Kabir and Secretary, Department of Social Services (Social services second review)

This matter concerned a review of decisions by the Department of Human Services, affirmed by the Social Services and Child Support Division of the Tribunal, to raise and recover debts totalling $21,306.32. These debts related to Family Tax Benefit (FTB) and Schoolkids Bonus (SKB) payments received by the applicant between 1 July 2015 and 19 June 2017. The applicant sought to challenge the validity of these debts and whether they could be written off or waived.

The primary legal issues before the Tribunal were whether the applicant was entitled to receive the FTB and SKB payments during the relevant periods, specifically concerning the percentage of care of his four children, and whether he had overnight care of the children. Consequently, the Tribunal also had to determine if a debt was owing to the Commonwealth and, if so, whether the recovery of that debt could be written off or waived.

The Tribunal reasoned that entitlement to FTB and SKB is fundamentally dependent on which parent has overnight care of the children, defined by the number of nights the children stay with each parent. It was established in a related application that the applicant's three eldest children entered their mother's care on 27 May 2016, and the mother was able to provide suitable accommodation. The applicant failed to notify Centrelink of this change in care, and continued to receive payments to which he was not entitled during the period of the mother's care. The Tribunal noted that while the applicant provided for the children's needs, this did not equate to having overnight care for the purposes of social security benefits. The Tribunal affirmed the decision under review.