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SSAT setting aside a very high percentage of CSA Decisions

I've just added another 13 decisions from SSAT, they are here SSAT decisions

The Tally is now :-

Affirmed (i.e. the CSA decision was in SSAT's opinion correct) = 7.
Varied (i.e. A decision that had to be adjusted, so really the CSA got it wrong) = 1.
Set Aside (i.e. A wrong decision byt the CSA in SSAT's opinion) = 15.

That's an appalling state where only 30% of their decisions are being deemed as correct and that a massive 70% of their decisions are found to be incorrect.

Oh and this one is quite interesting, the lives with parent has been slapped with capacity to earn and upped the $25,000 income to $42,000. The other parent successfully objected to the CSA's $90,000 income which was then cut, to 62,000, this has been further cut to $58500.

Here's the link Ryan v Ryan COA

Thanks for those figures MikeT. The CSA policy group are looking in detail at all of the SSAT outcomes with a view to making chnages to the COA process and other process in and around determining income. From some of the cases it is clear that the payee does not appear to accept that both incomes are being taken into account. The other thing we should look at is how many are determined on the basis of 'additional evidence being provided' after the COA decision.
  

Executive Secretary - Shared Parenting Council of Australia
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Hi Mike

Here is my eg

After separation my ex an I both started working part time 3 days a week to enable me to look after my child for effectively 3 1/2  days a week as per court orders. 

After ex objected CSA set my wages at my full time rate stating that I could put my child into care and work the 2 extra days.

COA and subsequent objection nil value. Incredibly biased report. Basically anything said by the ex was taken as fact, anything I said was stated as not proven. It is no wonder she started to believe that she could say and do anything without accountability. By the way the ex had her income set at her previous year when she was on mat leave.(less than half of what she was actually earning).

SSAT appeal and rate set correctly at 3 days a week for both, what we are both actually earning. CSA ordered to backdate and refund.

"When there is no enemy within, the enemies outside can not hurt you"
Dominik and what reason did the CSA give that the other parent couldn't do the same?

Don't worry I don't expect a reason to have been given. :)

When did you go to SSAT? (that's a question that I'd like an answer to :)) I don't think I've seen anything in regard to that, so I ask more to see if all decisions are being put up. Perhaps I should just ask Secretary SPCA, to ask the relevant people, as to whether all decisions are being put up and if not then whatthe determining factors for a decision to be either put up or not, are.
Just had a look at the DHS annual report, encompassing CSA activities.  Note that they no longer report outcomes of appeals, just report the numbers.  I thought the annual reports were meant to be outcome focussed.  SecSPCA, you going to raise this with CSA?  I am also wondering if there are any problems reported with the reprehensible non disclosure of SSAT evidence provisions.
Oh and of course, silly of me not to remember, many SSAT appeals are ended due to an agreement being reached, which would in few cases be that the CSA's decision was correct. All agreements that I'm aware of, or can recall, have basically been a set aside. So I would suggest that the reality is that the figures are pretty generous and kind toward the CSA.
Bigred said
Just had a look at the DHS annual report, encompassing CSA activities.  Note that they no longer report outcomes of appeals, just report the numbers.  I thought the annual reports were meant to be outcome focussed.  SecSPCA, you going to raise this with CSA?
I can take that up and will put on work list
Bigred said
I am also wondering if there are any problems reported with the reprehensible non disclosure of SSAT evidence provisions.
MikeT are we over this in any detail? Can you expand on this issue Bigred?


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
From Child Support (Registration and Collection) Act 1988.

 

103Q  Restrictions on disclosure of information obtained at hearing

             (1)  The SSAT Executive Director may make an order directing a person who is present at the hearing of a review:

                     (a)  not to disclose information obtained by the person in the course of the hearing; or

                     (b)  not to disclose information obtained by the person in the course of the hearing except in the circumstances, or for the purposes, specified in the order.

             (2)  A person commits an offence if:

                     (a)  the SSAT Executive Director makes an order under subsection (1) in relation to the person; and

                     (b)  the person contravenes the order.

Penalty:  Imprisonment for 2 years.

 

The practical application of this is you cannot so much as come home from a hearing and vent with your nearest and dearest.  Alsoat its most literal  means you cannot use the information in a subsequent SSAT matter.
Updated with another 10 SSAT decisions (affirmed=4 set aside or varied=6):-

Affirmed (i.e. the CSA decision was in SSAT's opinion correct) = 11.
Varied (i.e. A decision that had to be adjusted, so really the CSA got it wrong) = 3.
Set Aside (i.e. A wrong decision byt the CSA in SSAT's opinion) = 19.

Thus only 33% of CSA's decisions are correct according to SSAT, although at least the latest are showing a possible trend in the right direction.
Mike - Is there any way of finding out if the decisions that were set aside or varied were for a more adverse decision or in favour of the applicant?
Fairgo, yes but that would require reading through many of the decisions and even then it may be that some make changes both ways, it would take a lot of time to do this. I also believe that simply answering if the applicant was worse or better off may not be what you are looking for, as the applicant could be the payee or payer. My guess and sorry if I'm wrong, is that you would be looking to see if there was a bias against the payer (I don't believe that there is, or at least that if there is, that is not anywhere as close to the bias toward collecting or transferring larger sums, that one sees from the decisions made by the CSA.

At one time I was looking at using some of the features of the portal software to both hold the decisions and include such fields, however I came across issues which thwarted my attempts at playing around with this, even then it would have been a relatively highly manual and therefore time consuming process. Even collecting the SSAT decisions although I have written a program to automate the collection and the subsequent generation of the code for updating the SSAT decisions post, can be a lengthy process at times as sometimes the generated code doesn't work.

I'm assuming that you're aware that an overview that contains links to the actual decision is maintained on here and that this can be found here List of SSAT decisions

This is an example of how the listings appear :-

 

Care - 7 September 2009

 Care - 7 September 2009
DECISION UNDER REVIEW

A decision made by an objections officer on 30 June 2009 to disallow an objection by Mr Bolt to a decision made on 20 April 2009 to change to his level of care for the child, Eddy, from greater than primary care (365 nights) to shared care (182 nights).

SSAT DECISION

On 7 September 2009 the Tribunal decided to vary the decision under review by deciding that Mr Bolt has a percentage of care of 72% of Eddy from 6 April 2009 and Ms Dart has a percentage of care of 28% of Eddy from 6 April 2009.
This means the appeal is partly successful.

Mike - Yes I had a a look at the what you have on here and yes it would take some time to work it out.

I am particularly interested in how the C$A and the $$AT scrutinise tax returns to increase the child support income by adding back items such as travel deductions and other work related deductions.

I am also looking for legislative references that allow them to do so. As far as I know they can only follow the tax assessment.

I've got a case in the system at the moment and  may need to argue against these actions.

I would like to sort this issue out in my own mind plus get something from the legal system for C$A and $$AT to chew on.

Fairgo,
          in one example that I am privvy to, tax deductions about 13 different ones, were re-applied by the COA team, based upon 1 deduction, that of meals away from home, being a benefit. I believe very strongly that no normal deduction (this was for an employee) is ever a benefit unless it has been illegally claimed.

My understanding is that for any deduction, say meals away from home, are a) a requirement of the job undertaken, b) they may (as for meals away from home) cost a great deal more than the so called benefit (i.e. you don't have to pay for the meal at home) and c) that the compensation is NEVER equivalent to the expenditure and is only a tax concession on the amount spent, thus the full amount of the item is never re-imbursed. My personal opinion is that the CSA should not have the power to simply deny a benefit based upon upon what is an opinion only, that a deduction is a benefit. In the case that I was privvy to, such denial of deductions would very likely have resulted in the general public being put at an unnecessary threat of life being lost. I believe that the only way that the CSA should be able to deny a deduction is if that deduction is illegitimate and that the only people with the skills to determine that are the ATO and that such a determination is made under the taxation legislation.

From the wording of the documents that I have seen, that the wording is from a template and therefore that it is very liekly that this is a standard practice, as is the denial of the 6,000 tax free threshold that all Australians tax payers, other than those who are subjected to the unfairness of the COA process, are rightfully given.

Unfortunately, in regards to this post, rather than the result itself, the case was settled by agreement when it went to SSAT and therefore the SSAT decision making process is not available.

I have actually raised an emerging issue in regard to tax deductions. This is part of that issue :-

MikeT said
In respect to case nnnnnnnn (case number changed just in case it would breach privacy) on 28th August 2008 the SCO in her decision made the following statements :-

He stated that he incurred costs travelling to and from work. I explained to Mr X that the costs were in no way special.

However the facts, as the SCO had been informed off, were that the drive to work was not actually the drive to work as such but rather a drive to where the vehicle used for work was stored and that the drive included the necessary transportation of work related heavy equipment that the company expected the worker to provide, maintain and look after. The equipment included a special and expensive refrigeration unit suitable for the use in the transportation of dangerous goods. Without this equipment the transportation of the dangerous goods, the job itself, could not be done without either endangering the community or without compromising the ability to remain employed. It is an industry expectation and the ATO has specific allowances that consider the special nature of the work undertaken.

The reason, disallowing this 1 amount, was then used to disallow, for no given reasons, 14 other tax deductions.


The above decision was objected to partially with success. In that objection decision as handed down 17th December 2008. The Objections officer stated :-

Although some of these amounts appear extra-ordinarily high I do not say that there is necessarily anything wrong with them so far as tax-law is concerned. My job however is to determine what is fair so far as the provision for the support of Y is concerned and in deciding this allowable tax deductions do not necessarily fairly reduce that amount. For instance, Mr X says that he can claim the costs for his vehicle to and from work as a tax deduction. In my view this is not a fair deduction when looked at from the perspective of calculating his contribution to the support of Y. This is because virtually all employees have travel costs to and from work. Most cannot claim such costs as tax deductions.

It would appear that the officer is saying that because most people cannot claim such tax deductions, that there is no reason for such a tax deduction. However the ATO in allowing the deduction in this special (less than most) scenario clearly places this outside of that reasoning. The fact is that the decision to not allow such a deduction would jeopardise the ability to remain unemployed that would be unfair to the community, the child, the other parent and Mr X.

The Objections officer then follows the statements above with:-


Another example is the meal allowance of $xxxx. Again this may well be allowable for tax purposes but I do not think it fair from the perspective of the calculation of child support. This is because Mr X benefits from the savings on his normal costs of food thay he would otherwise consume at home.

It is quite clear that there is no such benefit and as such that there is unfairness to Mr X.

First and foremost to purchase meals/food for immediate consumption defeats the economies one can benefit from purchasing and preparing food at home, as such food for consumption out of the home is far more expensive.

Second is that a tax reduction does not reimburse the tax payer fully, the taxpayer only gets a reimbursement that is equivalent to the tax rate, which is between 15 and 45 percent.

Meals prepared and purchased outside the home would typically cost $10 or more, whilst a meal prepared at home can cost far less. In fact both Coles and Woolworths are currently running campaigns in regard to preparing family meals, for four, for less than $10. It is very easy to see that eating out has a cost factor of 4 times that of eating at home. If you then consider the reimbursement factor, say the average tax rate, that of 30%. Then the factor of 4 becomes 13.33. Thus it can easily be 13.33 times more expensive to have to eat out than to eat meals at home, often the factor could be far greater.

In fact if anything the fairer situation would be if tax deductions were increased, in regard to child support, to take into consideration the actual losses surrounding a deduction. Perhaps the answer should be that employers should, in the case of those with child support obligations, should meet the cost of employment expenses in full.

Again the objections officer gave no reasons for the other deductions that were disallowed.


There is also the issue that the ATO, in deciding whether a deduction is allowable or not undertakes quite extensive analysis which SCOs are not considering.


Mike I agree with you.

I need to know how they are justifying their actions. It can't be that it's just because the majority of payers cannot claim meals etc… as deductions. There has to be a legislative basis.

I have been reading the Act and can't find anything concrete although I can see how they can determine an adjusted child support income without a tax return. The act even specifies they can act on oral advice on a persons income.

Is there anything in the guide about this? (reassessing child support income by adding back allowable tax deductions)

The reason why I am asking is that few days ago I had a pre-hearing conference with the $$AT and the $$AT officer suggested that they could do the same thing, that is, increase the child support income by adding back deductions etc…

I told the nice lady that I believed their position in the appeal was to only look at the subject of such which had nothing to do with my child support income, and if they started pulling tricks like that, I would take the matter to court afterwards and have it changed.

Anyway from now on the SSAT will now be known as the $$AT.



 
Fairgo,
          I believe the only justification given is to those monitoring the performance of those making the decisions and that basically the overall attitude appears to be be the more we collect or transfer the better we are doing, irrespective of the actual damage and injustices done along the way. I have absolutely no doubt whatsoever that many children and their parents are suffering unnecessarily due to such decisions that are based not upon the object of the legislation but upon the many wrongs intertwined with a red tape type process of at best partial interpretation of the legislation.

As for the guide, a search on tax deduction, results in 12 finds. 8 of which are in section 5 (collection) and thus do not affect assessment. Another is in the A-Z index and is a find of both words but from what I can see not the two words used together. Another find is in section 2.4.4 again not a find of both words used together. The same applies for another find in section 2.5.1 for estimates of income. That leaves 1 find in section 2.6.14 (Reason 8 COA) and that is in the section in regard to Self Employment and Business Expenses and is (and is clearly NOT aimed at the normal wage earner) :-

The CSA Guide - Extract from section 2.6.14 said
Expenses partly for business purposes and partly for private purposes

Where an expense is partly business and partly private the expenses must be apportioned for taxation purposes. Parents who are self-employed or who operate a business might claim expenses that may otherwise be considered private as a legitimate income tax deduction. Examples include the fixed-costs component of telephone expenses such as the rental and connection fees, home office expenses or motor vehicle expenses. These deductions are generally not available to parents who derive income solely from salary and wages.

If CSA concludes that, as a result of the deductions, the parent has additional income or financial resources that are not taken into account in the child support assessment, a reason to change the assessment may be established.


Back again to justification, in the above example the stated justification for denying ALL 15 tax deductions, was that one was in the opinion, an opinion that I believe is extremely way off, they were a benefit. I believe that a benefit can be shown to be or not to be a benefit and that an opinion is not and should never be accepted. Again taxation law does not consider meals away from home a benefit (uhhm I wonder what tax legislation says).

As for SSAT I believe that the overriding driving force would be whatever performance indicators they have to meet and that this would in some way likely indirectly include not causing over/increased expenditure of other areas. Therefore I suspect that overturning too many CSA decisions that resulted in reducing the FTB clawed back would put SSAT jobs into jeopardy. Now I have little understanding of precedents/the higher court, but I strongly suspect that the matter of denying tax payers the benefits that other tax payers are given, as the CSA do and likely do with great frequency, should be terminated and perhaps that should be by a high court decision on the matter.

As I said previously I believe that unless a tax deduction has been shown to have been claimed illegally then it should stand as what it is, a deduction in that tax payers taxable income to reflect a cost that tax payer has encountered whilst earning the income that they are taxed on. In fact I personally believe that an employer should foot the cost 100% and thus there would be no tax deductions just that work related expenses would be fully covered. I wonder what effect the prosed tax reforms and specifically the set deductions (if that's what they are called) upon the opinions of CSA employees, perhaps such changes will be a blessing in disguise for all those basically having to pay not only for work expenses but also for the promotion of CSA employees, when if anything I believe demotion should be the only reward for such wayward opinions.
Mike,

I understand what C$A means in that excerpt. If any person is getting a personal benefit for a business expense then Fringe Benefits Tax should play a role in identifying this and thus be added back to work out an adjusted child support income. So there is already an ATO process in place to work this aspect of business expenses. I might have a talk to my accountant on this one to gain a greater insight.

Yes I think C$A are correct in saying that if "the parent has additional income or financial resources that are not taken into account in the child support assessment, a reason to change the assessment may be established", however I don't believe this justification enables them to 'double dip' and ignore the Tax Act.

There is also another argument against their position. Both Family Assistance and C$A use the same information for similar purposes. Imagine the uproar that would occur if Family Assistance decided to enact a similar process against clients to save benefits? As this does not occur I could argue that the C$A is not being consistent in its approach when compared to other government agencies in the same area of service.

What do you think?

Fairgo

I think you may have a good approach there but don't hang your hat on it, there would be a public policy argument against your approach i.e. opening the flood gates. If this is the approach you are looking at taking it may be a good step to start your research at Blackburn v Mackey (1823) 1 Car & P 1; 171 ER 1076 as you are embarking upon issues of equity as well. Yes, a very old matter but may give you a bouncing board to locate more recent matters. Look for the comments of Abbott CJ. From this judgment you will no doubt bounce to the similar reasoning applied in Shelton v Springett (1851) 11 CB 452; 138 ER 549 and then start backtracking to recent matters relying upon the obiter and ratio decidendi in these matters.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
Fairgo said
There is also another argument against their position. Both Family Assistance and C$A use the same information for similar purposes. Imagine the uproar that would occur if Family Assistance decided to enact a similar process against clients to save benefits? As this does not occur I could argue that the C$A is not being consistent in its approach when compared to other government agencies in the same area of service.

What do you think.

Fairgo,
          I must admit that I know little about the intricacies of FTB other than it has similarities and that moves have been made to more closely align the tests for CSA and FTB. However I certainly believe that there would be an uproar and that the main reason why there is not with the COA process is that it is very much secret and also that the CSA and those above, have consistently put forward a very biased front that a very large proportion of payers are so bad. However it is very evident from what I have seen that recipients are as bad a proportion and very likely even worse and greater as a proportion as basically they are assisted by the CSA. Again Ryan v Ryan (SSAT) highlights the CSA assisting a recipient, by not investigating/applying the legislation to the recipient, and perhaps even more important, not adhering to the object of the legislation to ensure that parents provide the proper financial support for the children.

With regard to consistency with FTB, I'm not sure that arguing that point would be beneficial as I suspect the reply would quite likely be that they operate under different legislation. However it is most certainly worth a try. I believe the point to make is that a tax deduction it is not a benefit as the compensation never covers the outlay and is thus always a financial detriment to the person, assuming that the deduction is a legitimate claim according to the tax legislation.

However again I believe that this is an area where even SSAT are lost in the considerable efforts made by the Government to portray payers as basically evil and thus they may very well see absolutely nothing wrong to assume that a claim for a tax deduction is never legitimate, be there proof or not. In fact I believe that if there was the slightest hint that a claim were not legitimate that the ATO would be informed. I've personally never come across the ATO being informed of a potentially illegitimate tax deduction being made by a payer due to a COA. Perhaps there should be an insistence upon a mandatory reporting process for a questioned tax deduction to be investigated by the ATO and that the ATO's decision is then taken. However I suspect that fair and just decisions would go out of the door due to the cost and likely reduction in the FTB savings due to the reduced amount collected and or transferred.
Thanks for the advice guys - I have a few weeks up my sleeve so will do some more research. I wasn't planning on dealing with this issue this time round, but if this is what the SSAT has in mind, I'd better be prepared with my appeal to the Magistrates Court.

My current appeal has something to do with step children, however if I can deal with two issues at the same time, then I guess that will be better in the long run for everyone.

There is although a chance the matter could be settled before a hearing so perhaps I should not settle, and instead let the SSAT "go to town" on my deductions and then get the court to overturn it on the grounds that it is unfair and unlawful.

Would a decision like this make a difference for everyone else in the system? or is there another way to get this sort of result?

Last edit: by Agog

The latest stats, as of 15/06/2010, are now that of the 41 published SSAT decisions 14 (34%) have been correct and 27 have been incorrect (66%).
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