Crawford and Secretary, Department of Family and Community Servic es [2003] AATA 259 (19 March 2003)

Last Updated: 20 March 2003

DECISION AND REASONS FOR DECISION [2003] AATA 259

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2002/209

GENERAL ADMINISTRATIVE DIVISION	)
	Re	KELLY CRAWFORD

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Associate Professor B W Davis AM (Part-time Member)

Date 19 March 2003

Place Hobart

Decision

The decision under review is affirmed.

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

Part-Time Member

CATCHWORDS

Social Security - family tax benefit (FTB) - pattern of care - Family Court order - FTB debt - waiver - Centrelink - SSAT (Social Security Appeals Tribunal).

LEGISLATION

Family Assistance (Administration) Act 1998 - ss11,25(1), 27, 31(2), 59, 71(1), 97(2)(3)(4)

Family Assistance Guidelines

Social Security Act 1991

AUTHORITIES

Department of Family and Community Service v Walsh [2002] AATA 881 (4 October 2002)

REASONS FOR DECISION

19 March 2003	Associate Professor B W Davis AM (Part-time Member)
DECISION UNDER REVIEW

1. The applicant, Kelly Crawford, seeks review of a decision made by a delegate of Centrelink on 3 July 2002, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 3 September 2002, that the applicant had been paid more Family Tax Benefit (FTB) than she was entitled to receive over the period 1 July 2001 to 19 June 2002 and that the overpayment should be recovered.

THE ISSUE

2. The issue is whether Mrs Crawford was overpaid FTB and if so, whether she should be required to repay the debt or whether special circumstances require waiver or variation.

BACKGROUND

3. On 2 July 2002, Mrs Crawford lodged a form with the Family Assistance Office of Centrelink indicating that she had shared the care of three children with her former partner from 1 July 2001. A Family Court consent order dated 7 August 2001 provided that the parties would retain joint responsibility for long-term care, welfare and development of the children, but the mother would have sole responsibility for day-to-day care. The father would have contact with the children on alternate weekends and each alternate Sunday afternoon, as from July 2001.

4. Following receipt of the form dated 2 July 2002, a debt was registered by Centrelink on 3 July 2002, indicating overpayment of family assistance of $1,681.50 to Mrs Crawford for the period 1 July 2001 to 19 June 2002.

5. An authorised review officer was asked to provide an independent opinion. He found that for the period 1 July 2001 to 19 June 2002 Mrs Crawford had received 100 per cent of the FTB entitlements for her three children, but the information supplied by her on 2 July 2002 and confirmed by her partner indicated the children were in her care only 86 per cent of the time, thus she should have received 86 per cent rather than 100 per cent of FTB payments for the period. The difference between these amounts was $1,681.50 and this was a debt to the Commonwealth.

6. The reason for the initial 100 per cent FTB payment, was that on the form submitted by Mrs Crawford on 27 September 2000, she stated that she did not share the care of any children with another person, which may or may not have been the situation at that time. She subsequently stated that the term ´shared care' had never been explained to her and she was the person who provided all the care and paid all of the children's expenses.

7. The review officer noted that Mrs Crawford's reason for not declaring the average one night per week the children stayed with their father, was that she did not regard this as shared care. The review officer could not find any administrative error by the Department or any other reason to waive the debt, thus he concluded Mrs Crawford should repay the amount of overpayment i.e. $1,681.50. He based his reasoning on ss71 and 97 of the Family Assistance (Administration) Act 1999.

8. Mrs Crawford lodged an application to appeal this decision with the SSAT on 31 July 2002. The SSAT conducted its hearing in Launceston on 3 September 2002, affirming the decision under review, i.e. Mrs Crawford must pay the $1,681.50 owing to the Commonwealth.

9. In reaching its decision the SSAT noted that Mrs Crawford now acknowledged that she had been overpaid, but argued she had not been aware that she had been incurring the debt until it was pointed out to her in the mid 2002. She further argued it was unfair to give FTB to her former partner, since she was the one providing all the care and paying all the expenses involved. The SSAT noted her concerns, but considered that any money received as unentitled payment should be returned unless there were special circumstances to waive such a debt. No administrative error had occurred, thus the debt stood and should be repaid. The departmental decision was affirmed.

10. Mrs Crawford decided to appeal this decision to the AAT, by application dated 29 September 2002.

HEARING

11. At the hearing conducted in Burnie on 5 March 2003, the applicant was represented by Mr John Crooks and the respondent by Mr Brian Sparkes.

12. Mrs Crawford was sworn and gave evidence indicating she believed she was entitled to 100 per cent of the FTB, since her former partner did not contribute to care of the children. She agreed that she had signed a form on 27 September 2000 indicating care was not shared with another person, but had later signed a form on 1 July 2002 stating she was responsible for care 86 per cent of the time. It was the Family Court consent decision on 7 August 2001 which had confirmed the 86 per cent provision.

13. She was asked why she had not informed the Centrelink of this changed circumstance, but stated she was not aware she had to do so and in any event the circumstances had not really changed, since she was providing all the care.

14. Counsel for the respondent argued Centrelilnk did all it could to advise clients of their rights and obligations, but there was still an onus on citizens to ensure they understood the law. Counsel for the applicant noted that if Mrs Crawford was required to pay the debt, some financial hardship would be involved, given the difficulty of meeting all school and care expenses for three children.

Legislation

15. Provisions relating to the sharing of FTB where a number of children are involved and a pattern of care must be or has been determined, are covered in several sections of the Family Assistance (Administration) Act 1999, the relevant sections in Mrs Crawford's case being ss11, 25(1), 27, 31(2), 59, 71(1), 97(2), (3) and (4).

16. Section 59 provides that the Secretary of the Department may make a determination of individual FTB for each child in situations where couples are separated; ss71(1) and 97 subsections (1) to (4) deal with non-entitlement or waiver of debt arising from error. Section 5(2) of the Act sets out the manner of determination of shared care patterns in various circumstances. In Department of Family and Community Service and Walsh (2002) AATA 881 (4 October 2002) it was held appropriate that the Tribunal should consider these Family Assistance Guidelines in determining matters before it.

Analysis

17. While the Tribunal has some sympathy for Mrs Crawford's situation, the Tribunal must stand in the shoes of the decision-maker, considering all evidence anew, but paying due regard to statutory provisions.

18. It is fairly clear Mrs Crawford may not have understood the concept of shared care at the outset, nonetheless she was clearly obliged to keep Centrelink informed of any new or changed circumstances, such as the Family Court consent order of 7 August 2001. She failed to do so, thus incurring a debt to the Commonwealth by overpayment. The Tribunal has examined all relevant documents and cannot find any administrative error by the Department or other special circumstances which would warrant waiver.

19. Having carefully considered all relevant provisions of the Family Assistance (Administration) Act 1999, it is clear to the Tribunal that Mrs Crawford was in a shared care situation during the period 1 July 2001 to 19 June 2002, she was entitled to received 86 percent but not 100 percent of the FTB rate, thus an overpayment occurred and the Commonwealth is entitled to recover the debt.

Decision

20. The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 5 March 2003

Date of Decision 19 March 2003

Counsel for the Applicant Mr John Crookes

Solicitor for the Applicant Launceston Community Legal Service

Counsel for the Respondent Mr Brian Sparkes

Solicitor for the Respondent Centrelink