
[2] Exhibit A4
14. Jacob has experienced some health problems in the past, and now he sees Dr Cooper, a paediatrician, once every 3 months. Mr Inglis arranged a report from Dr Cooper, who stated Jacob came to his attention following the intervention of the Department of Health Services, because of Jacob’s failure to thrive. Dr Cooper reported among other things, “[f]rom my interactions [with Jacob’s parents] over the past few years it certainly seems that [the father] has been a more consistent caregiver though I understand currently care is shared 50:50.”[3]
[3] Exhibit A3.
15. Jacob also attends a speech therapist, Ms Nicholas, on a regular basis. Ms Nicholas reported on 19 July 2010 that, among other things, ”...[the father] has always been available for my appointments, but [the mother] has been difficult to contact, especially in the last week when I have been trying to review the Family Service and Support Plan for Jacob.”[4]
[4] Exhibit A2.
16. Mr Inglis has arranged for Jacob to be enrolled at the Kirralee Kindergarten next year. It is located opposite the house that he rents with his partner and is the kindergarten that her child currently attends. The Director states that she observes the Mr Inglis “…exhibits caring behaviour towards the children. [the father] attends parent roster and has formed a friendly relationship with staff.”[5]
[5] Exhibit A1.
17. Mr Inglis left school at the age of 16 years. He has attempted a hairdressing apprenticeship and last worked for a time at the Ford Motor Company. He told the Tribunal that he was trained to upgrade heavy machinery, but there was no work in the field available. Mr Inglis also told the Tribunal that on occasions his brother would assist him in paying bills in return for which he would undertake unpaid work for his brother. Mr Inglis said he suffered attention deficit disorder and had short term auditory loss.
18. Ms Mabbott left school at the age of 15 years and has no training, but she has a responsible service alcohol approval. She said other than working for Mr Inglis’ girlfriend for three hours one or two days a week for a short period, she had not worked since 2006. Ms Mabbott enjoys good health.
Consideration
19. The Tribunal was informed that there are hundreds, if not thousands, of recipients of the parenting payment single, and that departmental decision makers face very few requiring a determination of which parent should receive the benefit. While appreciating that the Tribunal is not in a position to undertake the role of the Family Court in determining maintenance disputes, it is nevertheless conscious that the benefit is provided to enable the parent, who is determined to be the principal carer, to care for a child. The principal carer is the person, who by definition in s 5(2) of the Act, has “the day to day care, welfare and development of the child”. Who has that responsibility involves more than a financial assessment. The issues listed in the departmental guideline as those that a decision maker must take into account when reaching a determination seem focussed on the making of a financial assessment when care is equally shared between claimants. This is, in the Tribunal’s view, only one of the factors which is relevant.
20. The overriding factor is that support should be provided to the carer in most need of a favourable determination, because he or she is positioned to provide the day to day care, welfare and development of the child. In the view of the Tribunal, on the facts of this case, Mr Inglis has demonstrated that he is better positioned to achieve this, because:
(a)his home environment is more stable in that it provides a mother/father/sibling like relationship for Jacob,
(b)he has been observed by those giving professional medical advice to Jacob as providing more consistent attention to Jacob’s requirements,
(c)while he has the better chance of obtaining employment in the context of availability of work in Geelong, the Tribunal accepts the his statement that he is unlikely to be able to secure employment in the near future and, in this respect, he and the mother are in much the same position,
(d)the he has demonstrated that he has thought about Jacob’s future educational needs, and while the mother is obviously concerned about Jacob’s current educational circumstances she has not demonstrated future planning, and
(e)while he has family support in Geelong as compared to the mother and her financial needs may therefore be considered to be greater, the fact that the his mother provides her with support during the weeks that she has Jacob would neutralise this consideration as there is no evidence that his mother provides such support for the father.
21. This has proved a very difficult case to determine. The Tribunal is in no doubt that each parent would be better served if, when their circumstances are so strikingly similar, the benefit could be equally divided between them. The legislation does not however provide for that to occur. The determination should not be regarded in terms of a win for the father or a loss for the mother. The situation may very well change when the pending Family Court proceedings determine custody and access terms between them.
22. For the reasons expressed, the Tribunal is satisfied that Mr Inglis should be determined to be the principal carer. The decision under review is set aside and the parenting payment is to be reinstated in favour of the applicant father.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Signed: ...........(sgd. D De Andrade) ..............
D. De Andrade, Personal AssistantDate/s of Hearing 6 September 2010
Date of Decision 17 September 2010
For the Applicant self represented
For the Respondent Ms A Bramley, departmental advocate
For the Third Party self represented
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