Anakieva; Secretary, Department of Families, Community Services and Indigenous Affairs and

[2007] AATA 1327

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1327

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° V 200600363

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And MARIJA ANAKIEVA

Respondent

DECISION

Tribunal Regina Perton, Member

Date16 May 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mrs Anakieva owes a debt to the Commonwealth of $19,439.75, being overpayment of age pension between 10 November 2003 and 29 December 2005.   The Tribunal acknowledges that Mrs Anakieva has repaid the debt.

(sgd) Regina Perton

Member

SOCIAL SECURITY - age pension ‑ overpayment ‑ debt to Commonwealth ‑ waiver – whether sole administrative error - whether special circumstances exist – decision set aside

Social Security Act 1991 ss 1223(1), 1237A, 1237AAD

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

REASONS FOR DECISION

16 May 2007 Regina Perton, Member    

1.      Marija Anakieva was advised by Centrelink that she owed a debt of $19,439.95 in overpayment of age pension because she had not declared the value of the taxi licence held by her husband.  Centrelink delivers services for the Department of Families, Community Services and Indigenous Affairs (the Department).  Mrs Anakieva sought review of the decision by the Social Security Appeals Tribunal (SSAT).  The SSAT decided that the amount of the overpayment was correct but the debt should be waived.  The Secretary to the Department now seeks a review of the decision of the SSAT. 

ISSUES

2.      The issues before the Tribunal are whether a debt to the Commonwealth arises from the overpayment; and, if so, whether the debt should be waived because of administrative error or special circumstances.

IS THERE A DEBT TO THE COMMONWEALTH?

3. Mrs Anakieva did not dispute that she was overpaid $19,439.75 (revised from $19,439.95 as calculated initially by Centrelink and by the SSAT) in age pension between 10 November 2003 and 29 December 2005. Under s 1223(1) of the Social Security Act 1991 (the Act), the Tribunal finds that this amount is a debt to the Commonwealth.

SHOULD THE DEBT BE WAIVED BECAUSE OF ADMINISTRATIVE ERROR?

4. Section 1237A of the Act provides for waiver of a debt to the Commonwealth arising from sole administrative error by the Commonwealth, if the payment was received by the debtor in good faith.

5.      Mrs Anakieva said that the debt was caused by Centrelink error.  She explained that she lodged her claim for age pension on 10 November 2003 and on the same day her husband lodged a claim for carer allowance or carer payment.  She acknowledged that on her form she listed her assets but did not mention the taxi licence.  However, she pointed out that her husband listed the taxi licences on his claim form as an asset that was owned equally between them.  She said that her daughter helped complete the forms and had deliberately left blank the value of the assets because of uncertainty about the taxi licence.  Mrs Anakieva stated that her daughter told a Centrelink officer that the taxi licence was in Mr Anakiev’s name, and the officer advised them to include the value of the taxi licence (estimated to be about $320,000 at the time) on Mr Anakiev’s form only.  

6.      Mrs Anakieva agreed that she received letters from Centrelink dated 24 November 2003, 16 February 2004, 3 August 2004, 13 October 2004 and 26 April 2005 informing her that she was required to notify Centrelink of any change in her income or assets within 14 days of the change.  She said that she did not reply to these letters as nothing had changed since the initial interview, and she had provided Centrelink with all relevant information about her finances.  She also agreed that in an Income and Assets Update form dated 26 April 2005 (T14) she advised Centrelink that her husband owned a taxi licences valued at $320,000.  Mrs Anakieva emphasised that this information had not been sought on the original claim form.

7.      Regarding her level of compliance with requests from Centrelink, Mrs Anakieva told the Tribunal that she does not understand English, and relies on her daughter to read letters from Centrelink and explain them to her.  She stated that she had already disclosed relevant information to Centrelink, and believed that she had acted appropriately at all times.  Mrs Anakieva’s daughter also attended the hearing and gave evidence supporting that of her mother.

8.      Mr Anakiev’s claim form for carer allowance was not processed when it was lodged in November 2003.  Centrelink discovered that it had not been assessed when an internal review was conducted by an authorised review officer.  Mr Anakiev has been receiving carer allowance since March 2006.  That allowance is not subject to an assets test.

9.      The Tribunal notes that taxi plates were listed as an asset on the form lodged by Mr Anakiev and signed by both Mr Anakiev and Mrs Anakieva. The Tribunal concludes that Centrelink should have followed up the value of the taxi licences after it was advised of the taxi plates.  The Tribunal also takes into account Mrs Anakieva’s language difficulties and her evidence that she made available to Centrelink all relevant financial information, including the taxi licences. 

10.     The failure to process Mr Anakiev’s form at time of lodgement is a further complicating factor.  However, on the Income and Assets Update form completed by Mr Anakiev and Mrs Anakieva in connection with the claim for carer allowance or carer payment, Mr Anakiev did not record a value for the taxi licences and he omitted monthly income received by him for leasing the licences.

11.     Mrs Anakieva believes a Centrelink officer gave advice about recording the value of the taxi licences.  The officer may have been referring correctly to the inclusion of this information on the assets and income section of the claim for carer allowance or carer payment, as the claim for age pension seeks personal details but not financial information.  In addition, the Income and Assets Update form, signed by Mr Anakiev and Mrs Anakieva and lodged on 26 April 2005, correctly included monthly payments received by Mr Anakiev from the lease of the taxi licences as income, and the taxi licences as an asset.  This suggests that Centrelink was aware, or had become aware since the lodgement of their claims, that funds received from the taxi licences, and the licences themselves, constituted income and assets respectively, and should have been disclosed to Centrelink.  However, Mrs Anakieva did not comply with her obligations contained in the letters from Centrelink to advise of any changes to her income or assets.

12.     Therefore, the Tribunal finds that the debt was not attributable solely to administrative error by the Commonwealth, and the debt cannot be waived on this ground.    

SHOULD THE DEBT BE WAIVED BECAUSE OF SPECIAL CIRCUMRSTANCES?

13. Section 1237AAD of the Act provides for waiver of the debt in certain other 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 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.

14.     The meaning of the term special circumstances in the context of social security law has been discussed in several Federal Court cases.  In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J considered the term in the context of s 1237AAD of the Act. Besanko J refers extensively to Ryde v Secretary, Department of Family and Community Services [2005] FCA 866, where Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases.  Branson J went on to state that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.

15.     In Angelakos, Besanko J states (at paragraph 33):

… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances… It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case…there must be something that distinguishes the case from the ordinary or usual case ….

13.      Mrs Anakieva stated that she and her husband suffer from a number of health problems and that she relies on her daughter because of her lack of English.  She said that she has always tried to act honestly in dealings with Centrelink and other government agencies.  She has already repaid the debt in full.

14.      The Tribunal accepts that Mrs Anakieva has difficulty communicating in English and has health problems that limit her activities.  The Tribunal also accepts that she relies on her daughter for assistance.  However, these are not matters that make her situation out of the ordinary or uncommon.  The Tribunal is not satisfied that her circumstances constitute special circumstances. Therefore, the waiver provisions of s 1237AAD of the Act do not apply.

DECISION

15.      The Tribunal sets aside the decision under review and substitutes a decision that Mrs Anakieva owes a debt to the Commonwealth of $19,439.75, being overpayment of age pension between 10 November 2003 and 29 December 2005.  The Tribunal acknowledges that Mrs Anakieva has repaid the debt.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Ursula Noyé

Clerk

Date of hearing:  19 February 2007

Date of decision:  16 May 2007
Advocate for the applicant:          Mr M Hester, Centrelink Legal Services
Advocate for the respondent:       Self-represented