Taber; Secretary, Department of Family and Community Services

[2006] AATA 978

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 978

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/664

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And JOANNE TABER

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date20 November 2006  

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal.

..............................................

Senior Member

Ms N Isenberg

CATCHWORDS

SOCIAL SECURITY – family tax benefit – benefit overpaid - shared care of children – debt found to exist - decision affirmed debt but debt recovery waived – sole administrative error - special circumstances – decision under review affirmed

LEGISLATION

Family Assistance (Administration) Act 1999

CASE LAW

ReBeadle v Director-General of Social Security (1984) 6 ALD 1
SDSS v Hulls (1991) 22 ALD 570
Re Ivovic and Director-General of Social Services (1981) 3 ALN 61
SDSS v Smith (1991) 23 ALD 277

Re Gerhardt and Department of Employment, Education and Training (AAT 10941, 17 May 1996)
Perry and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 200 (7 March 2006).

REASONS FOR DECISION

20 November 2006 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1.        On 2 May 2006 the SSAT affirmed Centrelink’s decision that Ms Taber had a family tax benefit debt, but decided that the recovery of the balance outstanding be waived due to the special circumstances of the case. The Applicant has made an application to the AAT that the decision to waive the debt be reviewed.

BACKGROUND

1. From August 2001, Ms Taber began receiving family tax benefit from Centrelink for her two children at the full rate. She was paid this benefit until 18 November 2005, on the basis that she had full time care of her children.  However, from 31 July 2003 both Ms Taber and her estranged husband had care of the children.  Consequently, Ms Taber had been overpaid family tax benefit and Centrelink decided to raise and recover those debts totalling $3,476.18 for the 2003/04 and 2004/05 financial years and for the period 1 July 2005 to 17 November 2005.  Upon the request of Ms Taber, these decisions were reviewed by a Centrelink authorised review officer and subsequently affirmed. However, on 2 May 2006 the SSAT set aside the decisions under review and substituted a new decision that while the debts were affirmed, recovery of the balances as at the date of the hearing were waived, having regard to the special circumstances of the case.

ISSUE BEFORE THIS TRIBUNAL

1. At the hearing Ms Taber conceded the debts.  The remaining issue therefore was whether there are any grounds for non-recovery of all or part of the debts.

LEGISLATION

1. The Family Assistance (Administration) Act 1999 (‘the FA Admin Act’) makes limited provision for the writing off and waiver of debts.  Section 101 of that Act provides for waiver of debts where special circumstances exist (other than financial hardship alone):

The 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 the family assistance law; 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.

CONSIDERATION OF THE EVIDENCE

1. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

1. The Secretary contended that the SSAT erred in finding that there are special circumstances in this case that make it desirable to waive recovery of the balances of the debts outstanding as at the decision date. 

1. In ReBeadle v Director-General of Social Security (1984) 6 ALD 1, it was held that special circumstances must be “unusual, uncommon or exceptional” which make them “markedly different from the usual run of cases” such as to justify the exercise of the discretion. In SDSS v Hulls (1991) 22 ALD 570, the Federal Court held that it is not possible to set out a complete list of the relevant factors to be taken into account in determining whether special circumstances exist. Each case must be considered on its own merits. In Re Ivovic and Director-General of Social Services (1981) 3 ALN 61 and SDSS v Smith (1991) 23 ALD 277 it was held that the circumstances need to be so unusual or exceptional that strict application of the law would be unjust, unreasonable, inappropriate or otherwise unjustified.

1. It was contended that the situation in which Ms Taber finds herself is not significantly different from that of other family tax benefit recipients who have received overpayments such as would warrant waiver of recovery of any part of the debts which are under review by this Tribunal.  While it was accepted that Ms Taber has ongoing difficulties and legal proceedings with her estranged husband, she has part-time employment as a police officer and is in receipt of a fortnightly salary of $1431.00.  She is supposed to currently receive $471 per month in child support but has not in fact received payment and does not expect to.  Additionally, because of her entitlement to child support from the children’s father, even if she was to be paid her family tax benefit payments, they would be paid at a reduced rate.  She has also bought her own home on which she owes, at the date of hearing, about $12,000.  It was submitted that Ms Taber is financially better off than many other persons receiving family tax benefit payments. 

1. The SSAT had found Ms Taber’s circumstances to be special on three bases, each of which is addressed below:

Administrative error in the genesis of the debts

1. While section 97 of the FA Admin Act provides for the waiver of debts arising solely from administrative error, that provision did not apply.  Centrelink had sent numerous notices to Ms Taber before and during the commencement of the debt periods requesting notification of the shared care arrangements, to which she did not respond. 

1. Ms Taber’s position was that she did not understand that permitting her husband to have access to the children amounted to ‘shared care’.  This is, in her view, ‘Centrelink jargon’.

1. I agree with Centrelink’s submission that her failure to appreciate that the care arrangements with her estranged husband following her separation constituted ‘shared care’ does not amount to ‘a sole administrative error’ by Centrelink. 

1. Similarly, when court orders as to the joint responsibility for the children were put in place in 2002, Ms Taber should have advised Centrelink of the court order before the date she did so: 18 November 2005.  The consequent overpayment was not due to the ‘sole administrative error’ of Centrelink.

1. Accordingly, I accept that the debts were not attributable solely to administrative error by the Commonwealth (see: Re Gerhardt and Department of Employment, Education and Training (AAT 10941, 17 May 1996) and Perry and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 200 (7 March 2006)).

1. In the advocate's submission, the ‘error’ of Ms Taber’s should not be taken into account in the consideration of special circumstances.  Only a debt which was solely due to an error by the Commonwealth should be taken into account and section 97 of the FA Admin Act provides for this.  The debt arising due to Ms Taber’s error or misunderstanding should not be taken into account.

1. I do not agree and find that the ‘error’ can be taken into account as a factor in determining whether there are special circumstances.

1. In her detailed statement Ms Taber said that her initial enquiry to Centrelink was about the possibility of rent assistance following the separation from her husband.  She did not initiate discussion about the care of the children and merely responded to the questions she was asked.

2. There was discussion about the Centrelink officer’s file note of the conversation with Ms Taber of 3 August 2001.  The file note, described by Mr Richardson as a ‘shorthand internal document’ recorded:

‘cus has both children still in care…children not yet grouped. Cus adv no formal agreements in place.’

(Mr Richardson was unable to explain what ‘children not yet grouped’ may have meant.)

1. Ms Taber said she was never asked how frequently the children saw their father, or what the arrangements were in respect of the children.  She had a diary with that information if it had been requested.  She thought that all reasonable parents would permit their children to see the other parent after separation.  She did not know this to amount to ‘shared care’.  She conceded that she had received letters from Centrelink that she was to advise if ‘the level of shared care you provide changes’, but found this to be meaningless.  The concept of ‘shared care’ had never been explained to her.  She had responsibility and care of the children and the subsequent Family Court orders were that the children were to reside with her and her husband was only to ‘have contact’ with them.  The Family Court orders formalised the arrangement which had been in place since the separation and therefore, as far as she was concerned, she had the ‘care’ of the children, and it was not ‘shared’ with her estranged husband.

1. I find no evidence whatever that Ms Taber deliberately misled Centrelink as to the care arrangements in relation to the children.  Her failure to disclose the correct arrangements was, on the basis of the evidence before me, due to her misunderstanding that the arrangements in place with the children’s father amounted to shared care.  While it is unclear from the file note in which her first contact with Centrelink was recorded, I accept her account that she merely responded to the questions asked of her and that she believed that because she had the children full time with the exception of limited contact with their father, they were in her care and it was not necessary to report otherwise to Centrelink.

1. Furthermore I accept her evidence that at some point after the debt was raised Ms Taber did not seek to have the shared care proportions amended to reflect changed arrangements whereby she had a greater proportion of care.  She had told the SSAT that she was scared of her husband’s reaction should she do so.  Centrelink’s submission was that this was after the period to which the debts relate, and that if Centrelink was found to have overpaid the husband then this was a matter for Centrelink recovery and adjustment from him.  I consider this approach by Centrelink, albeit proper, to be the kind which would likely give rise to the very concerns Ms Taber had about notifying Centrelink of those latter changed arrangements. This was a situation she sought to avoid by forgoing her full entitlement to the benefit so as the debt issue would not have to be raised with him.

1. I consider that these matters are properly taken into account in considering whether her circumstances are special.

Ms Taber’s abusive relationship with her estranged husband and the consequential legal costs

1. The details of the abuse suffered by Ms Taber were set out in the SSAT and need not be repeated here. 

1. The nature and expense of the legal dispute with her estranged husband is also set out there.

1. Some relationships are abusive, and the costs associated with the Family Court proceedings are known to be expensive. The advocate for the Secretary conceded that these issues may be relevant to a consideration of special circumstances but were not in themselves unusual. 

1. I find these to be relevant considerations in addressing whether Ms Taber’s circumstances are special.

Other bases for finding special circumstances

1. In addition to the matters considered above I came to the view that there were additional bases relevant to considering special circumstances.

1. Firstly, Ms Taber gave evidence of having limited financial means at the time of her separation.  She left the family home and had to pay rent and establish a bond at a time when she retained ongoing responsibility in relation to the payment or maintenance of the family home.  Her husband had stopped making payments on the home loan and also a business loan they had.  She had to establish a home for herself and her children from scratch, not even having beds or basic appliances. 

1. Her current financial situation is also not as positive as Centrelink would suggest.  While she owns her own home, she gave evidence that it is badly in need of repair.  Recently she has had to replace an overflowing septic tank.  Only recently has she had connected water, albeit with restricted flow.  Previously she had to rely on rain or bore water.  She owes money to the local council.  Her car is old and needs replacing – she had to borrow a more reliable vehicle to ensure her attendance on time at the hearing.  She expects to have to pay at least another $7000 in legal expenses in the forthcoming further round in the custody dispute.

1. Her ability to work is limited because the children’s father cannot be relied on to take more care of them and she must rely on family and friends as her support network, especially when her 12 hour shifts are night shifts.

1. A significant matter overlooked to date is the effect the father has had, and continues to have on the children.  Mr Richardson submitted that this had been indirectly addressed by the SSAT in its reference at paragraph 30 to the ‘ramifications of her estranged husband’s behaviour’ and the need for Ms Taber to (expend monies to) ‘protect the children’.  I think there is more to it than that. 

1. I had available to me the reports of psychologists to whom the children have been referred.  The children were found to have suffered psychological abuse.  Both had also suffered physical abuse and DOCS had been notified as a result.  The violence of the father towards the children was said to be unpredictable and they were too frightened to tell him how they felt.  One child, in particular, was especially affected and cried for days before a scheduled visit.  The same child experienced a nervous rash after a visit and this continues to recur and requires treatment with cortisone.  Both require ongoing counselling and, in respect of the older child, this occurs on a monthly basis.  Further, although the most recent report which states the children presently feel less threatened by their father, they continue to suffer emotional difficulties.

1. Ms Taber, as primary carer for her children, has had, and continues to have, daily exposure to their emotional fragility.  While the Family Court proceedings may formally address the ‘custody’ arrangements, which the SSAT may have taken into account, the effect on the children is a matter appropriately taken into account in considering if her circumstances are special.

1. I therefore came to the view that considering all Ms Taber’s circumstances, I regard them as ‘special’ within the meaning of section 101 of the Act.  As such, as the SSAT found, the Tribunal also finds it appropriate to exercise the discretion under that section.

DECISION

1. The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:..............[Sgd]................................................................
  Associate

Date of Hearing  27 October 2006
Date of Decision  20 November 2006
Solicitor for the Applicant          Self represented
Advocate for the Respondent   Mr Gary Richardson