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establishing the three criteria under reason 8 - capacity to earn

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CSA COA through to SSAT - capacity to earn criteria


has anyone had success in establishing the three criteria under reason 8 - capacity to earn? the criteris that need to be met are:

 Earning capacity

If the assessment is affected by a parents reduced income, there may be special circumstances to justify changing the assessment to take into account the parents earning capacity.

When can CSA take into account a parents earning capacity?

From 1 July 2006, CSA can only determine that a parents earning capacity is greater than is reflected in his or her income used in the child support formula if it is satisfied about all of the following three matters:

1. The parent is either:

    * not working despite ample opportunity to do so (section 117(7B)(a)(i)); or
    * has reduced his or her weekly hours of work to below full time work (section 117(7B)(a)(ii)); or
    * has changed his or her occupation, industry or working pattern (section 117(7B)(a)(iii));

AND

2. The parents decision about his or her work arrangements is not justified by either:

    * his or her caring responsibilities (section 117(7B)(b)(i)); or
    * his or her state of health (section 117(7B)(b)(ii));

AND

3. The parent has failed to show that the decision about his or her work arrangements was not substantially motivated by the effect this would have on the child support assessment (section 117(7B)©.

CSA must be satisfied that all three compulsory criteria are satisfied before it can change an assessment to take into account a parents earning capacity, rather than his or her actual income.

If the parents circumstances satisfy only one or two of the criteria, CSA cannot make a decision based on the parents earning capacity.

CSA must also be satisfied it would be possible for the parent to increase his or her income by changing his or her work arrangements. That is, work must be available for the parent in his or her area and the parent must have the necessary qualifications and experience to perform that work.
If you were unsuccessful in the COA process in proving a capacity to earn, it is unlikely you will succeed in the SSAT process.

In order to be successful with SSAT you need to have strong grounds for going there. It would be useful if you discussed what grounds you have (obviously without any identifying details) to get theadvice you are after. You're casting a very wide net.

If you are seen as vexatious, the application will be thrown out. Unless you have new information, or CSA has erred in an obvious way, it is unlikely you will be successful it's likely you'll be thrown out.

While there are few penalties in going to SSAT, there will be a record of your actions and future, legitimate information could be discounted.

You should also ask yourself, is the amount of money in question worth going to these extremes? These actions often cause a lot of conflict that is better avoided unless you are talking thousands of dollars. You'd also want to be pretty sure you'll be successful.

CSA gives this Example

In a change of assessment matter the CSA Objections Officer may have decided to set a party's adjusted taxable income amount to a figure of $55,000. That party may think that that amount is too high and appeal to the SSAT. The SSAT may decide that a change of assessment is justified but that the income should be set at $60,000. (Conversely, it may determine that the amount should be set at $40,000).

Last edit: by Secretary SPCA

Guest - as well as the three criteria you have outlined, special circumstances must also exist to justify the change of assessment application before the above criteria can be considered.

In some cases it has been noted that C$A have not cited the Special Circumstances in the change of assessment application.

Sylvia - given the high amount of SSAT appeals that have varied C$A decisions I would suggest that a SSAT appeal is well worth the effort.

C$A are renown for making errors and not having the expertise to understand complex financial arrangements when making decisions. Many of the decisions they make should be left to a court.

Your advice is limiting Guest's access to the full appeals process.

The Ombudsman will only look at an issue once the appeals process had reached a SSAT decision.

Then there is also further appeals with the Administrative Appeals Tribunal and Federal Magistrates court after a SSAT appeal.
Sylvia has provided quite dangerous advice.  The SSAT is meant to be there to provide unbiased merit based reviews.  To do this they need to have a good look at a decision.

In any case, people are reporting good outcomes from a negotiated settlement arising from pre hearing conferences. My suggestion is to at least stick it out until the pre case conference and be prepared for some serious horse trading.

Also, the Ombudsman can decline to look at a specific matter before merits options run out, but it's important for aggrieved people to at least make a complaint.  

The Ombudsman can commence an investigation based on weight of complaints.

Last edit: by Secretary SPCA

Hey guys, how about you wait until guest provides their grounds for appeal to SSAT. They haven't provided any.

I think you are projecting your own issues onto guest - who's really given this forum nothing to go on.

You're assuming complex financial arrangements and incomes here.

It looks to me like guest is more after success stories to beef up their case rather than actually wanting advice.
As Fairgo says, you need to have special circumstances to qualify for Reason 8. We don't know what they are.

Are you both saying that it's incorrect that just as your income may be lowered through SSAT, it could also be
increased, given the circumstances of your case? You'd want to be pretty sure you had a good case and nothing
to lose in going to SSAT. I'm sure you're not recommending being vexatious for the sake of it, on the off chance you get a
reduced income assessed.
Sylvia, I assume nothing and would not expect the person to supply details.  If they feel they have been wronged by a decision they have a statutory right (s) to have the decision reviewed.  In my view, the aggressive approach of the truly awful CSA in its daily fumblings should deserve an (at least) equal response.   
Sylvia,
         what you say appears to contradict the following
SSAT Home Page said
"The role of the SSAT is not to decide whether there was an error made by the Child Support Agency. That role is the function of an appeal court. The SSAT is a tribunal, not a court, and its function is to make its own decision on the appeal."
.

I'm also surprised that you order "guys" to not do something, that you have done. That is, guest has not, from what I can see and before it was mentioned by yourself, mentioned SSAT. Rather one would see from guest's post, due to the lack of mentioning any prior own decision, that guest's intention is to try to apply for a reason 8 on the grounds of capacity to earn and it would appear that basically guest wants examples of what constitutes those grounds. I believe guest is simply asking:

Guest said
has anyone had success in establishing the three criteria under reason 8 - capacity to earn? the criteris that need to be met are:

Whilst it appears that the rest of what guest has posted is an extract from what is I believe the CSA guide.

You also appear to have projected your own issue(s) yet also feel that at the same time it is right to assume that other's have and shouldn't. Perhaps you'd care to explain why there is this consistency that you feel you have a right to do what you tell other's that they can't.

Sylvia said
You're assuming complex financial arrangements and incomes here.
Again I'm lost I can't see where anyway has assumed that guest or anyone else has made such assumptions. However, I may well be missing something and I guess that others may also be in a similar predicament, so please explain how you reach this conclusion.

Sylvia said
It looks to me like guest is more after success stories to beef up their case rather than actually wanting advice.
Again, as in the above comments, you appear to be making an assumption, which could be taken to be projected from your issues and also you are making an assumption which you imply that others are wrong to do. Again you very likely have an explanation of why others should be subject to different treatment that yourself. So please explain why.

I'm unable to answer this as I have myself not had such success, although my opinion is, that, according to what has been found to be the decision making mentality of the COA team, the CSA would likely make it very easy to find a capacity to earn if the decision resulted in an increase in the amount transferred or collected, whilst on the other hand the CSA would likely make it very difficult, even under the exact same circumstances, if the decision were to result in a decreased amount to be collected or transferred. This mentality and lack of an ability to make fair and just decisions based upon the very object of the legislation, as set out in section 4 of the child support assessment act, is borne out by a very recent Ombudsman's report.

If a decision were to make it's way to SSAT, then I believe that the logic is very straight forward considering the rather disturbing mentality of the COA team. There would be a very good chance that SSAT would either find reason to make another decisions or as also happens an agreement could be reached (which would then itself be the correction/adjustment to the CSA's COA team's dismal record of making sound decisions). As such I disagree that it would be hard as you imply. I would advise guest, unless they are self-employed or are alienating income to try this if guest believes that there are grounds (not that I am condoning the alienation of income).
the 3 step process is still as per Gyselman case and anything under s 117(7) is NOT a ground for departure [either Part 7 OR Part 6A], so all you need to do is to write a concise submission and whack it in front of a court and you will see CSA feathers flying all over the shop
It amazes me to no end, the original post mentioned nothing about SSAT but there it is, the topic was highjacked.

Firstly it is not up to the individual to establish the three criteria, it is up to CSA in the first instance.  If an individual has information that may influence their decision then they should supply it.
I believe Sylvia has read the subtitle:

CSA COA through to SSAT - capacity to earn criteria

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