Ali and Department of Family and Community Services - [2000] AATA 1122

DECISION AND ORAL REASONS FOR DECISION [2000] AATA 1122

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/61

GENERAL ADMINISTRATIVE DIVISION       )
           Re      AHMED ALI
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION AND ORAL REASONS FOR DECISION

Tribunal Senior Member WJF Purcell

Date4 December 2000
PlaceAdelaide

Decision      For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Sole Parent Pension – Parenting Payment – false statements made to Department in regard to applicant's marital status, employment situation and purchase of house – overpayment – debt raised – waiver in special circumstances and notional payment – decision under review affirmed
Social Security Act 1991 ss.1224, 1237A, 1237AA, 1237AAC, 1237AAD

ORAL REASONS FOR DECISION

4 December 2000 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 25 January 2000, which affirmed the decision of an Authorised Review Officer of 28 January 1999 to raise and recover debts of Sole Parent Pension and Parenting Payment (single) totalling $21,446.00 for the period 11 July 1996 to 22 October 1998.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. The applicant appeared on his own behalf and gave oral evidence. Mr Underwood, a departmental advocate, represented the respondent (the Department) and called Ms Laraine Sandow, an Investigations and Review Officer with the Department.
The applicant, who was born on 29 November 1952, had two infant children and had been receiving Sole Parent Pension since 1992. When the legislation changed (with effect from 20 March 1998) the applicant continued to receive Parenting Payment at the single rate. The applicant, who was in receipt of Rental Assistance, failed to notify the Department when he married Ms Ashrun Aazmi Ali on 5 July 1996; when he commenced full-time employment as an accountant on 1 July 1997; and when he purchased a home at 24 Frontenac Avenue Panorama, on 10 March 1998.
The applicant had received letters from the Department on 31 January 1996 (T3), 11 February 1997 (T4), and 22 March 1998 (T5) which advised him that he needed to notify the Department within 14 days if he got married, started work or recommenced work, and changed his address.
On 24 February 1997 and 20 May 1997 the applicant lodged Sole Parent review forms in which he declared at question 11 that he was divorced, and at question 12 declared that no-one of the opposite sex lived at his address. By this time he had married Ashrun Ali.
On 11 August 1997, 3 November 1997 and 27 January 1998 the applicant lodged Sole Parent review forms in which he declared in answer to question 7 that he had not done any paid work in the last 12 weeks, and again declared as above, that he was divorced and no-one of the opposite sex lived at his address. He had commenced work at Evans Chartered Accountants on 1 July 1997.
On 20 April 1998 the applicant lodged a Sole Parent review form and on 20 July 1998 and 12 October 1998 lodged Parenting Payment review forms for sole parents, in which he declared in answer to question 2 that he had not changed the address where he lived, and that the amount he was paying for rent had not changed. He also declared, as above, that he had not done any paid work in the last 12 weeks, and was divorced and no one of the opposite sex lived at his address. By this time he had purchased a house on 13 March 1998, and was not paying rent.
On 25 September 1998, the Department received information from a member of the public regarding the applicant. He was interviewed by an investigating officer at Centrelink's new Norwood office, Ms Sandow, on 19 October 1998. The record of that interview appears at T12/125-128. He admitted his marriage, his full-time employment, which commenced in July 1997; and that he and his wife had a child, Zaahira, who was born on 5 July 1997. He stated "I needed the money for my family and studies" (T12/126). He stated also, that he wished "to get a clean slate as I finish my studies this year and have been offered a job when my exams are finished" (T12/128).
On 3 November 1998 a delegate raised debts for payments of Sole Parent Payment and Parenting Payment (single) totalling $21,446. On 28 January 1999 an Authorised Review Officer affirmed the decision, and on 23 February 1999 the applicant applied to the SSAT for review of that decision. On 25 January 2000 the SSAT affirmed the decision.
On 12 August 1999 the applicant pleaded guilty in the Adelaide Magistrates' Court, to 61 counts of obtaining a benefit not payable, and 19 counts of making a false statement. He was sentenced to imprisonment for 2 years; but released upon entering a 2-year good behaviour bond. He was ordered to pay $21,446.00 to the Department in reparation.
The applicant argued initially, at the Hearing that waiver should be available to him pursuant to section 1237AA(1) of the Social Security Act 1991 (the Act), which provides:
"(1) If:
(a)a debtor has been convicted of an offence that gave rise to a proportion of a debt; and
(b)the court indicated in sentencing the debtor that it imposed a longer custodial sentence on the debtor because he or she was unable or unwilling to pay the debt;
the Secretary must waive the right to recover the proportion of the debt that arose in connection with the offence."

The applicant, however, did not serve a custodial sentence. He was released on a good behaviour bond. This section is not applicable therefore.

The applicant submitted that during 1996/1997 he was unemployed and did not earn a wage. He believes that the Department should have calculated the benefit available to a married couple, unemployed with 2 children under 16 years of age, and offset that against the benefit of the Sole Parent Pension which he was paid. The applicant contends that he voluntarily disclosed the discrepancies on 19 October 1998, and upon declaring himself married and unemployed, he would have been paid more than the Sole Parent Pension. He asked that the Tribunal take into account that he now has four children, only part-time employment, a $72,000 mortgage on his home, and he owes $25,000 to the Commonwealth Bank and $7,500 on Visa card in relation to a failed franchise business. In relation to his personal circumstances, the applicant said that he now has four children, and his employment is not yet secure.
The applicant maintains that he cannot apply for registration with the Institute of Accountants until his 2-year period of good behaviour has expired; and although he has not been honest with the Department, he has been honest with other Government Departments, and been doing good work in the community in both Australia and Fiji. He is treasurer of a local multicultural youth group which helps disadvantaged children, and wants his community service taken into account. In addition, he maintains that he was not greedy, he needed the money for his family and to obtain recognition with the Institute of Accountants.
The Department contends that the debts were properly raised under section 1224 of the Act, which as far as is relevant provides:
"1224(1) If:
(a)an amount has been paid to a recipient by way of social security payment; and
(b)        the amount was paid because the recipient or another person:
(i)       made a false statement or a false representation; or
(ii)      failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth.
…"
The applicant was solely responsible for the debts that have arisen, thus no consideration should be given to waiver on the basis of administrative error in accordance with section 1237A of the Act, which, as far as is relevant provides:
"1237A(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.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
…"
The Department submitted also that the applicant made multiple false statements about his circumstances, and that they were made knowingly to intentionally gain an advantage, and waiver due to special circumstances in accordance with section 1237AAD of the Act is not applicable. This sub-section provides that:
"Waiver in special circumstances
1237 AAD 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 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.
…"
In relation to waiver on the basis of a notional payment, the Department maintains that if the applicant had an entitlement to another payment such as Newstart Allowance, section 1237AAC of the Act cannot be extended to cover Newstart Allowance, it applies only to Parenting Allowance or Parenting Payment. Sub-section 1237AAC(4) provides:
"1237AAC(4) If:
(a) a debt arises from overpayments to the debtor; and
(b) the Secretary is satisfied that the overpayments did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(c) the debtor or the debtor's partner did not claim parenting allowance or parenting payment for the period (the "overpayment period") when the overpayments were made; and
(d) an amount of parenting allowance or parenting payment would have been payable for that period if the debtor or the debtor's partner had lodged a claim;
the Secretary must waive the right to recover the debt to the extent set out in subsection (5).
…"
In his oral evidence the applicant said that he did not know why he provided the numerous false statements on a myriad of forms, over a period in excess of 2 years. He said in evidence that it was unintentional - it was not to obtain money to which he was not entitled – but he could not recall why he made the statements.
The applicant gave evidence that he voluntarily provided the information about the offences to the Department, that he first attended Centrelink's Edwardstown office and was told to go to the Norwood office where he made the statement on 19 October 1998, as recorded by Ms Sandow.
The Department called Ms Sandow, whose evidence I accept. She said that as a result of a "tip off" from a member of the public on 25 September 1998, she initiated some investigations, telephoned the applicant and outlined to him the allegations that had been made. There were maybe one or two follow-up telephone conversations. The applicant agreed, in about the week before Monday 19 October 1998, to come to the Norwood office and make a statement. Ms Sandow gave evidence also that the applicant was very willing to make the statement, and said that he wanted to start with a clean slate and have a chance of getting a good job.
I am satisfied on the whole of the evidence that the applicant made false statements in the numerous forms he completed. I am satisfied also, that when he made his statement on 19 October 1998 it was in response to the Department's advice that allegations had been made against him, and not at his own initiative, as he has claimed.
I consider that as the overpayment arose because of the applicant's false statements the exercise of discretion in accordance with section 1237 of the Act is not appropriate. In relation to sections 1237AAC(4) and (5) of the Act, I accept the Department's submission that only an amount of Parenting Allowance or Parenting Payment that would have been payable can be taken into account in calculating the notional entitlement to Parenting Allowance. The amount of any other allowance such as Newstart Allowance, cannot be taken into account. In my view the application must fail.
For these reasons the Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  4 December 2000
Date of Decision  4 December 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr J. Underwood
Solicitor for the Respondent    Centrelink