//
[2021] AATA 2766
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2021-08-09
Chris Puplick AM
Original judgment source is linked above.
Saab and Secretary, Department of Social Services (Social services second review) [2021] AATA 2766 (9 August 2021)
File Number(s): 2019/6700; 2019/6701; 2019/6702; 2019/6703; 2019/6704
................................[sgd]........................................
SOCIAL SECURITY - Child Care Benefit - Child Care Rebate - whether the Applicant applied for relevant benefits - whether Applicant was qualified for benefits - Applicant's children were not in care of provider - Applicant failed the work/training/study test - whether Applicant owes a debt to the Commonwealth - no sole administrative error or special circumstances - decision affirmed
A New Tax System (Family Assistance) Act 1999 (Cth) ss 14-17, 42, 43 and 52-57.
A New Tax System (Family Assistance) (Administration) Act 1991 (Cth) ss 49, 49B, 49C, 95, 97 and 101
Child Care Benefit (Work/Training/Study Test Exemption) Determination 2000 (Cth)
Clark; Secretary, Department of Social Services and (Social services second review) [2021] AATA 10
Fletcher; Secretary, Department of Social Services and (Social services second review) [2021] AATA 577
GGGD and Secretary, Department of Social Services [2020] AATA 802
Panacci and Secretary, Department of Employment and Workplace Relations [2008] AATA 30
Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746
Rachel Nall, "What happens when you take too much vitamin C?", Medical News Today: www.medicalnewstoday.com/articles/326249.
1. On 18 October 2019 Ms Jacqueline Saab (the Applicant) sought a review in this Tribunal of a decision made on 2 October 2019 by the Social Services and Child Support Division of the Tribunal (AAT1). That decision affirmed a decision by an Authorised Review Officer (ARO) of the Department (the Respondent) that the Applicant had a debt to the Commonwealth as a result of overpayment of certain social service benefits. The date of the ARO's decision was 14 December 2018.
2. The matter was heard initially by this Tribunal on 29 March 2021 using the Microsoft Teams platform as per the Tribunal's COVID-19 protocols. At the conclusion of the Respondent's cross-examination of the Applicant it was clear to the Tribunal that a number of matters could not be determined by it in the absence of further documentary material for its consideration.
3. The parties were instructed to provide further specified material to the Tribunal by 16 April 2021. In particular, the Tribunal sought information from the Applicant related to Freedom of Information request made by the Applicant to the department for certain personal records; details of allegations of any matters of fraud arising in the payment claims; relevant correspondence with Legal Aid and personal bank records from 2014 onwards. From the Respondent, the Tribunal also sought, inter alia, correspondence in relation to Freedom of Information requests made by the Applicant, details of investigations and findings related to a fraud claim, details of deductions and payments.
4. That material subsequently submitted consisted primarily of records of conversations between the Applicant and the Department (including a voice recording) together with debt screens and other screens showing payment calculations. This revealed that on 16 December 2016 the Applicant had made a formal request (FOI request) to the Department under the Freedom of Information Act 1982 (Cth) which was responded to on 30 January 2017. The Department released in full 14 of the 15 documents identified and released the final document with redaction of some personal data of third parties. Ms Saab made a further request dated 1 June 2020 which the Department responded to on 13 July 2020 by releasing a further document and a call recording.
5. Further material was added by the Applicant and, in total some 850 pages of information were provided to the Tribunal. In addition to the material described above there was an advice from the Department (dated 29 April 2021) to the effect that:
"1. Global Family Day Care:
On 21 June 2019, the department issued the provider with a notice of sanction - cancellation, and subsequently on 21 October 2020 their Childcare Subsidy approval was cancelled.
2. Five Star Family Day Care:
There have been no sanctions issued to the service, and the service is currently approved for Child Care Subsidy."
6. Some bank account records were provided; however they date from only February 2016 onwards.
7. Together with the original material provided, this material was considered by the Tribunal and the hearing was resumed on 13 July 2021 again using the Microsoft Teams platform.
8. The initial total debt as calculated by the Respondent was $55,430.54. This debt covered a period from 3 March 2014 to 3 July 2016 (the debt period).
9. The debt was constituted as follows:[1]
(a) a Child Care Rebate (CCR) debt of $2,707.21 for the period from 3 March 2014 to 6 July 2014;
(b) a Child Care Benefit (CCB) debt of $15,243.01 for the period from 7 July 2014 to 5 July 2015;
(c) a CCR debt of $4,282.76 for the period from 7 July 2014 to 28 December 2014;
(d) a CCR debt of $4,717.22 for the period from 6 July 2015 to 3 April 2016; and
(e) a CCB debt of $28,480.34 for the period from 6 July 2015 to 3 July 2016.
10. Recoveries were made by way of deductions from payments to the Applicant such that on 29 June 2020, the debt had been reduced to a total of $41,376.13 as follows: [2]
(a) for the CCR debt of $2,707.21 from 3 March 2014 to 6 July 2014, the balance due is $0;
(b) for the CCB debt of $15,243.01 from 7 July 2014 to 5 July 2015, the balance due is $5,785.81;
(c) for the CCR debt of $4,282.76 from 7 July 2014 to 28 December 2014, the balance due is $2,392.76;
(d) for CCR debt of $4,717,22 from 6 July 2015 to 3 April 2016, the balance due is $4,717.22;
(e) for the CCB debt of $28,480.34 from 6 July 2015 to 3 July 2016, the balance due is $28,480.34.
11. The Tribunal was advised by the Respondent subsequently that the debts as outlined above in relation to items (a), (b), (d) and (e) remained correct at the time of the Tribunal's determination but that the debt in relation to item (c) stood at $712.76.
12. The Tribunal is not in a position to undertake its own calculations of the payments in question but is, on the basis of the material put before it by the Respondent, content to adopt the Respondent's statement on this point as being accurate and complete.
(a) Between March 2014 and July 2016 (the debt period) qualified persons were eligible to receive social welfare payments known as Child Care Benefits (CCB) and Child Care Rebates (CCR). In July 2018 these benefits were replaced by a new system of payment by way of the Child Care Supplement (CCS).[3]
(b) CCB were payable to persons who had children in approved or registered childcare, and who met the requirements of what is called the "Work, Training, Study" test (WTST).
(c) CCB payments could be made either directly to the person claiming them or, upon their direction, directly to the provider of the childcare services in question.
(d) CCR were payable to persons who had children in approved or registered childcare and who themselves met the WTST.
(e) CCR was a payment which did not require a person to make an application separately from their application for CCB. Once the CCB was granted, the Department made an automatic calculation of the relevant CCR based on information supplied via the initial CCB application.
(f) The Applicant, during the debt period, had care for six children who were born between July 2002 and March 2012.
(g) On 7 February 2014 a telephone call was received by the department which raised matters, the details of which are contested, regarding CCB payments in respect of the six children.
(h) Following this call CCB/CCR was granted to the Applicant (and payments commenced) in respect of the six children, further, the Applicant was advised that she had a statutory obligation to report to the Department if she stopped using childcare or any of her children left a childcare service.
(i) Between 7 February 2014 and 1 October 2016, the Department wrote to the Applicant on more than 20 discrete occasions providing her with information about her CCB/CCR payments and reminding her of her reporting obligations. On 3 November 2016 the Applicant appointed her mother (Therese Saab) as her correspondence nominee and, in accordance with the legislation, correspondence after that date was addressed to her.[4] The evidence before the Tribunal establishes that all the correspondence was addressed to addresses which were supplied by the Applicant.
13. Departmental records indicate that for two discrete periods, 27 April 2014 to 6 July 2014 and from 26 October 2014 to 28 December 2014 relevant payments were made "Direct to Service". The sums in question were $1,767.84 and $1,435.45 respectively.[5]
14. At all other times, payments were made "Direct to Customer." They were paid to a variety of different bank accounts as per her instructions to the Department. Payments were as follows:
(a) from 13 February 2008 to 27 October 2015 her payments went to account number XXXXX4411;
(b) from 28 October 2015 to 31 July 2016 her payments went to account number XXXXX1337; and
(c) from 1 August 2016 to the present day they went to account number XXXXX1999.
15. Initially, the Applicant denied that these payments had been made into any of her bank accounts during this period. However, the Respondent very carefully took the Applicant through two sets of related documents. The first of these were Centrelink printouts which recorded all payments made to the Applicant whether they were CCR, CCB or Family Tax Benefits (FTB) A and B.[6] The Respondent identified each of the payments of Child Care Rebate made "Direct to Customer" and the date on which they were made.
16. The Respondent then took the Applicant to the records from her own bank accounts and demonstrated that each day of payment as recorded by Centrelink was reflected by a payment (in exactly the same amount) into one of the Applicant's various bank accounts.[7]
17. The same exercise was repeated with details from Centrelink screenshots of payments of CCB into those bank accounts.[8]
18. At the conclusion of this exercise the Applicant admitted that she had received such payments. She indicated that she had rarely, if ever, bothered to check her bank statements and believed simply that any payments she received must have been related to her legitimate entitlements of FTB.[9] After being taken through this exercise the Applicant did not contest that she had received the payments in question, and that they related to CCR and CCB payments to which she was not entitled.[10]
19. The evidence before the Tribunal establishes that:
(a) none of the Applicant's children attended childcare during the relevant period; and
(b) at no stage during the relevant period did the Applicant work nor did she meet the requirements of the WTST.
20. It clearly follows that, at no stage was the Applicant entitled to payment of either CCB or CCR.
21. It further follows that the overpayments occasioned constitute debts to the Commonwealth and that those debts are subject to recovery.
22. It is the contention of the Applicant that some "third party" was involved in arranging for CCB/CCR to be paid by the department either to the Applicant or to a nominated provider.
23. What is alleged by the Applicant is as follows:
(a) at some stage a "neighbour" of the Applicant asked the Applicant to provide her with details of the Applicant's six children and other items used to establish her (the Applicant's) personal identity;[11]
(b) it was put to the Applicant by this "neighbour" that the purpose of obtaining this information was to allow the "neighbour" to obtain, for the Applicant, some cheap clothing for the children from a charity (such as the Salvation Army) and that, on at least one occasion, such goods were provided;[12]
(c) the Applicant provided the neighbour with details such as the Centrelink reference numbers for herself and her children and their related Medicare numbers;[13]
(d) however, the "neighbour" was involved in some sort of fraud/scam in which false claims were made for CCB/CCR, with payments being made to an alleged service provider and the "neighbour" receiving cash payments from them as part of a fraud perpetrated against the Commonwealth;
(e) the "neighbour" sought to induce the Applicant to participate in this fraud and was conscious of the fact that the Applicant suffered some degree of disability in terms of her capacity to understand exactly what was involved, and that generally she (the Applicant) has trouble with her memory[14] and the management of her affairs;
(f) when this matter was brought (by the Applicant) to the attention of her mother (Therese Saab), her mother took active steps to discourage her from any such from participation;[15]
(g) attendance Records before the Tribunal from Five Star Family Day Care Pty Ltd which purport to show the receipt by of all six of the Applicant's children of their childcare services in the weeks beginning 29 February 2016 and 14 March 2016 are false and the purported signature of the Applicant on those forms is a forgery;[16]
(h) her mother then took steps to contact the Department to advise them that they should cease any payment of CCB/CCR to the Applicant, but the department failed to act on the advice she provided;
(i) her mother then contacted the Department (Centrelink) to report that a "scam" was being perpetrated and Centrelink gave her a telephone number to contact to report the fraud, which she did. At the same time, she also made some sort of report to the NSW Police although there appears to be no formal record of this or response from the Police.[17] The Applicant's mother further alleges that the childcare scam in question was linked to providers in Lakemba whom themselves has links to ISIS;[18]
(j) whenever the Applicant received correspondence from the department (and she agrees that she received all the correspondence to which reference was made by the Respondent) she handed this to her mother. Her mother then contacted the Department on each occasion to report that payments were being incorrectly made, but the Department ignored her advice and told her that payments were being made correctly. The Applicant's mother continued to make such representations to the Department until approximately March 2018 when she "gave up because no one listens to me";[19]
(k) once the Applicant started to receive notices from the Department that she had incurred a debt the Applicant's mother contacted Legal Aid NSW to seek their assistance with resolution of the matter. Contact with Legal Aid continued from approximately September 2015 until April 2017 when for some reason, this matter seems to have been discontinued as far as Legal Aid's involvement was concerned;[20] and
(l) the Applicant and her mother attest that several of the calls to the Department which are recorded in the Tribunal documents were in fact made by neither of them.[21] They were made by a "third party" and they often conveyed false and misleading information about the Applicant to the Department, without her knowledge or consent.[22]
24. The Applicant has drawn certain matters to the attention of the Tribunal by way of the provision of further documentary material. In the first instance she has supplied copies of correspondence between herself (via her mother) and NSW Legal Aid. Secondly, she has supplied a detailed statement about the alleged fraudulent activities involving the "neighbour". In relation to both of these matters she advised that this material had been forwarded to the AAT prior to the hearing of the AAT1 on 2 October 2019. There is no record in the files of the AAT that this material was ever received, and the comments of the AAT1 in its determination indicate clearly that no such material was before it when it made its determination.[23] However the Applicant subsequently supplied material to this Tribunal being that which she had purported to send originally for the AAT1 hearing.
25. Among this material is a collection of documents headed:
"Compliant/Tip Off
Query: 'saab'
Report created:
19/05/2017..."
26. Within this collection of documents there are two pages which clearly state that the Applicant had made some sort of report or complaint about matters of potential fraud. In the first instance the documents record
"Hi CCB Compliance Team
The Child Care Support Line received a call from Jacqueline Saab at 1:21 pm on 31/12/2014.
Main Issue
Data has been submitted when no care has been provided"
27. It then goes on to identify the five children concerned, and the provider as Global Family Day Care. Further it gives dates when care for the five children ceased (17 December 2014) but that claims were then submitted for the period 18 December 2014 to 28 December 2014.
28. The second report is similarly headed and then continues:
"Hi CCB Compliance Team
The Child Care Support Line received a call from Jacqueline Saab at 2:32 pm on 5 April 2016.
Main Issue
The parent claims that the children have never attended this service and she does not know how the service got details of her children."
29. On this occasion the provider is named as Five Star Family Day Care and the relevant periods of incorrectly claimed care are identified as "week ending 6, 13, 20 and 27 March 2016."
30. The documents suggest that the complaint regarding Global Family Day care was closed with no further action contemplated on 24 February 2015 with a similar determination in relation to Five Star Family Day Care dated 7 April 2016.
31. As noted above, Global Family Day Care was eventually sanctioned in June 2019 with its childcare subsidy approval cancelled in October 2020 while Five Star Family Day Care continues to operate without having been subject to any sanctions.
32. The Respondent was asked to ascertain the exact provenance of this document and the Tribunal was advised:
"The document appears likely to have been extracted from DESE's Child Care Information System. DESE confirms that the information in the document is consistent with the information held in the Child Care Information System. DESE's internal inquiry has not been able to identify the circumstances in which the document was originally produced, and DESE is not aware of how the document came to be in the possession of Ms Saab or her legal representative.
In short, the provenance of the document is probably DESE, but how it came to be in Ms Saab's possession is a mystery. Certainly, there is no suggestion that Ms Saab came by the document improperly."[24]
33. To the extent it can be taken as a Commonwealth record, then it would give some credence to the Applicant's claim that Mrs Therese Saab raised claims of fraudulent behaviour by a third party or parties on a number of occasions.
34. However, against this was the testimony of both Jacqueline and Therese Saab to the Tribunal denying that they ever made such calls.[25] Within the records there are a number of phone numbers listed which appear to comport with those of either Therese or Jacqueline Saab or else that of Jacqueline's Saab's ex-partner.
35. It is impossible for the Tribunal to establish exactly who made the calls in question. All that remains unchallenged is that there is a record of claims made about the bogus nature of the enrolment of the children in either the Global Family Care or Five Star Family Day Care services.
36. The Tribunal itself has sourced reports that owners/operators of a Lakemba family day care business had been charged in August 2016 with defrauding the Commonwealth of sums up to $27 million in childcare benefits and rebates since 2012 and that some of this money had been sent overseas via a charity identified as having links with IS.[26] There is however, no direct evidence linking these two matters.
37. It is simply not necessary to go into elaborate detail about every aspect of this application because essentially all that is required is to answer three questions:
(a) Did the Applicant apply for CCB (and hence trigger a consideration of eligibility for CCR)?
(c) If not, does the Applicant owe a debt to the Commonwealth?
39. On 7 February 2014 the Applicant made telephone contact with the Department[27] and made what the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (the FA Administration Act) calls an "effective claim" for CCB.[28] In doing so, the Applicant provided all the information which was required as outlined in clauses 4.6.1 and 4.6.2 of the Family Assistance Guide (the Guide) which contains the relevant policy considerations to be applied in the operationalisation of the legislation.
40. This application led to the CCB/CCR benefits being granted under sections 42 and 43 of the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act) as it was at the time. Eligible childcare hours were determined to be 24 as from 7 February 2014.[29]
41. Moreover, while payments were made to service providers between 27 April 2014 and 6 July 2014 and from 26 October 2014 to 28 December 2014, all other payments were made "Direct to Customer".
43. In correspondence from Legal Aid to the Applicant (dated 7 March 2017), Legal Aid advised that the Applicant, in order to pursue further claims against Centrelink needed to review information contained in certain calls "alleged to be made by you to Centrelink" as follows:
44. This correspondence cannot be taken to be anything more than an indication that the Applicant requested payment of childcare benefits directly to her and clarification that payments to the childcare provider were no longer being made. Moreover, they speak clearly of the Applicant's knowledge that she had made claims of fraud against these providers and was seeking to ensure that she was directly the beneficiary of the relevant payments.
46. Subdivision G, Division 4, Part 3 of the FA Act as it applied at the time (prior to the 2018 amendments) was headed "Limitations on eligibility for childcare benefit for care provided by an approved childcare service related to hours". Within that subdivision, sections 52 to 56 of the FA Act determined the number of hours, in sessions of care for a week, for which an applicant was entitled to be paid the CCB.
47. Section 54 provided that benefits could be paid "[i]f claimant is an individual and work/training/study test satisfied." The details of the "work/training/study test" (WTST) were set out in sections 14 to 17 of the (then) Act and in the Child Care Benefit (Work/Training/Study Test Exemption) Determination 2000 (Cth).
48. Again, it is not necessary to examine all or any of these provisions in detail. Suffice to say that CCB/CCR was ultimately dependent upon an applicant meeting the requirements of the WTST, namely demonstrating that they had "recognised work or work related commitments" or "recognised training commitments" or "recognised study commitments."
49. At no time did the Applicant meet the WTST and hence at no time did she satisfy the requirements of the legislation as it then was.
50. This was established clearly in the evidence of the Applicant given to the AAT1 and reported in their determination that:
"9. It is undisputed that Ms Saab did not satisfy the work/training/study test at any relevant time. She also told the Tribunal that her children did not attend a childcare service. This means she was not qualified for childcare benefit or childcare rebate...
11. The debt arose because Ms Saab did not provide accurate information to the Department about her circumstances. She did not respond in a timely manner to letters sent by the Department...
13. The Tribunal was told that Ms Saab "has never worked or put children in childcare". Two key submissions were made in relation to the debts. The first was that she did not actually receive the childcare payments and the money was paid directly to the childcare service. The other is that Ms Saab was "scammed by the childcare centre" and is the victim of a "fraud". It was submitted that the matter had "been reported to police" and "other people had been done over as well" but Ms Saab "never received any response" from the police. She told the Tribunal that her children were never left in formal childcare as her mother took care of them. According to Ms Saab, she provided identification to a "neighbour" in relation to a claim for childcare for her children and the neighbour took copies of the identification. Apparently a "false claim" for childcare payments was then made by some other person. Ms Saab considers she should not be responsible for the debts in such circumstances."
51. There was no dispute by either the Applicant or her mother in the proceedings of this Tribunal that the Applicant never worked, studied or trained during the debt period and that, on the contrary, she was providing full time care for her six children with the assistance of her mother.
53. There is no doubt that money was paid to the Applicant by way of CCB/CCR to which she was not entitled. She had no children in registered or approved childcare and in any event, she was not qualified in relation to the WTST. None of the requirements of sections 41 to 44 or section 57EA of the FA Act (at the time) was met.
54. Between 3 March 2014 and 27 October 2015 CCB/CCR payments were made into a St George Bank account, details of which were provided by the Applicant to the Department.[35] From 28 October 2015 to 31 July 2016 the payments were made into a different account at the ANZ Bank. At the same time those accounts were used by the Applicant for receipt of her Family Tax benefit (FTB) payments.[36]
55. It is accepted that some of the payments were made "Direct to Service", that is to the alleged provider of childcare services. Payments were made under paragraph 65EAAAA(1)(b) of the FA Administration Act (as it then was) which provided that payment could be made "weekly to one or more approved child care services". Subsections 68(1) and 68(1B) of the then Act made it clear that an election to pay the benefit direct to a provider was nevertheless defined as being a payment "to the person" in respect of whose children the benefit had been granted.
56. Thus, there is no argument that payments direct to the alleged provider are, for all statutory purposes, taken to be payment to the Applicant.
57. It is also clearly the fact that the Applicant was put on notice on some 20 or more occasions that she had an obligation to report changes in circumstances to the Department both as they related to the details of children in care and to her own personal circumstances. It is indisputable that the Applicant failed to respond to any of the notices or letters as she was required to do. Section 56C of the FA Administration Act is quite clear in imposing on benefit recipients a responsibility to notify relevant changes in circumstances. The Applicant's failure to respond to Notices is a matter of her sole responsibility.
58. It should be noted that some of the correspondence from the Respondent to the Applicant suggested that her debts were less than is actually the case. This is because initial departmental recalculations were based upon the understanding that while the Applicant had failed to qualify under the WTST, she nevertheless had children in care. This turned out not to be the case.
59. Sections 71C and 71CAB of the FA Administration Act in force at the relevant time provides that overpayments of CCB and CCR payments are calculated on the basis that "the difference between the received amount and the correct amount is... a debt due to the Commonwealth by the individual".
60. The correct amount in this instance is nil and so the entire debt as identified by the Respondent is the recoverable debt.
61. The Applicant also stated in her application for review form that "No money was put into my bank account at all",[37] which is a patently false statement as shown by the records obtained from the St George and ANZ Banks by Notice under section 196 of the Social Security (Administration) Act 1999 (Cth) and which were discussed in the hearings[38] and appear in the Tribunal documents.[39]
62. Merely establishing that a debt exists is not the end of the matter. The FA Administration Act makes provision for the write off or waiver of debts.
63. Debts may be written off (that is not recovered at this point in time, but recoverable at a later date) if the debt is irrecoverable at law, the debtor has no capacity to repay, or their whereabouts are unknown, or where it is not cost-effective for recovery to be enforced. [40]
64. There is no evidence before the Tribunal that any of these conditions is met.
65. Debts may be waived if they have arisen from the "sole administrative error" on the part of the Department.[41] Relevantly:
(1) The Secretary must waive the right to recover the proportion (the administrative error proportion ) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
66. While it might be argued that the department had a responsibility to check up on such matters as to whether or not the children were actually receiving the care in question, this is not a sustainable argument. The Department has no responsibility to "police" the behaviour of benefit recipients, rather the obligation lies on the recipients to ensure and maintain conformity with the benefit conditions or requirements, especially when benefits are paid directly to a recipient,[42] but it also applies when the recipient knows that payments are being made to third parties (in this case the alleged service provider) on their behalf or via their instructions. Their personal responsibility includes responding to departmental correspondence and notices.
67. The Department identified the WTST error in its initial recalculation of benefits and initial assessment of debt but does not appear to have known that there were no children in care until the hearing of the AAT1 on 2 October 2019 whereupon it determined the new set of calculations now before this Tribunal.
68. It is accepted that sole administrative error cannot arise where an applicant has failed in their personal statutory duty to report relevant matters to the Department.[43] It is thus not necessary to consider whether any payments were received "in good faith" as the Applicant clearly knew that she was receiving money for a service not provided (her children were not in childcare) and so could not have been acting in good faith.
69. Debts may also be waived if there are 'special circumstances" to justify such a course of action.[44] This is provided in section 101 of the FA Administration Act as follows:
101 Waiver in special circumstances
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
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of the family assistance
(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.
70. The FA Administration Act contains no definition of "special circumstances" other than to provide that "financial hardship alone" does not establish special circumstances.[45] In a number of recent decisions I have found special circumstances to exist as a result of careful consideration of the individual circumstances of the debtors in each instance.[46]
71. In this instance the Tribunal can find no such special circumstances to exist.
72. This amounts to "false representation" by omission. However, any such "false representation" would not necessarily itself be sufficient basis for the creation of a debt, as this would be dependent upon consideration of the circumstances in which this occurred. Rather, it compounds the principal failure to meet statutory reporting obligations.
73. The Applicant pleads that she was the victim of some sort of scam perpetrated, without her knowledge, by some third party. The evidence of the role of a mysterious "neighbour" is far from convincing as is the claim of the Applicant's poor memory and general inability to cope. There is no doubt that fraudulent activity takes place within the childcare sector and that this may amount to a considerable problem on occasions.
74. While it is also the case that in 2019 Global Family Day Care was sanctioned and that their malfeasances may have stretched back to 2014, although this is speculative; the payment of childcare benefit when direct to the provider was to Five Star Family Day Care, against which no adverse finding or sanction appears to have been determined.
75. None of this can however overcome the fact that the Applicant was being paid from 3 March 2014 to 3 July 2016 (the debt period) - a period of some 120 weeks and that the payments which were made direct to the providers were made for only the discrete periods 27 April 2014 to 6 July 2014 and from 26 October 2014 to 28 December 2014 - a period of some 21 weeks. For the balance of the time the Applicant was in receipt of payments to which she knew she was not entitled.
76. It is also clear that the Applicant's mother was in touch with the Department to report what she claimed to be fraudulent activity and both the Applicant and her mother gave direct evidence (on affirmation) to the Tribunal denying that either of them made any of the phone calls to the Department which resulted in payments being made to the provider.
77. The Tribunal is inclined to believe the Applicant and her mother on this point and concede that there may well have been an unauthorised third party active in these proceedings. However, even if this were the case, that in itself is a problem which arises from the initial action of the Applicant in lodging a claim for childcare benefits when she knew that she did not have any children in childcare. Had she not done this, none of the subsequent events would have taken place. Thus, the onus falls back upon her personally and cannot be gainsaid.
78. The evidence establishes that the Applicant made a claim for social services payments to which she was not entitled. She was regularly notified that the payment had been made and did not take steps to correct the overpayment. The sums deposited in her bank account were often not small (in the $900 to $ 1300 range) and any claim that they were simply overlooked must rebound upon the Applicant. Overpayments have been made and there are no compelling reasons that they should not be recovered.
I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
......................................[sgd]..................................
[1] Respondent's Statement of Facts, Issues and Contentions (SFIC) at [1.2].
[3] The new system was a result of passage of the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (Cth). Item 8 of Schedule 4 of this Act preserved operation of the previous legislation so that the matters in this case are dealt with under the provisions of the previously existing legislation.
[4] Supplementary Tribunal documents (T-documents) at 845-846.
[8] T-documents at 962 and 1251 as an example.
[10] Transcript (13 July 2021) at 184-185; at 194 lines 43-45.
[13] T-documents at 5, AAT1 decision at [13]; Transcript (13 July 2021) at 160-161.
[14] Ibid at 18. The claim by her mother is that she was told by the Randwick Hospital that "because she ate too many oranges she got a small mind of memory." Even if the Applicant had an "overdose" of vitamin C there is no evidence that whatever physiological impact that might have it would in any way impair cognitive functioning. Rachel Nall, "What happens when you take too much vitamin C?", Medical News Today: www.medicalnewstoday.com/articles/326249.
[16] Applicant's Submission dated 25 March 2021.
[17] Transcript (29 March 2021) at 8 and 15.
[18] Ibid at 15. Islamic State of Iraq and Syria; otherwise known simply as IS or Deash. It is a proscribed terrorist organisation under Division 102 of the Criminal Code Act 1995 (Cth).
[22] Transcript (29 March 2021) at 16, 25, 28, 42; Transcript (13 July 2021) at 170 and 210.
[23] T-documents at 5, AAT1 decision at [14].
[24] Email advice from Respondent to the Tribunal dated 23 July 2021.
[26] Sean Rubensztein-Dunlop, "Two men charged with childcare fraud in multi-million-dollar counter-terrorism investigation", ABC News (12 August 2016); Ian Horswill, "Sydney day childcare business linked to widespread fraud of childcare funds for terrorist purposes", News.com.au (15 August 2016).
[28] A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 49, 49B and 49C.
[30] Additional material from Respondent (lodged 19 April 2021), Attachment A2 at 658-677.
[31] These include her Application to this Tribunal (T-documents at 2); application to open Westpac Bank account (T-documents at 1138); and Attachment A3, Authorisation to Services Australia for Release of Information under FOI dated 26 June 2020 attached to Departmental correspondence provided in Additional material from Respondent (lodged 19 April 2021) ref no. LEX55507.
[35] Further Supplementary T-documents at 959-961.
[36] Letter from Department to Respondent dated 5 August 2020; Respondent's SFIC at [7.39].
[38] Transcript (29 March 2021) at 67 and 95.
[39] Further Supplementary T-documents at 962-1262.
[42] Panacci and Secretary, Department of Employment and Workplace Relations [2008] AATA 30 at [24].
[43] GGGD and Secretary, Department of Social Services [2020] AATA 802 at [79]- [81]; Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746 at [78]-[79].
[44] FA Administration Act s 101; also at the Social Security Act 1991 (Cth) s 1237AAD.
[46] Fletcher; Secretary, Department of Social Services and (Social services second review) [2021] AATA 577; Clark; Secretary, Department of Social Services and (Social services second review) [2021] AATA 10.