Reading and Secretary, Department of Social Services (Social services second review)

[2015] AATA 915

Reading and Secretary, Department of Social Services (Social services second review) [2015] AATA 915 (27 November 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2692
Re	David Reading
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Chloe Grima
OTHER PARTY

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	27 November 2015
Place	Sydney

The decision under review is set aside.  The Tribunal substitutes for the decision under review Centrelink’s 5 April 2014 decision to raise and recover from Ms Grima debts relating to $1,030.18 overpaid for baby bonus between 17 December 2013 and 25 February 2014 and $382.47 overpaid for family tax benefit between 6 December 2013 and 4 February 2014.

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

Social security – debts and overpayments – family tax benefit – baby bonus – changed care arrangement – qualifying period – decision under review set aside

LEGISLATION

A New Tax System (Family Assistance) Act 1999 ss 21, 23, 36

A New Tax System (Family Assistance) (Administration) Act 1999 ss 71, 102

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

27 November 2015

1. Mr Reading and Ms Grima have a two year old son.  Until early December 2013 they shared responsibility for his care.  For about the next two months, between until about 6 February 2014, they disagreed about the care arrangements.  During that time, Mr Reading had the main care responsibility.

2. As a result of that change in, and disagreement about, their respective care activities Centrelink decided Ms Grima had been overpaid Family Tax Benefit ($382.47) and baby bonus ($1,030.18), and raised corresponding debts against her.  That decision was affirmed on internal review (on 5 April 2014) but subsequently set aside by the Social Security Appeals Tribunal (SSAT) in its 26 February 2015 decision.

3. The SSAT decision accepted the fact of the changed care responsibility, but found that it had occurred without Ms Grima’s consent.  In such a situation a child may still be a person’s “FTB child” during a “qualifying period” - having regard to the specific provisions in A New Tax System (Family Assistance) Act 1999 (“FAAct”) s 23. A child’s status as a persons FTB child” is a precondition to eligibility for both family tax benefit and baby bonus: see FAAct s 21(1)(a) & s 36(2)(aa) (prior to 1 March 2014).

4. The “qualifying period” has to be determined in accordance with the alternative criteria set out in FAAct s 23(5). The start of such a period is uncontroversial. It occurs when the child leaves the person’s physical care. Where that person is the child’s parent, the end of the period may depend on (i) whether the child has gone into the care of another parent, and (ii) whether a “family law order, registered parenting plan or parenting plan” was in force in relation to the child: see FAAct s 23(5). If only the former contingency applies, the “qualifying period” ends when the child goes into the care of the other parent.

5. In the present matter the SSAT proceeded on the basis it was uncontentious that Mr Reading had the care of his son during the two month period from December to February 2014.  (Thus contingency (i) applied.)  It was also uncontentious that the care agreement Ms Grima and Mr Reading reached on 6 February 2014 (temporarily resolving proceedings that Ms Grima had recently commenced) was the only occasion when they were parties to a written agreement, or were subject to any court order, relating to their son’s care.  (Thus contingency (ii) did not apply.)

6. Ms Grima has taken no part in the current review proceedings.  She did not attend the present hearing.  The Tribunal’s hearing assistant telephoned her on three occasions during the present hearing.  On each occasion the call went to her voicemail recorded message.  She did not respond to any of the calls.  At no stage has she provided any information to contradict the details recited in the previous paragraph.  On the other hand, Mr Reading confirmed their accuracy.

7. In those circumstances, during the contentious care period (from early December 2013 to 6 February 2014) Mr Reading had the relevant care responsibility and there was no “family law order, registered parenting plan or parenting plan” in force.  (A parenting plan must be in writing:  see the definition in FAAct s 3(1), its reference to terms defined in the Family Law Act 1975, and the definition in ss 4 & 64C of the Family Law Act 1975.)  The consequence of these circumstances is that the relevant “qualifying period” (for Ms Grima to be regarded as having an FTB child) started when her son left her care, but ended when he went into Mr Reading’s care.  These two events were, for all practical purposes, simultaneous.  Accordingly, there was no material “qualifying period” during which Ms Grima had an “FTB child.  She was consequently overpaid both family tax benefit and baby bonus – as Centrelink had previously determined.

8. Overpayments of that kind constitute debts to the Commonwealth:  see A New Tax System (Family Assistance) (Administration) Act 1999 (“FAAdminAct”) s 71. The Secretary has a discretion to waive the recovery of such debts.  But the Secretary can only do so in the limited circumstances detailed in FAAdminAct ss 96 to 102.  The only one of those provisions potentially relevant to the present matter is the general power to waive debt recovery in “special circumstances (other than financial hardship alone)”:  see FAAdminAct s 102.

9. Ms Grima’s non-participation in the review process resulted in her providing no information pointing to either “special circumstances” or the desirability of waiving the debts in question.  Nor was there anything in the material submitted by the Secretary or Mr Reading that pointed to either of those matters.

10. The decision under review is set aside. The Tribunal substitutes for the decision under review Centrelink’s 5 April 2014 decision to raise and recover from Ms Grima debts relating to $1,030.18 overpaid for baby bonus between 17 December 2013 and 25 February 2014 and $382.47 overpaid for family tax benefit between 6 December 2013 and 4 February 2014.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

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

Associate

Dated 27 November 2015

Date(s) of hearing	9 November 2015
Applicant	By phone
Solicitors for the Respondent	Mr S Davidson, Department of Human Services (by phone)
Other Party	No appearance