MPNM and Secretary, Department of Social Services (Social services second review)
[2016] AATA 891
•10 November 2016
MPNM and Secretary, Department of Social Services (Social services second review) [2016] AATA 891 (10 November 2016)
Division
GENERAL DIVISION
File Number
2015/5517
Re
MPNM
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
FPPQ
OTHER PARTY
Tribunal Mr D. J. Morris, Member
Date 10 November 2016 Place Perth
DECISION
The Tribunal sets aside the reviewable decision, and, in substitution therefor, decides as follows:
i.The Applicant was not entitled to Parenting Payment for the period 28 October 2013 to 10 June 2014 and the debt is due and payable for this period; and
ii.The Family Tax Benefit debt is remitted to the Secretary for recalculation in accordance with this decision.
………………[Sgd]……………………
D. J. Morris, Member
CATCHWORDS
SOCIAL SERVICES – Parenting Payment – Family Tax Benefit – principle carer – entitlement – shared parental care - percentage of care – calculation of debt – writing off or waiver of debt - decision set aside – Applicant not entitled to Parenting Payment – Family Tax Benefit remitted for recalculation.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – s 21 – s 22(7) – s 35M – s 59
Social Security Act 1991 – s 5(15) – s 5(18) – s 500 – s 500D(2)
CASES
Brightman and Secretary, Department of Family and Community Services [2004] AATA 405
Drake and Minister for Immigration and Ethnic Affairs (1979) FCA 39
Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533
Warne and Secretary, Department of Family, Community Services and Indigenous Affairs, Re [2006] AATA 159SECONDARY MATERIALS
Guide to Social Security Law – 1.1.P416
Family Assistance Guide – 2.1.1.50
REASONS FOR DECISION
D. J. Morris, Member
10 November 2016
BACKGROUND
This is a hearing relating to an application for review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) on 21 September 2015 to cancel the Parenting Payment (PP) and Family Tax Benefit (FTB) paid to the Applicant, MPNM, from 2 October 2013 and to raise and recover the PP and FTB payments made to her between 2 October 2013 and 10 June 2014.
The hearing took place on 10 October 2016. The Applicant represented herself, gave evidence and was cross-examined by the Respondent’s advocate, Ms Rayment. The Other Party, FPPQ, did not participate in the hearing.
The Respondent submitted documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) which were admitted into evidence.
The Tribunal made an Order under section 35(3) of the Administrative Appeals Tribunal 1975 (the AAT Act) prohibiting the publication of information tending to identify the parties and restricting the publication or disclosure of evidence or other information given to the Tribunal which identifies the parties, the Applicant, the Respondent and the Other Party only.
The Applicant submitted other documents which were admitted into evidence, and which are described below in redacted form:
·Letter from the Applicant dated 20 February 2014 (Exhibit A1);
·Letter from a School Principal, dated 25 February 2016 (Exhibit A2);
·Letter from a family member of the Applicant, not dated (Exhibit A3);
·WA History of Court for the Other Party, printed on 5 February 2014 and Violence Restraining Order dated 7 July 2015 (Exhibit A4);
·Magistrates Court of WA Prosecution Notice and associated documents dated 8 August 2014 (Exhibit A6);
·Centrelink application form signed by the Applicant dated 15 September 2014 (Exhibit A6);
·Two emails dated 11 November 2013 – Applicant to a WA child care centre and reply (Exhibit A7);
·Statement of Fees from a WA child care centre printed on 1 October 2013, 14 October 2014 and 10 February 2014 (Exhibit A8);
·Two letters from a staff member of a WA children’s therapy centre, dated 8 and 19 May 2014 (Exhibit A9);
·Letter from a staff member of a WA child development centre, dated 11 June 2014 (Exhibit A10);
·Paediatric Occupational Therapy Assessment Report for a minor child of the Applicant dated 5 March 2015 (Exhibit A11);
·Medical History Form for a minor child of the Applicant dated 11 March 2014 (Exhibit A12);
·Letters dated 24 April 2014 and 4 June 2014 from an officer of School Bus Services, WA Public Transport Authority (Exhibit A13);
·Two Commonwealth Bank of Australia (CBA) transaction reports (Exhibit A14);
·CBA Bank Statement for the Applicant dated 4 November 2013 (Exhibit A15);
·CBA Bank Statement for the Applicant dated 4 February 2014 (Exhibit A16); and
·CBA Bank Statement for the Applicant dated 4 May 2014 (Exhibit A17).
During the hearing the Respondent asked several questions based on the contents of certain documents provided to the Tribunal on subpoena by the WA Department of Child Protection (DCP) but upon which, in a direction before this hearing, Deputy President Kendall had rightly imposed certain restrictions as to access, because they have contents relating to minor children. I obtained these documents after the hearing.
ISSUE BEFORE TRIBUNAL
On 24 June 2014, the Department of Human Services (the Department) made a decision to raise and recover a PP debt of $13,161.02 for the period 2 October 2013 to 10 June 2014 and a FTB debt of $11,526.55 for the period 2 October 2013 to 10 June 2014 on the basis that the Applicant’s minor children had left her care on 2 October 2013.
The Applicant sought review of this decision by an Authorised Review Officer, an independent officer of the Department, who on 7 November 2014 affirmed the original decision. The Applicant then sought a review before AAT1.
AAT1 varied the original decision by deciding that the children had left MPNM’s care on 28 October 2013, not 2 October 2013, but otherwise affirmed the original decision and the debts.
The Applicant sought a review of the decision of AAT1.
The matter before this hearing is whether MPNM was the principle carer of her children between 2 October 2013 and 10 June 2014 such that she was entitled to PP during this period, and whether the percentage of care for the children during this period was greater than the threshold of 35 per cent at which FTB is payable.
Secondly, the Tribunal must consider whether there are debts due and payable to the Commonwealth and whether they have been properly calculated. Thirdly, if the answer to the second question is in the affirmative, should the debts be written off or waived.
THE LAW
The relevant legislation in this matter is the Social Security Act 1991 (the SS Act), the Social Security (Administration) Act 1999, the A New Tax System (Family Assistance) Act 1999 (the FA Act), and the A New Tax System (Family Assistance) (Administration) Act 1999.
For a person to be eligible for PP (single), section 500 of the SS Act provides that the person must, among other requirements, have at least one ‘PP child’ in his or her care.
Section 500D(2) of the SS Act goes on to provide that a child is a ‘PP child’ if
(a) the child is a child of the person; and
(b) the person is not a member of a couple; and
(c) the child has not turned 8; and
(d) the person is the principal carer of the child.
The definition of ‘principal carer’ is in section 5(15) of the SS Act and, relevantly in this matter, requires that the child is in the person’s care.
To be eligible for FTB, section 21 of the FA Act provides that a person must have at least one FTB child in care and pursuant to s 22(7) of the FA Act the person must care for that child for at least 35 percent of the relevant period, otherwise the child is not to be considered a FTB child for any part of the relevant period.
The Respondent’s submissions drew the Tribunal to the provisions in the FA Act relating to pattern of care and percentage of care, in particular Part 3, Division 1, Subdivision D of the FA Act. The Respondent cited Deputy President Hack in Warne and Department of Family, Community Services and Indigenous Affairs [2006] AATA 159, in which he held that a “broad brush basis” is an appropriate method of making decisions in relation to these statutory provisions. The Tribunal adopts this approach.
The period from 2 October 2013 to 10 June 2014 (the relevant period) may be, for the purposes of this hearing, be broken into four distinct periods where evidence was brought by the Applicant about different care arrangements during those periods, for the two minor children of the Applicant and the Other Party.
The first period, from 2 to 28 October 2014 is easily disposed of. AAT1 found, on the basis of evidence before it and not disputed by FPPQ, that the original decision was wrong in relation to this period and that the Applicant had 100 per cent care during this period. The Respondent did not contend this finding. I agree with AAT1’s finding in this regard.
The second period is the period from 28 October 2013 to 24 February 2014. This is also easily disposed of because there was common ground at the hearing between the Applicant and the Respondent that MPNM had zero per cent care for the children in this period. I so find.
The third period is the period from 24 February 2014 to 30 April 2014. The Applicant claimed she had 50 per cent care of the children during this period, with FPPQ caring for them for the other 50 per cent of the time.
The fourth period is the period from 1 May 2014 to 10 June 2014. The Applicant contended she had 100 per cent of the care of the children during this period.
AAT1 decided that the children left the care of MPNM on 28 October 2013 and from that date she no longer had either a PP child or an FTB child in her care, which meant she was not entitled to PP or FTB from that date.
In making this decision, AAT1 varied the original decision by setting aside the date of 2 October 2013 when the Department decided the children ceased to be in the Applicant’s care and substituting the date of 28 October 2013. As mentioned above, the Respondent made submissions accepting this variation.
I have had the advantage of reading significant amounts of evidence, provided by the Department in the T-documents, subsequent documents from the Applicant, admitted into evidence, and, as mentioned above, documents provided on subpoena to the Tribunal by the Secretary of the Western Australian DCP. The subpoenaed documents were provided to the Tribunal on 4 April 2016 and were not available to AAT1.
The subpoenaed documents contain independently-recorded details of interactions between the Applicant and the Other Party and other persons which it is not necessary for me to detail here. In some respects the documents provided by DCP do not shine a bright light on who was responsible for the care of the children on some specific days, but they do provide some corroboration to support the Applicant’s submissions and other evidence of where the children were, and with whom.
The Respondent drew the Tribunal’s attention to the decision of Member Allen in Brightman and Secretary, Department of Family and Community Services [2004] AATA 405, where the Member said at [27]:
When looking at that pattern of care the Tribunal is not restricted to the extent of contact set out in the court order. As was said in Re Nowicz and Department of Family and Community Services [2001] AATA 628 at [15] (per Senior Member Kiosoglous) “a common sense approach necessarily means that…this Tribunal considers the relevant documentation, and the evidence of both parties as to what has been happening in the past and what is intended to happen in the future, if such differs from the documentary evidence. Based upon such consideration, [the Tribunal] is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child.”
Although court orders are not a factor in this matter, I agree with Member Allen’s approach of flexibility in determining the percentage of care after examining the evidence of a pattern of care, the evidence before the Tribunal and the expectations of both parties.
On 19 November 2013 the DCP documents report that the Other Party had care of the children “for a few weeks now”. On 8 January 2014, FPPQ told DCP he had the children “full-time”.
Most importantly to me, on 18 March 2014 a DCP officer records in a file note that:
Everything had been going well until today [MPNM] won’t return the children for his [FPPQ’s] week. [FPPQ] said they were sharing care and this was going well… but today he was at school and [MPNM] has taken the children, he said he is suppose [sic] to have them this week.
Six days after this date the documents have a further DCP officer’s file note showing that the sharing arrangement for the minor children, alternating one week with MPNM and one week with FPPQ, seemed to have settled back down.
This is contemporaneous evidence that MPNM and FPPQ were sharing care of the children, week about, on 18 March 2014 and had been for a period of time.
The Tribunal had before it a letter from the Applicant’s mother dated 14 October 2015 (T27, page 84). That letter states, in part:
Even though they were in there [sic] fathers care for a short four months, from the end of October 2013 to February 2014, it didn’t stop there [sic] mother [MPNM] from being there for her children, through some very hard and trying times, like supplying food and cooked meals, school lunches, uniform and fees for [child’s name] school, also picking him up to take him to school and home.
From the end of February to the end of April 2014 they were in shared care, but for that period, there were times there [sic] Mother had to withhold the kids for longer periods as well.
From May 2014 to the end of July 2014 they were in [MPNM’s] care full time, due to the safety and wellbeing of the children.
Exhibit A2, a letter dated 25 February 2016 from the School Principal, refers to the younger of the two minor children of the Applicant and the Other Party. That letter states that “during the period of time from 1 May 2014 to 31 July 2014” the Applicant was “solely responsible for the drop off and pick up of” the child to and from school on a daily basis. The Principal goes on to say that, to the best of her knowledge, the younger child was in the joint care of his mother and father from 25 February 2014 to 30 April 2014.
I questioned the Applicant about what the Principal meant by the phrase “to the best of her knowledge”. MPNM said she did not always see the Principal when she delivered or picked up her son, and she had requested the letter from his class teachers, but the school has a policy of letters only being sent under the name of the Principal, so the information would have been provided following a discussion between the Principal and the teachers who she actually saw, day to day.
I accept this explanation and consider there would be no reason for the teachers or the Principal to state something they did not believe to be factual.
While I have to judge what weight the Tribunal puts on evidence from a family member, in terms of the Applicant’s mother, and take into account that she was not physically present in Western Australia during the whole of the period, her summary of dates is somewhat corroborated by the official records of DCP in the subpoenaed documents.
There is also a handwritten “interim contract” drawn up by MPNM and FPPQ and dated 25 February 2014 (T10, page 44) which was intended to set out the arrangement for sharing care. It has a fair amount of frailty in terms of the Tribunal relying on it too much, and was not signed by either the Applicant or the Other Party. This handwritten document states that the 50/50 care arrangement, week and week about, would commence on 25 February 2014, with a changeover day each Tuesday. The document included certain special arrangements for birthdays and Christmas.
While the document is sketchy, that it was followed is supported by the subpoenaed DCP document statement dated 18 March 2014 detailing the established arrangement, then, of 50/50 shared care.
I note that there is evidence before the Tribunal of the established pattern of care being disrupted in the periods being examined and evidence of MPNM undertaking a variety of ‘care’ activities, such as making meals, paying for various school-related and other items and picking up the children from school or day care at some times when either FPPQ had care of the children or they were sharing care but the expenditure by MPNM occurred on days when they were actually physically in the care of FPPQ.
I consider that, in this case, it would be a major and largely futile exercise to break-down the percentage of care from days of care into hours of care as has happened in some other matters with similar claims, such as the approach taken in Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533. The evidence from the Applicant in this hearing and from the Applicant and the Other Party detailed in AAT1 has been to some extent inconsistent with previous information they gave to the Department about the percentage of care.
I note the Applicant conceded during the hearing that she had failed to notify the Department of changes both in her home address and in who had care of the children at particular times. I emphasise that it is the clear obligation of a person receiving Social Security payments to comply with the stated requirements of the particular benefit, or they may find themselves receiving payments to which they were not entitled and thereby incur a debt, as has indeed occurred in this case.
However, unlike AAT1, I am satisfied on the evidence before me, particularly the information provided by DCP, that the original decision should be varied to take account of which parent actually had care of the two minor children at which part of the relevant period.
Have debts been correctly calculated? Should debts be waived or written off?
It was not disputed in the hearing that the debts had been properly calculated in the original decision, if the relevant period of care was correct.
The Applicant also did not advance any arguments about waiver or writing off the debts under the relevant provisions of the SS Act. I therefore did not consider these matters further.
I do note, however, that the effect of my decision may be that the Other Party, who chose not to participate in this hearing, may have a debt raised against him for payments he has received to which he was not entitled. I note however, that FPPQ did give evidence to AAT1 and was generally supportive of the Applicant’s contentions about when she had care of the two children, and somewhat vague about why he had cited certain dates to the Department where he may not have actually been caring for the children.
Conclusions about which party had minor children in care in the relevant period
On the balance of probabilities, I therefore make the findings set out below, in terms of the Applicant’s entitlement to PP and FTB during the four distinct parts of the relevant period.
I find that MPNM had 100 per cent care of the children from 2 to 28 October 2013, and FPPQ had zero per cent of care of the children during this period. In this regard I agree with the conclusion drawn by AAT1, with which the Respondent did not cavil.
I find that MPNM had zero per cent of care of the children from 29 October 2013 to 24 February 2014, and the Other Party FPPQ had 100 per cent of care of the children during this period.
I find that MPNM had 50 per cent of the care of the children from 25 February 2014 to 30 April 2014, and FPPQ had 50 per cent of the care of the children during this period.
I find that the MPNM had 100 per cent of care of the children from 1 May 2014 to 10 June 2014 and the FPPQ had zero per cent of care of the children during this period.
THE PP DEBT
The period from 2 October 2013 to 10 June 2014 as a whole is 253 days. I hold that the Applicant MPNM had zero care for 120 days, 50 per cent care for 65 days and 100 per cent care for 68 days of this period. When the care is apportioned, FPPQ had care for the greater part of this period. Section 5(18) of the SS Act provides that only one person at a time can be the principal carer and, considering the Department’s policy set out in Part 1.1.P416 of the Guide to Social Security Law (‘the Guide’) in cases where the care of a child is shared, it will generally be appropriate to decide that the person providing the greater percentage of care is the principal carer. In this case for the whole of the period, that person was FPPQ.
While the Tribunal is not bound to follow the Guide, which is essentially produced as a guide for departmental officers and the information of Social Security benefit claimants, it is desirable to have reference to it when it is a policy document which was used by Department officers in coming to the original decision. As the Full Court of the Federal Court stated in Drake v Minister for Immigration & Ethnic Affairs (1979) FCA 39:
In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
It follows, then, that taking the period 2 October 2013 to 10 June 2014 as a whole, FPPQ was the principal carer and MPNM did not have an entitlement to PP – there is a debt incurred for that payment for which the Applicant is liable to repay the Commonwealth.
THE FTB DEBT
In terms of the FTB debt, section 59 of the FA Act provides that when two adults are both eligible for FTB in relation to the same FTB child, FTB can be shared between the two adults, provided the percentage of care is at least 35 per cent and not more than 65 per cent.
Section 22(7) of the FA Act provides:
Percentage of care of at least 35%
(7)If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
Note: If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, not to be an FTB child.
The total period is 253 days. The Respondent directed the Tribunal to the Family Assistance Guide which stated, at part 2.1.1.50, that a percentage of care can be arrived at by dividing the number of nights in care by the number of days in the care period and multiplying by 100. MPNM had care of the children for 101 of the days and adopting this formula that equates to 40.7 per cent of the total period. Section 35M of the FA Act provides that if a person’s percentage of care is not a whole number, it should be rounded up to the nearest whole number if it is above 50 per cent, and rounded down to the nearest whole number if below 50 per cent.
Therefore, I find that the percentage of care of the Applicant during the relevant period is 40 per cent.
MPNM’s entitlement to FTB should be recalculated in accordance with section 59(2) of the FA Act and the FTB debt should be recalculated accordingly.
DECISION
The original decision is set aside.
The Tribunal finds that MPNM, was not entitled to PP for the period 28 October 2013 to 10 June 2014 and the debt is due and payable for this period.
The FTB debt is remitted to the Secretary for recalculation in accordance with this decision.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member ......................[Sgd]..................................................
Administrative Assistant
Dated 10 November 2016
Date of hearing 10 October 2016 Applicant In person Representative for the
RespondentMs B Rayment Solicitors for the Respondent
Other Party
Mills Oakley Lawyers
No appearance
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Appeal
-
Jurisdiction
0
4
0