Ogilvy and Secretary, Department of Social Services (Social security)
[2025] ARTA 650
•26 March 2025
Ogilvy and Secretary, Department of Social Services (Social security) [2025] ARTA 650 (26 March 2025)
Applicant/s: Mrs Ogilvy
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2024/A192040
Tribunal: Member K Hamilton
Place:Brisbane
Date:26 March 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides:
· Mrs Ogilvy has a carer payment debt of $12,422.95 for the period 6 May 2024 to 30 September 2024;
· The whole of the debt is to be waived on the basis of administrative error, with effect from the day after the debt was raised.
CATCHWORDS
SOCIAL SECURITY – Carer Payment – overpayment and debt recovery – husband hospitalised then admitted into residential aged care facility – allowable periods for hospitalisation and respite exceeded – participation in care while husband in hospital – applicant’s notification and Centrelink’s administrative error – debt waived – 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
This matter concerns a decision made by Services Australia – Centrelink (Centrelink) to raise and recover a debt of $12,422.95 for overpayment of carer payment (CP) in the period 6 May 2024 to 30 September 2024.
Mrs Ogilvy was in receipt of CP in respect of care she provided to her husband, [Mr A].
In October 2023, [Mr A] was hospitalised. Mrs Ogilvy continued to be paid CP for the remainder of 2023 while [Mr A] was hospitalised.
[Mr A] remained in hospital as at 1 January 2024. He did not return home and was later admitted into a residential aged care facility.
On 4 October 2024, Centrelink raised a debt against Mrs Ogilvy on the basis that she had exceeded the allowable periods for hospitalisation and respite care, and was not qualified to receive CP from 6 May 2024 onwards.
Mrs Ogilvy sought review of this decision and on 23 October 2023, a Centrelink authorised review officer (ARO) affirmed the decision to raise and recover the debt.
Mrs Ogilvy then applied to the Administrative Review Tribunal (the Tribunal) seeking independent review of the ARO decision.
A hearing was held on 14 March 2025. Mrs Ogilvy participated in the hearing by telephone, accompanied by her daughter [Ms B]. Both Mrs Ogilvy and [Ms B] gave evidence under affirmation.
The Tribunal had regard to relevant documents produced by Centrelink, numbered as pages 1–144. Mrs Ogilvy provided further documentation to the Tribunal, numbered as pages A1-A9.
ISSUES
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).
The issues which arise in this case are:
· Was Mrs Ogilvy overpaid CP in the period 6 May 2024 to 30 September 2024?
· Is there any basis on which any part of the debt should not be recovered?
CONSIDERATION
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.
Section 198AA of the Act sets out circumstances in which a person remains qualified for CP while the care receiver is hospitalised. The total periods of hospitalisation cannot exceed 63 days in any calendar year.
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.
The Tribunal also had regard to the Social Security Guide (the Guide), which sets out government policy to assist decision-makers. The Guide at 3.6.4.50 provides as follows:
If the care receiver is aged 16 years or over (adult) and remains in hospital for longer than 63 days in one calendar year, a carer may use the balance of their 63 day temporary cessation of care entitlement to remain eligible for CP. If both hospitalisation and temporary cessation of care provisions have been used in full within a calendar year AND the care receiver remains in hospital or is readmitted to hospital within that period, CP should be cancelled. The carer will need to reclaim CP when the care receiver returns home. Further temporary cessation of care or hospitalisation entitlement will not be available until the next calendar year, unless the Secretary's delegate deems there is a special reason under SSAct section 198AC(3), see 3.6.4.40.
Issue 1: Was Mrs Ogilvy overpaid CP in the period 6 May 2024 to 30 September 2024?
As at 1 January 2024, the allowable periods for respite care and hospitalisation reset. This meant that Mrs Ogilvy could continue to receive CP for up to 63 days during [Mr A]’s hospitalisation pursuant to section 198AA of the Act, and a further 63 days for temporary cessation of care pursuant to section 198AC of the Act.
[Ms B] told the Tribunal that her father had been diagnosed with early onset Alzheimer’s disease at 53 years of age. He is now at the tail end of this condition, which regretfully is a terminal condition. [Mr A]’s behaviour became very difficult to manage at home. He was hospitalised while attempts were made to find a high care residential facility that was able to accept him. It took a long time to find a place that could accept [Mr A].
Mrs Ogilvy continued to participate in [Mr A]’s care while he was in hospital. He was often aggressive and the hospital would call her 3 to 4 times a day seeking her assistance. She would talk to [Mr A] on the phone and keep him calm while she was driving to the hospital. She was at the hospital every day. Mrs Ogilvy provided to the Tribunal supporting evidence from the hospital confirming that she continued to provide daily care to [Mr A] while he was hospitalised.
I am satisfied that Mrs Ogilvy was continuing to participate in [Mr A]’s care while he was hospitalised and that the requirements of section 198AA were otherwise met. This means that Mrs Ogilvy was entitled to be paid care payment for up to 63 days while [Mr A] was hospitalised.
The Guide makes it clear that CP can continue to be paid for the maximum period of 63 days for hospitalisation in addition to accessing a further 63 days under the temporary cessation of care (respite) provisions. This means that Mrs Ogilvy remained qualified for CP for 126 days from 1 January 2024.
The maximum period of allowable absences was reached on 5 May 2024. This meant that Mrs Ogilvy was not entitled to continue to receive CP from 6 May 2024. This is so even though I accept that Mrs Ogilvy was continuing to provide daily care to [Mr A] while he remained in hospital.
I find that Mrs Ogilvy was overpaid CP in the period 6 May 2024 to 30 September 2024 and has a debt of $12,422.95.
Issue2: Can recovery of the debt be waived?
Section 1237 of the Act provides that there are only limited circumstances in which a properly raised debt may not be recovered.
There are two provisions which allow a debt to be waived, in whole or in part. To waive a debt means that the part of the debt that is waived does not have to be repaid at all.
Section 1237A of the Act allows waiver of a debt where the debt has arisen solely due to administrative error on the part of the Commonwealth, and where the debtor receives payments in good faith.
Section 1237AAD of the Act is a discretionary waiver provision that can be applied where “special circumstances” exist, and it is more appropriate to waive than write off recovery. In order for a debt to be waived on the basis of special circumstances, the debt cannot have arisen wholly or partly from the debtor knowingly making a false statement or a false representation, or knowingly failing or omitting to comply with their Centrelink obligations.
Mrs Ogilvy said that she had kept Centrelink informed of her husband’s hospitalisation. She called or visited the Centrelink office at [Suburb] on a number of occasions advising that [Mr A] remained in hospital. Mrs Ogilvy says that she was told to let Centrelink know when her circumstances changed, that is, if [Mr A] returned home or went into permanent care.
Centrelink’s records show two contacts by Mrs Ogilvy or [Ms B] on 14 and 19 December 2023, in which they advised that [Mr A] remained in hospital and that he would not be coming home. Centrelink’s notes of a further contact on 3 January 2024 record that Mrs Ogilvy told Centrelink that [Mr A] may be going into permanent care. A potential early claim for jobseeker payment (JSP) was discussed should [Mr A] go into aged care.
[Ms B] said that she was either present with her mother for some calls to Centrelink or her mother advised her shortly after these calls what had been discussed. She said that her mother was consistently told by Centrelink that she should not go on jobseeker payment and could continue to receive CP for up to 13 weeks after [Mr A] went into a permanent residential care facility. [Ms B] said that her mother has always been very open with Centrelink and kept them updated about [Mr A]’s circumstances.
[Ms B] told the Tribunal that, through her work in the [work] sector, she was aware that there were rules around respite care and she encouraged her mother to go back to Centrelink to check that she was still eligible for CP. Centrelink’s records show that Mrs Ogilvy made contact on 14 June 2024, however there are limited details about this contact, simply noting that it was an update to details provided through myGov.
Mrs Ogilvy said that she remembered going in to Centrelink’s [Suburb] office in June 2024 to advise that [Mr A] was still in hospital. She asked the officer whether she should go on jobseeker payment if she was not entitled to continue receiving CP. Mrs Ogilvy said that she was told by the Centrelink officer that she could remain on CP for 13 weeks after [Mr A] went into residential care and that she would be better off remaining on her current payment. She was told she needed to let Centrelink know if [Mr A]’s circumstances changed, that is, when he either went into a permanent residential care facility or came home from hospital.
[Ms B] told the Tribunal that she recalled her mother advising her shortly after 14 June 2024 that she had been to see Centrelink. Her mother said she had been told by Centrelink she didn’t need to worry and that she would continue to receive CP for 13 weeks after [Mr A] went into an aged care facility.
Both Mrs Ogilvy and [Ms B] impressed the Tribunal as honest and truthful witnesses. Mrs Ogilvy had advised Centrelink a number of times that [Mr A] remained in hospital and was unlikely to come home. There is no evidence that Centrelink took any action to follow up and confirm [Mr A]’s situation once the maximum allowable periods of cessation of care were reached on 5 May 2024, and continued to pay Mrs Ogilvy CP.
Mrs Ogilvy was repeatedly assured by Centrelink that she could continue to receive CP until [Mr A] went into an aged care facility. I accept Mrs Ogilvy’s evidence that she was advised by Centrelink to that effect when she contacted them in June 2024. This was after the maximum periods of absence from care had been exceeded.
I find that the debt arose solely due to administrative error on the part of Centrelink. I am satisfied that Mrs Ogilvy received the payments of CP after 6 May 2024 in good faith, having received assurances from Centrelink that she could remain on that payment even though Centrelink had been made aware that [Mr A] had not, and was unlikely to, come home from hospital.
Accordingly, I find that the whole of the debt should be waived pursuant to section 1237A of the Act due to administrative error.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides:
Mrs Ogilvy has a carer payment debt of $12,422.95 for the period 6 May 2024 to 30 September 2024;
The whole of the debt is to be waived on the basis of administrative error, with effect from the day after the debt was raised.
| Date(s) of hearing: | Friday, 14 March 2025 |
| Representative for the Applicant: | Self |
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