Al Obaidi and Secretary, Department of Social Services (Social services second review)
[2017] AATA 580
•2 May 2017
Al Obaidi and Secretary, Department of Social Services (Social services second review) [2017] AATA 580 (2 May 2017)
Division:General Division
File Number(s): 2015/1807
Re:Michelle Al Obaidi
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:2 May 2017
Place:Sydney
The decision under review, as varied by s 182 of the Social Security (Administration) Act 1999, is affirmed.
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Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant was a member of a couple – whether Applicant was overpaid disability support pension – whether debt due to the Commonwealth – whether debt can be waived or written off – decision affirmed
LEGISLATION
Social Security Act 1991 ss 1064, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 s 182
REASONS FOR DECISION
Senior Member A Poljak
2 May 2017
The applicant, Ms Al Obaidi, has been in receipt of disability support pension (“DSP”) since 16 August 1990.
The rate of DSP that Ms Al Obaidi was entitled to was worked out using the calculator at Part 3.2, section 1064 of the Social Security Act 1991 (Cth) (“Act”). This involves consideration of her assets and income in order to calculate her maximum basic rate. It also involves a consideration of whether she was, amongst other things, a member of a couple.
A debt was raised against Ms Al Obaidi for overpayment of DSP on the basis that her income was not correctly taken into account when assessing the rate of her DSP.
Ms Al Obaidi seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 2 March 2015, which affirmed the decision of the respondent Department to raise a debt for overpayment of DSP during the period 15 November 2006 to 6 November 2012 (the “relevant period”) and remitted the matter back to the Department for reconsideration on whether the applicant was a member of a couple during the period 27 October 2007 to 30 October 2012.
On 12 November 2015, the Department reconsidered the decision under review in accordance with the directions of the SSAT, and found that Ms Al Obaidi was a member of a couple between 27 October 2007 and 30 December 2012. The effect of this finding is that Ms Al Obaidi’s debt is reduced.
The decision under review by this Tribunal is the decision of the SSAT and, by operation of section 182 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), that aspect of the decision as varied on 12 November 2015.
Issues for determination in these proceedings are as follows:
(a)whether Ms Al Obaidi was a member of a couple between 27 October 2007 and 30 October 2012;
(b)whether Ms Al Obaidi was overpaid DSP between the period of 15 November 2006 to 6 November 2012;
(c)if Ms Al Obaidi was overpaid, is the amount a debt due to the Commonwealth; and
(d)whether the debt can be waived or written off.
WAS THE APPLICANT A MEMBER OF A COUPLE DURING THE RELEVANT PERIOD?
As noted above, whether a person is a member of couple impacts upon rate of payment of the Social Security payment, as it takes into account the income of the person’s partner. The rate for a person who is a member of a couple is a lower rate than for a single person. However in this particular case, the effect of the Department’s decision on 12 November 2015, that Ms Al Obaidi was a member of a couple for part of the relevant period, was that the total debt amount was reduced.
Ms Al Obaidi denied being a member of a couple before the SSAT on 2 March 2015. However, before this Tribunal, she conceded that she was in fact a member of a couple during part of the relevant period. Having regard to the totality of the evidence before me, coupled with the concession given by the applicant, I am satisfied that the applicant was a member of a couple from 27 October 2007 to 30 October 2012.
OVERPAYMENT OF DSP
Ms Al Obaidi was employed by Harbison Care between 27 September 2006 and 27 May 2012, and by Quest for Life between 25 February 2012 and 29 November 2012. She reported income from Harbison Care to the Department, but not income from her work at Quest for Life.
The Department requested and received Employment Declaration forms from Harbison Care detailing actual income received by Ms Al Obaidi. The records and the Debt Schedule show a significant discrepancy between Ms Al Obaidi’s reported income to the Department and her actual income received during the relevant period.
As Ms Al Obaidi did not correctly provide her income information to the Department, her rate of DSP was incorrectly calculated, causing her to be paid at a higher rate of DSP than what she was entitled to under the Act.
DEBT ARISING
Section 1223 of the Act provides that when a person obtains the benefit of a payment that the person was not entitled to for any reason, the amount of the overpayment is a debt due to the Commonwealth.
I am satisfied that Ms Al Obaidi’s rate of DSP was not accurately calculated on the basis that she was a member of a couple and received income which was not taken into account for the purposes of calculating her rate of DSP. Accordingly the overpayment of DSP constitutes a legally recoverable debt.
Based on the calculations provided by the Department I am satisfied that the amount of the overpayment received by Ms Al Obaidi in respect of the relevant period is $32,521.11. She owes this amount to the Commonwealth.
CAN THE DEBT BE WRITTEN OFF?
Section 1236 of the Act provides, in part:
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
There is no evidence before me to suggest that any of the conditions set out in s 1236(1A) are met.
It follows that I am not satisfied that the debt should be written off.
WAIVER OF DEBT ARISING
Administrative Error
Section 1237A of the Act identifies the circumstances in which the Secretary may waive the right to recover all or part of a debt on the basis of an administrative error. It provides:
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt. (Emphasis added)
There is no evidence before me to suggest that the Department made an administrative error. Accordingly, the debt cannot be waived.
Special Circumstances
Subsection 1237AAD of the Act provides:
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.
Ms Al Obaidi must satisfy all three criteria in s 1237AAD(a), (b) and (c) for the debt to be waived.
Ms Al Obaidi’s evidence before the SSAT was that she acknowledged her failure to accurately record her earnings with the Department. She said “that sometimes she declared her net earnings rather than her gross earnings” and “that sometimes she may not have rung them at all”.
There is extensive evidence before me confirming that Ms Al Obaidi received numerous letters from the Department during the relevant period advising her of her obligation to report her earnings accurately and in a timely fashion.
Based on this evidence I am satisfied that the applicant was aware of her obligation to accurately record her earnings with the Department and that her failure to do so was done knowingly.
As a result, Ms Al Obaidi does not satisfy section 1237AAD(a)(ii) of the Act and therefore, the discretionary power to waive the debts on the basis of special circumstances cannot be exercised.
CONCLUSION
For the reasons given above, I affirm the decision under review, as varied by s 182 of the Administration Act on 12 November 2015, in that Ms Al Obaidi was overpaid DSP for the period 15 November 2006 to 6 November 2012, which is a legally recoverable debt that cannot be written off or waived, and Ms Al Obaidi was a member of a couple from 27 October 2007 to 30 October 2012. The legally recoverable debt is in the amount of $32,521.11.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak.
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Associate
Dated: 2 May 2017
Date(s) of hearing: 3 February 2017 Applicant: By telephone Solicitors for the Respondent: Ms G Doyle, Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Remedies
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Statutory Construction
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