Allabadi and Department of Family and Community Services
[2000] AATA 901
•16 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 901
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1767
GENERAL ADMINISTRATIVE DIVISION )
Re SARI ALLABADI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr JD Campbell
Date16 October 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
…………………………………….
Dr JD Campbell
Member
CATCHWORDS:
Social Security – Newstart Allowance – Overseas – to seek work – to seek medical treatment – failure to notify – cancellation – overpayment – debt – recovery – administrative error – special circumstances – write-off
Social Security Act 1991, ss 593, 657, 1223, 1224, 1236 and 1237
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Reasons for decision
Dr J D Campbell, Member
Mr S Allabadi ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal (the "SSAT") dated 9 November 1999 which affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 7 June 1999 that the Applicant owed a debt to the Commonwealth of $1091.70 arising from overpayment of newstart allowance between 20 April 1999 and 2 June 1999. This latter decision was affirmed by an authorised review officer on 30 August 1999.
A hearing was held before the Tribunal on 7 June 2000 at which the self represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Ms Buckley, an advocate from the Administrative Law section of Centrelink.
The following material was placed in evidence before the Tribunal:
Exhibit No. Description Date
T1–19, pp 1 – 45 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975
A1 Document from University of Southern California Centre for Orthopaedic Spinal Surgery
A2 Medical certificate re the Applicant 23 January 1995
A3 Omega Travellers Assistance Request for medical report 9 June 1999
R1 Respondent's statement of facts and contentions 10 March 2000
R2 Application for Newstart allowance by Applicant 22 March 1999
Issues:
The relevant issues in this matter are:
(a)whether the Applicant received an overpayment of newstart allowance of $1091.70 between 20 April 1999 and 2 June 1999; and
(b)whether this overpayment constitutes a debt owed by the Applicant to the Commonwealth; and
(c)whether there are any reasons why this debt should not be recovered.
Legislation:
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 593, 657, 1223, 1224, 1236 and 1237.
Background evidence:
On 9 October 1998 the Applicant lodged an abridged claim for newstart allowance with the Respondent in which he acknowledged that since receiving his last social security payment he had not developed or experienced changes to a medical condition or disability that would limit him from doing certain types of work or stop him from working. Further the Applicant stated that he had travelled outside Australia (T3). A further application was lodged by the Applicant on 16 November 1998 (T4).
On 8 March 1998 the Respondent sent a letter to the Applicant which, while advising him of his payment of Newstart allowance for the period 9 March 1999 to 22 March 1999, reminded him that an application for payment form sent to him on 29 December 1998 should be lodged by 22 March 1999. On the reverse of the letter the Applicant was instructed in the following terms on when he should contact the Respondent:
"This is a Recipient Notification Notice under section 657 of the Social Security Act 1991. You must tell us within seven days about events or changes in circumstances effecting your payment…
YOU MUST TELL US IF ANY OF THESE THINGS HAPPEN OR IS LIKELY TO HAPPEN
…
you leave or decide to leave Australia (including holidays)"
… " (T5)
On 22 March 1999, the Applicant lodged a claim for Newstart allowance with the Respondent for the period 29 December 1998 to 22 March 1999 (being on a 12 week lodgement cycle), in which the Applicant indicated that amongst other matters, he had not travelled overseas during this period (Exhibit R2). On the same day the Respondent sent the Applicant a further claim form for Newstart allowance which was to be lodged by 14 June 1999 (T6).
As part of a data matching exercise between the Respondent and the Department of Immigration, the latter department noted that the Applicant left Australia on 20 April 1999 (T7). A letter was sent to the Applicant on 13 May 1999 requesting confirmation of this matter, and reminding the Applicant of reduction in rate if advice had not been received by 3 June 1999 (T9), and the Applicant was advised that he had a debt owing of $1091.70 on 7 June 1999 (T11).
The Applicant re-registered with the Respondent as seeking work from 21 July 1999, and indicated that "the sole purpose of my trip overseas was to look for work" in his letter of 23 July 1999 (T12). On 23 July 1999 the overpayment of $1091.70 was recovered by garnishee action from the Applicant's bank account. Subsequently the Applicant reclaimed Newstart allowance on 5 August 1999 and advised the Respondent that he had been overseas (T13).
The decision to effect recovery of the overpayment was affirmed upon reconsideration on 6 August 1999 (T14), by the authorised review officer on 30 August 1999 (T16) and by the SSAT on 9 November 1999 (T2).
Applicant's evidence:
The Applicant stated that he travelled to America and was absent from Australia for the period 20 April 1999 to 21 July 1999; and that he went to America to seek work and to take medical treatment for his back condition.
The Applicant stated he was born in Jordan and educated in Kuwait, where he finished high school. From 1978 to 1981 the Applicant completed a science degree at the University of Jordan majoring in computer science and physics. From 1981 to 1983 the Applicant served with the Jordanian army in a radio relay station. For the next six years until 1989 he was employed in the computer area for the Arab bank. In January 1990 he came to Australia and in March 1990 he was employed for six months as a post sales support employee for an accounting package, prior to being asked to resign on performance grounds. Employment with GI0 commencing February 1991, ceased in October 1991 when again asked to resign. The Applicant indicated that he has been unable to get a job since then and in 1994 travelled to America seeking employment over a two month period.
The Applicant, a naturalised Australian, stated that he has experienced a lot of rejection in his job search and employment activities; that he is single, enjoys reading, lives on the lower north shore in a flat/guesthouse; he has travelled overseas several times, including a two month trip to America in 1998; and that he has a chronic back condition, which causes him pain and loss of flexibility in movement.
The Applicant stated that he has been on 12 weekly lodgements for newstart allowance since 1998, and lodged in accordance with time requirements in March and July 1999. The Applicant indicated that he has not been successful in finding work either here or in America; that he has few friends, none in Australia, not many acquaintances, and that he mainly keeps to himself.
The Applicant indicated that he lodged his Newstart allowance claim form in March 1999 and found that it was cancelled on his return from America, and that he did not have an opportunity to address the letter of 13 May 1999 with his case manager at Employment National until he returned to Australia.
The Applicant stated that he did not consider notifying the Respondent. As he was paid to look for work, and financed by his own savings, he carried on his search for work in America. The Applicant considered that he should have been deemed to be in Australia for these three months.
In response to questions asked in cross examination the Applicant said he can read and write English, but continues to have some difficulty with the language; that he had been on newstart for eight years; that he did receive the various correspondence from the Respondent, namely that of 8 March 1999 (T5); and that he had forwarded particular correspondence to the Respondent, namely that of 22 March 1999 (Exhibit R2) and 21 July 1999 (T12).
The Applicant also stated that he had not been able to see anyone at the University of Southern California in relation to his back condition during his last period in America, this being associated with difficulties with Omega insurance securing the necessary reports and costs.
Further the Applicant indicated that his financial resources had been depleted by the self funding of his trip to America and that currently he had assets of some $5,000 and a share of a small property in Jordan.
Submissions:
The Applicant contends that he left Australia temporarily for two reasons, namely to seek work and to receive medical treatment. As a consequence the Applicant submits that he should be taken to be in Australia for the three month period he was in America. Further the Applicant submitted that there was nothing to prevent him from going overseas to seek work and that his Newstart allowance should not have ceased as he was genuinely looking for work.
The Respondent argued that the Applicant was under notice to notify the Respondent if he were to leave Australia and he did not do so. Further the Applicant indicated in writing on 23 July 1999 that he went overseas solely for the purpose of seeking employment and the issue of seeking medical treatment was not mentioned, nor is there any evidence to suggest that the Applicant made arrangements to seek medical attention, other than the request by the Omega Travel Insurance company requesting details of diagnosis, intended treatment and costs from the Premier Medical Management Systems on 9 June 1999. Further there is no evidence to suggest that the treatment which he may have been seeking for his condition was of a kind not available in Australia, nor is there any evidence of a referral, a prearranged appointment schedule or any actual appointment with the appropriate medical specialist at the University of Southern California.
In the light of these circumstances the Respondent contends that the Applicant did receive payment of newstart allowance when he was absent from Australia, and that these were payments to which the Applicant was not entitled; that there were overpayments and because the Applicant had failed to notify the Respondent of his trip to America, when required to do so, the overpayment constituted a debt pursuant to both subsections 1223(1) and 1224(1) of the Act.
The Respondent also contends that on the available evidence there are no grounds sufficient to permit write-off under section 1236 or waiver for sole administrative error (section 1237A(1)) or for special circumstances (section 1237AAD).
Considerations and findings:
The Tribunal, having considered all the nominated evidence, makes the following findings of fact:
(a)the Applicant is an intelligent person with more than a satisfactory comprehension of English and enjoys an ability to read and write English.
(b)the Applicant does suffer from Lumbar Spondylolisthesis as nominated by a certificate of sickness dated 23 January 1995 (Exhibit A2) and this chronic condition will interfere with the Applicant's work ability as regards bending or lifting; it rendered him unfit to work from 18 February to 21 February 2000;
(c) the Applicant had been on Newstart Allowance for many years and that at the time in question had been on 12 weekly lodgements of claim forms with the Respondent;
(d)the Applicant did receive the letter forwarded by the Respondent on 8 March 1999 in which the Applicant was advised that he must tell the Respondent within seven days if he was to leave or had decided to leave Australia;
(e)the Applicant did not advise the Respondent as required when he left Australia on 26 April 1999;
(f)the Applicant left Australia for the purposes of seeking work in America;
(g)while the Applicant states that another purpose for leaving Australia was to seek medical treatment in America for his chronic back condition at the University of Southern California, there is no documentary evidence prior to his departure in the form of referrals or appointments, nor is there evidence of a referral or actual appointment during his time in America. Further there is no evidence submitted of the kind of treatment envisaged nor the non-availability of such treatment in Australia. Finally on this issue, the Tribunal finds that the Omega Insurance enquiry is exactly an enquiry, which proceeded no further;
(h)the Applicant did lodge an application form for newstart allowance on 22 March 1999, and as part of that application acknowledged that he had not travelled overseas in the period under consideration (29 December to 22 March 1999);
(i)the Applicant was absent from Australia for the period 20 April to 21 July 1999;
(j)the Applicant's newstart allowance was cancelled as from 3 June 1999.
The Tribunal observes the following statutory framework of the Social Security Act 1991 within which this matter is being considered:
"593.(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a)the person satisfies the Secretary that throughout the period the person is unemployed; and
…
(g) throughout the period the person:
…(iii) subject to subsection (1A), is in Australia; and
…
593.(1A) For the purposes of subparagraph (1)(g)(iii), if:
(a) a person is, under Subdivision BA, not required to satisfy the activity test; and
(b) the person is temporarily absent from Australia; and
(c) the person is absent in order to seek medical treatment of a kind that is not available in Australia;
the person is taken to be in Australia during:
(d) if the period is not more than 3 months—the whole of the period; or
(e) if the period is more than 3 months—the first 3 months of the period.
…
657.(1) The Secretary may give a person to whom a newstart allowance is being paid a notice that requires the person to inform the Department if:(a) a specified event or change of circumstances occurs; or
(b)the person becomes aware that a specified event or change of circumstances is likely to occur
…
1223.(1) Subject to subsections (1A) and (1B), if an amount has been paid to a person by way of social security payment on or after 1 October 1997 and:
(a)the recipient was not qualified for the social security payment when it was granted; or
(b) the amount was not payable to the recipient;
the amount so paid is a debt due to the Commonwealth.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 the social security law or this Act as in force immediately before 20 March 2000 or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth.
…
1236.(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)the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.
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.
…1237AAD. 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 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 application of the findings of fact to the statutory framework, it is evident that for the period 20 April 1999 to 21 July 1999 the Applicant did not qualify for the payment of newstart allowance pursuant to subsections 593(1) and 593(1A). In making such a finding the Tribunal was unable to adduce the necessary evidence which would have allowed the Tribunal to find that the Applicant satisfied subsection 593(1A), particularly in the light of the Applicant's own documented statement, immediately written on his return, as the sole purpose of his trip to America was to search for employment. Further the Tribunal has already detailed in the findings of fact as to why the evidence relating to medical treatment is found by the Tribunal to be deficient, and in so doing places the Tribunal in a position to find that the evidentiary matters are not present to satisfy the requirements of subsection 593 (1A) of the Act. (Paragraph 25 (g) refers).
The Applicant, with the Tribunal having found that he was in receipt of a recipient notification notice to advise the Respondent within seven days of his intention to depart or departure from Australia, and the Tribunal finding that he failed to do so because he did not believe it necessary, is in breach of section 657(1) of the Act. The Tribunal so finds and further finds that the failure to notify was a cause of the overpayments occurring between 20 April 1999 and 3 June 1999 – the period in which the Applicant received payments which he was not qualified to receive.
As a consequence the Tribunal finds that the Applicant has a debt of $1091.70 owing to the Commonwealth pursuant to section 1223(1) (not qualified to receive payments) and section 1224(1) (failed to comply with a provision of the Act and this being a cause of the overpayment).
30.The Tribunal in considering the evidence of the Applicant in relation to his personal and financial circumstances, finds that the Applicant's circumstances are not congruent with any of the factors which may allow the amount to be written off pursuant to section 1236(1A) of the Act. Further the Tribunal finds that the Applicant's circumstances are not unusual, uncommon or exceptional to satisfy a finding of special circumstances, (Re Beadle and Director General of Social Security (1984) 6 ALD 1 considered and followed) and accordingly the Tribunal finds that waiver of the debt on grounds of special circumstances pursuant to section 1237AAD is not appropriate. Similarly the Tribunal finds that in the absence of sole administrative error by the Commonwealth, waiver pursuant to section 1237(1A) is not applicable in this matter.
Determination:
The Tribunal affirms the decision under review.
I certify that the preceding thirty-one 31 paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed: .....................................................................................
AssociateDate of Hearing 7 June 2000
Date of Decision 16 October 2000
Representative for the Applicant Self RepresentedAdvocate for the Respondent Ms M Buckley
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