Rahi and Secretary, Department of Education, Skills and Employment (Social services second review)

[2021] AATA 1490

Rahi and Secretary, Department of Education, Skills and Employment (Social services second review) [2021] AATA 1490 (26 May 2021)

Division:GENERAL DIVISION

File Number(s):      2019/4108 - 4113

Re:Michelle Rahi

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Senior Member R. Pintos-Lopez

Date:26 May 2021

Place:Melbourne

The Tribunal affirms the decision under review.

..............................[sgd]..........................................

Senior Member R. Pintos-Lopez

Catchwords

SOCIAL SECURITY – childcare benefit – childcare rebate – recovery of debt – approved service provider – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Cases

Ellis and Department of Family and Community Services [2000] AATA 350.
Re Callaghan and Secretary, Department of Social Security (1996) AATA 413
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634. Secretary, Department of Social Security v Coralie Hales (1998) 82 FCR 154.
Yorke v Lucas (1985) 158 CLR 661 at 670

Secondary Materials

Guides to Social Policy Law, Family Assistance Guide.

REASONS FOR DECISION

Senior Member R. Pintos-Lopez

26 May 2021

1. The Applicant seeks review of a decision made by the Social Services and Child Support Division of the Tribunal, dated 24 June 2019, which affirmed a decision of a delegate of the Respondent, dated 27 February 2019, to raise and recover certain payments of childcare benefit (‘CCB’) and childcare rebate (‘CCR’).

2. For the reasons that follow, the Tribunal affirms the reviewable decision. 

   LEGISLATION

3. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’);

   ·A New Tax System (Family Assistance) Act 1999 (Cth) (‘the Act’); and

   ·A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘the Administration Act’).

   BACKGROUND

4. From 2015 until 2018, the Applicant received CCB and CCR for the care of her children through an “approved service provider”. CCB and CCR payments provides assistance with childcare costs in approved or registered childcare services. Payments are made by way of a lump sum at the end of the financial year or by reducing childcare fees during the year. The Applicant received support in the form of reduced childcare fees during the year.

5. Commencing 17 July 2018, the Respondent determined that the Applicant had been overpaid in relation to CCB and CCR for the financial years ending 30 June 2015 until 30 June 2018. The payments sought to be recovered are:

Financial year	CCB	CCR
2014-15	$2,940.97	$3,040.28
2015-16	$14,586.45	$11,494.31
2016-17	$15, 429.73	$7,917.41
2017-18	$5,092.10	$733.58

1. The Applicant does not dispute the raising of the debt and the amounts were not in contention.

2. On 3 October 2017, the Applicant sought a review of the repayment decisions. On 27 February 2019, the application for review was rejected.

3. On 14 March 2019, the Applicant applied to the Tribunal for a review of the decisions. On 24 June 2019, the Tribunal rejected her application.

4. On 8 July 2019, the Applicant applied to review the decision of 24 June 2019 made by the Tribunal.

   FACTS

5. On 20 June 2014, the Applicant sought Special CCB in addition to that which she already received, on the basis of special circumstances upon advice from her general practitioner that she required further hours of childcare, due to her health. Special CCB is available for short-term financial hardship due to exceptional circumstances.

6. On 19 November 2014, Centrelink rejected her application based on insufficient information. On 9 December 2014, the Applicant contacted Centrelink and on 18 December 2014, she provided further evidence in support of her claim. On 7 January 2015, the Applicant’s claim for Special CCB was rejected.

7. On 10 July 2020, the Applicant gave evidence at the hearing. She confirmed that in 2014 she had contacted Centrelink and asked for extra hours and was told that she should fill out a special circumstances form due to the problems that she faced at that time. The Applicant stated that at that time, she was a single mother who was severely affected by anxiety and depression. She gave evidence that she was struggling to cope with her financial obligations and that she had panic attacks in the evenings such that she could not leave her home.

8. On 16 April 2014, Centrelink sent a letter to the Applicant entitled “Child Care Rebate Quarterly Summary.” The summary provided, among other things:

   The Child Care Rebate is an additional payment to your Child Care Benefit. Child Care Rebate covers 50% of your out-of-pocket expenses, up to a maximum of $7,5000.00 per year for each child in approved care. Your out-of-pocket expenses are the difference between your total childcare fees and your care Benefit entitlement.

   The Child Care Rebate is not income tested.

   To be eligible for the Child Care Rebate you must meet the Work, Training or Study requirements.

9. Centrelink sent similar Child Care Rebate Quarterly Summaries on 20 October 2014, 23 January 2015, and 20 April 2015.

10. On 8 April 2015, Centrelink was contacted, whether by the Applicant or another person is in dispute, and told that the Applicant met the work, training, or study test. The Centrelink file note of that conversation provides:

    Customer contacted cc: BRISBANE on_8 April 2015 regarding CCB Work Training Study Info for CCB for Approved Care. Information was obtained via Internal using Personal – In Office. Document created by TSC738 on_8 April 2015.

    Check the REXCCF screen for the latest applicable details for this customer

    Customer is looking for work and passes WTST

11. The Applicant gave evidence that she did not contact Centrelink on 8 April 2015. The Applicant further stated that she had requested that Centrelink implement the use of a password to verify her identity for future calls to Centrelink.

12. On that same day, Centrelink sent a letter to the Applicant entitled “Assessment Notice of Child Care Benefit for approved care”, which provided that her family had been assessed as being entitled to the maximum rate of CCB commencing 8 April 2015. It provided that the Applicant was eligible for up to 50 hours of CCB a week for each child in approved care.

13. On 19 October 2015, Centrelink sent a Child Care Rebate Quarterly Summary setting out the total amount of CCR paid to the childcare service provider for the period 6 July 2015 to 4 October 2015. In addition to the wording set out above in relation to the 16 April 2014 Child Care Rebate Quarterly Summary, the letter provided further:

    Our records show that you meet the Works, Training or Study requirements of the Child Care Rebate for all of the above quarter.

    If this information is not correct you should contact us as soon as possible.

14. Centrelink sent further similar Child Care Rebate Quarterly Summaries on 19 October 2015, 22 January 2016, 18 April 2016, 17 October 2016, 23 January 2017, 1 May 2017, 16 October 2017, 19 January 2018 and 30 April 2018.

15. On 1 July 2016, Centrelink sent a letter to the Applicant entitled “About your Child Care Rebate for 2014 to 2015”, which contained the same wording set out above in relation to the letter of 16 April 2014. The letter further provided:

    If you use more than 24 hours of childcare a week, you must tell us if you or your partner are working, training or studying for less than 15 hours a week or 30 hours a fortnight.

    …

    You can get Child Care Benefit as reduced fees:

    …

    For up to 50 hours of childcare a week for each child in an approved childcare service if both you and your partner spend at least 15 hours a week for a total of 30 hours a fortnight working, looking for work, studying, training or participating in any unpaid voluntary work, or a combination of these activities, OR if you and your partner have a disability or care for someone with a disability OR you or your partner are the primary carer of a grandchild using childcare.

16. From 16 April 2014 until 12 March 2019, in addition to the letters set out above, Centrelink regularly corresponded with the Applicant in relation to her Centrelink payments including, for example, family assistance, family tax benefit, CCB, Special CCB, assessment notices of CCB for approved care, income statements, immunisation and CCB, rent assistance, concession card entitlement, one-off energy assistance payment, and letters regarding appointments with Centrelink.

17. On 17 July 2018, Centrelink wrote to the Applicant in relation to CCB for approved care in 2017 to 2018. The letter stated that Centrelink had reviewed the financial year 2017 – 18 using her annual family income and her family circumstances and had decided that she had received more CCB and she was entitled to receive.

18. On 31 July 2018, a similar letter was sent to the Applicant in relation to CCR. A series of letters followed in relation to CCB and CCR notifying the Applicant of overpayments.

19. Centrelink sent the above-mentioned letters to the same address up until the Applicant moved and then to a second address. In evidence, the Applicant agreed that she had two addresses during the relevant period. She attested that she had not asked for online correspondence and that she knew that letters were being sent to her by post.

20. The Applicant gave evidence that she did receive letters from Centrelink but did not remember receiving those letters. She stated that at that time, she had involvement with DHHS and Victoria Police, as she was a victim of domestic violence. She also stated that her partner was on drugs and due to these reasons, that is why the children were in childcare.  She stated that she did not receive information about “50 hours and all that.”

    CONSIDERATION

21. Payments of CCB and CCR are governed by the family assistance law, in particular the Act and the Administration Act.

22. Section 53 of the Act provides a weekly limit of 24 hours or 50 hours of care for which CCB can be paid. Section 54 provides a 50-hour limit in certain circumstances including if the parent satisfies the work, training, and studying test. CCR provides payments for approved childcare.

23. Part 4 of the Administration Act provides for overpayments and debt recovery. Section 71C of the Administration Act, in relation to CCB, and 71CAA, in relation to CCR, provides that amounts in excess of payments are debts due to the Commonwealth. I am satisfied that the amounts were overpaid to the Applicant and that those amounts are a debt due to the Commonwealth.

24. Section 95 of the Administration Act provides that the Secretary may write off a debt. Circumstances in which the Secretary may write off the debt include where the debtor has no capacity to repay the debt. On the basis of the evidence before me, I find that s 95 of the Administration Act, does not apply in relation to this application.

25. Section 97 of the Administration Act provides for waiver of debt arising from error. On the basis of the evidence before me, I find that there was no administrative error giving rise the capacity to waive the right to recover the debt under s 97.

26. Section 101 of the Administration Act provides:

    The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
    (a) the debt did not result wholly or partly from the debtor or another person knowingly:

    (i) making a false statement or a false representation; or

    (ii) failing or omitting to comply with a provision of the family assistance law; and

    (b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
    (c) it is more appropriate to waive than to write off the debt or part of the debt.

27. The Respondent provided written submissions that submit that the reference to “the debt or another person” in s 101 of the Administration Act is “intentionally wide and captures both circumstances where the Applicant herself contacted Centrelink… or where another person contacted Centrelink and provided the information.”

28. In relation to the requirement that a person “knowingly” make a false statement or false representation, the Respondent submits that the term connotes consciousness and intention, and something deliberate in nature.

29. The Respondent submits that Centrelink staff are “under positive obligation to confirm a caller’s identity to establish that it is in fact the customer in question or a person authorised to enquire and or act on that customer’s behalf for disclosing and discussing the customer’s private information.”

30. The Respondent submits that the Applicant’s claim that another person called Centrelink on 8 April 2015 and impersonated her lacks credibility “where there is no benefit to be gained by anyone other than the Applicant in doing so.” In the alternative, if the Applicant’s version of events is accepted, the Respondent submits that “the debts in question in this matter were raised wholly or partly because another person knowingly impersonated the Applicant, and then knowingly provided incorrect information that the Applicant met the relevant test, which Centrelink relied on in assessing, and ultimately paying, her entitlements.”

31. In respect of the 8 April 2015 call with Centrelink, to which the file note states that the “Customer is looking for work and passes WTST”. I find that the call was made, and that a false statement or false representation was knowingly made that the Applicant was looking for work and thus qualified for payments to which she was not entitled. I find, on the basis of the evidence, that it was the Applicant who made that call.

32. The difficulty in accepting the Applicant’s account of the events is that there is no evidence to support her claim that another person called Centrelink and misrepresented her circumstances.

33. If I am wrong and another person contacted Centrelink and misrepresented the Applicant’s circumstances, s 101 of the Administration Act would still not apply. I agree with the Respondent’s submissions that s 101 of the Administration Act gives rise to a discretion to waive the right to recover all or part of a debt where the Secretary is satisfied that the debt did not result from another person knowingly making a false statement or a false representation. In the circumstances, another person contacting Centrelink to make the false representation, which in this case could only be knowingly made, prevents the enlivening of the discretion to waive the right to recover all or part of the debt under s 101 of the Administration Act.

34. I find it difficult to accept that the Applicant did not receive or did not open and read the correspondence from Centrelink that stated that Centrelink held the view that she was working, training, or studying. By her own account, this was the mechanism by which she sought to be contacted by Centrelink. The records in evidence show occasions where the Applicant called Centrelink in response to correspondence. The Applicant ought to have read, at a minimum, the 19 October 2015 Child Care Rebate Quarterly Summary, which made plain that according to Centrelink’s records, the Applicant met the works, training or study requirements. It is unnecessary for me to make a definitive finding about the correspondence sent by Centrelink to the Applicant as I have found that the Applicant herself misrepresented to Centrelink on 8 April 2015 that she was looking for work, which representation led to her overpayment.

    
    
    DECISION

35. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Pintos-Lopez

.................................[sgd].......................................

Associate

Dated: 26 May 2021

Representative for the Applicant:	Self-Represented
Representative for the Respondent:	Ms Underhill, Services Australia