ABERA ASEIA ASAYEHENG and and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 523
[2013] AATA 523
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5618, 2012/5620 and 2012/5621
Re
ABERA ASEIA ASAYEHENG
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
File Number
2012/5622
Re
ABERA ASEIA ASAYEHENG
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 25 July 2013 Place Brisbane The Tribunal affirms the decisions under review.
..................[Sgd]......................................................
Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Newstart Allowance – Sickness Allowance – Disability Support Pension – Failure to declare full amount of income earned – Recovery of overpayments – Whether overpayments recoverable - Deceitful conduct when receiving benefits – No special circumstances – Recovery charge applicable – Decisions under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 8, 1064, 1068, 1223, 1228B, 1236, 1237A, 1237AAD
Social Security Administration Act 1999 (Cth) ss 63, 68
CASES
Dranichnikov v Centrelink [2003] FCAFC 133
REASONS FOR DECISION
Mr P Wulf, Member
25 July 2013
Mr Abera Aseia Asayeheng ("the applicant")[1] seeks review of four decisions made by Centrelink on 17 November 2008,[2] to raise and recover financial support he received in the form of Newstart Allowance (“NSA”), Sickness Allowance and Disability Support Pension (“DSP”) paid to him (plus a recovery fee) while at the same time, he was being paid an income from his employment at the PA Hospital.
[1] Exhibit 1, T-Document, pp. 1-2.
[2] Exhibit 1, T-Document, pp. 302-305.
On 5 October 2012, the four decisions were affirmed by an authorised review officer, with some adjustment to the original debt calculations.[3] The applicant appealed the decision to the Social Security Appeals Tribunal (“SSAT”), which affirmed the decision on 20 November 2012.[4] The applicant has applied to this Tribunal for review of the decision of the SSAT.
[3] Exhibit 1, T-Document, pp. 183-188.
[4] Exhibit 1, T-Document, pp. 3-9.
For the reasons that follow, the Tribunal finds that the applicant has been overpaid NSA, Sickness Allowance and DSP during the relevant periods and the amounts are recoverable along with a 10% recovery fee. Therefore the decisions are affirmed.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal to determine are;
(a)Was the applicant overpaid NSA for the period 15 February 2005 to 28 March 2005; and if so, does he have a debt of $1,261.78, made up of $1,147.08 in excess payments received plus a $114.70 recovery fee;
(b)Was the applicant overpaid Sickness Allowance for the period 25 October 2005 to 7 November 2005; and if so, does he have a debt of $386.83, made up of $351.68 in excess payments received plus a $35.15 recovery fee;
(c)Was the applicant overpaid NSA for the period 19 December 2005 to 29 November 2007; and if so, does he have a debt of $20,212.62, made up of $18,375.12 in excess payments received plus a $1,837.50 recovery fee;
(d)Was the applicant overpaid DSP for the period 22 February 2008 to 7 August 2008; and if so, does he have a debt of $4,589.00, made up of $4,171.85 in excess payments received plus a $417.15 recovery fee; and if so to all or some of the above
(e)Should all or part of the recovery of these debts be written-off or waived; and if not
(f)Should a recovery fee be imposed on all or some of the debts.
ANALYSIS
The applicant has been in receipt of NSA, Sickness Allowance and DSP for numerous years. With respect to NSA, he was in receipt of payments from 24 June 2003 to 18 April 2005 and from 19 February 2005 to 12 February 2008. With respect to Sickness Allowance, he was in receipt of payments from 13 September 2005 to 7 November 2005.With respect to DSP, he was in receipt of payments from 18 February 2008 to 28 May 2009, and from 3 May 2011 to when he attended the Tribunal hearing.
The following facts do not appear to be in dispute and the Tribunal finds accordingly:
a)Mr Asayeheng applied for Sickness Allowance on 11 October 2005, at which time he advised that while he was employed by the PA Hospital, he was not currently working;[5]
b)Mr Asayeheng applied for NSA on 19 December 2005 and advised that he was not currently working.[6] Although information provided by Queensland Health in September 2008 showed that Mr Asayeheng was working approximately 6 hours a day and had worked on the 12th, 13th, 14th and 15th of December 2005, this being the week immediately prior;[7]
c)During the debt periods Mr Asayeheng was in receipt of either NSA, NSA and Sickness Allowance or DSP. While also undertaking paid employment at the PA Hospital;
d)The total income declared by Mr Asayeheng for the entire four debt periods was $956.85. Whereas the total income earned by him as provided by Queensland Health was $63,708.23. As an example, the income earned by Mr Asayeheng between 19 December 2005 and 29 November 2007 was $47,386.41. In contrast, the amount declared by Mr Asayeheng for the same period was only $816.85. Mr Asayeheng was unable to explain the discrepancy;
e)Mr Asayeheng was regularly sent notices by Centrelink advising him of his obligation to notify of any changes in his financial circumstances and in the vast majority of these forms, he stated he was not undertaking paid work and/or received any income during the relevant period;
f)Mr Asayeheng advised Centrelink on at least two occasions (29 May 2006 and 14 November 2007) and possibly a third occasion over the debt periods that he was working. Importantly, Mr Asayeheng acknowledged that he did not follow through with his requirements, this being to provide details of his employment income to Centrelink.
[5] Exhibit 1, T-Document, pp. 33-62 and Income and Assets Form, pp. 63-85.
[6] Exhibit 1, T-Document, pp. 96-102.
[7] Exhibit 1, T-Document, pp. 200-207.
Mr Asayeheng’s evidence was that he was in hospital and suffered from an illness that caused him to forget these matters. While it is acknowledged that he was hospitalised for periods, these were less than three weeks at a time.
Of concern was that Mr Asayeheng believed it was his human right to be paid monies by the Government, and that “money was interesting” and he would keep all monies paid to him. Mr Asayeheng conceded that he was working and therefore should have no longer been paid any form of allowance from Centrelink. However despite this, Mr Asayeheng retained the monies paid to him by Centrelink. Moreover, while it is acknowledged he attended Centrelink three times where he contests that he told them he should not be paid, the applicant did not complete and return the required forms that would have stopped his payments as required.
LEGISLATION
The relevant law is contained in the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“Administration Act”).
Mr Asayeheng received NSA, Sickness Allowance and DSP during the debt periods. The rate of payment of NSA, Sickness Allowance and DSP is subject to an income test. Income is defined in s 8 of the Act and includes an income amount earned or received for the person’s own use or benefit such as that from employment.
A person's NSA, Sickness Allowance and DSP rate is to be worked out using the rate calculators in s 1064-A1 of the Act for DSP and in s 1068 of the Act for NSA and Sickness Allowance. The amount of NSA, Sickness Allowance and DSP paid on a fortnightly basis is dependent upon the amount of ordinary income earned by a person.
Section 1223(1) of the Act provides that an amount of payment to which a person was not entitled for any reason is a debt owed to the Commonwealth. Section 1223(1AB) sets out the circumstances under which a person is taken not to have been entitled to obtain the benefit of a payment and includes in subs (d) where, "the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation".
Section 1236 of the Act provides for write-off of a debt where the debt is either irrecoverable at law, or the debtor has no capacity to repay the debt, or the debtor's whereabouts are unknown, or it is not cost-effective for the Commonwealth to take action to recover the debt.
Section 1237A of the Act provides for a waiver of debt which is attributable solely to an administrative error if the debtor received the payments in good faith.
Section 1237AAD of the Act provides for the waiver of debts in special circumstances and provides as follows:
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 knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(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.
Sections 63 and 68 of the Administration Act provide the power to the Secretary to require a person to notify matters that might affect their social security payment.
Section 1228B of the Act allows for an additional 10% penalty to be added to a debt due to the Commonwealth where the debt arose wholly or partly because a person refused or failed to provide information in relation to the person’s income or knowingly or recklessly provided false or misleading information in relation to the person’s income.
DISCUSSION AND FINDINGS
The Tribunal finds that Mr Asayeheng was overpaid NSA, Sickness Allowance and DSP on account of him failing to declare the full amount of income earned by him during the debt periods. This was in contravention of the requirements of the Administration Act which required him to notify the amount of income earned.
As an example of what could be considered deceitful conduct by Mr Asayeheng, on his application for NSA lodged on 19 December 2005,[8] Mr Asayeheng indicated that he was not doing any paid work, or was working less than 15 hours a week.[9] However, information provided by Queensland Health in September 2008 showed that Mr Asayeheng was working approximately 6 hours a day and had worked on the 12th, 13th, 14th and 15th December 2005, this being the week immediately prior.[10]
[8] Exhibit 1, T-Document, pp.96-102.
[9] Exhibit 1, T-Document, p. 97.
[10] Exhibit 1, T-Document, pp.194-255.
More of concern was that Mr Asayeheng applied for DSP on 19 February 2008,[11] and was granted DSP and immediately continued to gain income from his employment. At Question K12,[12] when Mr Asayeheng applied for DSP, he indicated he was not working as he was in receipt of a Centrelink payment. However, again information provided by Queensland Health in September 2008 showed that Mr Asayeheng upon receipt of DSP, worked consistently up to 7 hours a day when he ought to have known from completing the form that he had an obligation to declare this income.[13] This is a consistent pattern through the time Mr Asayeheng received Centrelink benefits and based on this, the Tribunal does not find that there was any administrative error by Centrelink, it merely followed the information being provided by Mr Asayeheng.
[11] Exhibit 1, T-Document, pp.111-138.
[12] Exhibit 1, T-Document, p. 130.
[13] Exhibit 1, T-Document, pp.194-255.
In accordance with the provisions of the Act,[14] the amount of overpayment is a debt due to the Commonwealth. The question remains as to whether the debt, which the Tribunal accepts is correctly calculated at $24,045.73, can be written-off or waived under any of the provisions referred to above.
[14] s 1223(1).
The Tribunal finds that it is not appropriate to write-off the debt under s 1236(1)(A) of the Act. Given the evidence that Mr Asayeheng is currently in receipt of DSP and what also appear to be monies from his paid employment at PA Hospital, the Tribunal does not accept that he has no capacity to repay the debt. The Tribunal considers that none of the other factors referred to in this section apply in the circumstances.
The Tribunal does not consider that waiver of the debt is appropriate pursuant to s 1237A(1) of the Act because no portion of the debt was attributable solely to administrative error. While Mr Asayeheng argued that he had on three occasions advised Centrelink that his payments should be stopped, he did not complete and return the required forms so as Centrelink could re-calculate his payments; moreover, he did not immediately follow up with Centrelink when he continued to be paid by them. In this case the sole reason for the overpayment was because the applicant did not correctly declare his earned income and did not comply with his requirements.
The penultimate consideration is whether the debt should be waived pursuant to s 1237AAD of the Act. The provisions in this section are conjunctive in that the Tribunal must be satisfied that the debt did not arise wholly or partly from the person making a false statement, or failing or omitting to comply with a provision of the Act or the Administration Act and there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt and it is more appropriate to waive the debt than to write it off.
The term "special circumstances" has been considered on numerous occasions by both the AAT and the Federal Court, and generally accepted as circumstances that are different from the usual cases such that they take the case out of the ordinary (for example, see Dranichnikov v Centrelink).[15]
[15] [2003] FCAFC 133.
While the respondent advised that the Secretary did not strongly contend that the debt arose from the applicant knowingly making a false statement or representation, the Tribunal is less inclined to follow that view. However, the respondent submitted that the circumstances of this case did not have the quality of being special. The Tribunal agrees, for the circumstances that gave rise to the debt in this case were that Mr Asayeheng failed to declare the correct amount of his income many times. Further, the under declaration was a substantial amount over the debt period of five years and should in the Tribunal's view, have been obvious to Mr Asayeheng from time to time during this period. For these reasons the Tribunal finds that the circumstances in this case are not sufficiently special to justify a waiver pursuant to s 1237AAD of the Act.
The final matter is whether the Tribunal should allow for a penalty of 10% under s 1228B of the Act, this being a total amount of $2,404.50. The Tribunal is of the opinion, based on the continued behaviour of Mr Asayeheng that he knowingly or recklessly provided false or misleading information in relation to his income. As highlighted above, Mr Asayeheng refused to provide accurate information, and even when he made new applications for benefits, he did so by knowingly and recklessly provided false or misleading information in relation to his past and future income. On this basis, the Tribunal finds it appropriate that the additional 10% penalty be imposed.
DECISION
For the reasons set out above, the Tribunal finds that the applicant has been overpaid NSA, Sickness Allowance and DSP during the relevant periods and these are recoverable along with the recovery fee. Therefore the decisions are affirmed.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member .................[Sgd].......................................................
Associate
Dated 25 July 2013
Date of hearing 3 April 2013 Applicant In person For the Respondent Donna Smith, Departmental Advocate
0
0
0