Surangi Fernando and Secretary, Department of Social Services
[2013] AATA 826
[2013] AATA 826
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2235
Re
Surangi Fernando
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 22 November 2013 Place Adelaide The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Eligibility for parenting payment, family tax benefit and child care benefit – Whether applicant was an Australian resident during the relevant periods – Whether applicant should be treated as an Australian resident for the purposes of eligibility for child care benefit due to hardship or special circumstances – Application of Child Care Benefit (Australian Resident) Guidelines 2000 – Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 500(1)
Social Security (Administration) Act 1999, Schedule 2, clause 4
A New Tax System (Family Assistance) Act 1999, ss 8, 21 and 42CASES
Peres and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 1097
SECONDARY MATERIALS
Child Care Benefit (Australian Resident) Guidelines 2000
Department of Social Services, Family Assistance Guide (Version 1.164, released 11 November 2013)
REASONS FOR DECISION
Deputy President K Bean
22 November 2013
INTRODUCTION
The applicant, Ms Fernando, arrived in Australia from Sri Lanka on 14 December 2008, together with her then partner and her then one year old daughter. Prior to her arrival, on 20 November 2008, Ms Fernando had been granted a three year temporary visa allowing her to live and work in Australia.
Ms Fernando’s relationship with her partner subsequently broke down and they separated in early 2009. However, she remained in Australia, and in June 2011 she applied for a permanent visa. After being granted bridging visas on 12 July 2011, Ms Fernando and her daughter were ultimately granted permanent visas on 8 August 2011.
Before she was granted her permanent visa, in March 2011 Ms Fernando had applied for child care benefit (CCB) to assist with the expenses she was incurring in relation to child care for her daughter. However, she was advised at that time that she was not eligible for CCB as she did not meet the residency requirements. Subsequently, in September 2011 (after she had been granted a permanent visa), Ms Fernando contacted Centrelink about claiming parenting payment (PP), family tax benefit (FTB), and CCB.
Ms Fernando was advised on 27 September 2011 that she would be paid CCB from 19 September 2011,[1] and on 28 October 2011 that she would be paid FTB from 8 August 2011. She also made a claim for PP on 11 October 2011, however, this was refused on the basis that she did not meet the residency requirements.
[1] T2/4.
In January 2012, Ms Fernando made a request for review of the decision not to pay her PP, which was ultimately treated as a request to review all of the decisions referred to above, namely not to pay her PP, to pay CCB only from 19 September 2011, and to pay FTB only from 8 August 2011.
On 6 February 2012, an Authorised Review Officer (ARO) affirmed each of those decisions, and on 22 March 2012 the Social Security Appeals Tribunal (SSAT) also decided that those decisions were correct. The SSAT also noted that as there was no dispute about Ms Fernando’s eligibility for CCB between 8 August and 19 September 2011, she would be paid CCB for that period if she was found to be entitled to it.[2]
[2] See also T4/18.
However, on 1 June 2012, Ms Fernando sought review of the decision of the SSAT by this Tribunal, giving rise to these proceedings.
THE ISSUES
It follows that the issues before me are:
(a)whether Ms Fernando was qualified for PP as at the date of her claim, on 11 October 2011, or within 13 weeks of that date[3];
(b)whether Ms Fernando can be paid FTB from an earlier date than 8 August 2011 and, if so, from what date; and
(c)whether Ms Fernando can be paid CCB from an earlier date than 8 August 2011 and, if so, from what date?
[3] Social Security (Administration) Act 1999, Schedule 2, clause 4.
I propose to address each of these issues in the order set out above.
WAS MS FERNANDO QUALIFIED FOR PARENTING PAYMENT ON 11 OCTOBER 2011 OR WITHIN 13 WEEKS OF THAT DATE?
The provisions governing qualification for parenting payment are set out in s 500 of the Social Security Act 1991 (the Act), which relevantly provides as follows:
500 Qualification for parenting payment
(1)A person is qualified for parenting payment if:
(a) the person has at least one PP child (see section 500D); 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
(ca)in a case where the person is in a class of persons specified by legislative instrument under subsection (2)—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.
Note 1:For Australian resident and qualifying residence exemption see section 7.
Note 2:If a person is claiming parenting payment under a scheduled international social security agreement, the requirements of this subsection could be modified by section 10 of the Social Security (International Agreements) Act 1999.
Note 3:For lone parent and current period as an Australian resident see subsection 23(1).
…
There is no dispute that Ms Fernando did not become an Australian resident until she was granted a permanent visa on 8 August 2011, by which time she was a sole parent. At the time she claimed PP, she had only been an Australian resident for approximately two months, and therefore she had not been an Australian resident for a continuous period of 104 weeks, and nor did she have a qualifying residence exemption for PP. Further, she did not satisfy any of the criteria specified in s 500(1)(d) within 13 weeks of the date on which she lodged her claim.
It therefore follows that Ms Fernando was not qualified for PP either at the time she lodged her claim on 11 October 2011, or within 13 weeks of that date.
CAN MS FERNANDO BE PAID FTB FROM AN EARLIER DATE THAN 8 AUGUST 2011?
Section 21 of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) sets out the requirements for eligibility for FTB, and relevantly provides as follows:
21 When an individual is eligible for family tax benefit in normal circumstances
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii)is not an absent overseas recipient and has at least one regular care child who is also a rent assistance child; and
(b) the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); and
(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.
When individual satisfies this subsection
(1A) An individual satisfies this subsection if:
(a)the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991; and
(b) either:
(i) the individual is in Australia; or
(ii)the individual is temporarily absent from Australia for a period not exceeding 6 weeks and the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
Exception
(2)However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.
There is no dispute that Ms Fernando was not a special category visa holder, that she did not satisfy s 21(1A) and nor did she become an Australian resident under the terms of the legislation until she was granted a permanent visa on 8 August 2011. Accordingly, whilst Ms Fernando was eligible to be paid FTB from 8 August 2011, I am satisfied that she was not qualified to be paid FTB from any earlier date, as she did not meet the residency requirements set out in s 21 of the Family Assistance Act.
CAN MS FERNANDO BE PAID CHILD CARE BENEFIT FROM AN EARLIER DATE THAN 8 AUGUST 2011?
The applicable statutory framework
The requirements for entitlement to CCB are set out in s 42 of the Family Assistance Act, which relevantly provides as follows:
42 When an individual is conditionally eligible for child care benefit by fee reduction for care provided by an approved child care service
(1)An individual is conditionally eligible for child care benefit by fee reduction for care provided by an approved child care service to a child if:
(a)the child is an FTB child, or a regular care child, of the individual, or the individual’s partner; and
(b)the individual, or the individual’s partner:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); or
(iii)is undertaking a course of study in Australia and receiving financial assistance directly from the Commonwealth for the purpose of undertaking that study; and
(c) where the child is under 7 and born on or after 1 January 1996, either:
(i)the child meets the immunisation requirements set out in section 6; or
(ii)a pre-notice period is operating in respect of the individual and the child (see subsection (3)); or
(iii)a 63 day notice period is operating in respect of the individual and the child (see section 57E of the Family Assistance Administration Act).
When individual satisfies this subsection
(1A) An individual satisfies this subsection if:
(a)the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991; and
(b)either:
(i) the individual is in Australia; or
(ii)the individual is temporarily absent from Australia for a period not exceeding 6 weeks and the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
…
However, s 8 of the Family Assistance Act also provides that an individual may be treated as an Australian resident for the purposes of eligibility for CCB in certain circumstances, as follows:
8 Extended meaning of Australian resident—hardship and special circumstances
(1) The Secretary may determine:
(a)that an individual who is not an Australian resident is to be taken to be an Australian resident for the purposes of Division 4 of Part 3 (eligibility for child care benefit) for a period or indefinitely; and
(b)if the determination is for a period—the period in respect of which the individual is to be taken to be an Australian resident.
(2)The Secretary may make a determination under subsection (1) if the Secretary is satisfied that:
(a)hardship would be caused to the individual if the individual were not treated as an Australian resident for a period or indefinitely; or
(b)because of the special circumstances of the particular case, the individual should be treated as an Australian resident for a period or indefinitely.
(3)In making a determination under subsection (1), the Secretary must comply with any guidelines in force under subsection (4) in relation to the making of such determinations.
(4)The Minister may, by legislative instrument, make guidelines:
(a) relating to the making of determinations under subsection (1); and
(b)in particular, setting time limits applicable to the determining of periods under paragraph (1)(b).
Guidelines were issued pursuant to s 8(4) of the Family Assistance Act in June 2000, and relevantly provide as follows:
4 Guidelines
The following guidelines apply to the making of determinations by the Secretary under subsection 8(1) of the Act (determination that an individual is taken to be an Australian resident).
5Matters for consideration
(1)Subject to subsection (2), in considering whether hardship would be caused to an individual if the individual were not treated as an Australian resident, the Secretary must take into account the following matters:
(a) whether the claimant has, since arriving in Australia, experienced an event which was not reasonably foreseeable and which has substantially reduced his or her ability to pay child care fees; and
(b) if so:
(i) how long ago that event occurred; and
(ii)the continuing effect of the event in causing hardship if the claimant were not treated as an Australian resident.
(2)Events to be taken into account under subsection (1) shall not include:
(a)currency fluctuations;
(b)an increase in fees charged by an approved child care service;
(c) a reduction in a person’s available income due to routine or non-essential expenditure.
Evidence and contentions
For the reasons set out above in relation to FTB, it is clear that Ms Fernando did not satisfy the criteria set out in s 42(1)(b) of the Family Assistance Act prior to 8 August 2011. However, having regard to the terms of s 8 of the Family Assistance Act, she contends that by reason of hardship and/or special circumstances, she should be treated as having been an Australian resident and eligible for CCB from 1 March 2011, when she first applied for it.
In support of her contention, Ms Fernando explained at the hearing (and in a statement filed after the hearing),[4] that after her former husband left in March 2009, it became necessary for her to leave her daughter in family day care while she went out to work. Accordingly, her daughter was in family day care between May 2009 and June 2010 “for about 3 days a week”. Fortunately for Ms Fernando, the family day care provider only charged her $10 per day during this period. Even so, Ms Fernando said her financial circumstances during that period were extremely difficult, and at times she and her daughter had as little as $80 per fortnight for food.
[4] Applicant’s Reply to Respondent’s Submissions, 5 September 2013.
After the provider of the family day care care moved to Queensland in about June 2010, Ms Fernando said a friend of hers agreed to look after her daughter without charge, which enabled her to obtain some relief work for a child care centre. However, in January 2011, Ms Fernando’s friend indicated that she could no longer care for Ms Fernando’s daughter. This resulted in a dramatic deterioration in Ms Fernando’s financial situation, as it meant that whenever she was working she had to pay for child care for her daughter, which she was able to arrange through the centre where she was working.
Ms Fernando accordingly explained that from January 2011 until she obtained CCB in September 2011, her financial situation remained extremely difficult because of the child care fees she was obliged to pay to the centre at which she was working. She said that some fortnights all of her salary was spent on child care fees, because it cost approximately $75 per day for her daughter to be in child care, and she was only earning between $100 and $120 per day, or $21 per hour. She said that sometimes she would only be required to work four or five hours, but she would be charged child care fees for the whole day. She said that on occasions she paid up to $300 per week on child care fees, and on average she made about $500 per week.[5] She also said that during this period she was forced to move, as she could no longer pay the rent where she had been living.
[5] Applicant’s Reply to Respondent’s Submissions, 5 September 2013.
When asked why she continued to work under these circumstances, Ms Fernando explained that she had no other source of income and believed it was important for her to work and attempt to support herself and her daughter. Ms Fernando also explained that she believed she would have put in her application for permanent residency and attained Australian residency earlier if not for the fact she had had very little time to work on her application between working for the child care centre and caring for her daughter. She explained that she had no family or friends with whom she could leave her daughter. She said she ultimately lodged the application in June 2011, but more information was required which is why her application was not granted until August.
Under cross-examination, Ms Fernando conceded that she had not been forced into debt during the relevant period, but also elaborated on the lengths she had gone to in order to avoid getting into debt. She explained that she believed it would have been extremely unwise for her as a sole parent with no family and few friends in Australia to go into debt. Accordingly she adopted various measures at different times to avoid this. As I understood her evidence, she said that in the period after her friend could no longer care for her daughter, some of the measures she adopted included cutting back on food for herself, and altering her daughter’s diet from what she believed would have been healthiest for her. She said her daughter had three meals a day, but during that period she could not afford to give her daughter things that she would have liked to give her, such as fresh fruit. Ms Fernando also reiterated that during this period she had had to move to cheaper and less suitable accommodation due to the financial hardship she was suffering.
Mr Parker, who appeared as advocate for the respondent, submitted that Ms Fernando had not demonstrated the degree of hardship required, or that her circumstances were “special” in the relevant sense. He also pointed to some of the examples set out in the Family Assistance Guide as to the type of hardship contemplated, such as the “applicant’s partner dying” or “the applicant, or their partner, becoming hospitalised or disabled”.[6] He said the hardship endured by Ms Fernando had not been equivalent to hardship of the kind cited in these examples. He also contended that the delay in Ms Fernando submitting her permanent residency application was a matter within her control, and did not amount to special circumstances in the relevant sense. Whilst conceding that Ms Fernando’s financial situation had been extremely “tight”, Mr Parker submitted that Ms Fernando had not suffered the degree of hardship which was contemplated by the relevant provision.
[6] Department of Social Services, Family Assistance Guide (Version 1.164, released 11 November 2013) at 2.6.2.20. It should be noted however that the Guide also refers to an applicant separating from their partner as a traumatic event of the kind which may give rise to relevant hardship.
Consideration
On the evidence, I accept that Ms Fernando and her daughter endured a period of great hardship in the immediate aftermath of her former husband’s departure, and a further period of very significant hardship between January 2011 and September 2011, due to the costs associated with Ms Fernando’s daughter being cared for at the child care centre where she worked. However, the particular issue I must address is whether, during the period between 1 March and 8 August 2011, Ms Fernando’s circumstances fell within the terms of the Family Assistance Act and the Guidelines such that she should be treated as having been an Australian resident during this period.
The first question therefore is whether Ms Fernando suffered hardship of the kind contemplated by s 8 of the Family Assistance Act and the Guidelines during that period. Relevant to that question are the further questions posed by the Guidelines, namely whether Ms Fernando experienced an event after arriving in Australia which was not reasonably foreseeable and, if so, how long ago that event occurred and the extent to which it is continuing to cause hardship.
The first relevant event in this context is the departure of Ms Fernando’s former husband in March 2009, and I accept that that event caused her hardship in the ensuing period. As to whether the departure of Ms Fernando’s former husband was “reasonably foreseeable”, I have found this a difficult question to determine and I have very little evidence before me relating to it. On balance however, I have concluded that this event could fairly be said to have been “reasonably foreseeable” as one of the contingencies which may unfold following Ms Fernando’s arrival in Australia. It is also relevant in my view that this event occurred more than four years ago, and more than two years before the start of the relevant period.
Ms Fernando also relied upon the fact that her friend was no longer able to care for her daughter after January 2011, and in fact this was the main event she identified as causing her hardship during the relevant period. However, whilst I accept that the fact that she could no longer access free child care after January 2011 had a significantly deleterious effect on Ms Fernando’s financial circumstances, I do not accept that this event was not reasonably foreseeable.
On balance therefore, having considered the degree of hardship suffered by Ms Fernando during the relevant period, the relevant events which occurred after her arrival in Australia, when those events occurred and the extent to which they were foreseeable, I have concluded that, by reference to the hardship criterion, Ms Fernando’s circumstances during the relevant period were not such that she should be treated as having been an Australian resident for the purposes of CCB.
In reaching that conclusion, I have also had regard to the fact that, in my view, the relevant provision is clearly directed to alleviating current and prospective hardship, rather than hardship which has occurred at some time in the past. In Ms Fernando’s case, exercising the discretion in her favour will not have the effect of assisting her to meet child care expenses which she is currently having difficulty in paying, or alleviating any continuing hardship. I presume it would have the effect that Ms Fernando would become entitled to a lump sum by way of reimbursement or arrears, and she has indicated that she would use any such lump sum toward a deposit for a residential unit. However, I do not consider that the relevant discretion is intended to be exercised favourably in circumstances where it will result in a ‘windfall’ to the recipient, rather than alleviating any current or prospective hardship.
Turning to the question of whether Ms Fernando’s circumstances were “special”, I note that the phrase “special circumstances” has been interpreted in this context in other Tribunal decisions in a manner consistent with the way that phrase has been interpreted in the Social Security Act 1991 and I agree that, in the absence of guidance as to the meaning of the phrase in the context of the Family Assistance Act, that is the appropriate approach.[7]
[7] See Peres and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 1097, at [12]-[13].
Applying that test here, and for similar reasons to those outlined above with respect to hardship, I have concluded that Ms Fernando’s circumstances during the relevant period could not be said to have been “special” in the relevant sense. I acknowledge that Ms Fernando and her daughter suffered considerable hardship in the period following her former husband’s departure, and again during the relevant period, between March and August 2011. I also acknowledge that the combination of her work responsibilities and the need to care for her daughter made it difficult for Ms Fernando to find time to complete her permanent residency application. However, I am not satisfied that her circumstances during the relevant period were sufficiently uncommon or unusual, or involved sufficient hardship or injustice such as to render them “special” in the relevant sense.
I have accordingly concluded that the discretion contained in s 8 of the Family Assistance Act should not be exercised in Ms Fernando’s favour, and therefore she should not be taken to have been an Australian resident during the relevant period. For the reasons outlined above, this has the consequence that she was not eligible for CCB during that period.
For completeness, I should record that I initially had some concerns as to whether I had jurisdiction to consider making a determination under s 8 of the Family Assistance Act, particularly in circumstances where neither the ARO nor the SSAT appear to have expressly considered the potential application of that provision. However, in light of the further written submissions of the respondent filed on 26 August 2013, I am satisfied that the ARO held a delegation to make a determination under s 8, and that in those circumstances, I have jurisdiction to consider whether such a determination should be made.
CONCLUSION
As I have concluded that Ms Fernando was not qualified for PP as at the date of her claim on 11 October 2011, or within 13 weeks of that date, and she is not eligible to be paid FTB or CCB from any earlier date than 8 August 2011, I have also concluded that I am obliged to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean. .......................................................
Associate
Dated 22 November 2013
Date of hearing 9 April 2013 Date final submissions received 13 September 2013 Applicant In person Advocate for the Respondent Mr A Parker Solicitors for the Respondent Program Litigation & Review Branch, Department of Human Services
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