Khan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 44 (22 January 2010)

Last Updated: 22 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 44

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3070

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KHAN, Sher Afzal

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

M D Allen, Senior Member

Date 22 January 2010

Place Sydney

Decision

The decision under review is AFFIRMED.

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

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY – Carer payment and carer allowance paid to the Applicant in the years 2006, 2007 and 2008. Payments cancelled and overpayment raised. Was Applicant providing constant care and day-to-day care. Numerous absences by Applicant from Australia in the periods for which claims made. Were there grounds to write-off or waive the debt.

LEGISLATION
Social Security Act 1991 ss7, 198, 198AC, 954, 957, 1223, 1236, 1237A and 1237AAD.

Administrative Appeals Tribunal Act 1975

CASES

Hafza v Director General of Social Security [1985] FCA 164; (1985) 6 FCR 444;

Re Wybrow v Secretary Department of Social Security (1993) 71 SSR 1025

Inland Revenue Commisioners v Lysaght [1928] AC 234;

Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93;

Secretary, Department of Social Security v Ellis (1996-7) 24 AAR 535;

Del Vecchio & Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2007] AATA 1145;

Drake v Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634;

Stubbs & Secretary Department of Families and Community Services [2003] AATA 729.

REASONS FOR DECISION

22 January 2010

M D Allen, Senior Member

1. By Application made the 6th day of July 2009, the Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”) of 2 June 2009 affirming a prior determination by Centrelink in the following terms, viz:
   1. To cancel the Applicant’s carer allowance for the period 10 August 2006 to 8 October 2008.
   2. Raise and recover a carer allowance debt for the period 10 August 2006 to 8 October 2008.
   3. To cancel the Applicant’s carer payment for the period 10 August 2006 to 8 October 2008.
   4. Raise and recover a carer payment debt for the period 10 August 2006 to 8 October 2008.
   5. Reject the Applicant’s new claim for carer allowance.
   6. Reject the Applicant’s claim for carer payment.
2. Section 198 of the Social Security Act 1991 (“SSA”) reads inter alia:

(1)  A person is qualified for a carer payment if the requirements of this section are met.

(2)  The person must personally provide constant care for:

(a)  either:

(i)  if the person is the only person providing the constant care - a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

(ii)  if not - a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32;

And section 198AC reads:

(1)  Subject to subsection (3), if:

(a)  a person is qualified because the person is personally providing constant care for a care receiver or care receivers; and

(b)  the person temporarily ceases to provide that care for the care receiver or care receivers;

the person does not cease to be qualified for the carer payment merely because of that cessation.

(2)  ...

(3)  Subject to subsection (3B), the period, or the sum of the periods, for which subsection (1) or (2), or a combination of those subsections, can apply is:

(a)  63 days in any calendar year; or

(b)  another period that the Secretary, for any special reason in the particular case, decides to be appropriate.

(4)  If:

(a)  a person is qualified for carer payment because the person is personally providing constant care for a care receiver or care receivers; and

(b)  the person temporarily ceases to provide that care in order to undertake training, education, unpaid voluntary work or paid employment; and

(c)  the cessation does not exceed 25 hours per week;

the person does not cease to be qualified for the carer payment merely because of the cessation.

As to carer allowance, section 954 provides, inter alia:

(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 SSA states:

(1)  Subject to subsection (3), if:

(a)  a person is qualified, under section 953, 954 or 954A, for carer allowance because a care receiver or care receivers are receiving care and attention on a daily basis; and

(b)  the care receiver or care receivers temporarily cease to receive care and attention that would qualify the person for carer allowance;

the person does not cease to be qualified for carer allowance merely because of that cessation.

(3)  However, the period, or the sum of the periods, for which subsection (1) or (2), or a combination of those subsections, can apply is:

(a)  63 days in any calendar year; or

(b)  another period that the Secretary, for any special reason in the particular case, decides to be appropriate.

3. “Australian Resident” is defined in subsection 7(2) of the SSA 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.

4. The Applicant was first granted carer payment and carer allowance in respect of his wife, Youmna Khan in November 2005. Subsequently on 2 October 2008 Centrelink wrote to the Applicant pointing out that he had been out of Australia on 24 occasions since January 2006 whilst his wife remained in Australia. Advice was requested from the Applicant as to who cared for his wife during these absences.
5. The absences were set out in that letter and the Applicant did not dispute those dates in these proceedings.
6. On 30 October 2008 the Applicant wrote to Centrelink advising that during his absences his wife had been cared for by a Mr Singh and that the reason for his absence was his involvement in litigation both in New Zealand and in Pakistan.
7. In evidence the Applicant stated that on a visit to Pakistan in 2004 he had been falsely accused of people smuggling. He was arrested and then released on bail but had to keep returning to Pakistan for court appearances.
8. The Applicant’s evidence as to these events is somewhat contradictory as in his statement he said:

“I remain (sic) 28 days in Karachi Jail under Pakistani law for human smuggling is non bailable but there was no evidence against me I was granted bail by the court for $10000 cash deposit security in the court”.

9. Apparently the Pakistani proceedings are still on foot.
10. In 2006 whilst on a visit to New Zealand, he was arrested by New Zealand police and charged on what he stated was a false complaint by a former employee of the leather business he had conducted in New Zealand in the years 1992 – 1998.
11. The decision of the SSAT contains the following passages:

“12. Mr Khan told the Tribunal that his wife suffered an injury at work and had made a compensation claim. He said that he and his wife had subsequently been wrongly convicted of fraud against the Accident Compensation Corporation in New Zealand in relation to Mrs Khan’s compensation claim.

13. Both he and his wife had been involved in legal action since 1993 in an attempt to have the convictions overturned and had been successful in 2005.

14. Mr Khan told the Tribunal that since 2005 he had been involved in criminal and civil litigation in New Zealand in relation to matters related to the conviction for fraud in an attempt to clear his name and that of his wife. He said that he was taking legal action against a witness in the original case, and against the Attorney General of New Zealand.

15. Mr Khan told the Tribunal that he had to spend considerable time in new Zealand from 2006 pursuing these legal actions, particularly because he could not afford to be legally represented, and was having to represent himself.”

12. At document T14 of the documents prepared for the Administrative Appeals Tribunal (“AAT”) pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, is a copy of an order by Venning J in the High Court of New Zealand in the matter of Youmna KHAN v Accident Compensation Corporation dated 21 October 2008.
13. Contrary to what the Applicant told the SSAT I note that the Applicant’s wife was represented by Counsel on that occasion together with instructing solicitors.
14. The first question that arises in these proceedings is whether the Applicant is an Australian resident. Subsection 7(3) SSA sets out the criteria for determining whether or not a person resides in Australia, viz:

(3)  In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

(a)  the nature of the accommodation used by the person in Australia; and

(b)  the nature and extent of the family relationships the person has in Australia; and

(c)  the nature and extent of the person's employment, business or financial ties with Australia; and

(d)  the nature and extent of the person's assets located in Australia; and

(e)  the frequency and duration of the person's travel outside Australia; and

(f)  any other matter relevant to determining whether the person intends to remain permanently in Australia.

15. As was pointed out in Re Wybrow v Secretary Department of Social Security (1993) 71 SSR 1025 the factors set out in Ss7(3) above are not exhaustive and do not detract from the general observations of Wilcox J in Hafza v Director General of Social Security [1985] FCA 164; (1985) 6 FCR 444 at 449-50 viz:

“There is a plethora of decisions arising in various contexts that predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept, residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd FCT [1941] HCA 13; (1941) 64 CLR 241 at 249 , by Williams J:

“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situated, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.”

Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntary: see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383 – a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place – Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 – together with an intention to return to that place and an attitude that that place remains “home” – see Norman v Norman (No.3) (1969) 16 FLR 231 at 236. It is important to observe first, that a person may simultaneously be a resident in more than one place – see the facts of Lysaght above, and the reference by Williams J to “a home or homes” – and secondly that the application of the general concept of residence to any particular case must depend upon the wording and underlying purposes of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residents of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.

16. In Hafza above, Wilcox J referred to “continuity of association”. That concept had previously been stated by the High Court in Commission of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93 at 99 where Latham CJ said:

“I should have thought that there was no doubt that a man resided where he lived, and I do not think that there is any interpretation of the word ‘reside’ by the courts which makes it impossible to apply the ordinary meaning of the word ‘reside’ in the present case. In Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217 at 222, Viscount Cave LC said:

“...the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one settled or usual abode, to live in or at a particular place’. No doubt this definition for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word ‘reside’. In most cases there is no difficulty there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the lest resident there because from time to time he leaves it for the purpose of business or pleasure.”

17. In this matter the Applicant’s wife has continued to reside in Australia in rental premises in Wester Sydney and the Applicant has resided with her when not abroad.
18. The Applicant has no family ties in Australia apart from his wife to whom he has been married since 1974. Apparently he has a brother in Australia but he is recorded as telling the SSAT they were estranged.
19. The Applicant has no financial ties with Australia except, prior to cancellation, the receipt of social security benefits.
20. The Applicant’s travel outside Australia is frequent and I note that he travels using a New Zealand passport. He is a citizen of New Zealand as well as Australia and also has Pakistani citizenship.
21. Whereas the Applicant has spent considerable periods outside Australia, I find on balance that he is an Australian resident. His situation can be compared to a businessman who has business interests overseas but who maintains his family in Australia and returns to them whenever his business activities allow. In other words he has continuity of association with Australia (Levene supra).
22. Subsection 198(2) SSA provides that for the payment of carer payment the person must “provide constant care”.
23. In Del Vecchio v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1145, SM Hastwell stated:

“A carer is said to provide constant care if they personally provide care on a daily basis for a ‘significant period’ during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing carer payment is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities.”

SM Hastwell added a paragraph 38:

“The policy guideline, although not binding on this Tribunal, really just elaborates on what the cases say, which is that ‘constant care’ requires something more than episodic or spasmodic care and requires a significant degree of daily care for the individual involved.”

24. Similarly paragraph 954 (1) (d) SSA provides that in order to obtain carer allowance the care receiver must receive “care and attention on a daily basis”.
25. It is quite clear that the Applicant’s wife could not have received either “constant care” (s198) or “care and attention on a daily basis” (s954) while the Applicant was out of Australia.
26. The Applicant stated that whilst he was out of Australia he delegated the care of his wife to a friend a Mr Singh. I am not persuaded that Mr Singh did provide the requisite care to the Applicant’s wife.
27. In his statement the Applicant said:

“In my absence for short period the arrangement was made with my good friend Mr Singh to take care of my wife. Mr Singh has given letter to confirm his taking care of my wife and financial support which was produced to SSAT”.

28. At paragraph 33 of its decision, the SSAT stated:

“He does not provide his wife with daily care when was out of Australia. He said that he did the shopping before he left and telephoned regularly while he was away. He said that a friend of his, Mr Singh, was available to assist his wife in the event of an emergency while he was away overseas”.

The SSAT makes no reference to any letter from a Mr Singh which was allegedly produced to it, nor is there any letter from Mr Singh in the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975, which documents would contain all materials tendered to the SSAT.

29. In the course of the hearing before me, the Applicant was unable to produce the letter from Mr Singh to which he referred. He was however permitted to fax a copy of that letter to the Tribunal after the close of the hearing.
30. A document dated 25/05/2009 was received which purports to be from an Inderjit Singh. In that document Mr Singh states: “...I have been taking care of Mrs. Khan on daily bases 7 days week from 2006.”
31. The claim to care for the Applicant’s wife on a daily basis seven days a week is in direct contrast to the Applicant’s evidence to the SSAT. Unfortunately Mr Singh was unable to be cross examined regarding this discrepancy as the Applicant informed me that Mr Singh was currently in India.
32. Cross examined regarding the degree of care given by Mr Singh, the Applicant’s evidence varied. He stated that Mr Singh visited his wife and made arrangements for what she needed. He also did some housework. The Applicant stated that Mr Singh visited his wife “at least two or three days a week”, visiting in the course of his work journeys. Later in cross examination, this period was varied to seven days.
33. I am not satisfied that Mr Singh did provide either “constant care” or “care and attention on a daily basis” to the Applicant’s wife. In any event, any care provided by Mr Singh was not to a member of his family, nor to a person approved in writing by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs. See paragraph 954 (1)(b) SSA.
34. The Applicant claimed that he was entitled pursuant to sections 198AC and 957 SSA to payment of carers payment and carers allowance for 63 days at least in each of the years 2006, 2007 and 2008 for the period he was outside Australia.
35. Both s198AC and s957 SSA are based on the premise that the person is qualified for either carer payment or carer allowance. I find however, that at no time was the Applicant qualified for those payments as he was not providing the requisite standard of care required by either s198 or s954 SSA. As stated above his total period of absences from Australia demonstrate that he did not and could not provide the care required.
36. Both s198AC and s954 permit the Secretary of the Department to extend the period of 63 days. As I have determined that this exemption does not apply to the Applicant it is, in any event, a discretion, and whilst this Tribunal is not bound by any policy guidelines, it should pay regard to those guidelines. Cf Drake v Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634;
37. To extend the period of temporary cessation of care beyond 63 days requires special reasons. The guidelines state: “Generally, such reasons would be outside the carer’s control and would be consistent with their role as a carer”. In the Applicant’s circumstances his periods of absence beyond 63 days were not out of his control, did not have any relationship to his role as a carer, and certainly, in regards to New Zealand, were even on his own evidence referable to proceedings undertaken by him.
38. I am not convinced that the Applicant was required to attend criminal proceedings in NZ with the frequency he claims. I note that many of the journeys are within relatively short time frames and for periods which seem excessive if the only reason for making the journeys was to answer to his bail and obtain a future court date. No material was adduced by the Applicant to corroborate his claimed reasons for his journeys with the exception of the order of Venning J and the research of the SSAT which are set out at paragraphs 43 and 44 of its reasons.
39. The letter from the Applicant’s solicitors in Karachi does not descend into any particularity regarding dates.
40. Apart from the issue of entitlement, the Applicant submitted that he should be relieved from any liability to repay monies to the Respondent.
41. Subsection 1223(1) SSA states:

“Subject to this section, if:

(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.”

42. Section 1236 SSA states, inter alia:

“(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

(1A)  The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a)  the debt is irrecoverable at law; or

(b)  the debtor has no capacity to repay the debt; or

(c)  the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)  it is not cost effective for the Commonwealth to take action to recover the debt.”

Whereas subsection 1236(1C) SSA reads:

(1C)  For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

(a)  deductions from the debtor's social security payment; or

(b)  ... ; or

(c)  ...;

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

43. Applying subsection 1236(1A) to this matter, I do not regard any of the criteria in that subsection to apply to the Applicant so as to excuse him from repayment of the debt. In particular the debt can be recovered from deductions from an social security benefit paid to the Applicant. In Re Stubbs and Secretary, Department Families & Community Services [2203] AATA 729 at para 20 the Tribunal said:

“Severe financial hardship, while not implying destitution, goes beyond straightened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme kind.”

No evidence was adduced for me demonstrating incapacity to repay a negotiated sum, for example in Re Stubbs supra the sum was as low as $10 per week.

44. Section 1237A SSA permits waiver of a debt that arose solely to administrative error on the part of the Commonwealth. The Applicant has conceded that he did not inform Centrelink of every trip he made outside Australia, notwithstanding notification of this requirement to him at the time of granting the benefits in dispute. It cannot be said therefore that the debt or part of it arose solely due to administrative error.
45. Section 1237AAD SSA states:

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 this Act, the Administration Act or the 1947 Act; 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.

46. Special circumstances was discussed by Carr J in Secretary, Department Social Security v Ellis (1996-7) 24 AAR 535 at 539 viz:

“In Beadle v Director General Social Security [1984] AATA 176; (1985) 7 ALD 670, a Full Court of this Court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s102(1)(a) of the Act which provided for an extension of time in which to claim a family allowance ‘...in special circumstances...’. The full court said:

‘Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate... It would depend upon the circumstances of the particular case whether these constitute a special circumstance. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss’.

In Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545, Kiefel J, after referring to Beadle said:

“...for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only inquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust has occurred that there must be some feature out of the ordinary. The inquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied”.

Later (on the same page) Keifel J expressly approved the Tribunal’s reasoning in holding that Mr Groth’s circumstances were not out of the ordinary when Pt3.14 of the Act (in which ss1168 and 1184 are to be found) had the same effect on him as it did on other persons qualified to receive a disability support pension. Her Honour added:

“It [the Tribunal] went on to find that his circumstances and those of his family although difficult, did not constitute hardship and they could not be said to be different from other pension recipients.”

47. Paragraph 1237AAD(6) SSA provides that special circumstances are not constituted by financial hardship alone. Apart from financial hardship, I cannot find any circumstances in the Applicant’s case that would amount to special circumstances.
48. In considering the Applicant’s case, I find I cannot reconcile the case of a person who claims to be in straightened financial circumstances yet manages to have frequent trips abroad. In 2006 he made 11 trips, in 2007 he made 9 trips and in 2008 he made14 trips. These trips were to Pakistan or New Zealand, and while the Applicant may have been able to obtain cheap flights the trips still represent a significant outlay for a person allegedly dependent upon social security benefits. I also find that any civil litigation pursued by the Applicant in New Zealand was a matter of individual choice.
49. I am unable to find any special circumstances to justify the waiving of the Applicant’s debt to the Commonwealth and as I am satisfied that at no time was he providing either constant or day to day care to his wife the overpayments were correctly raised against him. Similarly for the same reasons the refusal of his claim for carer payment and carer allowance lodged on 2 December 2008 was correct.
50. The decision under review is AFFIRMED.
51. For the sake of completeness I note that the Applicant forwarded other documents to the Tribunal after the hearing in this matter in addition to the letter alleged to have been written by Mr Singh. I have had regard to those documents, but they are, in my opinion, not material to my decision.
    

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed: ...................[sgd].........................................

K. Lynch, Associate

Date of Hearing: 13 January, 2010

Date of Decision: 22 January, 2010

Representative for the Applicant Mr Sher Afzal Khan (self)

Representative for the Respondent Mr Ken Bullock, Centrelink