Snugglepot Day Care Centre Inc and Secretary, Department of Family and Community Services

[2004] AATA 416

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 416

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/247

GENERAL ADMINISTRATIVE DIVISION		)
Re		SNUGGLEPOT DAY CARE CENTRE INC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Michael Sassella
Senior Member

Date27 April 2004

PlaceSydney

Decision The application for review is dismissed on the basis that the Administrative Appeals Tribunal has no jurisdiction to deal with the matter.

[sgd] M J Sassella

Senior Member

CATCHWORDS

CHILD CARE ASSISTANCE – Child Care Assistance over-advance – recovery action taken under Child Care Act 1972 – no review or appeal rights for recovery decisions under Child Care Act 1972 – no waiver for child care assistance over-advance – Administrative Appeals Tribunal has no jurisdiction regarding decision to recover child care assistance over-advance

Administrative Appeals Tribunal Act 1975 ss 25(1), (3), 42A(4)

A New Tax System (Family Assistance)(Administration) Act 1999 s 97

Child Care Act 1972 s 20B

REASONS FOR DECISION

27 April 2004 Michael Sassella
Senior Member     

RESULT

The Administrative Appeals Tribunal has no jurisdiction to deal with the matter.

BACKGROUND

1.      The Snugglepot Day Care Centre Inc (“the applicant”) operates a day care centre in Taree where it provides long day care, occasional care, special needs care and before, after school and vacation care.  On 17 June 2002 the Assistant Secretary, Child Care in the Department of Family and Community Services (“the department”) wrote for the Secretary of that department (“the respondent”) to Snugglepot to advise that Snugglepot owed the department $14,209.00 because that was the total amount it had been overpaid in Childcare Assistant (“CA”) advances between January 1998 and June 2000 when the CA scheme was replaced by Child Care Benefit.  The money was due for repayment on 24 July 2002.  However, the respondent agreed to defer Snugglepot’s payments on two occasions with the money now being due early in July 2004.  On a number of grounds Snugglepot seeks from the tribunal a waiver of some or all of the debt.

ISSUES

2.      The tribunal convened a hearing to determine whether the tribunal has jurisdiction to accept and determine Snugglepot’s application for review.  The only issue is, in reality, is there a reviewable decision?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL EXPLAINING THOSE FINDINGS

Is there a reviewable decision?

3.      Ms Geraldine Smith, Director of Snugglepot, has progressed this application and she put the centre’s position at the tribunal hearing, which was by telephone.  Ms Smith had identified several bases for tribunal jurisdiction:

(a)The debt had been raised under the A New Tax System (Family Assistance)(Administration) Act 1999 (“the FA Admin Act”).  The FA Act contains review rights.

(b)The Family Assistance Office, established as part of the introduction of the FA Act and similar reforms in 2000, had conducted an informal review for Snugglepot.  This was said to suggest that there is a form of review available.

(c)A right of appeal is “surely inherent” in all Commonwealth Acts and processes.

(d)Section 97 of the FA Admin Act allows for waiver of debts in circumstances of administrative error, receipt in good faith and severe financial flowing from recovery.  All of these conditions must be met.  Ms Smith argued that they are present in Snugglepot’s case. 

4.      Ms Smith pointed out that the reconciliations carried out by the department to calculate the debts owed by child care centres were repeatedly delayed, presumably causing uncertainty and possibly a tendency to assume that they might never result in financial demands.

5.      Ms Smith was of the opinion that Snugglepot had been denied an appeal to the Social Security Appeals Tribunal.

6.      Mr J Larcombe for the Secretary explained that the debts, known as CA over-advances, in question had arisen under the now repealed Child Care Act 1972 (“the CC Act”).  Recovery action had been taken under s 20B of the CC Act. It was news to Ms Smith at the hearing that the CC Act had been utilised by the respondent. I am not surprised by this. No statutory authority was cited in the letter dated 17 June 2002 seeking recovery of the debt. No calculation sheet was provided as part of that correspondence, although a spreadsheet was provided when Snugglepot requested it. The department sent further letters to Snugglepot on 17 June 2003 and 11 August 2003 without any reference to the statutory context. That was finally addressed to an extent in a letter dated 24 September 2003 where mention was made of CA being paid under the CC Act which provided no appeal or debt waiver options in relation to CA debts. However, even that letter did not state explicitly that action taken after repeal of that Act was based on the CC Act.

7.      Addressing Ms Smith’s other grounds for arguing that the tribunal has jurisdiction I need to make the following comments:

(a)The review conducted by the FAO was apparently a favour extended to Snugglepot and was not done under any legislation.  The tribunal can exercise jurisdiction in respect of a decision where there is an Act of the Commonwealth Parliament conferring jurisdiction on the tribunal to review a decision of that type (s 25(1), (3) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”)). There is no Act of Parliament permitting this tribunal to review a decision merely

(b)There is no right of appeal to the tribunal inherent in all Commonwealth statutes and processes. Section 25 of the AAT Act limits the tribunal’s powers to decisions identified in certain Commonwealth legislation as reviewable by it.

8. The tribunal therefore has no jurisdiction in this matter, essentially for the reasons advanced by Mr Larcombe in [6] above. Where the tribunal lacks jurisdiction an application may be dismissed under s 42A(4) of the AAT Act.

COMMENTS

9.      At the hearing I extended sympathy to Ms Smith for aspects of the treatment of Snugglepot by the respondent.  There may be grounds for arguing that there has been an element of maladministration in the delayed CA reconciliation process that may have caused detriment to Snugglepot.  I indicated at the hearing that Snugglepot could consider approaching the Commonwealth Ombudsman[1] with a complaint.  If Snugglepot can demonstrate detriment as a result of defective administration it may have a claim under the Federal Cabinet’s scheme of Compensation for Detriment caused by Defective Administration[2]. 

[1] application for review is dismissed on the basis that the Administrative Appeals Tribunal has no jurisdiction to deal with the matter.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella
Senior Member

Signed:         .....................................................................................
  Associate

Date of hearing  23 April 2004
Date of decision  27 April 2004
Advocate for the applicant        Ms Geraldine Smith

Advocate for the respondent     Mr J Larcombe, Centrelink Service Recovery Team