King; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 541

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 541

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0249

GENERAL ADMINISTRATIVE DIVISION		)
Re		Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Applicant

And Lyndall King

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date 27 June 2008

PlaceSydney

Decision The decision under review, being the decision of the SSAT insofar as it relates to Martin Watts, is set aside.

.................[Sgd].........................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Australian Government Disaster Relief Payment – principal carer – dependent child only eligible if principal carer eligible

Social Security Act 1991 – sections 5 and 1061M

REASONS FOR DECISION

27 June 2008 Ms N Isenberg, Senior Member   

BACKGROUND and DECISION UNDER REVIEW

1.      In June 2007, the Central Coast and Hunter regions of New South Wales were subjected to severe storms and flooding.  As a result, in June 2007, the Australian Government Disaster Recovery Payment (“the AGDRP”) was activated by the then Minister for Families, Community Services and Indigenous Affairs to assist people who had been adversely affected.

2.      On 12 June 2007, Mrs King lodged a claim for the AGDRP in respect of herself, her husband and her 3 children, one of whom is Martin Watts (‘Martin’) aged 14.  (Her husband has subsequently made a separate claim.)

3.      Although her claim was initially refused, the Social Security Appeals Tribunal (“the SSAT”) allowed her claim.  Centrelink does not dispute the SSAT’s decision in relation to Mrs King and her 2 younger children, but asserts that the AGDRP cannot be paid to Mrs King in respect of Martin.

LEGISLATIVE FRAMEWORK

4. The amount of AGDRP that can be made is governed by Part 2.24, Division 2 of the Social Security Act 1991 (“the Act”). Section 1061M(1) of the Act operates so that the amount of the AGDRP payable to a person includes an amount for each child for whom the person is the principal carer. Section 1061M(1)(b) has the effect that any relief provided by the AGDRP may be paid not only to a person affected by a major disaster, but also to a person who is the principal carer of an affected child.

5. The term principal carer is defined under section 5(15) to (24) of the Act. Section 5(15) provides that:

…a person is the principal carer of a child if:

(a)the child is a dependent child of the person; and

(b)the child has not turned 16.

6. Section 5(18) of the Act states that “only one person at a time can be the principal carer of a particular child”. Section 5(19) provides that where two or more adults would, apart from the operation of section 5(18) would be principal carers of the same child, the Secretary “must make a written determination specifying one of the adults as the principal carer of the child”.

EVIDENCE

7. I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents").

8.      Mrs King told me that she and her former partner, Mr Leo James Watts, have, for the last three and a half years, shared the care of their son Martin.  The agreement is that she has Martin “every second weekend and half the school holidays”.  In practice, every second weekend, he may come to her home on Wednesday after school and stay until Monday morning.  Alternatively he may come on Thursday after school and stay until Tuesday morning.  Usually, in a fortnight, Martin will spend 9 nights with his father and 5 nights with her.  She agreed that Mr Watts is Martin’s principal carer and that the proportion of care recognised by Centrelink, namely 65% to Mr Watts and 35% to Mrs King, is accurate.  Despite the proportion of care, Mrs King alleged that Martin received “nothing from his father”.  Mrs King instead provided for Martin for the majority of the time.  She said that at her home, Martin had a bed, a wardrobe, a TV and clothes.  Frequently she will purchase items which Martin takes home to his father’s, but they are never returned.

9.      In June last year, there had been very heavy storms for a week.  Martin came to stay with his mother on the Thursday.  On the Friday, by lunchtime, there was no power and the house was leaking.  On the Saturday, they went to Mrs King’s sister’s home, where they stayed until the following Tuesday.

10.     On their return, it was discovered that Martin’s school clothes were damaged as well as the clothes he had been wearing on Thursday night, some towels and his shoes.

CONSIDERATION OF THE EVIDENCE

11. Centrelink contended that Mrs King could only be paid AGDRP for Martin if she was his principal carer. It relied on the fact that Mr Watts has been determined by the Secretary, under section 5(20) of the Act, to be the principal carer of Martin since 29 November 2004 because he had 65% of Martin’s care.

12. I found the so-called ‘determination’ by Centrelink in relation to Martins’ principal carer to be somewhat problematic. It was unclear when this determination had been made, and in any event, what status should be given to such a determination. This conundrum was made more vexing by the surrounding sub-sections which, if section 5(20) were as conclusive as was submitted, would have no utility.

13. Putting section 5(20) to one side, I considered whether at the time of the flood damage Mrs King could be said to have been Martin’s principal carer.  I was assisted by considering the terms of section 5(17).  This effectively acknowledges that a child may be out of the principal carer’s care for up to 8 weeks. 

14. In the present circumstances, it was not in dispute that Mr Watts was Martin’s principal carer. In accordance with the arrangement between his parents, Martin was regularly, in fact 5 days per fortnight, out of the principal carer’s care. Section 5(17) has the effect that, throughout those 5 days, Mr Watts remains Martin’s principal carer. This is consistent with section 5(18) that only one person at a time may be the principal carer.

15.     This inevitably leads to the position that, as Mr Watts is the principal carer of Martin, only he could make a claim for the AGDRP in respect of Martin, provided he himself was qualified for the AGDRP.  There was no dispute that Mr Watts did not live in an affected area.  As I discussed at the hearing, this leads to the bizarre result that had Martin been visiting his mother with his entire possessions and they were lost in the floods, nothing would be payable in respect of Martin’s loss except if Mr Watts was eligible.  Conversely, if Mr Watts was affected by the floods, he could have made a claim in respect of Martin’s loss, even if Martin was not actually living with him at the time.

16.     Unfortunately this is a matter in which I have no discretion.  Since Mrs King is not the principal carer of Martin, the AGDRP, to which she was entitled, does not include any amount for Martin.

DECISION

17.     The decision under review, being the decision of the SSAT insofar as it relates to Martin Watts, is set aside.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER.

Signed:   ………[Sgd]………………
  Associate

Date of Hearing  17 June 2008
Date of Decision  27 June 2008
Representative for the Applicant               Ms Sharma, Centrelink Legal Services