QX05/7 and Secretary, Department of Employment and Workplace Relations and Anor
[2005] AATA 921
•22 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 921
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/333
GENERAL ADMINISTRATIVE DIVISION ) Re QX05/7 Applicant
And
SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS1st Respondent
AndSECRETARY, DEPARTMENT
OF FAMILY AND
COMMUNITY SERVICES2nd Respondent
DECISION
Tribunal Dr EK Christie, Member Date22 September 2005
PlaceBrisbane
Decision The Tribunal varies the decision under review. The applicant was qualified to receive parenting payments for the period 5 January - 14 January 2005. This means that the applicant's application for review is partly successful.
The possibility of the "Scheme for Financial Detriment Caused by Defective Administration" is raised.
.................[Sgd]........................
EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment (single) – family tax benefit – relationship between children and their parents – qualification of applicant for family tax benefit and parenting payment (single) – temporary absence from care – “Compensation for Financial Detriment Caused by Defective Administration”
Social Security Act 1991 ss 5(2), 500D, 500D(2)
A New Tax System (Family Assistance) Act 1999 ss 21, 22, 23Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Secretary, Department of Social Security v Field (1989) 25 FCR 425
Keen and Secretary, Department of Family and Community Services [2004] AATA 312REASONS FOR DECISION
22 September 2005 Dr EK Christie, Member 1. This is an application by the applicant for a review of the decision made by the Social Security Appeals Tribunal (“the SSAT”) on 11 May 2005 that cancelled The applicant’s family tax benefit and parenting payment from 5 January 2005.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents)[Exhibit 1] and the various documents filed by the applicant.
3. The applicant was represented by Mr Bruce Hatton at the hearing. The respondent was represented by Ms J Forsyth, a Departmental Advocate.
Issues Before The Tribunal
4. The only issue for the Tribunal to decide was whether the decision to cancel The applicant’s family tax benefit and parenting payment from 5 January 2005 was correct. The relevant legislation to decide The applicant’s application is the Social Security Act 1991 (“the SS Act”) and A New Tax System (Family Assistance) Act 1999 (“the FA Act”).
5. The Tribunal makes the observation that the applicant has raised issues that do not fall within the “boundaries” set by the questions of law arising under the SS Act and the FA Act upon which the Tribunal must decide this case. Specifically:
“That the decisions of the Social Security Appeals Tribunal are incorrect and based on fictitious statements that original decision maker has made and acted on 14 January 2005.
Proof of legal documentary evidence and verification of verbal advice from Child Safety officer, Lorraine Asquith that place children on Father’s care and to cancel family tax benefit and parenting payment.”
6. These issues relate to the factual circumstances that give rise to the children being taken from the care of The applicant – with their care and control being placed with their father. These factual issues involve the Queensland Department of Child Safety and Centrelink and have had a “flow-on” effect on subsequent decisions that have been made over time. The Tribunal considers these issues are outside the scope of the statutory scheme for entitlements imposed by the SS Act and the FA Act.
History
7. The applicant and her husband separated in 1998. Their four children had been in the applicant’s care from that time until they left to go to their father during school holidays and 5 January 2005.
8. The applicant applied for parenting payment (single) on 7 July 1998. She was qualified for and was paid parenting payment (single)(“PPS”). Later, she qualified for family tax benefit (“FTB”) in respect of her four children; a claim for the youngest child was lodged on 2 February 2001.
9. On 14 January 2005, Centrelink received a phone call from Lorraine Asquith of the Department of Child Safety advising that the applicant’s four children had left the care and control of the applicant on 5 January 2005. On the basis of this advice on 14 January 2005, Centrelink made decisions to cancel the applicant’s parenting payment (single) (because she no longer had a dependent child under the age of 16 in her care) and family tax benefit (as she no longer had a child in her care).
10. On 19 January 2005, the applicant contacted Centrelink and requested a review of the decisions advising that “the children had not left her care permanently, they went to stay with their father temporarily and that the children were due back in her care 19 January 2005”.
11. Court orders for the shared control of the applicant’s four children were made on 3 March 2005. From that time, the applicant has received Social Security entitlements based on the pattern of control.
12. The outcome on subsequent litigation in the Family Court resulted in a Court Order made on 28 June 2005 under which the four children were returned to the care and control of the applicant.
Facts
13. The applicant gave the following response to the findings of facts made by the SSAT:
“. ….
.On 5 January 2005 the children left [the applicant’s] care and went to the care of their father [….]
.There was no court order or parenting plan in effect in relation to the children at that time”. (T2, Folio 6)
14. The applicant agreed with the first finding, but disagreed with the second finding. She emphasised, in relation to the second finding, that the children did not go into the care of their father but had gone to him on a two week holiday. In terms of the third finding, the applicant emphasised that there was a verbal agreement between the children’s father and herself, that the children would go to him on a short holiday at that time.
15. The applicant gave the following responses to “Summary of Information” and “Discussion of Evidence” that formed part of the SSAT reasons for decision:
(a)that her eldest daughter had not rung her on 18 January 2005 to say the children were not returning home. This statement was incorrect. At no stage had she said this to the SSAT.
(b)she did not dispute that her four children left her care and control on 5 January 2005 and, from that date, came within their father’s care and control.
(c)on being advised by Centrelink on 20 January 2005 (T16 Folio 94) that her legal responsibility for her four children had been “extinguished by the Qld Dept. of Child Safety” she pursued investigations with the Queensland Department of Child Safety. She sought a response in terms of the documentation and information held by Queensland Department of Child Safety that supported the Centrelink statement of “extinguished legal responsibility”.
(d)furthermore, she had been advised by Centrelink to instigate custody proceedings in the Family Court in order to do everything to get her children returned to her. This had now eventuated in a Court Order on 28 June 2005, in which she regained custody of all four children.
The Tribunal’s Decision-Making Powers
16. The question for the determination of the Tribunal is whether the decision [under review] was the correct on [that is, when there is only one decision] or preferable one [that is, when a range of decisions are available] on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]. There is only one decision possible in this application for review. That is whether the decision to cancel the applicant’s family tax benefit and parenting payment from 5 January 2005 was correct.
17. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry research and Development Board(2002) 124 FCR 316 at 324-326. In this application for review, the Tribunal has considered all the evidence and information before the Tribunal at the date of the hearing.
Statutory requirements and Legal Principles
(a) Entitlement to parenting payment under the Social Security Act
18. Section 500 of the SS Act sets out the requirements for qualifying for parenting payment (“PP”). To qualify for PP the applicant would have to have a least one PP child [section 500(1)].
19. A “PP child” of a person is a dependent child of a person who has not turned 16 [section 500D(1)]. A “dependent child” is defined under section 5(2) of the SS Act:
“5.(2)Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the “adult”) if:
(a)the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult’s care; or
(b) the young person:
(i)is not a dependent child of someone else under paragraph (a); and
(ii) is wholly or substantially in the adult’s care.”
20. The SS Act permits “temporary absences” from the claimant’s care in specific circumstances. Section 500D(2) of the SS Act provides that, for the purposes of determining whether a child is a PP child of a person, the child is taken to remain in the person’s care if at the start of a period not exceeding 8 weeks, the child leaves the person’s care and throughout the period, the child is the PP child of another person and the child returns, or the Secretary is satisfied that the child will return to the first person’s care at the end of the period. This provision allows for situation for a child to remain a PP child of a person during a short term temporary absence from the adult’s care. This provision of the SS Act is designed to ensure that a person does not lose qualification for PP during short absences. The Departmental Policy Guidelines (1.1.P.340) give school holidays as an example of a short absence.
(b) Entitlement to family tax benefit under the FA Act
21. In order to be qualified to receive family tax benefit (“FTB”) section 21 of the A New Tax System (Family Assistance) Act 1999 (FA Act) requires that the applicant must have at least one “FTB child”.
22. An “FTB child” is defined in section 22 of the FA Act. Under the provisions of section 22(2) the child or children must be in The applicant’s care. In addition, the applicant must have legal responsibility for their day-to-day care – whether alone or jointly with someone else.
23. Section 23 of the FA Act makes provision for when an FTB child ceases to be in an individual’s care without consent and allows for an individual to continue to receive FTB for such child for a qualifying period of up to fourteen weeks provided reasonable steps are taken to have the child returned. However the provision to extend eligibility for FTB during the child’s absence from care does not apply if the child is not in the person’s care and the child has entered the care of a parent and a family law order or registered parenting plan is not in force for that child at that time [Section 23(5) of the FA Act].
(c) Legal Principles: The Meaning of “Dependent Child”
24. In Secretary, Department of Social Security v Field (1989) 25 FCR 425, the Full Federal Court concluded:
“We agree that for the purposes of the definition of ‘dependent child’ in s 3(1), a person cannot be taken to have the custody of a child unless that person has a legal right to have, and to make decisions concerning, the daily care and control of the child. That this is so is, we think, made reasonably plain by s 3(2) which speaks of a person’s ‘right’ to have, and to make decisions concerning, the daily care and control of the child.”
Consideration Of The Issues
25. The first issue for the Tribunal to consider is the status of the applicant’s parenting payment entitlements beyond 5 January 2005.
26. The Tribunal concludes that from 1998 to 5 January 2005, the four children were The applicant’s dependent children as defined in section 5(2) of the SS Act. Up until that date The applicant had the legal responsibility for the day-to-day care, welfare and development of the children and the children were actually in her daily care and control as required by subsection (a) of section 5(2).
27. However, from 5 January 2005, when the children went to their father’s home, the children ceased being in the applicant’s care and so the requirements for being “dependent children” of The applicant’s, as set out in section 5(2)(a) of the SS Act, were not met. The children ceased being “dependent” children of the applicant’s from that date. The applicant conceded that, from this date, she had no input into the daily care and control of the children as she was refused access by her former husband. This conclusion is consistent with the legal principle on Field’s case.
28. Given the findings that the children ceased to be “dependent” children, they ceased to be PP children under section 500 of the SS Act. As a result, the applicant would not qualify for parenting payment (single) for the children.
29. The Tribunal next considers whether there was any question of a “temporary absence”’ associated with the children leaving the applicant’s care and control to go to their father on 5 January 2005.
30. In Keen and Secretary, Department of Family and Community Services [2004] AATA 312, the Tribunal considered a similar issue regarding loss of qualification for PP and FTB. The Tribunal’s reasoning, in this case, was that, at what point in time was it reasonable for a person in Mr Keen’s position to realise that the other party was intending to keep the child, so that the child was no longer in Mr Keen’s care and control. At this date the absence was no longer temporary and qualification for parenting payment was lost.
31. Applying this reason to the facts of the applicant’s application for review, the Tribunal accepts her evidence that, on the 5 January 2005 when the children left her care during the school holidays, it was for the purpose of a two week holiday with their father. At the end of this holiday, the applicant understood that the children would return to her care and control. However, this did not prove to be the case – for reasons which appear, on the evidence and information before the Tribunal, confusing and uncertain.
32. On 14 January 2005, the Respondent was “contacted” by a representative of the Queensland Department of Child Safety (“QDCS”) and informed that the children had left the care and control of the applicant on 5 January 2005 and would not be returning to her. The basis of this information provided by QDCS to the Respondent, as well as its veracity and corroboration by the Respondent, are the most significant issues in dispute - from the applicant’s perspective. Acting on this information provided by QDCS, the Respondent cancelled PP and FTB entitlements to the applicant.
33. Given that the Secretary was notified by QDCS on 14 January 2005 that the children’s absence was no longer temporary – irrespective whether the authenticity of this advice had been validated, PP ceased. Consequently this date is significant in terms of applying section 500D(2) to the facts of the applicant’s circumstances. Accordingly, the Tribunal concludes that beyond 14 January 2005, it was reasonable for the applicant to realize that her former husband was keeping their four children so that they were no longer in her care and control. At this date, their absence was no longer temporary and qualification for PP was lost by the applicant.
34. Given the above finding, the Tribunal concludes that the date of cancellation of the applicant’s PP be varied, as she was qualified to receive payment from 5 January – 14 January 2005, under section 500D(2) of the SS Act.
35. The next issue for the Tribunal to consider is the applicant’s FTB entitlements beyond 5 January 2005.
36. The Tribunal concludes that section 23(5) of the FA Act cannot be applied to the applicant’s factual circumstances. At the time, the children went into the care of her former husband and, as well, there was no court order or parenting plan in force that varied the father’s rights. As a result, there is no qualifying period that can be applied to The applicant’s situation. Consequently, the Tribunal concludes that payment for FTB cannot be extended for a period after 5 January 2005 when the children left The applicant’s care.
37. In addition, the Tribunal concludes that on 5 January 2005 the applicant did not satisfy section 21 of the FA Act as she did not have an FTB child in her care.
38. Given these findings under the FA Act, the Tribunal finds that the decision to cancel the applicant’s FTB entitlements, from 5 January 2005, was correct.
39. Whilst these findings may seem harsh, it might be more correct to consider them “unfortunate”. The legislative scheme does not provide the administrative decision-maker with any discretion other than to make the findings that have been made.
40. However, throughout the hearing, the case being made by the applicant reflected her significant concern as to the process that her children were taken from her care and control during what, she understood, to be a two week holiday with their father during the long summer school vacation. The process involved the QDCS and the Respondent.
41. The sequential steps in the process, as can be determined from the evidence and information before the Tribunal, are as follows:
(a) Centrelink File Note 14 January 2005 (T8, Folio 65)
“Government Agency contacted WOODRIDGE on 14 JAN 2005 regarding Children not in Custody/Care/Control for Family Tax Benefit
Information was obtained via File Record using Internal Channels.
Document created by A70 on 14 JAN 2005.
Lorraine Asquith from Department Child safety advised that [her four] children …. have left customer care and control as of the 050105. Department of child safety have placed children in father care. Children no longer qualifying ftb child for customer sec 22 faa act 1999.” [Emphasis added]
(b) Letter from Manager Centrelink Woodridge to The applicant 20 January 2005 (T16, Folio 94)
“ Phone conversation with Child Safety Officer at Department of Child Safety and supporting documentation provided by Child Safety
Your legal responsibility of your children has been extinguished by Department of Child Safety and therefore you no longer satisfy the requirements of Sec 22 of Family Tax Act 1999. Which is to qualify for Family Tax Benefit you must have legal responsibility and day to day care of a child in your care.” [Emphasis added]
(c) Centrelink File Note, 25 January 2005 (T18, Folio 97)
“Cust advised that children have not been returned to her care by other parent. There is no court order. Cust has been advised that Dept of Child Safety have advised C’link children not in her care. Cust has called Dept of Child Safety and has said that they can find no record of this case. Cust is concerned regarding validity of information from Dept. Fax sent attn A70.
I called cust & advised that I spoke to odm who advised she had rec’d a letter from Dept of Child Safety and also spoke to DOCS before making decision to cancel payment. I advised that due to privacy legislation she could not get a copy of letter. She restated that DOCS [1] told her it must be fraudulent as they had no record. I advised cust to speak to DOCS and tell them that Centrelink advise her that letter had been rec’d from them. Cust to recontact DOCS.” [Emphasis added]
[1] DOCS abbreviation for Qld. Dept. of Child Safety
(d) ODM Reconsideration and ARO Referral, 2 February 2005 (T21, Folio 101)
Evidence supporting the facts: (e.g. forms; statements; ODR docs)
Verification by Loraine of DOC[S] (sic) Phone Conversation.
(e) Notice Centrelink Review of Decision to the applicant 2 February 2005 (T24, Folio 104)
“ In making my decision I have taken into account the following factors:
Verbal verification from the Department of Child Safety that children are no longer in your day to day care and control.” [Emphasis added]
(f) Letter from Tony Ward, Manager Logan Child Safety Service Centre, Qld Dept. of Child Safety to the applicant 15 July 2005 (Exhibit 2)
“I am writing to you in regards to the conversation held between Child Safety officer Lorraine Asquith and the Centrelink Cleveland Office in regards to your family.
It appears that information was given to Centrelink that stated that the Department of Child safety had ‘extinguished’ your rights regarding your children, this information is incorrect and it is unknown where this information may have been gathered from.
The Department of Child Safety would like to sincerely apologise for the error and that this information was given to Centrelink. Please accept our apologies for the emotional stress that this unfortunate incident may have caused you.
Centrelink has been informed of the error in writing and that the information given by our Department was incorrect.” [Emphasis added]
(g) Letter from Director, Central Complaints and Review Unit, Qld Dept of Child Safety to The applicant 2 August 2005 (Exhibit 3)
“I am advised that the following actions have been completed in response to your concerns:
·On 24 May 2005 Ms Heidi Zarb contacted Logan North Woodridge Child Safety Service Centre on your behalf;
·On 14 July 2005 Ms Alison Hegarty, Child Safety Officer, Logan North Woodridge Child Safety Service Centre telephoned you to discuss your concerns. I am advised that Ms Hegarty informed you that there was no record of any paper or electronic file material that would indicate information had been provided to Centrelink by Logan North Woodridge Child Safety Service Centre as you originally believed;
·I understand on 18 July 2005 Mr Tony Ward, Manager, Logan North Woodridge Child Safety Service Centre sent you a letter of apology for any misunderstandings regarding incorrect information being provided by the department to Centrelink;…” [Emphasis added]
42. Consideration of the above material indicates that the process whereby the children were taken from the care and control of the applicant in January 2005 [or in the language of the Manager, Centrelink Woodridge (T16, Folio 84): “your legal rights to your children has been extinguished by [Qld] Dept. of Child Safety”] has been for Centrelink to have stated to have acted on documentation following the telephone contact made by Lorraine Asquith of QDCS on 14 January 2005. However, by 2 February 2005, the situation changes as reference by Centrelink is now only to a phone conversation and verbal verification with Lorraine Asquith.
43. Regardless of the form of the contact – verbal or written, QDCS has investigated the applicant’s complaint at the District Managerial level as well as by their Central Complaints and Review Unit. The responses from both sources confirm that the information said to have been given by Lorraine Asquith, that the applicant’s rights regarding her children had been extinguished, was incorrect and the source of this information was unknown. Moreover, there is no record of any paper or electronic file material that would indicate information had been provided by the Logan North Woodridge Child Safety Service Centre to Centrelink.
44. The QDCS has acknowledged and apologised to the applicant “for the emotional stress that this unfortunate incident may have caused to [The applicant].”
45. At the end of the hearing, against this background of facts the possibility of whether the Commonwealth Policy: “The Scheme for Compensation for Detriment Caused by Defective Administration” had any application was raised. Clearly, this is an issue for the applicant to consider whether such a claim may be warranted and might be pursued.
46. Under “The Scheme for Compensation for Detriment Caused by Defective Administration”, each Minister, or any official authorised by the Minister for the purpose, has the administrative discretion to determine whether gratuitous compensatory payments should be made to claimants for the effects of defective administration by Commonwealth agencies. Payments under this scheme fall outside the scope of statutory entitlements, Government approved programs and payments by the Commonwealth under legal liabilities.
47. This Scheme is therefore a method of Commonwealth agencies providing compensation to persons who have been adversely affected by the maladministration of such agencies, but who have no legal means to seek redress, such as a legal claim against the Commonwealth.
48. Under the Scheme, detriment is the amount of quantifiable financial loss that a claimant can demonstrate that he/she has suffered despite having taken reasonable steps to minimise or contain the loss or, if this is impracticable, can reasonably be assumed to have suffered; and non-financial damage, such as pain and suffering, inconvenience or other “qualitative” elements of that nature.
49. Criteria under which claims under the Scheme are considered, and which may be applicable to the applicant’s circumstances, include:
“a specific and unreasonable lapse in complying with existing administrative procedures that would normally have applied to the claimant’s circumstances; or
An unreasonable failure to institute appropriate administrative procedures to cover a claimant’s circumstances; or …”
50. The Tribunal makes the observation that the analysis of background facts that resulted in the cancellation of the applicant’s entitlements (paragraphs 41(a) to (g)) may well indicate that the above criteria may have application in terms of reviewing the effectiveness of administrative procedures contained in Departmental Policy Guidelines that would have been in place and applied to validate and to authenticate a telephone and/or written contact from a State Government Department (QDCS). Moreover, the extent administrative procedures, in this regard, were followed when telephone/written contact was claimed to have been made by Lorraine Asquith of QDCS. The foundation of The applicant’s concerns reflect the administrative procedures in place to act as a “check and balance” to authenticate and to corroborate information on sensitive family issues – when such information is exchanged between a State Government and Commonwealth Government Department.
51. The Tribunal makes the further observation that it has no power, whatsoever, to give effect to this Scheme. Rather, the Tribunal emphasises that it cannot order that the Scheme for Compensation for Detriment Caused by Defective Administration be made applicable to The applicant’s factual circumstances. The procedure is for the applicant to make a claim to the respondent and to request that his claim be assessed under the specified eligibility criteria. The final authority to give effect to the Scheme does not rest with the Tribunal, but the Minister or their appointee.
52. For all of the above reasons, the Tribunal decides to vary the decision of the Social Security Appeals Tribunal by -
(a) varying the date of the cancellation of the applicant’s parenting payment from 5 January 2005 to 14 January 2005; and
(b) affirming the decision of the cancellation of the applicant’s family tax benefit with effect from 5 January 2005.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 1 September 2005
Date of Decision 22 September 2005
For the Applicant Mr B Hatton (Brother)
For the Respondents Ms J Forsyth, Departmental Advocate
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