YFFS and Secretary, Department of Health

YFFS and Secretary, Department of Health [2022] AATA 728 (11 April 2022)
Division:GENERAL DIVISION
File Number(s): 2021/6609
Re:YFFS
APPLICANT

AndSecretary, Department of Health
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:11 April 2022
Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review. The Tribunal asks that the Respondent recalculate the Applicant’s daily accommodation contribution fees to ensure that the correct amounts were taken.
...........................[sgd].............................................
Ms A E Burke AO, Member
Catchwords
CATCHWORDS – AGED CARE ASSESSMENT – means tested daily fee – whether National Redress Scheme lump sum payment is an exempt asset – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Aged Care Act 1997 (Cth)
National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018 (Cth)
Social Security Act 1991 (Cth)
Secondary Materials
Fees and Payments Principles 2014
National Redress Guide, Department of Social Services
Social Security Guide, Department of Social Services
Subsidy Principles 2014
REASONS FOR DECISION
Ms A E Burke AO, Member
11 April 2022

YFFS (the Applicant) is seeking a second-tier review of the decision made by Services Australia on 2 August 2021 to include his National Redress Scheme lump sum payment as an assessable asset for his residential aged care fees assessment. As a result, Services Australia determined the Applicant was required to pay a daily accommodation contribution fee (DAC):
After carefully considering all relevant information, I have not changed the decision. This is because the money in your bank accounts is an assessable asset, even considering the source of these funds
At the hearing of this application by telephone on 21 March 2022, the Applicant was represented by his former wife. Ms Arabi Raveendiran, Government Lawyer in the Legal Services Division of Services Australia, appeared for the Respondent.
As the Applicant is the victim of historical sexual abuse the Tribunal has determined to provide him with a pseudonym.
The Tribunal made an oral decision to affirm the original determination with a direction that all fees be recalculated. The Applicant’s former wife subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These are those reasons.
BACKGROUND
The Applicant is 86 years of age, a disability pensioner, and suffers from numerous medical conditions. On 10 October 2018, due to his increasing care needs, he permanently entered residential aged care. On 14 October 2018, he submitted an asset and income form to determine his cost contribution. The Applicant advised he did not own a home, had personal effects valued at $3000, owed a car valued at $3000, and had no other assets.
On 16 October 2018, Centrelink advised the Applicant of the following:
Your maximum basic daily fee from your entry date, 10 October 2018 is $50.66 per day. A means tested fee of $0.00 per day starts from 10 October 2018 and accommodation contribution of $1.77. In summary, this is $50.66 + $0.00 + $1.77 per day or $50.66 + $0.00 + $1.77 x 14 per fortnight.
On 17 October 2018, Centrelink advised the Applicant that for aged care purposes his assets had been assessed as $52,696 (comprising financial accounts of $42,696 and other assets of $10,000) and a net fortnightly income of $894.64.
On 23 November 2018, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know that your daily fees have changed.
The accommodation contribution is $0.00 per day starting from 23 November 2018.
The current maximum basic daily fee is $50.66 per day.
In summary, this is $50.66 + $0.00 per day, or $50.66 + $0.00 x 14 per fortnight.
On 19 January 2019, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know about your daily fees and a potential refund of fees.
The accommodation contribution is $0.00 per day starting from 1 January 2019.
The current maximum basic daily fee is $50.66 per day.
In summary, this is $50.66 + $0.00 per day, or $50.66 + $0.00 x 14 per fortnight.
On 30 October 2020, $100,00 was deposited into the Applicant’s bank account from the National Redress Scheme.
On 7 December 2020, Centrelink records show that they were advised in office that the Applicant had received an exempt lump sum.
On 23 January 2021, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know about changes to your daily fees.
The accommodation contribution is $27.01 per day starting from 1/01/2021.
The current maximum basic daily fee is $52.25 per day.
In summary, the daily fees are a maximum of $79.26 per day, or $1109.64 per fortnight.
On 24 January 2021, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know that your daily fees have changed.
The accommodation contribution is $27.01 per day starting from 1/01/2021.
The current maximum basic daily fee is $52.25 per day.
In summary, this is $79.26 per day, or $1109.64 per fortnight.
On 4 February 2021, Centrelink records show that the Applicant’s power of attorney was advised that due to receiving the lump sum, the Applicant would now be charged a DAC. Centrelink records show that the Applicant’s power of attorney was advised:
If a lump sum meets the characteristics, it is exempt from the income
test but is an assessable asset. If a lump sum is invested, it is
treated as a financial investment and deeming rules apply.
…
ADVISES THAT THE FUNDS ONCE ACCEPTED IS AN ASSET.
On 26 February 2021, Centrelink file notes record the following:
POA/PPE (xxx) attended SC. Provided evidence of purchase of pre-paid funeral, special bed and chair for cus, and bed linen.
Sighted contract for pre-paid funeral; item meets the criteria for exempt funeral investments, cost $11495, coded on MIUS as per OBP
Sighted evidence of purchase of special chair, bed and bed linen, and sighted bank statement showing all these transactions and new balance on POA mobile device.
SVS updated.
No asset value coded for chair and bed as after being used in aged care their value would be deemed to be negligible.
POA states still has some upcoming costs for cus (new glasses, health insurance, etc) - advised this can be updated over the phone if change in balance is less than $10k.
Advised for phone update need to state what has been purchased at what cost, and what new bank balance is.
On 26 March 2021, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know about your daily fees and a potential refund of fees.
The accommodation contribution is $6.71 per day starting from 20/03/2021.
The current maximum basic daily fee is $52.71 per day.
In summary, this is $59.42 per day, or $831.88 per fortnight.
On 10 July 2021, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know about your daily fees and a potential refund of fees.
The accommodation contribution is $1.14 per day starting from 1/07/2021.
The current maximum basic daily fee is $52.71 per day.
In summary, this is $53.85 per day, or $753.90 per fortnight
On 2 August 2021, an Authorised Review Officer (ARO) reviewed the decision regarding assessment of the Applicant’s residential care fees. The ARO found:
Reasons for the outcome
Your nominee objected to the money was you received from the National Redress Scheme on 30 October 2020 being assessed under the assets test for your Aged Care fees.
This payment was exempt from assessment under the income test when it was received. However the initial exemption of a lump sum amount from the income test does not change the assessment that ongoing income generated by the lump sum is assessed under the income test, and any assessable asset produced from the lump sum is considered under the social security assets test.
Once the lump sum amount is invested or used to purchase goods or services, the usual income and assets rules will apply. If the lump sum amount is placed in a financial investment such as a bank account the funds are an assessable financial asset and subject to the income test deeming rules.
I have no discretion to waive this assessment due to the ongoing Covid19 pandemic, or for any other reason. Therefore I have no basis to exempt this amount from ongoing assessment under the asset test. The assessment of your residential care fees is correct.
On 15 September 2021, the Applicant’s former wife, on his behalf, sought a review of the ARO decision by the General Division of this Tribunal stating:
The decision is wrong because I was not given any information regarding having money in the bank, had I have been told I could have set aside money for funeral expenses and other things, and those funds would not have been included in the outcome.
On 25 September 2021, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know that your daily fees have changed.
The accommodation contribution is $0.90 per day starting from 20/09/2021.
The current maximum basic daily fee is $53.56 per day.
In summary, this is $54.46 per day, or $762.44 per fortnight.
On 15 January 2022, Centrelink advised the Applicant of a change in his residential care fees:
We are writing to let you know about your daily fees and a potential refund of fees.
The accommodation contribution is $0.00 per day starting from 1/01/2022.
The current maximum basic daily fee is $53.56 per day.
In summary, this is $53.56 per day, or $749:84 per fortnight
ISSUE IN CONTENTION
The issue for determination before the Tribunal was whether the Applicant’s income and assets were correctly assessed in determining his residential aged care fees.
EVIDENCE
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the AAT Act, referred to as the "T” and “supplementary T” documents". The Applicant’s former wife provided bank statements and gave oral evidence at the hearing on 21 March 2022.
The DAC which the Applicant has paid is as follows:

Date of Effect DAC ($)         Total

23 November 2018 0.00                0.00

1 January 2021 27.01              653.22

23 March 2021 6.71                671.00

1 July 2021 1.14                497.94

20 September 2021 0.90                92.70

1 January 2022 0.00                0.00

Centrelink staff are provided the following operational blueprint in relation to the National Redress Scheme:
The National Redress Scheme can help with access to 3 things:
• counselling,
• a lump sum redress payment, and
• a direct personal response from an institution (for example, an apology)
If an offer of redress is made, a person can accept any or all of these 3 things.
Redress is not compensation – it is about acknowledging the harm done and supporting the Applicants to move forward positively in the way that is best for them.
Redress payments are non-taxable and protected from Commonwealth debt recovery processes:
• payments are exempt from the Social Security income test, but
• any ongoing income generated by the lump sum and any asset produced from the lump sum are assessable under the social security income and assets tests
LEGISLATION
The Tribunal has adopted and accepted the outline of the legislation from the Respondent’s Statement of Issues, Facts and Contentions. In essence, the legislation provides the mechanism by which fees are charged to an individual when they permanently enter residential aged care, as outlined by the Department of Health website:
Fees you may be asked to pay
Everyone entering an aged care home should have their means assessed to see if they’re eligible for Australian Government assistance with their care fees and accommodation costs.
Depending on the outcome of your means assessment and your negotiations with your aged care provider, you may pay up to five types of fees. Your provider must record these fees in your resident agreement, your accommodation agreement and, if needed, your extra services agreement.
Basic daily fee
Everyone pays this fee. The maximum fee is set at 85% of the single basic age pension. This fee increases twice a year in line with the age pension.
Means-tested care fee
Depending on your means assessment, your provider may ask you to pay a means-tested care fee. This fee is different for everyone. The amount you pay depends on your income and assets and your cost of care. Annual and lifetime caps apply to this fee.
Rules for Charging DAC
Subdivision 52G-B and Division 52G of the Aged Care Act1997 (the Act) governs the rules for charging DAC.
Section 52G.6 of the Act states:
The rules for charging * accommodation contribution for a residential care service are as follows:
(a) a person must not be charged an accommodation contribution unless the person's * means tested amount, at the date the person * enters the service, is less than the * maximum accommodation supplement amount for that day;
(b) an accommodation contribution must not be charged for * respite care;
(c) the amount of accommodation contribution for a day must not exceed:
(i) the accommodation supplement applicable to the service for the day; or
(ii) the amount assessed for the person based on the person's means tested amount;
(d) an accommodation contribution must not be charged by an approved provider if (i) a sanction has been imposed on the provider under section 63N of the * Quality and Safety Commission Act; and
(ii) the sanction prohibits the charging of an accommodation contribution for the service;
(e) an approved provider must comply with:
(i) the rules set out in this Division; and
(ii) any rules about charging accommodation contributions specified in the Fees and Payments Principles.
Note: A person who does not provide sufficient information to allow the person's means tested amount to be worked out will be charged an accommodation payment: see paragraph 52G-2(a).
Division 4 of the Fees and Payment Principles 2014 (the Fees and Payments Principles) contains further rules regarding charging accommodation contributions however those are not relevant to this matter.
Calculating Means Tested Amount
Section 44.22 of the Act provides the following for calculating the means tested amount:
(1) The means tested amount for the care recipient is worked out as follows:
Means tested amount calculator
Work out the income tested amount using steps 1 to 4:
Step 1. Work out the care recipient's * total assessable income on a yearly basis using section 44-24.
Step 2. Work out the care recipient's * total assessable income free area using section 44-26.
Step 3. If the care recipient's total assessable income does not exceed the care recipient's total assessable income free area, the income tested amount is zero.
Step 4. If the care recipient's * total assessable income exceeds the care recipient's total assessable income free area, the income tested amount is 50% of that excess divided by 364.
Work out the per day asset tested amount using steps 5 to 10:
Step 5. Work out the value of the care recipient's assets using section 44-26A.
Step 6. If the value of the care recipient's assets does not exceed the asset free area , the asset tested amount is zero.
Step 7. If the value of the care recipient's assets exceeds the asset free area but not the first asset threshold , the asset tested amount is 17.5% of the excess.
Step 8. If the value of the care recipient's assets exceeds the first asset threshold but not the second asset threshold , the asset tested amount is the sum of the following:
(a) 1% of the excess;
(b) 17.5% of the difference between the asset free area and the first asset threshold.
Step 9. If the value of the care recipient's assets exceeds the second asset threshold, the asset tested amount is the sum of the following:
(a) 2% of the excess;
(b) 1% of the difference between the first asset threshold and the second asset threshold;
(c) 17.5% of the difference between the asset free area and the first asset threshold.
Step 10. The per day asset tested amount is the asset tested amount divided by 364.
The means tested amount is the sum of the income tested amount and the per day asset tested amount.
(2) The asset free area is:
(a) the amount equal to 2.25 times the * basic age pension amount; or
(b) such other amount as is calculated in accordance with the Subsidy Principles.
(3) The first asset threshold and the second asset threshold are the amounts determined by the Minister by legislative instrument.
Working out the per day Asset Tested Amount
Step 5 of section 44.22 of the Act requires the use of section 44-26A to work out the value of care recipient’s assets.
Subsection 44.26A(1) of the Act states that subject to this section, the value of a person's assets for the purposes of section 44-22 is to be worked out in accordance with the Subsidy Principles 2014 (the Subsidy Principles):
(4) The value of a person's assets is taken to include the amount that the Secretary determines to be the amount:
(a) if the person is receiving a * service pension, an * income support supplement or a * veteran payment--that would be included in the value of the person's assets if Subdivisions B and BB of Division 11 and Subdivision H of Division 11A of Part IIIB of the Veterans' Entitlements Act 1986 applied for the purposes of this Act; and
(b) Otherwise--that would be included in the value of the person's assets if Division 2 of Part 3.12 and Division 8 of Part 3.18 of the Social Security Act 1991 applied for the purposes of this Act.
Note 1: Subdivisions B and BB of Division 11 of Part IIIB of the Veterans' Entitlements Act 1986, and Division 2 of Part 3.12 of the Social Security Act 1991, deal with disposal of assets.
Note 2: Subdivision H of Division 11A of Part IIIB of the Veterans' Entitlements Act 1986, and Division 8 of Part 3.18 of the Social Security Act 1991, deal with the attribution to individuals of assets of private companies and private trusts.
Subsection 47(1) of the Subsidy Principles provides:
(1) For subsection 44‑26A(1) of the Act, the value of a person’s assets is the value worked out in accordance with Division 1 of Part 3.12 of the Social Security Act, reduced by any compensation payments received by the person under:
(a) the Compensation (Japanese Internment) Act 2001; or
(b) the Veterans’ Entitlements (Compensation—Japanese Internment) Regulations 2001; or
(c) Part 2 of the Veterans’ Entitlements (Clarke Review) Act 2004; or
(d) Schedule 5 to the Social Security and Veterans’ Affairs Legislation Amendment (One‑off Payments and Other 2007 Budget Measures) Act 2007.
(2) However, the following provisions of Division 1 of Part 3.12 of the Social Security Act do not apply for the purposes of working out the person’s assets:
(a) paragraphs 1118(1)(a), (b) and (g), subparagraphs 1118(1)(ga)(ii) and (gb)(ii), paragraphs 1118(1)(u) and (v) and subsection 1118(4) (Certain assets to be disregarded in calculating the value of a person’s assets
(b) section 1118AB (Value of person’s assets reduced: certain transactions to do with aged care accommodation bond
(c) section 1118AC (Value of person’s assets reduced: refunds to charge exempt residents)
(2A) Also, subsection 1121(1) of the Social Security Act does not apply, for the purposes of working out the value of the person’s assets, to a charge or encumbrance over the amount of any refundable deposit balance in respect of a refundable deposit paid by the person.
…….
Social Security Act 1991
Division 1 and 2 of Part 3.12 of the Social Security Act1991 (the Social Security Act) deals with assessment assets.
Subsection 11(1) of the Social Security Act states that ‘asset’ means property or money (including property or money outside Australia).
Subsection 8(8)(jc)provides that a payment under the National Redress Scheme is not income for the purposes of the Social Security Act.
Key Principles

The cumulative effect of the above sections are:
(a)The imposition and calculation of an individual’s DAC depends on their means tested amount, pursuant to section 52G.6 of the Act.
(b)In accordance with section 44.26A(1) of the Act, the calculation of an individual’s means tested amount requires working out their per day asset tested amount, which in turn depends on the value of their assets.
(c)The Subsidy principles provide that an individual’s assets are worked out in accordance with Part 3.12 of the Social Security Act.
(d)Part 3.12 and subsection 11(1) of the Social Security Act relevantly define assets to include any money in a bank.
CONTENTIONS
There was no dispute between the parties that the Applicant received a lump sum under the National Redress Scheme. The dispute centres around whether the lump sum is considered an asset for assessment of the Applicant’s DAC. The Respondent accepts that the lump sum is excluded from the definition of income under the Social Security Act.
The Applicant’s former wife argued that it was wrong to include the lump sum payment as an asset as the money was not compensation, but an acknowledgement of the harm done to the Applicant. She contended the lump sum payment should be exempted from the asset test.
The Applicant’s former wife gave evidence that the Applicant was a proud man who could not discuss what happened to him, so he had not pursued a court settlement, though she believed he would have received a larger settlement if he had done so.
The Applicant’s former wife submitted that she had been provided misleading and incomplete information from both the redress scheme and Centrelink about the effect of the lump sum payment on the Applicant’s assessment for residential aged care.
The Applicant’s former wife’s evidence was that she had been advised to place the lump sum payment in a separate bank account not related to the Applicant’s pension which she had done so. She contends she was led to believe that this sum would then be exempted from all consideration for income, taxation and asset assessments.
She stated she was advised by the redress scheme to speak to the redress officer at Centrelink. She said she made numerous appointments but when she arrived, the redress officer was not available. When she was finally able to speak with the redress officer, she expressed her concern that extra money for the Applicant’s care might be taken from his lump sum payment. The Applicant’s former wife’s evidence was that the Centrelink officer advised this would not happen, though she should provide records of what she had bought for the Applicant from the money.
The Applicant’s former wife’s evidence was that she had received false or misleading information from Centrelink when she first contacted them about the lump sum payment as the person she spoke to (who she thought was a National Redress Scheme trained person) did not advise her about gifting, funeral bonds or other options she could use to reduce the Applicant’s lump sum payment and impact on the calculation of his DAC.
The Applicant’s former wife gave evidence that she had been supporting the Applicant for many years, including paying for numerous things on his behalf, in particular his private health insurance. She stated that she had provided Centrelink with evidence of the numerous items she had purchased for her husband from the lump sum including a funeral bond, a new bed, linen, private health insurance payments, and money owed to her. The evidence before the Tribunal was that all this had been accepted by Centrelink.
The Applicant’s former wife was adamant that Centrelink had incorrectly calculated the DAC charged to the Applicant. She stated she had never been given a satisfactory explanation for the $10,000 which Centrelink initially found as the amount of the Applicant’s ‘other assets’. The Applicant’s former wife believed this was incorrect because when the Applicant went into permanent residential care, he had no assets and was homeless, which is why he had to live with her.
The Applicant’s former wife’s evidence was that she had asked Centrelink on numerous occasions to recalculate the amount of DAC charged as she did not think all the evidence she had provided had been considered. The Applicant’s former wife has furnished numerous bank statements to Centrelink showing where, when and why money from the lump sum had been spent.
The Respondent contended simply that all funds which the Applicant held in his bank account following the receipt of the lump sum on 30 October 2020 was an asset for the purposes of calculating fees and charges under the Act and the lump sum could not be excluded. This resulted in the imposition of the DAC.
The Respondent took the Tribunal to the explanatory memorandum of the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018 which explained:
Payments made under the Scheme will be exempt from the income test under the Social Security Act and the Veterans’ Entitlements Act and will not reduce income support payments to a person who receives redress. This is because any payment under the Scheme will not meet the requirements for being ordinary or statutory income. Any payment of redress is also not taxable because the payment is not included in the person’s assessable income.
The Respondent contended that the lump sum could not be excluded from the Applicant’s assets for the purposes of calculating his DAC, for the following reasons:
(a)The funds in his bank account on 30 October 2020 are an asset as relevantly defined in section 11 of the Social Security Act.
(b)While there is a specific provision in the Social Security Act which excludes National Redress Scheme payments from the income test, there is no provision which excludes National Redress Scheme payments from the asset test.
(c)As such, the funds in his bank account, including any residual amount of the lump sum, are an asset for the purposes of Division 1 and 2 of Part 3.12 of the Social Security Act, as well as the Subsidy Principles and the Act.
The Respondent submitted that given the Applicant’s DAC depends on calculating the means tested amount, which in turn depends on his assets, his DAC was correctly calculated by taking the lump sum into account as an asset.
The Respondent further noted that the Applicant was not being charged DAC currently, and has not been since 1 January 2022, as his DAC was re-assessed over time as the funds in his bank account reduced.
CONSIDERATION
The Tribunal found that the Applicant’s lump sum redress payment, when deposited into his bank account on 30 October 2020, was an asset as relevantly defined in section 11 of the Social Security Act. Therefore, they were an asset for the purposes of Division 1 and 2 of Part 3.12 of the Social Security Act, as well as the Subsidy Principles and the Act.
The Tribunal found that the determination to include the Applicant’s lump sum payment as an asset for the calculation of his DAC, whilst correct at law, nevertheless seems cruel and unjust.
The Tribunal considered the following from the National Redress Guide at 5.1:
The NRS Assessment Framework is a guide used by the Independent Decision Maker to determine a person's redress payment. The amount of money a person can receive depends on their individual experience of sexual abuse as written in their application.
An Independent Decision Maker will assess the information provided to them to determine if the person experienced sexual abuse as defined by the Scheme as well as what kind of sexual abuse. Using column 2 of the table below the Independent Decision Maker will apply the highest monetary payment based on the sexual abuse described in the application, even if the person experienced more than one kind of sexual abuse.
If the person writes about the impact the sexual abuse had on their life, the Independent Decision Maker will then be able to apply the recognition of impact payment in column 3. The amount will be in line with the payment assigned at column 2.
Column 4 is a payment of $5,000. An Independent Decision Maker can apply this payment if the person writes of related non-sexual abuse they experienced. This payment is available regardless of the kind of sexual abuse experienced.
Column 5 is a payment of $5,000. An Independent Decision Maker can apply this payment if the person's care arrangements made them more vulnerable to abuse. This payment is available regardless of the kind of sexual abuse experienced.
Column 6 is a payment of $50,000 that can be applied where the person experienced penetrative abuse and the Independent Decision Maker determines the person's experience meets the criteria for extreme circumstances.
The maximum redress payment a person can receive is $150,000
The Tribunal concluded that the Applicant had suffered enough and shared his former wife’s disbelief that his redress payment could be considered an asset. The Tribunal notes that given the amount of the Applicant’s lump sum, his experience must have met the criteria for extreme circumstances.
Despite this, the Tribunal cannot ignore the law. The Act makes no distinction as to the source of funds when they were deposited into the Applicant’s bank account when assessing his assets. Additionally, it would appear the drafters of the Redress Scheme made no provision to exclude the payment from the asset assessment.
The Tribunal found Centrelink had correctly included the Applicant’s lump sum payment as an asset when it was deposited into his account in his assessment for residential aged care fees.
The Tribunal could not determine if Centrelink had correctly calculated the Applicant’s DAC and requested the Respondent recalculate, utilising all the material which the Applicant’s former wife provided and an examination of the $10,000 attributed to the Applicant as ‘other assets’ in Centrelink’s original determination in 2018.
Based on Centrelink’s file notes and the Applicant’s former wife’s testimony, the Tribunal concluded that his former wife had been given misleading and confusing advice in respect of the impact of the Applicant’s lump sum payment and the potential options to reduce the impact of the payment. The Tribunal found the Applicant’s former wife to be a concise, capable woman who was more than able to advocate for her former husband’s best interests.
POSSIBLE RECOURSE FOR THE APPLICANT
The Tribunal advised the Applicant’s former wife that it did not have jurisdiction to review her concerns about the information she was provided by Centrelink. The Tribunal only has jurisdiction to consider the decision under review.
The Tribunal addressed the prospect of the Applicant’s former wife seeking redress on the Applicant’s behalf by making a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA), which is administered by the Department of Finance. Defective Administration is defined as:
a specific and unreasonable lapse in complying with existing administrative procedures; or
an unreasonable failure to institute appropriate administrative procedures; or
an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
The Tribunal advised the Applicant’s former wife that she could pursue a CDDA application as an avenue to seek compensation for the faulty information she perceives she received when navigating receipt of the Applicant’s lump sum payment.
It was explained to the Applicant that she could only pursue a claim for CDDA as an avenue of last resort when there is no other avenue of redress available.
Applications under the CDDA Scheme are discretionary, they are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable. The Tribunal advised the Applicant’s former wife that it had no jurisdiction in respect of perceived defective administration by the Department and had no jurisdiction over the CDDA scheme.
Whilst the Tribunal advised the Applicant’s former wife that it had no way of assessing whether her claim would be successful, it nevertheless encouraged her to lodge an application.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review. The Tribunal asks that the Respondent recalculate the Applicant’s daily accommodation contribution fees to ensure that the correct amounts were taken.

68. I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the written reasons for the decision of Ms A E Burke AO, Member

.........................[sgd]...............................
Associate
11 April 2022

Date of hearing: 21 March 2022

Advocate for the Applicant: Former Wife

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Arabi Raveendiran

Services Australian

[2022] AATA 728

11 April 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Remedies

Appeal

Date of Effect	DAC ($) Total
23 November 2018	0.00 0.00
1 January 2021	27.01 653.22
23 March 2021	6.71 671.00
1 July 2021	1.14 497.94
20 September 2021	0.90 92.70
1 January 2022	0.00 0.00