Roger Campbell v Secretary, Department of Families, Community Services and Indigenous Affairs and Ricky Smith Third Party
[2007] AATA 58
•14 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 58
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/89
GENERAL ADMINISTRATIVE DIVISION ) Re
ROGER CAMPBELL
Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
RICKY SMITH
Third Party
DECISION
Tribunal Senior Member L Hastwell Date14 February 2007
PlaceAdelaide
Decision The Tribunal sets aside the decision under review insofar that the SSAT waived only a portion of the debt and waives the entire remaining debt on the basis of a finding that there are special circumstances in this case.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit – Parenting Payment Single – child placed in the applicant’s care with condition of placement that child not reside with named third-party – child left applicant’s home – applicant remained legally responsible for child – reasonable efforts made by applicant to restore child to his care – named third party granted lump sum back payment of allowances for child – applicant disputes bona fides of third party claim – meaning of “care” – period of overpayment determined – debt due to the Commonwealth – no administrative error – payments received in good faith – special circumstances – applicant notified change of circumstances to State authority responsible for placement of child in his care – no follow up or support from State authority – conflict within aboriginal community caused by Department’s failure to make proper enquiries as to whether third party genuinely caring for child during period of overpayment – humiliation and distress to applicant – exceptional and unusual circumstances – financial hardship – decision set aside
A New Tax System (Family Assistance) Act 1999 ss 22, 23
A New Tax System (Family Assistance) (Administration) Act 1999
Social Security Act 1991 ss 5(2), 500(1), 500D(1), 1223(1), 1236(1A), 1237A, 1237AADSocial Security (Administration) Act 1999
Family Assistance Guide s 1.1.C.90
Re Secretary, Department of Family and Community Services and Barrett (1999) 29 AAR 131
Re Beadle and Director-General of Social Security 6 ALD 1
REASONS FOR DECISION
14 February 2007 Senior Member L Hastwell 1. Mr Roger Campbell (the applicant) is the grandfather of Ronnie Dale Yates (Dale). Dale came to Adelaide to reside with the applicant in August 2004. Dale was a juvenile who had been convicted of offences in the Northern Territory. He was on a good behaviour bond and came to Adelaide at the direction of the Minister for Correctional Services in the Northern Territory. The applicant agreed to allow Dale to live with him in Adelaide while he attended school in Adelaide. The applicant was granted Family Tax Benefit (FTB) and Parenting Payment Single (PPS) from the time that Dale came into his care.
2. A third party, Mr Ricky Smith (Smith), claimed Dale as a dependent child for FTB purposes in October 2005. The respondent (the Department) then determined that there had been an overpayment of FTB and PPS to the applicant between 25 March 2005 and 10 October 2005 on the basis of a finding that Dale had not been in the care of the applicant during those dates.
3. Upon review, the Social Security Appeals Tribunal (the SSAT) set aside that decision on 27 March 2006 and remitted the matter back to the Department to recalculate the debt on the basis of the following findings:
·the overpayment period for FTB was from 15 August 2005 until 10 October 2005;
·the overpayment period for PPS was from 3 May 2005 until 3 October 2005; and
·half of the debt resulting from the overpayment of PPS should be waived on the basis of special circumstances.
4. The applicant seeks a review of the SSAT decision to this Tribunal.
relevant legislation
5. The relevant legislation is found in the A New Tax System (Family Assistance) Act 1999 (the FA Act), the A New Tax System (Family Assistance) (Administration) Act 1999 (the FA Administration Act), the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
6. Eligibility for FTB for a child at any given point in time is dependent on whether the child is a FTB child. Section 22 of the FA Act provides as follows:
“22(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 18
(2) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and
(c) the individual is in the adult’s care; and
(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.”
7. Section 23 of the FA Act provides as follows:
“23(1) This section applies if:
(a)an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3) (including that subsection in its application by virtue of subsection 22(7)); and
(b)an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and
(c)the adult takes reasonable steps to have the child again in the adult’s care.
(2)The child is an FTB child of the adult for that part of the qualifying period (see subsection (5)) for which the child would have been an FTB child of the adult under subsection 22(2) or (3) (including that subsection in its application by virtue of subsection 22(7)) if the child had not ceased to be in the adult’s care.
(4)Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period.
Definition of qualifying period
(5) In this section:
qualifying period means the period beginning when the child ceases to be in the adult’s care and ending at the earliest of the following times:
(a)if the child again comes into the adult’s care at a later time—that later time;
(b) after 14 weeks pass since the child ceased to be in the adult’s care;
(c) if:
(i) the adult is a parent of the child; and
(ii)no family law order or registered parenting plan is in force in relation to the child; and
(iii) the child comes into the care of the other parent at a later time;
that later time.”
8. The qualification for PPS is contained in the Act. Section 500(1) of the Act provides as follows:
“500(1)A person is qualified for parenting payment if:
(a)the person has at least one PP child (see sections 500D and 500F to 500H); and
(b) the person is an Australian resident; and
(c)in a case where the person is not a member of a couple and does not have at least one PP child who has not turned 6—the person meets any participation requirements that apply to the person under section 500A; and
(d) at least one of the following conditions is satisfied:
(i)the person is not a member of a couple and the person was not a lone parent at the start of the person’s current period as an Australian resident;
(ii)the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;
(iii)the person has a qualifying residence exemption for parenting payment.”
9. Section 500D(1) of the Act provides:
“500D(1)A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is a member of a couple; and
(c) the child has not turned 6; and
(d) the person is the principal carer of the child.”
10. The definition of a “dependent child” is contained in s 5(2) of the Act as follows:
“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.”
11. Under s 1223(1) of the Act the overpayment becomes a recoverable debt. Section 1223(1) 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.”
12. If a debt does arise, then write-off or waiver can apply in certain circumstances. Section 1237AAD of the Act provides for waiver of a debt in special circumstances:
“1237AADThe 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.”
13. Section 1236(1A) of the Act provides for write-off of a debt or part of a debt in some instances:
“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
14. It is common ground that the applicant had legal responsibility for Dale during the relevant period. Dale is an Australian citizen and he was under the age of 18 years at all relevant times. If an overpayment has occurred, then it is a debt due to the Commonwealth. No challenge is made to the calculation of the overpayment.
15. The issues for the Tribunal to determine in this case are:
·Was Dale in the care of the applicant during some or all of the relevant period, and if so, for what period was Dale in the applicant’s care?
·If Dale was not in the care of the applicant during some or all of the relevant period, what overpayments have occurred as a result of the ongoing payment of PPS and FTB to the applicant during those times?
·If an overpayment has occurred then are there special circumstances that may give rise to a waiver or write-off of some or all of the debt?
the hearing
16. The applicant represented himself at the hearing. The Department called a number of witnesses. The T documents were received into evidence as were some exhibits. After the hearing was complete, the Warriappendi School sent the 2005 attendance records for Dale to the Tribunal. These records were sighted by all parties and accepted as Exhibit A4.
17. Smith was joined as a third party to the proceedings as he was deemed to be an interested person. There was the potential for the Department to raise an overpayment against Smith if the applicant were successful in his application for review. The Tribunal had previously had telephone and letter contact with Smith and was satisfied that Smith was aware of the time and date of the hearing and of the potential consequences for him if he chose not to participate in the hearing. The Tribunal proceeded in the absence of Smith who did not appear.
18. The applicant told the Tribunal that Dale is one of his grandchildren and at the request of the Department of Correctional Services in the Northern Territory he agreed to take legal responsibility for Dale and allow Dale to live with him in Adelaide while he was attending school in Adelaide. Prior to that he had another of his grandchildren, Nathan, in his care.
19. Dale was, and by all accounts still is, a difficult teenager. He had been convicted as a juvenile in the Northern Territory for a number of criminal offences and it was decided by his family and by the authorities in the Northern Territory that it was in Dale’s best interests that he leave Alice Springs and spend some time in Adelaide in the care of the applicant. It would appear that neither of Dale’s natural parents has much, if any, involvement with him.
20. Dale first came into the applicant’s care in August 2004 when he travelled from Alice Springs to Adelaide and commenced residing with the applicant. The applicant was hopeful that Dale would settle down in his care and get on with his education.
21. Dale was enrolled in Warriappendi School in Adelaide. Over the next few months Dale came in contact with Smith who had children at the same school, and he also met the applicant’s niece, Simone. It was the applicant's strongly held view that Smith was a bad influence on Dale, as was Simone.
22. On the applicant’s account, Dale’s behaviour was difficult to manage from the outset. He soon began to steal and he fell in with a disreputable group. In February 2005, he was charged jointly with Simone with aggravated robbery and appeared before the Youth Court in Adelaide. He was granted bail with a condition of bail being that he not associate with Smith and that he reside at the applicant’s property.
23. On 16 February 2005 Dale signed his agreement to a direction issued on that day by the Northern Territory Correctional Services (T7/38) that he would live with the applicant and not associate with Smith. The applicant counter-signed this document.
24. The applicant acknowledged that despite his best efforts to manage Dale in the ensuing months he was not successful. Dale was charged with breach of his bail agreement in April 2005 and he signed a further bail agreement in relation to that particular charge (T18/64) that required him to remain in secure care until returned to the applicant’s home. Shortly after that, Dale went on an Operation Flinders exercise. He was still residing with the applicant at that time and at the end of the programme he was delivered back to the applicant’s home. He returned from Operation Flinders in late April 2005.
25. Upon his return from Operation Flinders, Dale became increasingly uncontrollable. By May 2005 Dale was regularly running away from the applicant's home and staying wherever he chose. Dale would escape through a window at night or not come home after school.
26. The applicant tried nailing Dale's bedroom windows shut to prevent him running away, but this was not successful and Dale would escape. Dale was incorrigible and he continued to stay wherever he pleased. The applicant estimates that in June 2005, Dale returned to the applicant’s home two to three times during the month, but Dale would do as he pleased. One of the several places that he would stay was at Smith's home. After June 2005, the applicant saw very little of Dale and Dale no longer stayed at his home.
27. The applicant was convinced that when Dale was at Smith's home he was exposed to marijuana and alcohol. The applicant acknowledged that Dale did stay at Smith's home from time to time between June and October despite the applicant’s efforts to stop this happening, but Dale also stayed with his aunt Merva, with a person called Denise, and with other members of the Aboriginal community. Dale lived between the homes of various members of the Aboriginal community between the time that he left the applicant's home in early May 2005 until he was involved in a serious accident in October 2005 and after a period of hospitalisation returned to Alice Springs.
28. The applicant approached the Marion office of Child, Youth and Family Services (CYFS) for assistance on several occasions from June 2005 onwards. When Dale came to Adelaide a worker from CYFS was the applicant's point of contact for assistance. Initially he found them to be quite helpful. However, once Dale became problematic and itinerant, then, on the applicant’s account, they did nothing to assist him and eventually told him that Dale had “fallen through the system”. By July 2005, CYFS were not bothering to return his calls.
29. He asked the Warriappendi School bus driver (Geoff Roach) to ensure that Dale was returned to his home after school, but the driver was unable to force Dale to get off the bus in a particular spot.
30. The applicant made arrangements for Dale to be legally represented at a court appearance in June 2005 and followed up with the school to ensure that Dale was at court that day. The applicant did not personally attend court.
31. The applicant visited places where he thought he may find Dale, and ascertained that Dale was living between a number of homes of members of the Aboriginal community, including, but not limited to, Smith’s home. He was unhappy about the child associating with Smith as this was in direct contravention to Dale's terms of bail and the agreement with the Northern Territory Correctional Services.
32. In October 2005 whilst still living at the homes of other people and having little or no contact with the applicant, Dale was seriously injured in a motor vehicle accident. After spending a number of weeks in the Royal Adelaide Hospital recovering from his injuries, he was returned to Alice Springs to reside with his grandmother. Dale is now in a juvenile detention centre in the Northern Territory. The applicant remains deeply concerned about his grandson's future.
33. It was evident to the Tribunal that the experience of caring for Dale had been difficult for the applicant. He told the Tribunal that under customary Aboriginal law he was responsible for the child and had the child been killed in the car accident, any customary law payback would have been to the applicant and not to Smith. The applicant also felt that he had been punished by agreeing to take responsibility for Dale.
34. The applicant was angry that the Department had made no attempt to verify with him whether the child was indeed in Smith's care and they had accepted the word of third parties who, he claimed, did not provide accurate information to the Department. He claimed that Smith had immediately purchased a motor vehicle with the back payment of allowances that he received from the Department. The applicant’s view was that Smith was not entitled to the payment and had misled the Department.
35. The applicant is a recipient of Newstart Allowance. He is an Aboriginal man of 50 years of age who resides in Housing Trust accommodation. His adult son and his son's girlfriend are currently residing with him while his son undertakes an apprenticeship. The applicant is currently repaying a fine at the rate of $20 per week. He was unsure as to when he would complete paying off that fine. He has no savings. He does not own a motor vehicle and he does not drive. He barely manages on his modest income from week to week.
other witnesses
36. At the applicant's request the Department arranged to call four witnesses, Mr Geoff Roach, the school bus driver, Ms Josephine Judge-Rigney, an Aboriginal Education Worker, Mr Chris Branwood, the principal of Dale's school, and Ms Mandy Agius, a school retention worker.
37. Mr Branwood confirmed that it was probably around mid-May 2005 that Dale became itinerant thereafter residing at several houses, including, but not limited to, Smith's house. He knew of him also residing at premises at Murray Street, Chapman Road and Short Street. He said that there was a period when Dale was doing quite well at school while in the applicant's care, but that Dale's behaviour deteriorated markedly after he left the applicant's care in approximately May 2005.
38. Ms Judge-Rigney, an Aboriginal Education Worker, gave evidence that she would sometimes collect Dale in the mornings for the purposes of taking him to school during 2005. One of her duties is to collect truant children and take them to school. She recalls there was a time when Dale did not want to go back to the applicant's home and she would find him at Merva’s on occasions and sometimes at Smith's home at Mansfield Park. Her recall is that for at least some of 2005 she would collect Dale at the Smith's home in the morning on perhaps one occasion per week and take him to school. She had provided a letter of support (T12) at Smith's request so that he could obtain benefits.
39. Mr Roach, the school bus driver, told the Tribunal that although he had been asked by the applicant to ensure that Dale was dropped off at the applicant’s home after school, he had no control over where Dale got off the bus. His recall was that for approximately three weeks after Dale returned from Operation Flinders (late April 2005) he was returning to the applicant's home after school. Thereafter, he got off the bus at different locations. He could recall six different addresses where he either collected or delivered Dale on days when Dale went to school. Smith's was one of these addresses. Dale also frequently got off the bus at the Parks Centre so that he could play with friends.
40. Ms Agius is a school retention worker. She commenced in that position in late March 2005. She also provided a letter of support for Smith in his application for benefits for Dale (T13). Her evidence was brief. She claimed to have seen Dale at Smith's home on numerous occasions. She had never met the applicant before.
consideration
41. The applicant gave his evidence in a straightforward manner and the Tribunal accepts his account of what occurred between May and October 2005. He agreed that Dale was no longer physically living with him after around early May 2005. Nevertheless, his understanding was that his legal responsibility for Dale was an overriding issue that justified him retaining the benefits he received. He is angry that the Department provided a substantial back payment to Smith of FTB and PPS without ever checking the facts with him.
42. He considers that Smith deceived the Department to obtain the funds to purchase a vehicle. He is angry with the State authorities that failed to provide any guidance or assistance to him when he asked for their help, despite them having originally placed this very difficult teenager in his care.
43. The applicant submits that he is in no position to repay any debt to the Department because of his poor financial position. He is distressed, bitter and humiliated at what he has been put through by the Department in raising an overpayment against him and providing a lump sum payment to Smith. He feels let down by authorities, and in particular by the State authorities who declined to provide him with any assistance when he needed it.
44. The Tribunal formed the view that neither Ms Judge-Rigney nor Ms Agius had any idea where Dale was living in 2005. They both had occasional contact with the Dale at the Smith's household in the latter half of 2005, but certainly not sufficient contact for either of them to have formed the views that they expressed in their letters of support to the Department as contained at T12 and T13.
45. The principal of Dale’s school and the bus driver were both clear in their evidence that until some weeks after his return from Operation Flinders, Dale was residing at the applicant's home. The Tribunal accepts this evidence. This takes the period of the applicant's care of Dale to early May 2005. It is the Tribunal's view that Ms Agius and Ms Judge-Rigney have wrongly advised the Department that as early as March 2005 Dale was residing with Smith. They each provided Smith with a letter of support. Neither had independent knowledge of the facts asserted in their letters.
46. Based on all the evidence, Ms Agius could not honestly assert that Dale was picked up and dropped off by the school bus at Smith's home every day since March 2005. Quite apart from Mr Roach's evidence, the record of Dale’s absenteeism from May onwards speaks for itself. Similarly, Ms Judge-Rigney did not have the information required to make the assertion that she did to the Department.
47. It is unfortunate that the Department do not appear to have checked their facts more thoroughly before granting the claim made by Smith.
findings of fact
48. The Tribunal makes the following findings of fact:
·Dale was living with the applicant until at least early May 2005.
·During the entire period for which an overpayment has been raised, the applicant had legal responsibility for Dale pursuant to an agreement that had been entered into between himself and the Northern Territory Correctional Services.
·Dale proved to be quite uncontrollable and from early to mid May 2005 onwards he became itinerant, residing at the homes of different members of the Aboriginal community until such time as he was involved in a motor vehicle accident in October 2005 and hospitalised.
·From May to August 2005 the applicant made efforts to have Dale returned to his care including contacting State authorities, contacting the child's school and contacting other members of the Aboriginal community. He was provided with no assistance and was unable to persuade Dale to return to live with him.
·The applicant has no excess savings. He lives on his Centrelink benefits from week to week and he is currently paying off a fine at the rate of $20 per week. The Tribunal had no evidence as to when he will complete paying off that fine.
application of the law
49. Sections 22(2)(a) and (b) of the FA Act are satisfied in that the Dale was under 18 years of age at all relevant times and the applicant had legal responsibility for him pursuant to a delegation by the Minister for Correctional Services in the Northern Territory.
50. The issue that remains for consideration is whether Dale was in the care of the applicant in any sense of the word after 3 May 2005.
51. “Care” is not defined in the legislation. The Family Assistance Guide provides some guidelines to the decision-maker as to the meaning of the concept of “care”. At s 1.1.C.90 it refers to “care” as being “physical care”, and includes mental, moral and emotional support including love, comfort and discipline. It gives examples of day-to-day care as including:
·having major daily responsibility for caring for the child and making the major decisions;
·bearing the costs of the child's daily care;
·looking after the child's daily needs;
·making arrangements for the daily needs and appointments for the child; and
·being the main person for the crèche, school, or college to contact in emergencies.
52. In Re Secretary, Department of Family and Community Services and Barrett (1999) 29 AAR 131, Deputy President Forgie reviewed the relevant authorities in relation to the issue of the determining when someone was in another person's care. She made the point that the issue of whether someone is in another individual's care must be considered on the basis of “what is rather than on the basis of what should be”. The day-to-day reality of who is caring for the child is what must be considered by the Tribunal, save for cases where there has been a delegation of care, for instance to a boarding school.
53. This is not a case where there has been a delegation of the care of Dale to a third party which delegation could be recalled by the applicant. The applicant, on his own account, lost control of Dale and was unable to recall him into his care or exercise any control over him after May 2005. It appears that Dale was not in the control of any one adult in particular over the ensuing months. He resided where he pleased and at a number of homes of members of the Aboriginal community.
54. Dale ceased to be a dependent child of the applicant for the purposes of FTB in early May 2005 in that he was no longer in his care after that time.
55. Section 23(1)(c) of the FA Act provides for the caregiver’s entitlement to continue for another 14 weeks when the dependent child ceases to be in an individual's care without the individual's consent and that person takes reasonable steps to have the child returned to their care.
56. The applicant made efforts to have Dale returned to his care during June and July of that year. He contacted State authorities, he spoke to the school, and he asked the school bus driver to ensure that Dale embarked at his home after school each day. He went to the homes of members of the Aboriginal community and sought assistance in having Dale returned to live with him. It is the Tribunal's view that the steps taken by him were reasonable.
57. The Tribunal agrees with the decision of the SSAT that the period of overpayment did not commence until 14 weeks after Dale left the applicant's care, being 15 August 2005.
58. No such window of ongoing entitlement exists with respect to PPS. For a person to be eligible for PPS with respect to a child, that child must be inter alia “in the adult’s care” or “wholly or substantially in the adult’s care”. Based on the Tribunal's finding that Dale ceased to be in the applicant's care as of 3 May 2005, the applicant's entitlement to PPS ceased as of that date.
59. The Tribunal affirms the decision of the Social Security Appeals Tribunal with respect to the overpayment periods. The overpayment period with respect to FTB is between 15 August 2005 and 10 October 2005 and the overpayment period with respect to PPS is from 3 May 2005 until 3 October 2005. The overpayment must be recalculated by the Department accordingly.
60. The overpayments are a debt due by the applicant to the Commonwealth pursuant to s 1223(1) of the Act.
61. The Tribunal must then consider whether there is any basis on which the Tribunal can write-off or waive the debt owed by the applicant.
62. Section 1237A(1) of the Act allows for waiver of recovery of the debt or a proportion of the debt where the debt or a proportion of it was attributable solely to administrative error on the part of the Commonwealth and was received by the debtor in good faith.
63. There is no evidence in this case, nor is it contended by the applicant, that any of the overpayment was caused solely by Centrelink error and so there is no basis for waiver of recovery under that provision.
64. Section 1237AAD of the Act allows for waiver of some or all of the debt where special circumstances are established and the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation or failing or omitting to comply with a provision of the Act. The special circumstances must be “other than financial hardship alone” (s 1237AAD(b)).
65. The Tribunal accepts the findings of the SSAT in this regard. There is no contention by the Department that there has been bad faith on the part of the applicant. The applicant considered that he was the person responsible for Dale at all relevant times. He notified the State authorities (CYFS) of the problems he was experiencing when Dale left his care. His understanding was that they were the delegate of the Northern Territory Department of Correctional Services and would help him in the event of him having difficulties with Dale. Unfortunately no assistance was provided.
66. The applicant is from an Aboriginal cultural background where shared care of children between families is more common. Even though Dale was no longer living with him, the applicant considered Dale to be in his care in his understanding of that word.
67. The Act provides no guidance as to the meaning of “special circumstances”, The case of Re Beadle and Director-General of Social Security 6 ALD 1 is generally accepted as setting out the test for special circumstances. The Tribunal commented at page 3 as follows:
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. … This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
68. Special circumstances arise on the facts of any given case. There are a number of factors in this case which, in the Tribunal's view, give rise to that “particular quality of unusualness” that warrants a finding that special circumstances. exist in this case.
69. The applicant was willing to provide a home to his grandson, Dale, who was known to be a difficult teenager with a criminal record, in the hope that he could provide Dale with some stability and remove him from bad influences that had led him to offend in the first place. State authorities assured him of support in undertaking this task.
70. The applicant took his obligation seriously and he did his best to care for Dale and provide him with a stable environment during the nine months that Dale remained in his physical care in Adelaide. By all accounts it became a stressful experience for him as Dale became increasingly uncontrollable.
71. The applicant is from an indigenous background. He did not present as a sophisticated person in terms of his ability to deal with State or Commonwealth authorities. He did his best to carry out the obligations imposed on him as legal guardian of the child at the time. He did not appreciate the difference between being the legal and cultural guardian of the child and having a child in his “care”.
72. The child was put in his care by the Northern Territory Correctional Services. The Marion office of CYFS was his initial contact in South Australia. When Dale left his home, the applicant immediately sought assistance from the State authorities to get Dale back into his care. He advised them of what was happening. No support or assistance was provided. The person with responsibility for Dale's case ceased returning the applicant's calls. The applicant was left to deal with the problem on his own.
73. Once he realised that the State Authorities would not assist him the applicant approached the school and members of the Aboriginal community and asked for assistance in having Dale returned to his care. Unfortunately no one could manage Dale and provide any real assistance to the applicant.
74. The Aboriginal community in Adelaide is a small community. Despite it being a condition of the applicant's agreement with the Northern Territory Correctional Services that Dale not reside with Smith, Dale persisted in spending time on and off at Smith’s home. Smith was not willing to co-operate with the applicant in any way in assisting the applicant to fulfil his obligations to the Minister. Smith had no regard for the applicant's obligations or feelings. This has been a cause of the applicant having feelings of anger and resentment towards Smith and his family.
75. The applicant's sensibilities have been further inflamed by the fact that the Department, without any reference to the applicant as the child's legal guardian, paid Smith a back payment of FTB which the applicant asserts he was not entitled to. The evidence before the Tribunal suggests that is probably the case.
76. The applicant is a person of limited means and lives from week to week on his pension. He is also paying off a fine at the rate of $20 per week, but he had no idea how much longer it would take him to pay off the fine. The overpayment represents a significant sum of money to him to repay and he is deeply disturbed by the prospect of, in his mind, spending the rest of his life making repayments when at all times he considered that he was doing the right thing by his community.
77. He feels humiliated within sections of his own community by the fact that he was unable to manage the situation with Dale and that the very person that he was meant to keep Dale away from appears to have profited from what the applicant perceives to be his loss.
78. The Department appear not to have made proper inquiries when deciding to grant FTB and PPS to Smith and raise an overpayment against the applicant. The Department should have at least made contact with the applicant or the school to independently verify Smith’s claim. The Tribunal's observation is that neither Ms Agius nor Ms Judge-Rigney could truthfully assert what is contained in their letters of support contained at T12 and T13.
79. It is the Tribunal's view that it is important to put an end to the difficulties that the placement of Dale in Adelaide has caused to some members of the Aboriginal community. Quite apart from the other circumstances already referred to, there is likely to be ongoing bitterness and resentment between members of the Aboriginal community and a potential for ongoing conflict if the applicant is left with a debt.
80. In the circumstances the Tribunal sets aside the decision under review insofar that the SSAT waived only a portion of the debt and waives the entire remaining debt on the basis of a finding that there are special circumstances in this case.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard.........................................
AssociateDate of Hearing 7 December 2006
Date of Decision 14 February 2007
Advocate for the Applicant In personAdvocate for the Respondent Mr C Goldsworthy
Centrelink Legal Services Branch
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