Jennings and Secretary, Department of Social Services (Social security)

Case •

[2025] ARTA 646

•

2 May 2025

Jennings and Secretary, Department of Social Services (Social security) [2025] ARTA 646 (2 May 2025)

Applicant/s:  Ms Jennings

Respondent:  Secretary, Department of Social Services

Chief Executive Centrelink    

Tribunal Number:   2024/B191442 

Tribunal:  Member K Hamilton

Place:Brisbane

Date:2 May 2025

Decision:

The Tribunal sets aside the decision under review and in substitution decides that Ms Jennings remained qualified for carer payment and carer allowance from 22 May 2024 and there is no debt.

Statement made on 01 May 2025 at 5:40pm

CATCHWORDS

SOCIAL SECURITY – Carer Allowance and Carer Payment – allowable temporary cessation of care periods – renovating new home for the caree – no debt identified – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

  1. This matter concerns a decision made by Services Australia – Centrelink (Centrelink) on 23 August 2024 to cancel Ms Jennings’s carer payment (CP) and carer allowance (CA) and raise debts of $9,731.37 (for CP) and $1,674.50 (for CA) for amounts overpaid to Ms Jennings in the period 9 May 2024 to 14 August 2024. 

  2. Ms Jennings was in receipt of CP and CA in respect of care she provided to her mother.  Centrelink cancelled Ms Jennings’s CP and CA on the basis that she had exceeded the allowable period of “respite care” during absences of Ms Jennings’s mother from her care.

  3. Ms Jennings sought internal review of this decision and on 18 September 2024 an authorised review officer (ARO) varied the decision, finding that Ms Jennings had a debt of $8,520.17 for overpayment of CP in the period 22 May 2024 to 14 August 2024 and a debt of $1,531.96 for overpayment of CA in the period 22 May 2024 to 14 August 2024.  In reaching this decision, the ARO accepted that Ms Jennings continued to reside with her mother (at her sister’s property) up to and including 28 February 2024, and so varied the debt period.  The ARO also determined that the amount of $5,826.75 should be waived from the CP debt on the basis of special circumstances, taking into account Ms Jennings’s “notional entitlement” to jobseeker payment in the debt period.

  4. Ms Jennings then applied to the Administrative Appeals Tribunal (the AAT) on 10 October 2024 seeking independent review.

  5. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the completed by the AAT. This decision and statement of reasons is made by the Tribunal.

  6. A hearing was held on 4 April 2025. Ms Jennings participated in the hearing by telephone. The Tribunal had regard to relevant documents provided by Centrelink, numbered 1–76, along with additional documents provided by Ms Jennings numbered A1–A6.

  7. Following the hearing, Ms Jennings was provided with an opportunity to provide further evidence and supporting statements.  These were duly provided and numbered by the Tribunal as pages A7–A13.

ISSUES

  1. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).

  2. The issues which arise in this case are:

    ·     Was Ms Jennings qualified to receive CP and CA after 22 May 2024?

    ·     If not, can recovery of the resulting overpayments be waived?

CONSIDERATION

Issue 1 – Was Ms Jennings qualified for CP and CA?

  1. Section 954 of the Act sets out the qualification criteria for CA where care is provided in a private home that is shared by the care receiver and the person claiming CA (the care provider). It relevantly requires that:

    ·     the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

    ·     the care provider provides care and attention to the care receiver on a daily basis.

  1. Section 957 of the Act provides that a person can continue to receive CA during periods where their care of the care receiver has temporarily ceased. However, the total periods of such temporary cessations of care cannot exceed 63 days in any calendar year.

  2. Section 198 of the Act sets out the qualification requirements for CP. It relevantly requires that:

    ·      the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a professional questionnaire score of at least 10;

    ·      the care provider provides “constant care” to the care recipient; and

    ·      the care is provided in a private residence that is the home of the care receiver.

  3. Section 198AC of the Act provides that a person can continue to receive CP during periods where their care of the care receiver has temporarily ceased. However, the total periods of such temporary cessations of care cannot exceed 63 days in any calendar year.

  4. Centrelink determined that Ms Jennings ceased to be qualified for CP and CA from 22 May 2024 as her mother had been absent from her care for periods that exceeded the 63 days of allowable temporary cessation of care in a calendar year.

  5. The ARO noted that Ms Jennings had confirmed that her mother was not in her care in the following periods:

    ·29 February 2024 to 9 March 2024 (10 days)

    ·18 March 2024 to 20 April 2024 (34 days)

    ·3 May 2024 to 21 May 2024 (19 days).

  6. Based on these dates, Ms Jennings’s 63 days of allowable temporary cessation of care for her mother were used up as at 21 May 2024, meaning that, where the care receiver continued to be absent from Ms Jennings’s care, she was not qualified for CA or CP from 22 May 2024.

  7. Ms Jennings told the Tribunal that when she first spoke to Centrelink about her mother’s absences, they asked her to confirm when her mother was absent from Ms Jennings’s home.  Ms Jennings asked for more time to confirm the dates of her mother’s travel with her family.  She said the Centrelink officer refused to allow her to check this information and said he would make his decision right away.

  8. Ms Jennings told the Tribunal that in early 2024, both she and her mother were living in her mother’s home that was located on her sister’s property in [Region 1].  Ms Jennings was in the process of selling a duplex she owed in [Region 1] and purchasing a home in [Town 1].  Ms Jennings and her mother both grew up in [Town 1] and many of their family and friends lived in that area, so Ms Jennings was keen to return there to live permanently.

  9. Ms Jennings’s purchase of her new home settled on 15 February 2024.  She had arranged for some work to be done on the property to make it safer for her elderly mother to live there – for example, installing handrails and making the bathroom more accessible.

  10. Ms Jennings returned to [Town 1] on 29 February 2024.  Her mother remained with her sister in [Region 1] for a short time until works were completed on Ms Jennings’s home and her mother’s bedroom had been set up with a new bed.

  11. Ms Jennings said that her mother then returned to stay with her in [Town 1] for a short time.  Up until 15 September 2024, Ms Jennings’s mother travelled back and forth between Ms Jennings’s home and her mother’s home at her sister’s property.  Her mother generally travelled by plane but on one occasion came down on the train.  On occasions, Ms Jennings travelled to [Region 1] and stayed with her mother at her sister’s property.  During these occasions, Ms Jennings was responsible for providing daily care to her mother.

  12. Ms Jennings said she was not provided with time to check these dates of her and her mother’s travel before Centrelink made its decision.  Ms Jennings, after consulting with her sister and other family, prepared a calendar which was provided to the Tribunal to show the dates when Ms Jennings’s mother was either living with Ms Jennings in [Town 1], or when Ms Jennings was living with her mother at her sister’s property in [Region 1].  That calendar shows:

    ·From 1 January 2024 to 28 February 2024, Ms Jennings and her mother were staying together at her mother’s house in [Region 1] (which was on her sister’s property)

    ·From 10 March 2024 to 30 March 2024, Ms Jennings’s mother was staying with her at her home in [Town 1]

    ·From 14 April 2024 to 28 April 2024, Ms Jennings’s mother was staying with her at her home in [Town 1]

    ·From 5 May 2024 to 11 May 2024, Ms Jennings and her mother were staying together at her mother’s house in [Region 1]

    ·From 18 May 2024 to 1 June 2024, Ms Jennings’s sister travelled with her mother to Ms Jennings’s home in [Town 1] and Ms Jennings’s mother stayed with her

    ·From 9 June 2024 to 30 June 2024, Ms Jennings and her mother were staying together at her mother’s house in [Region 1]

    ·From 5 July 2024 to 11 July 2024, Ms Jennings and her mother were staying together at her mother’s house in [Region 1]

    ·From 12 July 2024 to 25 July 2024, Ms Jennings’s mother was staying with her at her home in [Town 1]

    ·From 3 August 2024 to 17 August 2024, Ms Jennings and her mother were staying together at her mother’s house in [Region 1]

    ·From 24 August 2024 to 14 September 2024, Ms Jennings’s mother was staying with her at her home in [Town 1]

    ·From 15 September 2024 onwards, Ms Jennings and her mother were staying together at her mother’s house in [Region 1].

  13. Ms Jennings told the Tribunal that in September 2024, her mother had a bad fall and was in a cast for many months.  Ms Jennings stayed with her mother in [Region 1] and cared for her continuously until she was better.  In February 2025, Ms Jennings and her mother returned to live permanently in Ms Jennings’s home at [Town 1].

  14. Ms Jennings’s calendar indicated that her mother was not in her care, and was living with her sister, in the following periods:

    ·29 February 2024 to 9 March 2024 (10 days)

    ·31 March 2024 to 13 April 2024 (14 days)

    ·29 April 2024 to 4 May 2024 (6 days)

    ·12 May 2024 to 17 May 2024 (6 days)

    ·2 June 2024 to 8 June 2024 (7 days)

    ·1 July 2024 to 4 July 2024 (4 days)

    ·26 July 2024 to 2 August 2024 (8 days)

    ·18 August 2024 to 23 August 2024 (6 days).

  15. Ms Jennings was able to provide to the Tribunal copies of text messages between herself and her sister that supported Ms Jennings’s evidence that her mother travelled to [Town 1] on or about 10 March 2024, 13 July 2024 and 24 August 2024.  Ms Jennings also provided a letter from her friend, [Friend A], confirming that she looked after Ms Jennings’s dog in the following periods when Ms Jennings was in [Region 1] with her mother:

    ·4 May 2024 to 11 May 2024

    ·8 June 2024 to 30 June 2024

    ·4 July 2024 to 11 July 2024

    ·2 August 2024 to 17 August 2024

    ·14 September 2024 to 9 January 2025.

  16. These dates are consistent with Ms Jennings’s calendar (allowing for the likelihood that Ms Jennings would have dropped her dog at [Friend A’s] home the day before she travelled to [Region 1]).

  17. The Tribunal found Ms Jennings to be a credible witness who gave her evidence in an open and forthright manner.  I am satisfied based on the evidence provided by Ms Jennings that her mother was temporarily not in her care for the periods stated in paragraph 24 above.  These periods total 61 days, which is less than the 63 days of allowable absences from care.   

  18. I am satisfied that in the remaining periods, Ms Jennings’s mother was either living with Ms Jennings at her home in [Town 1] or Ms Jennings was staying with her mother at her mother’s home in [Region 1], and that Ms Jennings continued to provide constant daily care to her mother in all periods that they were living at the same residence.

  19. I therefore find that Ms Jennings remained qualified for CP and CA from 22 May 2024 onwards.  This means there is no debt.

DECISION

The Tribunal sets aside the decision under review and in substitution decides that Ms Jennings remained qualified for carer payment and carer allowance from 22 May 2024 and there is no debt.

Date(s) of hearing: Friday, 4 April 2025
Representative for the Applicant: Self
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