Riley; Secretary, Department of Employment and Workplace Relations

[2006] AATA 977

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 977

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/288

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And KRISTINE RILEY

Respondent

DECISION

Tribunal Senior Member B McCabe
Dr M Denovan, Member

Date20 November 2006  

PlaceBrisbane

Decision The decision under review is set aside. The Tribunal decides in substitution that Ms Riley owes a debt of parenting payment in the amount of $4912.43 in relation to the period 24 November 2003 to 24 June 2004. The Tribunal further decides the debt may be recovered from the respondent.

…………………………………

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – parenting payment – debt raised - cancelled respondent’s parenting payment – qualification requirements for parenting payment - debt can be waived - special circumstances - parenting payment children - decision under review is set aside.

Social Security Act 1991

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re Beadle and Director-General, Department of Social Security (1984) 6 ALD

REASONS FOR DECISION

20 November 2006	Senior Member B McCabe Dr M Denovan, Member
introduction

1.The Social Security Appeals Tribunal (SSAT) decided Ms Kristine Riley was entitled to receive parenting payment in respect of her two children for the period 24 November 2003 to 30 June 2004. In doing so, the SSAT concluded that a debt in the amount of $4912.43 should not have been raised against the respondent. The Secretary has asked this Tribunal to reconsider the decision.

issues

2.We have been asked to consider whether a debt should have been raised against the applicant. That will depend on whether or not the applicant was able to meet the criteria in the Social Security Act 1991 (the Act) governing parenting payments during the relevant period. If the applicant was not eligible to receive the payments and the debt was properly raised, a further question arises as to whether or not the debt ought to be waived.

history

3.Ms Riley applied for parenting payment on 11 April 2003 about a month after she split from her former partner. The application was accepted on 17 April 2003 and payments commenced. Centrelink subsequently received information from Mr Ryan (her former partner) in connection with his application for family tax benefit. In the course of its dealings with Mr Ryan, it was supplied with a copy of a Family Court order. The order contemplated Ms Riley having care of the children for 24% of the time. Centrelink cancelled the respondent’s parenting payment on 11 February 2005. It also decided the children were no longer parenting payment children of Ms Riley for the purposes of the Act as of 24 November 2003.

4.On 29 November 2005 Centrelink decided to raise a debt in the amount of $4912.43 in respect of payments made during the period 24 November 2003 to 24 June 2004. Centrelink did not raise a debt in respect of the period 25 June 2004 through 28 January 2004 because it received advice about the shared care arrangements in June 2004 and took no action until February 2005.

5.The SSAT subsequently found Ms Riley had 29% care of the children during the period in question. It also concluded Ms Riley was entitled to parenting payment during that period. Centelink’s decision was set aside.

6.The Secretary now accepts Ms Riley had 29% of the total care of the children for the period in question. Ms Riley also accepts that figure. The debate is in relation to the technical question of whether or not she meets the criteria in the Act.

did ms riley meet the eligibility criteria for parenting payment during the relevant period?

7.The qualification requirements for parenting payment are set out in Part 2.10 of the Act. In particular s 500(1)(a) requires that a person must have at least one ‘PP child’ in order to qualify for parenting payment. The definition of a ‘PP child’ is found in Sections 500D and 500E of the Act. (We note those provisions have subsequently been amended.)

8.Section 500D(1) provided that a PP child is one who is a dependant child of the person who has not turned 16. A dependant child is defined in subsection 5(2) of the Act. That section says a child is a dependant of an adult person if that 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”.

9.The Secretary argued the respondent could not possibly satisfy the definition in circumstances where the children were only with her 29% of the time. The Centrelink advocate referred us to a number of authorities on this point. As it happens, we do not think they are relevant.

10.The wording in the consent orders, which the Secretary has relied upon to cancel Ms Riley’s parenting payment, resolve this aspect of the dispute in the respondent’s favour. They make it clear she had a legal responsibility for the children. Section 500D of the Act is satisfied.

11.That is not enough, however, for Ms Riley to meet the qualification for parenting payment. The children were also dependant children of Mr Ryan during the relevant period, as they were in his care for approximately 71% of the time. During that period, the consent orders said Mr Ryan was legally responsible for the day to day care, welfare and development of the children.

12.Section 500E provided a child could only be a PP child of one person at any time. Where the Secretary is satisfied a child could be a PP child of two or more adults, the Secretary must make a determination specifying one of the adults as the person in relation to whom the child is to be a ‘PP child’.

13.Centrelink originally determined the children were parenting payment children of Ms Riley. It changed its mind after seeing the consent orders.

14.The Guide to the Social Security Law provides assistance for decision makers in matters such as this. Paragraph 3.5.1.50 of the guide provides guidance to the application of section 500(E). It suggests the decision-maker should have regard to all the circumstances but emphasises the importance of considering the amount of time the children actually spend in the care of each parent.

15.The Respondent contends the children should be regarded as her PP children as her need was greater than Mr Ryan. We were told Ms Riley’s income in the relevant period was approximately $400 per week. Her husband’s income in the same period was $2008 per week.

16.We prefer the approach evident in the Guide. Mr James spends a great deal more time caring for the children. It may be that he is able to do so because of his superior financial position, but we think that is ultimately irrelevant to the application of the criteria. It follows we accept the children were not PP children of Ms Riley during the relevant period. She did not meet the qualifications for parenting payment during the relevant period. The amount of overpayment is therefore a debt due to the Commonwealth pursuant to section 1223 of the Act.

should the debt be waived?

17.The right to recover a debt can be waived in some circumstances. Relevantly, the debt can be waived if it arose solely due to administrative error on the part of the Commonwealth (s1237A), or where there are special circumstances (s1237AAD).

18.The debt is not attributable to administrative error. The error arose because Centrelink was not advised of the true situation. That is not to say we think Ms Riley failed to tell the truth: she said she was operating under a misunderstanding as to what the consent orders said. She said that misunderstanding was engendered by what her solicitor had told her. We accept she was acting in good faith, but that does not change the fact it was not Centrelink’s fault. It follows s 1237A does not assist the respondent.

19.The waiver provisions in section 1237AAD are not available where the debt arose partly or wholly due to the debtor or other person knowingly making a false statement or knowingly failing to comply with the provisions of the Act. We accept that is not the case here. But are there special circumstances that would justify the exercise of the discretion in this case?

20.The term special circumstances is not defined in the Act but it is accepted that it means ‘unusual, uncommon or exceptional’: Re Beadle and Director-General, Department of Social Security (1984) 6 ALD 1 at 4. For special circumstances to apply the case must be markedly different from the usual run of cases: see Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545.

21.Ms Riley is clearly in difficult financial circumstances although she is currently employed and has approximately 50% equity in her home. She says there are weeks when she is unable to afford to pay for some necessities. She always ensures the children have enough to eat. She owes some money on a credit card. Her position in this respect is not that different from other welfare recipients.

22.The other mater which may be relevant to a discussion of special circumstances is the claim that the original misunderstanding arose as a result of bad advice from a solicitor about the effect of the consent orders. We accept a document of this nature might present difficulties to a lay person. We note there was no other evidence suggesting the solicitor was negligent or otherwise failed in his or her duty to keep the respondent informed. Given the case was conducted on the basis that the consent orders merely reflected the reality of the situation, we do not think this factor carries a great deal of weight.

23.We are not satisfied Ms Riley is able to make out a claim for special circumstances.

conclusion

24.The decision under review is set aside. We find in substitution that Ms Riley owes a debt in the amount of $4912.43 in relation to overpayments of parenting payment during the period 24 November 2003 to 24 June 2004.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr M Denovan, Member.

Signed:         
           …………………………………………………………

Associate      Adam Ryan

Date/s of Hearing  7 September 2006
Date of Decision  20 November 2006
For the Applicant  Mr R McQuinlan, Departmental Advocate
For the Respondent                  Mr P Cousins, Legal Officer