Re Del Vecchio and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2007] AATA 1145
•20 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/280
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD ANTHONY DEL VECCHIO Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date20 March 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review, but writes off recovery of the debt until 1 April 2008.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Carer Payment – carer vacated premises of caree and commenced to reside in separate premises – continued to observe caree from a distance during overpayment period – almost no direct contact with caree after leaving premises – failure to notify Department of change in level of care – consideration of meaning of constant care – distant and periodic observation of caree and enquiry after caree’s welfare with third parties not sufficient – decision affirmed
Social Security Act 1991 ss 198, 1223, 1236, 1237AAD
Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419
REASONS FOR DECISION
20 March 2007 Senior Member L Hastwell 1. Ronald Del Vecchio (the applicant), received Carer Payment in respect of Mr C (the caree) from 18 August 2004 until 10 February 2006.
2. On 17 February 2006, Centrelink (the Department) determined that the applicant had been overpaid $4,050.43 in Carer Payment on the basis that he had ceased his caring duties for the caree when he ceased to reside in the same accommodation as the caree on 8 November 2005. An overpayment was raised for the period 8 November 2005 until 10 February 2006 (the overpayment period).
3. That decision was affirmed upon review by an Authorised Review Officer (ARO) on 1 June 2006.
4. Upon review, on 7 July 2006, the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision, but wrote-off recovery of the debt until after 1 April 2007. The applicant seeks a review of the SSAT decision to this Tribunal.
relevant legislation
5. The relevant legislation is found in the Social Security Act 1991 (the Act).
Section 198 of the Act sets out the requirements to be eligible for Carer Payment in the following terms:
“198(1)A person is qualified for a carer payment if the requirements of this section are met.
Constant care of disabled etc. persons
198(2) The person must personally provide constant care for:
(a) either:
(i)if the person is the only person providing the constant care—a disabled adult (the care receiver) who 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 total professional questionnaire score of at least 10; or
…
Care in home
198(3)The care must be provided in a private residence that is the home of the care receiver or care receivers.
…”
Section 1223 of the Act provides:
“1223(1)Subject to this section, if:
(a) a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
…”
Section 1237AAD provides:
“1237AAD Waiver in Special Circumstances
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 this Act or the 1947 Act; 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.”
Section 1236 provides:
“1236(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.”
issues
6. The issues for the Tribunal to determine are as follows:
·Did the applicant qualify for Carer Payment for the caree during the overpayment period?
·If not, has a debt been correctly raised?
·If there is a debt, is there any basis on which the debt can be waived or written off?
·In considering waiver, the Tribunal must first determine whether the debt resulted wholly or partly from the debtor knowingly failing to comply with a provision of the Act.
·If he did not “knowingly fail to comply”, then the Tribunal can consider whether there are special circumstances in this case that justify waiver of all or part of the debt.
·For write-off to apply in this instance, the Tribunal must be satisfied that the debtor has no capacity to repay the debt.
background
7. The caree was at all relevant times a “disabled adult” within the meaning of s 198(2)(a)(i) of the Act. The disabilities from which he suffered include cerebral palsy and an anti-social behavioural disorder.
8. The applicant resided in the same premises (1 Garland Avenue) as the caree from October 2004 until the applicant moved out of those premises on 8 November 2005. When he first applied for Carer Payment, he resided in the same street, but in different premises (T4/25). He had moved into the caree’s premises shortly thereafter.
9. On 8 November 2005 the applicant advised the Department of a change of home address and postal address. It was also noted that he did not live in shared accommodation (T15/150) at the time. He did not provide any advice that he had ceased caring for the caree.
10. On 17 February 2006 the applicant contacted the Department and requested that his Carer Payment for the caree be cancelled. He advised the Department on that same date that he had ceased caring for Mr C on 8 November 2005. He then applied for Carer Payment with respect to another disabled adult, but was unsuccessful in that application. He subsequently commenced receiving Newstart Allowance.
11. If there is a debt then there is no dispute with respect to the quantum as calculated.
the hearing
12. The applicant represented himself at the hearing. The T documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence as Exhibit A1. Neither party called any witnesses.
13. The applicant told the Tribunal that he understood that his obligation to care for the caree amounted to supervising him in his day-to-day living.
14. The applicant described himself as providing voluntary care and assistance to the caree prior to his application for Carer Payment in August 2004. He said it was a Departmental officer who persuaded him to apply for Carer Payment. He had initially wanted to apply for Newstart Allowance. He had assumed responsibility for various disabled men in the Kilburn area and had been providing voluntary care for this particular caree for some months prior to applying for and being granted Carer Payment for him.
15. He was persuaded that Carer Payment was the more appropriate payment for him. A consideration in making this decision was the fact that he had significant community service commitments at this time and had various court commitments related to offences with which he had been charged. The requirement to search for full-time employment was not compatible at the time with these other commitments all of which were likely to be resolved by February 2006.
16. The applicant described the difficulties that he experienced in caring for the caree. Although disabled with cerebral palsy and other disabilities, Mr C was on the applicant’s account, strong-willed and behaviourally difficult to handle. At times there were tensions between the two men. Nevertheless the applicant had set goals for the caree and achieved a number of them during the time that he was responsible for his care. By the time he vacated the caree’s premises, he had arranged for him to transfer to accommodation in a different area which transfer was pending at the time that the applicant left Garland Avenue. He told the Tribunal that he was active in enabling the caree to establish a relationship with the caree’s family and he had helped him establish a regular and healthy diet. By all accounts the caree had very poor self-management skills and needed training and assistance with diet and hygiene in particular and the applicant was able to assist him in that regard.
17. He left the caree's premises when the caree became involved with third parties who were hiding drugs on the premises at 1 Garland Avenue. The applicant tolerated this behaviour for six weeks, but then decided that he had no choice but to leave the premises and live elsewhere. He could not control the situation and the caree declined to cooperate in having these people stay away from the premises. At the time the applicant was on bail with strict bail conditions. He was also bailed to reside at the Garland Avenue premises. It was also a condition of a suspended sentence that he was serving for earlier offences that he not have any involvement with drugs. He did not wish to breach his suspended sentence and/or his bail conditions and so he moved elsewhere.
18. After leaving Garland Avenue on 8 November 2005, he told the Tribunal that he took the following steps to continue to care for his caree:
·He would attend at the Garland Avenue premises regularly and ensure that the dog had been fed. At no stage did he enter the premises.
·From time to time he would check at the local hotel to ascertain whether the applicant had been having any meals there.
·He would talk with the neighbour and the African people next door to ascertain whether all appeared to be going well at the caree's premises.
·He would leave his car parked at the premises during the day.
·At one stage he stopped at the bus stop to see if the caree needed a lift to work.
·He spoke to the Salvation Army at Kilkenny to see if the caree had been going to work and to ascertain how he was going at work.
19. The applicant described himself as “coming off a serious drug problem” at the time. In the months after he left Garland Avenue he also began to provide care for a second caree (Mr M) and after asking the Department to cancel his Carer Payment for Mr C, he was persuaded to make an application for Carer Payment for Mr M, which application was unsuccessful. The applicant told the Tribunal that when he went to the Department in February 2006 he wanted to apply for Newstart Allowance, but was persuaded to once more apply for Carer Payment. He was angry that he had to unsuccessfully make this application before finally being successful in his application for Newstart Allowance.
20. The applicant is now working as a saw sharpener. He is living from week to week. His rent is $160 per week. He spends $24 per week on medication. He runs a motor vehicle and is required to attend at a chemist three days a week to obtain his medication. He continues to attend drug and alcohol services and it costs him $60 per week to maintain his vehicle. He has regular drug and alcohol counselling. He is paying $50 per fortnight in fines to the Courts, and at the time of the hearing still had $800 left to pay in fines. He suffers from a medical condition of the lungs which requires specialist treatment, and although he has been referred to see a specialist he cannot afford to go because the gap is $90 per visit.
contentions
21. The applicant's contention is that he was providing the appropriate level of care during the period between November 2005 and February 2006 and there should be no overpayment. Alternatively, he contends that there are special circumstances in his case that justify waiver of some or all of the debt.
22. The Department contends that the applicant ceased to provide the requisite level of care to Mr C after he left 1 Garland Avenue that would make him eligible for Carer Payment.
23. The Department further contends that the applicant continued to receive Carer Payment knowing full well that he was not entitled to it. The Department argues that there is therefore no basis on which waiver can be considered.
24. The applicant was a reasonably candid witness. He admitted that he did not really have much direct contact at all with the caree after November 2005. He is distressed and angry at the debt that he now faces. He is just emerging from a period of drug addiction and involvement in offences, and is trying to put his life in order. He is to be commended for the fact that he was willing to voluntarily assist in the rehabilitation of disabled people in the community.
findings of fact
25. The Tribunal finds, as a matter of fact, the matters set out in paragraphs 7 to 10 of this decision. The debt has been correctly calculated.
26. After leaving Mr C's premises in November 2005 the Tribunal is satisfied that the applicant, at the most, maintained a distant and periodic observation of the caree in the manner described in paragraph 18 hereof. He did not enter the Garland Avenue premises again.
27. The Tribunal is satisfied that the applicant had fallen out with the caree at the point that he vacated the premises.
28. The applicant did not notify Centrelink of any issue relating to Carer Payment until 17 February 2006. At that stage he attended Centrelink and specifically stated to them that he had ceased to care for the caree on 8 November 2005.
29. The applicant knew that he had ceased to provide constant care to Mr C on 8 November 2005 and was aware of his obligation to notify Centrelink.
30. The applicant does suffer financial hardship and lives from week to week on his modest income. He has significant costs associated with drug and alcohol counselling, medication and the payment of fines due to the Courts. His employment and his need to physically collect his medication three times a week require him to have a vehicle and the costs of his maintaining a vehicle are significant relative to his income.
31. The applicant has health problems and is recovering from a history of drug and alcohol problems.
consideration and application of the law
32. Section 198 of the Act provides the qualification for Carer Payment. The issue in this case is whether the applicant provided “constant care” for the caree during the overpayment period. The Act also requires that the care be provided in a private residence that is the home of the care receiver or care receivers. The Act does not require that the carer necessarily resides in the same premises as the caree. Nevertheless, for the majority of the time that the applicant was in receipt of Carer Payment, he was residing in the same premises as the caree.
33. The term “constant care” is not defined in the Act. The term has been considered from time to time in the context of other sections of the Social Security Act or in the context of earlier versions of s 198.
34. Those cases on the whole look at the concept of constant care in terms of whether the disabled individual requires constant care. The use of the Adult Disability Assessment Tool in the current legislation has obviated the need for that enquiry by this Tribunal in this case. Nevertheless, comments made in cases about the concept are useful when considering what is meant by constant care in the context of the current piece of legislation.
35. In Re Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419 Senior Member Renouf commented at paragraph 24 as follows:
“ … the Tribunal in Re Reidy (unreported, 1986, No 2817) said that ‘what is required is care which is continually recurring but with some regularity rather than spasmodically. Watchful or preventative care may be part of the care and attention which recurs and may give it the character of being constant’. In a subsequent case, Re James (1986) 11 ALD 273, when the words ‘constant help and attendance’ in the Compensation (Commonwealth Government Employees) Act 1971 were being interpreted, the Tribunal said: ‘It is obviously contemplated that the affected person requires significant assistance every day. This should be contrasted with the notion of regular or routine assistance.’”
36. The Department has also provided policy guidelines in The Guide to Social Security Law to assist decision-makers in determining what constant care is. Ch 1.1.C.310 of the Guide to Social Security Law states:
“A carer is said to provide constant care if they personally provide care on a daily basis for a ‘significant period’ during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing Carer Payment is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities.”
37. The applicant did not provide a level of care to Mr C after 8 November 2005 that could be termed a “significant” period of care each day. His care amounted, at the most, to observation at a distance. It was not even preventative or watchful care. On most days, he did not see Mr C. Further, there was no care at all provided in the premises of the caree after 8 November 2005. Enquiries from third parties about the welfare of Mr C, or checking to see if his dog had been fed, cannot be termed “constant care” within the meaning of the Act.
38. The policy guideline, although not binding on this Tribunal, really just elaborates on what the cases say which is that “constant care “ requires something more than episodic or spasmodic care and requires a significant degree of daily care for the individual involved.
39. On the applicant’s own admission to the Department in February 2006, he had not been caring for the caree since he left the Garland Avenue premises in November 2005. Once he left the premises, the applicant was not involved at all in the day-to-day care of Mr C. It appears that there was tension between the two men by the time the applicant left the premises, and it is likely that the applicant may not have been welcome back in any event. The applicant did not satisfy the criteria for payment of Carer Payment during the overpayment period.
40. The Tribunal is satisfied that there was an overpayment in this case. The Tribunal finds, on the balance of probabilities, that the applicant knew, or at the least had a very strong suspicion, that he was not entitled to receive that payment after he left the premises and that he should have reported to the Department at that point that he was no longer caring for Mr C.
41. He may have been confused as to what to do prior to his legal issues being resolved in February 2006. He knew he would struggle to be able to satisfy Newstart Allowance requirements prior to February 2006. It was convenient to remain on the Carer Payment and he endeavoured to make a minor effort to continue to observe Mr C in the next month or two after he left Garland Avenue. In the circumstances, there is no basis on which s 1237AAD of the Act can apply as the debt arose from the applicant knowingly failing to comply with a provision of the Act, ie the requirement that a change of circumstances be notified to the Department within 14 days. Waiver is not applicable in this case.
42. Nevertheless, the Tribunal is satisfied that write-off is appropriate in this case in that at this stage the debtor still has no capacity to repay the debt. He is paying off fines that would take him a further period of 32 weeks to pay off from the date of the Tribunal hearing in January 2007. He was repaying an old Social Security debt at a rate of $35 per fortnight at the time of the SSAT hearing. The SSAT considered that debt should be repaid in about six months time and this was one of the reasons for deferring repayment of the debt. It appears that Centrelink ceased withdrawing that fortnightly repayment pending the decision by this Tribunal and so a large part of that debt remains.
43. The Tribunal affirms the decision under review, but writes off recovery of the debt until 1 April 2008. This gives the applicant another year in which to organise his finances, pay off his fines and get his finances on to a more solid footing. The write-off applies to this debt only and the applicant should negotiate with the Department to continue repayments on the old debt so that his fines and his old debts have been repaid by the time recovery on this debt commences.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard.........................................
AssociateDate of Hearing 15 January 2007
Date of Decision 20 March 2007
Advocate for the Applicant In person
Solicitor for the Respondent Ms C Knight (DLA Phillips Fox)
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