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Duty of care

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Does CSA practice any duty of care

I work as a lecturer for TAFE and we have a fairly specific duty of care. We will often go beyond this care as we are dealing with young people.

I also have been involved in the construction industry for the last 12 years. As this can be a dangerous industry we have an ever evolving duty of care to not only people on the constructions sites but any peripheral areas which have any chance of a flow on effect from a mishap.

CSA does not appear to have any form of duty of care. To go off subject slightly, the construction industry with its large workforce, heavy equipment, dangerous heights as well as coordination of multiple people on site; has a number of deaths and injuries each year. we all consider the number to be un acceptable and the industry is ever vigilant to look at methods to bring these numbers down AT ANY COST.

I have had personal experience where a friends son committed suicide due to hard financial pressure put on by CSA. My friend almost followed up except friends and family rallied behind him. Both my boys have experienced extreme hardship due to CSA. Both my boys have been diagnosed with depression, one in council ling and the other also sees psychologist due to the oppressive CSA. CSA seem to be intent on collection of money AT ANY COST-even lives

Sorry to get off subject. i have many issues with the seemingly endless incompetency of this department.

The questions I have are

1. Does CSA have any form of duty of care.

2. has anyone been successful in  following up in the breach of the duty of care.

3. Where do I find this (duty of care) on the web site as I could only seem to find duty of care to ensure they collect money



Many thanks to those who answered my previous posts
Google APS code of conduct.
This is from the current CSA GUIDE

Also do as Fairgo suggested.

Also an employee (individual) can be held responsible in a court of law for providing false or misleading information.


6.11.1: Compensation
Context

If a customer suffers a loss due to inadequate service or advice CSA will do all that it can to redress the issue and remedy the loss. Compensation may be payable where there is no other remedy available.

CSA will advise customers when its actions or inaction have caused them to suffer a loss and it appears that compensation could be payable. An invitation to apply for compensation does not, in itself, constitute an admission of liability, nor does it guarantee that compensation will be paid.

Legislative references

Privacy Act 1988

Financial Management and Accountability Act 1997, section 33

Financial Management and Accountability Regulations 1977, regulation 9

Department of Finance and Administration Finance Circular 2006/5

Commonwealth policy for handling monetary claims (Attorney General, December 1997)

Explanation

There are a number of reasons why compensation may be payable by a Commonwealth agency such as CSA. CSA may pay compensation if:

it would be likely to be found to have a legal liability to pay compensation,
there has been a breach of privacy,
its administration has been defective, or
an act of grace payment is appropriate.
If compensation is payable CSA will compensate for loss suffered as a result of its action/inaction.

Further information is available about:

How to make a claim, and
Settlement of claims.
Legal liability

If a decision maker believes that a court would be likely to find CSA liable for negligence, CSA will consider trying to settle the matter. CSA may try to avoid unnecessary litigation by offering an appropriate amount as compensation.

The most usual claim for legal liability is a claim of negligence. The concept of negligence is not defined or regulated by legislation. Ultimately a court must decide whether or not a legal liability for negligence exists. The circumstances which give rise to negligence are generally serious. Provided that CSA has acted reasonably and in good faith it will be rare that its actions will constitute negligence.

Three elements are needed to establish a legal liability for negligence:

A legal duty of care,

A breach of the duty of care,

Loss or detriment suffered as a direct result of the breach.

Duty of care

Whether a duty existed will depend on the circumstances of each case. However, a legal duty of care does not equate to any general obligation or responsibility to be careful. A duty to exercise reasonable care arises where it is reasonably foreseeable that a customer may suffer some harm as a result of CSA's advice or actions. A duty does not exist if a person seeks general advice or where the reasons for seeking compensation are sufficiently remote from CSA's actions or involvement.

A legal duty of care can be expressly excluded by statutory provisions.

Example

Section 91 of the Assessment Act provides that CSA can act on the basis of an application for acceptance of an agreement and accompanying documents without conducting any further investigations.

Legislation may also provide specific remedies in particular circumstances, such as a right of review or appeal.

Example

Section 107 of the Assessment Act gives a payer the right to seek a declaration from a court that they are not a person from whom child support can be sought.

Where a right of review exists courts have ruled that the exercise of the power on good faith will not give rise to a legal duty of care. In these cases using the right of review is the appropriate remedy provided the customer was made aware that the remedy existed.

Breach of duty

A lapse on CSA's part does not necessarily mean a breach of duty. Negligence is a failure to meet a standard of care that a court considers to be reasonable in the circumstances.

Whether or not a breach occurred is often determined hypothetically by considering what a 'reasonable person' would have done in similar circumstances.

Example

It is not unreasonable to assume that any competent officer processing a large number of forms may make one error in the processing of one form.

Loss or detriment

The loss suffered must be direct and foreseeable and a result of a breach of a duty of care. There has to be a causal link between the loss suffered and CSA's actions, and the loss must be in the nature of something which CSA should have reasonably known or expected to occur.

The types of loss or detriment which may be compensable are set out below.

Breach of privacy

The Privacy Act 1988 (the Privacy Act) requires that agencies like CSA observe strict privacy safeguards in handling personal information. These obligations are legally enforceable.

If the Privacy Commissioner upholds a complaint under the Privacy Act he can award a specified amount of compensation. This amount is recoverable from the Commonwealth. It can include reasonable expenses incurred in making the complaint and compensation for injury to personal feelings or humiliation.

Where a decision maker feels that the Privacy Commissioner would be likely to find that CSA is legally liable for a breach of privacy, CSA can try to settle the matter by offering an appropriate amount as compensation.

Defective administration

The Commonwealth has a scheme called 'Compensation for detriment caused by defective administration' (sometimes called the CDDA scheme) that was established in 1995. It provides an alternative method of compensating customers who have been adversely affected by the administration of Commonwealth agencies where no legal liability exists. A legal liability is only likely to arise in the most serious of cases.

The scheme is administrative only, it is not regulated by legislation. The criteria and limitations for paying out compensation under the scheme are set out in the Department of Finance and Administration Finance Circular 2006/5.

Compensation for defective administration may be paid where CSA:

Unreasonably failed to follow appropriate procedures,
Unreasonably failed to institute appropriate procedures in the first place,
Gave incorrect or ambiguous advice, or
Unreasonably failed to give advice that should have been given.
The scheme:

Does not apply where there is a legal liability,
Cannot be used to offset debts owed to the Commonwealth.
The Secretary of the Department of Human Services or an authorised officer can make a decision to pay an amount for defective administration. The decision maker does not have to approve a payment, but the decision to approve or refuse a payment must be publicly defensible.

Act of grace payments

An act of grace payment is a special 'gift' of money from the Commonwealth which may be made where there is no other right of redress available, but there remains some moral obligation on the Commonwealth to satisfy the claimant.

Act of grace payments are extremely rare. One of the principles in establishing the defective administration scheme was to ensure that an act of grace payment was not sought simply as another method of compensation where no legal liability existed. The criteria for act of grace payments are set out in the Department of Finance and Administration Finance Circular 2006/5.

Circumstances where an act of grace payment may be appropriate are:

The application of the legislation produces unintended, anomalous, inequitable, unjust or otherwise unacceptable results in particular circumstances, or
The matter is not covered by legislation but it is intended to introduce such legislation and it is considered desirable in the particular case to apply the benefits of the proposed legislation retrospectively by act of grace,
The particular circumstances of the case lead to the conclusion that there is a moral obligation on the Commonwealth to make a payment.
The Minister for Finance and authorised officials of the Department of Finance (DoFA) have to approve act of grace payments (section 33, Financial Management and Accountability Act 1997). CSA can only make proposals in relation to act of grace payments.

Loss

Loss is the damage or detriment suffered by the claimant as a result of the wrongdoing claimed.

Financial or 'pure' economic losses are relatively straightforward and readily quantifiable. They can include:

Actual costs incurred (legal costs, out of pocket expenses, travel costs, medical expenses),
Loss of wages for necessary time off work, and
Loss of opportunity to receive money, or interest incurred on money borrowed.
In relation to loss of opportunity to have child support collected a claimant must demonstrate that they have lost a real opportunity, not merely a speculative one. The likelihood of recovery or amounts already recovered must also be taken into account.

Losses in relation to personal injury can be physical or psychological. Medical evidence will almost always be necessary to establish the extent of the injury and to prove that it occurred as a direct result of CSA's actions.

A claim for non-economic loss cannot stand alone. It must be related (or consequential) to some other form of loss (aggravated damages). Claims for non-financial loss can take many forms, but can include such things as stress, distress, vexation, anger and embarrassment.

Amounts payable for personal injury and non-financial loss will be considered carefully in accordance with legal precedents, principle and practice.

In assessing the type and extent of any loss CSA may also consider to what extent, if any, the claimant contributed to the loss, or what reasonable steps they took to minimise or contain the loss. Did the claimant tell CSA about the loss as soon as they were able? Where a claimant caused, contributed to or was able to avoid a loss, a portion or all of that loss may be attributed to the claimant.

How to make a claim

If a customer believes that they are entitled to compensation they need to state in writing:

what happened,
why they believe CSA's actions caused them to suffer a loss,
what that loss was, ie, where possible quantify the loss and give evidence such as receipts, invoices or medical reports.
A claim is managed and investigated by a Compensation Officer. The Compensation Officer is a point of liaison with a customer whilst a claim is being considered.

Each claim will be evaluated and decided on its merits by authorised officers. CSA will use Commonwealth policies and guidelines to make the decision. The customer will be given reasons for the decision.

CSA aims to advise customers of the outcome of their claim within 6 weeks of receiving the claim. The Compensation Officer will advise the customer if this timeframe cannot be met.

Settlement of claims

CSA can only spend public monies in the ways specified by the Financial Management and Accountability Act 1997 and Regulations. Regulation 9 requires any expenditure to be in accordance with Commonwealth policy. The policy for payment of legal claims is set out in the Commonwealth Policy for Handling Monetary Claims. The principles for deciding and settling claims are set out in Attachment A of the policy The Commonwealth as a model litigant.

The factors that must be taken into account are:

the likelihood of success of the claim in court,
costs of defending the claim, and
any other prejudice in defending the claim.
External legal advice must be obtained where CSA intends to pay more $25,000 in settlement of a claim.

Full and final settlement can only be made on the basis of a deed of release indemnifying the Commonwealth against owing any further liability for that particular matter.

In settling claims for defective administration the Commonwealth should not take advantage of its relative position of strength. The decision making process and the decision have to be transparent. Claimants should be advised of adequate details of any offer. They should not be required to waive all of their rights if a partial settlement offer is made and they should be advised that the Ombudsman can review the decision.

I hope this may help

ILG
I can say that the CDDA scheme does work. You just have to give it time like most things with C$A.
Dear CSAVictim, what an awful situation, hope you geta result for your sons.
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