ADRIAN MORARU and SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 146
•2 March 2012
[2012] AATA 146
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1585
Re
ADRIAN MORARU
APPLICANT
And
SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Dr J Chaney, MemberDate 2 March 2012 Place Perth The Tribunal affirms the decision of the Social Security Appeals Tribunal under review.
..(Ms K Hogan)......
Ms K Hogan, Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – Australian Residency
Legislation
SocialSecurity Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Ms K Hogan, Member
Dr J Chaney, Member2 March 2012
HISTORY
1. Mr Moraru was in receipt of Disability Support Pension until 17 July 2009. On 20 July 2009 Centrelink cancelled Mr Moraru’s Disability Support Pension effective 2 August 2007.
2. Mr Moraru successfully reapplied for Disability Support Pension on 2 February 2010.
3. On 25 May 2010 his Disability Support Pension was cancelled effective 23 February 2010.
4. On 29 July 2010 Centrelink calculated that Mr Moraru had been overpaid Disability Support Pension in the period 23 February 2010 to 24 May 2010 and raised a debt of $4,505.00 to be recovered.
5. Mr Moraru requested a review of the decision to cancel his Disability Support Pension effective 2 August 2007 and the decision to cancel his Disability Support Pension effective 23 February 2010.
6. On 29 December 2009 an Authorised Review Officer (“ARO”) affirmed the decisions.
7. On 19 January 2011 Mr Moraru requested review of the decision to cancel the Disability Support Pension effective 23 February 2010 and the decision to raise and recover a debt for the period 23 February 2010 to 20 May 2010.
8. On 25 March 2011 the Social Security Appeals Tribunal affirmed the decision under review.
9. Mr Moraru requested a review of that decision by this Tribunal.
ISSUE
10. The issues to be considered by the Tribunal are:
(a) whether Mr Moraru’s Disability Support Pension should have been cancelled effective 23 February 2010;
(b) if so, whether Mr Moraru has been overpaid Disability Support Pension;
(c) if so, whether the amount overpaid is a debt due to the Commonwealth; and
(d) if so, whether all or part of the recovery of the debt should be waived or written off.
LEGISLATIVE FRAMEWORK AND POLICY
11. The legislation relevant to this matter is contained in the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”).
12. Under Part 4.2 of the Act Social Security payments may be portable in certain circumstances.
13. Provisions relating to the portability and rate of Disability Support Pension are contained in Parts 2.3 and 3.2 of the Act.
14. Provisions relating to overpayment and debt recovery are contained in Chapter 5 of the Act.
15. Provisions related to notices are contained in Part 3 of the Administration Act.
EVIDENCE
16. The Tribunal was provided with a number of documents including:
(a)the Section 37 documents; and
(b)written submissions from the parties.
17. The Tribunal heard oral submissions on behalf of the parties.
SUBMISSIONS
APPLICANT’S SUBMISSION
18. The applicant maintained that he has remained a resident of Australia.
19. He was surprised that he was considered a returned resident of Australia as the majority of his family members live in Australia.
20. He migrated as a permanent resident in 1991, when he was young, and became an Australian citizen in 1993.
21. All his employment has been in Australia and whilst he does not have any assets in Australia, that is due to a marriage breakup and an ongoing dispute over ownership of a car. He has no assets in any other country.
22. His entire work history has been within Australia. He has worked for many companies, including Curtin University, the Main Roads Department, Newcrest Mining and Lynas Gold.
23. He told the Tribunal that if he is he is not a resident of Australia he is a resident of "nowhere".
24. Mr Moraru sought to extend the portability of his pension (under s1228C) beyond the length of time that would normally be allowed because he was hospitalised overseas and because he has been diagnosed with a terminal condition.
RESPONDENT’S SUBMISSION
25. The respondent contended that the decision of the Social Security Appeals Tribunal was correct and that Mr Moraru ceased to be an Australian resident sometime between 2005 and 2008.
26. The respondent accepted that upon his return to Australia Mr Moraru resumed residency in February 2010, and that he was then entitled to receive disability support pension but having left Australia within a two year period of returning, section 1220 of the Social Security Act applies and restricts any payment of, in this case, disability support pension whilst Mr Moraru is outside of Australia for a period of two years since his last return.
27. The respondent contended that as Mr Moraru ceased to be resident, section 1220 applies and because Mr Moraru had left Australia and continued to receive disability support pension a debt arose.
28. In the alternative, if the Tribunal decided that Mr Moraru never ceased to be an Australian resident, the respondent contended that section 1218 would allow Mr Moraru to be paid for a period of up to three months whilst he was outside of Australia.
29. The respondent contended that if the Tribunal finds that Mr Moraru ceased to be an Australian resident and then again became an Australian resident it does not need to consider whether his condition is a terminal condition or a severe illness because that is not a pre-condition of section 1220 of the Social Security Act, though it is a consideration in allowing an extension to the statutory 13 weeks should he be considered to have always been a resident of Australia even though he was absent.
30. The respondent contended that Mr Moraru was overpaid disability support pension between 23 February 2010 and 24 May 2010.
31. The respondent contended that payments made between 23 February 2010 and 24 May 2010 constitute a debt which is recoverable and because the debt was not caused by Centrelink’s administrative error waiving of the debt under section 1237A cannot apply.
32. Furthermore, Mr Moraru has not established to date that his circumstances are any more special than anybody else in receipt of an income support payment so that it would be desirable to waive recovery of the debt.
COSIDERATIONS AND APPLICATION OF THE LAW
33. Section 1220 of the Act provides that a person cannot be paid an Australian pension once they leave Australia if a person was an Australian resident and a person stops being an Australian resident for a period of time and then later becomes an Australian resident again and within 2 years is granted an Australian pension and leaves Australia within 2 years of becoming an Australian resident.
34. If section 1220 of the Act is applicable, then the provisions of section 1217, 1218AA and section 1218C of the Act do not apply.
35. A review of Mr Moraru’s Centrelink records and documents and his oral evidence confirm that he left Australia on 3 May 2007 and did not return until 1 February 2010.
36. He left Australia again on 23 February 2010 and did not return until 11 November 2010.
37. Whilst Mr Moraru told the Tribunal that when he was in Romania he became too sick to leave, his medical condition had been diagnosed prior to leaving Australia and there was little documentary evidence of more than two brief periods of hospitalization during the period of his absence.
38. Section 7(3) of the Act states that to make a decision about whether a person is residing in Australia there are numerous factors which must be considered including the nature of the accommodation, extent of family relationships, employment, business or financial ties, frequency and duration of the person’s travel outside of Australia, nature and extent of the duration of the person’s assets located in Australia and any other matter relevant to determining whether the person intends to remain permanently in Australia.
39. Whilst Mr Moraru argued that if he is not a resident of Australia he is a resident of "nowhere", that may well be the case. The fact that he is not a resident of anywhere else is not evidence of his residency in Australia. The Tribunal finds that there is insufficient evidence of the factors required by section 7 (3) of the Act to find that Mr Moraru was residing in Australia during the period 3 May 2007 to 1 February 2010.
40. The Tribunal finds that Mr Moraru ceased residing in Australia during the period 3 May 2007 to 1 February 2010.
41. The Tribunal finds that Mr Moraru left Australia on 23 February 2010.
42. The Tribunal finds that as Mr Moraru had ceased residing in Australia in the period 3 May 2007 to 1 February 2010, then the decision to cancel the disability Support Pension effective 23 February 2010 is correct.
43. Subsection 1223(1) of the Act provides that if a Social Security payment is made and the person who obtains the benefit of a payment was not entitled for any reason to obtain that benefit, the amount of the payment is a debt due to the Commonwealth by that person.
44. Having found the Mr Moraru’s Disability Support Pension was correctly cancelled effective 23 February 2010 it follows that Mr Moraru was not entitled to continue to receive Disability Support Pension and that he was overpaid during the period 23 February 2010 and 24 May 2010.
45. The Tribunal finds that Mr Moraru has a debt due to the Commonwealth for the amount overpaid.
46. There are limited circumstances in which recovery of all or part of a debt from a person may be written off or may or must be waived.
47. Waiver of the debt must be made if the debt was solely attributable to an administrative error made by the Commonwealth if the debtor received in good faith the payment. There was no evidence led in relation to whether there was an administrative error made by the Commonwealth and the Tribunal finds that no administrative error was made by Centrelink.
48. Subsection 1236(1) of the Act states the Secretary may decide to write off a debt if the debtor has no capacity to repay.
49. Mr Moraru has the capacity to repay the debt as he is in receipt of Disability Support Payment and is presently repaying the debts on a repayment schedule.
50. Section 1237AAD states that the Secretary may waive the right to recover all or part of the debt if there are special circumstances (other than financial hardship alone) that make it desirable to waive recovery of the debt and it is more appropriate to waive than to write off the debt or part of the debt.
51. In considering the matter of special circumstances the Tribunal was guided by decisions of the Federal Court and the Administrative Appeals Tribunal which have afforded a consistent interpretation of what is meant by ‘special circumstances’.
52. In the case of Beadle v Director-General of Social Security (1985) the Full Federal Court held that consideration of special circumstances would depend upon the facts of the case and include those matters which render circumstances unfair or inappropriate.
53. Justice Kiefel said in Groth v Secretary, Department of Social Security (1995) 40 ALD 451 that special circumstances would require something ‘to take it [the case] out of the usual or ordinary case’ and that ‘it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary’.
54. Mr Moraru contended that his medical condition was such that it should be considered a special circumstance that makes it desirable under section 1237AAD to waive recovery of the debt.
55. The Tribunal notes that whilst Mr Moraru’s medical condition has previously been identified as terminal, the doctors note that his prognosis would certainly improve if he chose to stop drinking and therefore the Tribunal finds that Mr Moraru’s medical condition is not terminal.
56. Mr Moraru’s evidence to the Social Security Appeals Tribunal that he was being considered for a liver transplant and had not been referred for palliative care, supports the finding that Mr Moraru’s illness is not terminal and therefore does not constitute special circumstances.
57. The Tribunal finds that it is not appropriate to waive recovery of the debt under section 1237AAD of the Act.
DECISION
58. The Tribunal affirms the decision of the Social Security Appeals Tribunal under review.
I certify that the preceding 58 paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member .
....(sgd) T Freeman..........
Associate
Dated 2 March 2012
Date of hearing
25 October 2011
Applicant
Self-represented
Advocate for the Respondent
Mr P Maishman
Centrelink Program Litigation and Review Branch
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