Thornycroft and Secretary, Department of Social Services (Social services second review)

[2020] AATA 4264

Thornycroft and Secretary, Department of Social Services (Social services second review) [2020] AATA 4264 (7 September 2020)

Division:GENERAL DIVISION

File Numbers:         2020/1412 and 2020/3647

Re:Robyn-Lee Thornycroft

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr A Maryniak QC, Member

Date:7 September 2020

Date of written reasons:        26 October 2020

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of these matters, the Tribunal sets aside both decisions under review and remits them for reconsideration in accordance with the following directions:

1. in matter number 2020/1412, Ms Thornycroft has a recoverable carer payment and carer supplement debt for the period 17 December 2018 to 16 October 2019, to be calculated by Services Australia, on the basis that she had nil entitlement to the payments; and
2. in matter number 2020/3647, Ms Thornycroft has a carer allowance debt for the period 17 December 2018 to 16 October 2019, to be calculated by Services Australia, on the basis that she had nil entitlement to the allowance, but the whole of the debt is to be written off permanently pursuant to section 1236 of the Social Security Act 1991.

The Tribunal NOTES that the Secretary has given an undertaking to provide Ms Thornycroft information about her review rights and acknowledges that she may request Services Australia to consider writing-off the carer payment and carer supplement debt in future. If Ms Thornycroft makes such a request, it will be considered and reviewed by an Authorised Review Officer.

........[sgd]................................................................

Mr A Maryniak QC, Member

Catchwords

SOCIAL SECURITY – recoverable carer payment – carer supplement debt – cessation of care – intervention order – no special reason to extend respite period

SOCIAL SECURITY – carer allowance debt – cessation of care – intervention order – no special reason to extend respite period – debt written off permanently – no capacity to repay

Legislation

Social Security Act 1991 (Cth)

Cases

Callaghan v Secretary, Department of Social Security (1996) 45 ALD 435

REASONS FOR DECISION

Mr A Maryniak QC, Member

26 October 2020

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons therefore were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

4.       I certify that the following 72 (seventy-two) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

......[sgd]............................................................

Associate

Dated: 26 October 2020

Date of hearing:	7 September 2020
The Applicant:	By telephone
Advocate for the Respondent:	Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. MEMBER: The Tribunal has before it two applications; one to review a decision of this Tribunal made on 3 March 2020 to affirm a decision of the then Department of Human Services, that Ms Thornycroft has a recoverable carer payment, carer supplement debt of $17,704.80 for the period 5 March 2019 to 16 October 2019, so that is an application for review made by the applicant, Ms Thornycroft. The Tribunal also has before it an application by the Department of Social Services for a review of a decision of this Tribunal of 14 May 2020 to set aside a decision of the Department that Ms Thornycroft has a recoverable carer allowance debt of $2,695.33 for that same period, 5 March 2019 to 16 October 2019. And in that decision, in substitution, it was decided that the whole of that debt was to be waived pursuant to section 1237AAD of the Social Security Act 1991.

2. The facts that are put before the Tribunal are a very unfortunate set of circumstances, and the Tribunal does have sympathy for Ms Thornycroft and for her recent loss of her mother.  As has been indicated by Ms Raveendiran, representing the Department of Social Security, there is no allegation of any fraud or any criminal intent of any nature whatsoever against Ms Thornycroft; and even if there were, there is nothing that has been put in evidence to support any such allegation.  The Tribunal finds that the applicant, Ms Thornycroft, has given the best evidence she can, and, essentially, she is a witness of truth, and the Tribunal notes that nothing that comes from this decision should reflect any assertion of bad character against Ms Thornycroft.  She has been through a very difficult set of circumstances.

3. The Tribunal has heard evidence from Ms Thornycroft and she has been cross-examined.  The Tribunal also has before it all of the documentary evidence which is admitted before it.  The Tribunal has considered that evidence and also the submissions of the parties, both written and oral submissions.  The Tribunal finds that the facts asserted by the respondent in the respondent’s statement of facts, issues, and contentions are made out.  And critically, the applicant did, on 7 January 2019, advise the Department that the carer receiver was temporarily absent from care from 12 January 2019 to 12 February 2019. 

4. The Tribunal also finds, on the evidence, and it was accepted by the applicant, Ms Thornycroft, that no care was being provided during the critical period, and the critical period being 5 March 2019 to 16 October 2019 and from 17 December 2018.  And the reason why that care was not being provided was the intervention order which was issued by the Broadmeadows Magistrates’ Court on 17 December 2018.  In light of that, there was no entitlement by Ms Thornycroft to the Carer Allowance during that critical period.  Also, for the reasons submitted by the Department, no respite care could be obtained during the critical period, or in any event from 17 December 2018 and the Tribunal so finds.

5. In circumstances where the applicant’s memory was, as admitted by her, vague, where there is a tension in the evidence, the Tribunal chooses the documentary evidence as it has more probative value; and on balance that is the evidence which is accepted by the Tribunal where it conflicts with any oral evidence.  The applicant gave evidence that she was in a particularly difficult psychological state, and in some senses it seems that she was partly in denial in respect to the intervention order. However, that did not prevent her from contacting the Department and quite specifically informing the Department that care would be suspended for one month. That was the call on 7 January.  It is clear on the evidence that the applicant was aware at some level that the Department should have been informed that the care was not being provided, and in fact she knew that such care was not being provided.

6. In light of the authority of Callaghan v Secretary, Department of Social Security [1996 – 97] 45 ALD 435, paragraph 48 in particular, it is apparent that an omission to inform the Department, which is what has occurred here, in the many months after January 2019, is sufficient to satisfy the Tribunal that the applicant knowingly did not inform the Department of the change in circumstances as a result of the intervention order.

7. In respect of the decision of the Tribunal of 3 March 2020, the Tribunal finds that no special circumstances are made out, and in such circumstances the Tribunal accepts and orders, on the basis that the Department will undertake to ensure that Ms Thornycroft is well aware of any application she can make as far as hardship or variation of debt, et cetera, and in fact an ARO review will in fact be instigated, on the basis of those undertakings the Tribunal – what is it you seek, Ms Raveendiran, with respect to the 3 March 2020 decision?

8. MS RAVEENDIRAN:  We seek that both of them be set aside and remitted for reconsideration in accordance with the direction that - - -

9. MEMBER:  I am just asking you – I just want to know what you seek with respect to the 3 March 2020?

10. MS RAVEENDIRAN:  Set aside and remitted for reconsideration, Member.

11. MEMBER:  But that affirms – that is affirming the debt, is it not?

12. MS RAVEENDIRAN:  It is, but the Secretary is contending that the debt period should start on 17 December 2018, as no respite was available after that.

13. MEMBER:  And why is it that that period was – why was the start date of 5 March  selected?

14. MS RAVEENDIRAN:  Because the Department, in their original decision and in the ARO decision, chose to apply respite provisions from 1 January 2019.  However, it is not clear why the debt period did not start from 17 December 2018, before that.

15. MEMBER:  Sorry, it is not clear what?

16. MS RAVEENDIRAN:  It is not clear – so there were 63 days that was applied as respite from 1 January 2019 to 4 March 2019.  However, there was only one day of respite left in 2018, so it is not clear why the Department did not raise a debt for the period 17 December 2018 to 31 December 2018.

17. MEMBER:  Sorry, not clear for which period?

18. MS RAVEENDIRAN:  From 17 December 2018 to 31 December 2018.

19. MEMBER:  I am not following that.  What you have got here is you have got a period 5 March 2019 to 16 October.

20. MS RAVEENDIRAN:  Yes, Member.

21. MEMBER:  And you want that drawn back to 17 December?

22. MS RAVEENDIRAN:  Yes, Member, because the Department had - - -

23. MEMBER:  Is that because of an administrative error?

24. MS RAVEENDIRAN:  No, Member, it is because respite provisions were applied when the debt was initially raised, and the Secretary is contending, given that this is a de novo review, the Secretary is contending that those respite provisions should not have been applied and does not apply because - - -

25. MEMBER:  Who applied it?  Who applied it?

26. MS RAVEENDIRAN:  The Department in the first instance, in making the original decision in raising the debt, and then the authorised review officer affirmed it.

27. MEMBER:  Well, then why is that not an administrative error?

28. MS RAVEENDIRAN:  In raising the debt – in raising the debt it – well, they made a decision, and the Secretary is contending that that was not the right decision.

29. MEMBER:  Yes.  So why is that not an administrative error?

30. MS RAVEENDIRAN:  Administrative error in the context of sole administrative error, Member, in terms of waiver?

31. MEMBER:  Yes?

32. MS RAVEENDIRAN:  Because it was – the debt period was raised after – sorry, the debt – this was an error in – it was not an error, it was a decision made after the tip-off and after Ms Thornycroft was not providing care.  So even if the Department had not applied the respite provision, Ms Thornycroft would still have an entire debt to pay.  It would not have – the administrative error is not the cause of the debt, because all of these decisions were made after the debt period ended.

33. MEMBER:  Yes.  I follow.  All right.  So just let me know again what order you seek with respect to the first decision?  The one on 3 March 2020?

34. MS RAVEENDIRAN:  Yes.  That it be set aside and remitted for reconsideration in accordance with directions that Ms Thornycroft has a recoverable carer payment and carer supplement debt or the period 17 December 2018 to 16 October 2019 to be calculated by the Department.

35. MEMBER:  Yes.  I understand it.  Yes.  Well, the Tribunal will make that order.

36. MS RAVEENDIRAN:  Thank you, Member.

37. MEMBER: However, in respect of the decision of 14 May 2020, that is the recoverable Carer Allowance debt, in light of the body of evidence before the Tribunal, in particular the evidence as to the fact that Ms Thornycroft was paying at a rate of $20 per week prior to the Covid intervention and suspension of that payment plan, the documentary and oral evidence about Ms Thornycroft’s financial position before the Tribunal the Tribunal is satisfied under section 1236 of the Act that Ms Thornycroft does not have any capacity to repay that particular debt, and in those circumstances affirms the decision of the Tribunal on 14 May 2020.

38. Is there anything further, Ms Raveendiran?

39. MS RAVEENDIRAN:  Just to clarify, the AAT1’s decision was that there were special circumstances because Ms Thornycroft had not done it knowingly.  Because if knowingly is a finding that is made, then special circumstances waiver is not available, because in order for any part of debts to be waived under special circumstances a person has to have not knowingly made a false statement or knowingly failed to comply with the Act.

40. MEMBER: The Tribunal might have misdirected itself when I asked you before whether the Tribunal could stand in the position of the Secretary with respect to section 1236.

41. MS RAVEENDIRAN:  Which is – yes, that is the write-off of the debts, which is different from special circumstances waiver.

42. MEMBER:  Yes.  So you said that the Tribunal can do that.

43. MS RAVEENDIRAN:  Yes.  It is open for the Tribunal to write off the debt.  It is also open for the Tribunal to waive any part of the debt under special circumstances.  However, if a finding of knowingly is made it precludes any waiver of the - - -

44. MEMBER:  Well, I am not doing a waiver.  The Tribunal is making it - - -

45. MS RAVEENDIRAN:  Okay.  It is a write-off.

46. MEMBER:  As I have asked you, and – yes?

47. MS RAVEENDIRAN:  Well, then the AAT1, on the second decision sorry, on 14 May 2020, did not write off the debt, they waived the debt under special circumstances, so - - -

48. MEMBER:  Yes.  But this is a hearing de novo.

49. MS RAVEENDIRAN:  Yes, it is.  Sorry, Member, maybe I – maybe I misunderstood, but when you said you wanted to affirm the decision on 14 May 2020 that would mean that those debts – the Carer Allowance debt is waived under special circumstances.

50. MEMBER:  Yes, I see.  Yes.  Sorry, we keep misdirecting each other.  Yes, I see.  It has got to be - - -

51. MS RAVEENDIRAN:  It has to be set aside, sent back to – recalculated and the recalculated amount will then need to be written off for either a definite period or an indefinite period as the Tribunal chooses.

52. MEMBER:  Yes.  So really the Tribunal is to set aside the decision of 14 May 2020 and substitute it with a decision that - - -

53. MS RAVEENDIRAN:  Member, if the Tribunal prefers, the Secretary would be happy to draft some orders in accordance – noting that the order that the Tribunal is intending to now make is not written in the SFIC at the moment. If the Tribunal were to make those findings with respect to carer payment and Carer Allowance, and they are different, the Secretary will be happy to draft an order in terms of that and submit it to the Tribunal for consideration.

54. MEMBER: Yes. Well, the Tribunal is indebted for that, as long as it is clear that with respect to the decision of 14 May 2020 that the finding of the Tribunal is that that debt should be written off permanently under section 1236 of the Act, 1A, because of a lack of capacity to repay.

55. MS RAVEENDIRAN:  Lack of capacity to repay.  All right.  Member, I will seek some instructions – we will have – the Secretary will draft that order and submit it to the Tribunal by – do you have a date in mind?

56. MEMBER:  Let us keep it tight because – within 48 hours.

57. MS RAVEENDIRAN:  Within 48 hours?

58. MEMBER:  Yes.

59. MS RAVEENDIRAN:  No problem.  Within 48 hours.  So I will just - - -

60. MEMBER:  Actually, why can it not be done by tomorrow?

61. MS RAVEENDIRAN:  It can be done by tomorrow, Member.

62. MEMBER:  Yes.  All right.  By 4 pm tomorrow.

63. MS RAVEENDIRAN:  By 4 pm tomorrow.  I will just (indistinct), Member, that the decision – the Carer Payment debt decision on 3 March 2020, that will be set aside and remitted for reconsideration.

64. MEMBER:  Yes, as the Department had sought; yes, that order will be granted.

65. MS RAVEENDIRAN:  And on 14 – in respect of the Carer Allowance, 14 May 2020, it will be set aside, remitted for consideration, that it will be recalculated and whatever the recalculated amount will be written off permanently as Ms Thornycroft has no capacity to pay.

66. MEMBER:  Yes.

67. MS RAVEENDIRAN:  Okay.  All right.  That is – yes, Member.  We will submit the draft orders for the Tribunal by tomorrow.

68. MEMBER:  All right.  So thank you very much for your assistance, Ms Raveendiran.

69. MS RAVEENDIRAN:  Thank you, Member.

70. MEMBER:  And, Ms Thornycroft, thank you very much for your assistance and thank you for your time.

71. MS THORNYCROFT:  Thank you so much.  Where do I go now?  Thank you.

72. MEMBER:  Thank you.  And, Ms Raveendiran, you might just put a note in that draft order about the undertakings as to the assistance proffered to Ms Thornycroft as a note in the draft order.