TUYET PHAM and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 122

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 122

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1979

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TUYET PHAM

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date16 February 2010

PlaceMelbourne

Decision The Tribunal varies the decision under review to the extent of finding that the applicant was living separately and apart from her husband from 5 April 2001 and remits the matter to the respondent to reassess her entitlement to carer payment from that date or from such earlier date on which the caree ceased to be resident in Australia and recalculate the debt accordingly.

(sgd) B H Pascoe

Senior Member

Social Security - carer payment - whether living separately from husband - absence from Australia of caree and applicant - entitlement to carer payment

Social Security Act 1991

REASONS FOR DECISION

16 February 2010 Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) which affirmed a decision of the respondent to raise and recover a debt in relation to carer payments made to the applicant for the period 21 July 1999 to 9 September 2003.  The initial debt raised was $25,051.04.  The decision of the SSAT was to remit the calculation of the debt to the respondent taking into account the income of the applicant’s husband to 5 January 2003 and the eligibility of the applicant for carer payment from 6 January 2003 to 9 September 2003.

2.      At the hearing the applicant, Ms Tuyet Pham, was unrepresented.  The respondent was represented by Ms C Berry of the Australian Government Solicitor’s Office.  Evidence was given by Ms Pham through an interpreter.

3.      The initial decision of the respondent and affirmed by the SSAT involved a non-acceptance that Ms Pham and her husband were separated on a permanent basis although living under one roof.  The basis of the arrangements were fully set out in the SSAT decision and it is unnecessary to repeat the full details in this decision.  It is sufficient to say that Ms Pham said that they lived in a two storey house.  She said that she and her two children slept in the main bedroom upstairs, her husband slept in a second bedroom upstairs, her parents slept downstairs and there was joint use of the downstairs kitchen.  Her husband paid the expenses of the house, including the mortgage payments and she paid for the food.  Ms Pham and her husband were divorced in 2004.

4.      There has been considerable confusion in the evidence given to the SSAT and this Tribunal as to the date on which Ms Pham allegedly separated from her husband and the date on which the house in which they lived together was sold.  Ms Pham produced to this Tribunal two statutory declarations declaring that they separated in 1998.  One declaration was from the sister of Ms Pham.  The other was said to be a friend and client of her husband’s business since 1997.  Neither appeared to give evidence.  The SSAT took evidence from Ms Pham that she actually separated in September 2000.  This was when her father passed away.  In relation to the home, the SSAT noted that it was put on the market in 2001 but not sold until late 2002/early 2003.  Before this Tribunal, Ms Pham gave evidence that the house was sold in late 2000 with settlement in early 2001.

5.      Having regard to the evidence to both Tribunals of the living and financial arrangements between Ms Pham and her husband, I am not satisfied that they were separated and not in a marriage relationship prior to early 2001.

6.      Of more relevance is the entitlement of Ms Pham to carer payments in relation to her mother after this date.  The evidence of Ms Pham was that her father died in September 2000.  Soon after that date, her mother moved to Vietnam for a few months and then, early in 2001 left Australia to live permanently in Vietnam.  In addition, Department of Immigration records show that Ms Pham was absent from Australia presumed to be in Vietnam during the following periods:

-5 April 2001 to 24 April 2001;

-29 May 2001 to 4 September 2001;

-11 September 2001 to 10 September 2002;

-11 January 2003 to 15 December 2004; and

-23 December 2004 to 19 March 2008.

It would appear clear that, after 5 April 2001, Ms Pham was in Australia for 42 days during the balance of 2001, 112 days in 2002 and 19 days in 2003.

7. Section 954 of the Social Security Act 1991 (the Act) provides:

954 …

(1)A person is qualified for carer allowance for a disabled adult (the care receiver) if:

(a)the care receiver is an Australian resident; and

(b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c)the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

(d)because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(f)the person is an Australian resident.

…

Section 957 of the Act allows for temporary cessation of care but such period is limited to 60 days in a calendar year or such other period that the Secretary decides to be appropriate for any special reason in the particular case.  Australian Resident is defined in subsection 7(2) of the Act as:

(2)An Australian resident is a person who:

(a)resides in Australia; and

(b)is one of the following:

(i)        an Australian citizen;

(ii)        the holder of a permanent visa;

(iii)       a special category visa holder who is a protected SCV holder.

…

It is clear from the immigration records and the evidence of Ms Pham that her mother ceased to reside in Australia from, at least early 2001 if not from October 2000 and the Ms Pham was not residing in Australia in any real way after April 2001.  Consequently it is difficult to see that she had entitlement to carer payment in relation to her mother after early 2001 at the latest.

8.      Given that the absence of Ms Pham’s mother from Australia and the absence of Ms Pham were not considered by the SSAT and were not referred to in the respondent’s submission, it is appropriate that the matter be remitted to the respondent with a finding that Ms Pham was living separately and apart from her husband from 5 April 2001 and her entitlement to carer payment from 5 April 2001, or such earlier date on which the mother ceased to be an Australian resident should be assessed.

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of  

Mr B H Pascoe, Senior Member

(sgd):  Leah Berardi

Clerk

Date of Hearing  15 December 2009

Date of Decision  16 February 2010
Self-represented applicant          Ms T Pham
Solicitor for the respondent          Ms C Berry, Australian Government Solicitor