Editors --- "Parenting payment and family tax benefit: qualification; temporary absence from care" [2006] SocSecRpr 10; (2006) 8(1) Social Security Reporter, Article 10

• QX05/7 and SECRETARY TO THE DEWR and SECRETARY TO THE DfaCS
• Background
• The issue
• The evidence
• Parenting payment single
• Formal decision

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Parenting payment and family tax benefit: qualification; temporary absence from care

QX05/7 and SECRETARY TO THE DEWR and SECRETARY TO THE DfaCS

(2005/921)

Decided: 22nd September 2005 by E.K. Christie

Background

The applicant was in receipt of parenting payment single (PPS) and family tax benefit (FTB) for her 4 children when Centrelink cancelled her payments on 5 January 2005 on the basis that the children were no longer in her care.

The issue

The issue was whether the decision to cancel the applicant’s PPS and FTB from 5 January 2005 was correct.

The evidence

The applicant and her husband separated in 1998. Their four children had been in the applicant’s care from that time and she had been paid PPS and later FTB in respect of the children.

On 5 January 2005 the children went to stay with their father. There was conflicting evidence about the circumstances in which they left the mother. She advised Centrelink and the AAT that they went for a2 week holiday and that there was a verbal agreement between her and their father to this effect. On 14 January 2005, Centrelink documented that it had received a phone call from the Queensland Department of Child Safety (‘QDCS’) advising that the applicant’s four children had left the care and control of the applicant on 5 January 2005.On the basis of this advice, on 14 January 2005, Centrelink made decisions to cancel the applicant’s PPS (because she no longer had a dependent child under the age of 16 in her care) and FTB (as she no longer had a child in her care).

On 19 January 2005, the applicant contacted Centrelink and requested a review of the decisions advisingthat ‘the children had not left her care permanently, they went to stay with their father temporarily and that the children were due back in her care 19 January 2005’.

The children were not returned to her care on 19 January 2005. She then had dealings with the QDCS and subsequently the family court to have the children returned to her.

Court orders for the shared control of the applicant’s four children were made on 3 March 2005. From that time, the applicant received Social Security entitlements based on the pattern of control. On 28 June 2005 orders were made in the Family Court returning the four children to the care and control of the applicant.

Parenting payment single

The AAT considered whether the applicant was qualified to be paid PPS under s.500 of the Social Security Act 1991 (‘the Act’) after the children left her care on 5 January 2003. It also considered whether their absence could be said to be temporary as provided for in s.500D(2) of the Act. The AAT considered the definition of ‘dependent child’ as discussed by the full court of the Federal Court in Secretary, Department of Social Security v Field [1989] FCA 345; (1989) 25 FCR 425 (‘Field’s case’).

The AAT made the following findings.

From 5 January 2005 the children ceased being ‘dependent’ children of the applicant. The applicant conceded that, from this date, she had no input into the daily care and control of the children asshe was refused access by her former husband. They ceased to be PP children under s.500 of the Act and as a result, the applicant would not qualify for PPS for the children.

Once it was reasonable for the applicant to realise that the children’s absence was no longer temporary, qualification for PPS was lost. The AAT accepted the applicant’s evidence that when the children left her care it was for the purpose of a two weekholiday with their father and she expected them to return to her care and control at the end of the period. They did not return.

The AAT found that as the Secretary was notified by a person purporting to be from QDCS on 14 January 2005 that the children’s absence was no longer temporary then beyond 14 January 2005 it was reasonable for the applicant to realise that her former husband was keeping their four children so that they were no longer in her care and control. From this date their absence was no longer temporary and the applicant lost qualification for PPS.

Family tax benefit

The AAT then considered whether the applicant had an entitlement to FTB under s.21 of the A New Tax System (Family Assistance) Act 1999 (‘FA Act’) beyond 5 January 2005. This would only be the case if she had at least one‘FTB child’, a child who was in her care and for whom she had legal responsibility in respect of day-to-day care – whether alone or jointly with someone else.

The AAT considered the application of s.23 of the FA Act (which makes provision for an individual to continue to receive FTB for up to fourteen weeks when an FTB child ceases to be in an individual’s care without consent provided reasonable stepsare taken to have the child returned). However the provision to extend eligibility for FTB during the child’s absence from care does not apply if the child is not in the person’s care and the child has entered the care of a parent and a family law order or registered parenting plan is not in force for that child at that time [s.23(5) of the FA Act].Therefore, the provision was inapplicable to the applicant’s situation.

The AAT concluded that payment of FTB could not be extended for a period after 5 January 2005 when the children left the applicant’s care. On 5 January 2005 the applicant did not satisfy s.21 of the FA Act as she did not have an FTB child in her care.

Compensation for financial detriment caused by defective administration

The AAT noted that the findings it had made might seem harsh or unfortunate but that the legislative scheme did not provide it with any discretion other than to make the findings that had been made.

It went on to consider the evidence about the process by which the children were removed from the applicant’s care and the role of Centrelink and the QDCS. By the time of the applicant’s appeal to the AAT the QDCS had investigated the applicant’s complaint and confirmed that the information said to have been given by QDCS to Centrelink, that the applicant’s rights regarding her children had been extinguished, was incorrect and the source of this information was unknown. The QDCS had apologised to the applicant.

The AAT raised the possibility of whether the Commonwealth Policy: ‘The Scheme for Compensation for Detriment Caused by Defective Administration’ (‘the CDDA scheme’) had any application.

The AAT then looked specifically at the facts of the applicant’s case and the criteria under which claims under the CDDA scheme are considered, and which might have been applicable to the applicant’s circumstances, which included: ‘a specific and unreasonable lapse in complying with existing administrative procedures that would normally have applied to the claimant’s circumstances; or an unreasonable failure to institute appropriate administrative procedures to cover a claimant’s circumstances’.

The AAT observed that in the applicant’s case it might be relevant to consider the administrative procedures contained in Departmental Policy Guidelines that would have been in place and applied to authenticate a telephone and/or written contact from a State Government Department (QDCS): the extent administrative procedures were followed when telephone/written contact was claimed to have been made by QDCS, and whether there were appropriate administrative procedures in place to authenticate and to corroborate information on sensitive family issues – when such information is exchanged between a State Government and Commonwealth Government Department.

The AAT noted that it had no power to give effect to the CDDA Scheme. The procedure is for the applicant to make a claim to the respondent and to request that her claimbe assessed under the specified eligibility criteria.

Formal decision

The AAT varied the decision under review by -

(a) varying the date of the cancellation of the applicant’s parenting payment from 5 January 2005 to 14 January 2005; and

(b) affirming the decision of the cancellation of the applicant’s family tax benefit with effect from 5 January 2005.

[C.E.]