Angeloski; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1261

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1261

ADMINISTRATIVE APPEALS TRIBUNAL      )          No V 200600426

)          No V 200600427

GENERAL  ADMINISTRATIVE   DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And KLIME ANGELOSKI AND SPASA ANGELOSKI

Respondents

DECISION

Tribunal Miss E.A. Shanahan

Date26 April 2007

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY – Overpayment of Disability Support Pension – Administrative error conceded for two short periods of time – three other periods wherein payment was not received in good faith – failure to respond to Centrelink notices – SSAT have decided overpayment was due solely to administrative error and waived all debts to the Commonwealth.

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

Social Security (Administration) Act 1999 s 100

Beadle and Director General of Social Security (1984) 6 ALD 1

Groth and Department of Social Security (1995) 37 ALD 797

Haggerty v Department of Education, Training and Youth Affairs [2000] FCA 1287

Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424

Pledger v Secretary, Department of Family and Community Services [2000] FCA 1576

Re Callahan and Secretary, Department of Social Security (1996) 45 ALD 435

Re Cochrane and Secretary, Department of Employment and Workplace Relations [2006] AATA 394

Re Ivovic and Director General of Social Services (1981) 3 ALN N95

Re Secretary, Department of Family and Community Services and Trio (2002) 70 ALD 206

Re Vidovic and Secretary Department of Workplace Relations [2006] AATA 520

Re Ward and Secretary, Department of Employment and Workplace Relations [2006] AATA 187

Re White and Secretary, Department of Family and Community Services AATA [2004] 13

Re Secretary, Department of Family and Community Services and Reardon [2002] AATA 33

Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169

REASONS FOR DECISION

26 April 2007 Miss E.A. Shanahan, Member      

1.      Mrs Angeloski lodged a claim for disability support pension (DSP) with Centrelink on 12 May 2003.  Centrelink is the service delivery agency for the Department of Employment and Workplace Relations.  Her claim included information regarding her income derived from working 12 hours per week.  On 4 November 1999 Mrs Angeloski had suffered a work-related injury to her shoulder resulting in a reduction of her hours of work from full time to 12 hours per week.  Centrelink granted her DSP at a fortnightly rate of $ 333.21 (T9 p123) based on an estimated annual combined income of $9762.16.  Mr Angeloski had been receiving DSP since August 2002 and had no other income. 

2.      On 11 July 2003 the Angeloskis left Australia to visit family in Macedonia.  Mr Angeloski had notified Centrelink of their intended travel on 7 July 2003.  He said that he advised Centrelink his wife would be absent for three weeks during the period of her annual leave.  Mrs Angeloski returned to Australia on 8 August 2003. 

3.      There followed information notices from Centrelink quoting a CAI of varying amounts ($556.04, $799.04, $667.26).  The Angeloskis, who speak little English and left school in Macedonia after the primary level, were puzzled by the information notices.  However, they did not act on the notices as Mrs Angeloski’s original claim for the DSP had declared their combined annual income as assessed by Centrelink at $9,762.16.  In November 2003, at Centrelink’s request, the Angeloskis updated their CAI to reflect Mrs Angeloski’s continued earnings of $346 per fortnight.  Throughout the period under consideration Mrs Angeloski worked12 hour per week at the most.  She ceased all work when she was sacked two months after the settlement of her workers’ compensation claim on 8 or 9 August 2006. 

4.      The T documents show that on 7 July 2003, Mr Angeloski attended the Darebin Centrelink office at 13.33 hours to advise that he and his wife were going overseas (T35, p123) and that his partner, that is his wife, would return earlier.  He also advised he has stopped worked (sic) and earnings updated.  As a result of this advice, Mrs Angeloski’s declared annual earning of $9,762.16 were deleted from Centrelink’s records as they were attributed to the cus (sic), Mr Klime Angeloski. 

5.      On 7 November 2005 a Centrelink officer made a decision that Mr and Mrs Angeloski had been overpaid their DSP entitlement.  He raised a debt to the Commonwealth, for each of them, in the amount of $2,225.59.  On 7 February 2006 an Authorised Review Officer (ARO) affirmed the decision and decided Mr and Mrs Angeloski each owed $222.59.

6.      The Social Security Appeals Tribunal (SSAT) reviewed the decision on 24 April 2006 and waived both debts as it found that the debts had arisen solely due to administrative error by Centrelink.  The Secretary to the Department of Employment and Workplace Relations (The Secretary) sought review by the Administrative Appeals Tribunal on 18 May 2006.

ISSUES BEFORE THE TRIBUNAL

7.The three issues before the Tribunal are:

(a)       The amount of the debt owed.

(b)Whether the debt should be waived for administrative error or was the payment not received in good faith.

(c)Whether there are special circumstances attracting the Secretary’s discretion to waive or reduce the debt.

8. The Secretary was represented by Mr Martin Pike, a Centrelink advocate. The Angeloskis were represented by Mr John Longo, a solicitor with Victoria Legal Aid. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) which were marked Exhibit A1.  The Secretary tendered the debt calculations performed by Centrelink (Exhibit A2).  Mr and Mrs Angeloski gave evidence before the Tribunal with the assistance of a Macedonian interpreter. 

MR KLIME ANGELOSKI

9.      Mr Angeloski indicated that he conducted his and his wife’s dealings with Centrelink, although she accompanied him to the Centrelink office on some occasions.  He had arrived in Australia in 1970, aged eighteen, and worked as a labourer in various factories.  He had completed primary school in Macedonia and his English was, and remains, very limited.  He was injured at work.  In 2002 he received a lump sum settlement for a WorkCover claim; and after the statutory preclusion period, he qualified for DSP in August 2002.  At that time his wife, who was also injured at work, was working 12 hours per week. 

10.     Mr Angeloski obtained and completed the necessary Centrelink DSP claim forms for his wife in May 2003 and subsequently discussed her eligibility with a Centrelink officer named “Damien”.  They were told that Mrs Angeloski was eligible for the DSP but the payment amount would need to be calculated.  Mr and Mrs Angeloski provided Centrelink with income details based on Mrs Angeloski’s 12 hours of work per week.  The Angeloskis were assisted by a Macedonian interpreter.  General discussion took place and Mr Angeloski said “Damien” told them that they must contact Centrelink if Mrs Angeloski’s hours of work increased or decreased.

11.     On 7 July 2003 Mr Angeloski advised Centrelink, in person, of their intention to travel overseas, and that he would be away for six or more weeks and his wife would be away for three weeks.  He said he advised Centrelink of the dates of return.  Mrs Angeloski returned on 8 August 2003 and Mr Angeloski on 20 August 2003.  He informed Centrelink of his return on 21 August 2003. 

12.     Mrs Angeloski had accompanied her husband to the Centrelink office on 7 July 2003 and co‑signed the advice form for overseas travel.  An interpreter was not provided on that occasion as Mr Angeloski deemed it unnecessary. 

13.     Mr Angeloski stated he and his wife had a joint bank account and all monies such as their DSPs, Workcover settlement payments and her wages were paid into this account.  He agreed that he and his wife had received information notices from Centrelink at various times but he said they were never asked in these notices to attend the Centrelink office. 

14.     Under cross-examination Mr Angeloski said he was able to read accounts to the extent of how much was owed and the due date of payment.  He was unable to understand the combined annual income figures or how they were estimated and relied on the figure of $9,762.16 as stated in Mrs Angeloski’s original income declaration.  It was his practice to seek interpreting help from a friend if he received a longer than usual information notice. 

MRS SPASA ANGELOSKI

15.     Mrs Angeloski said that she had arrived in Australia in 1975, following her marriage to Mr Angeloski in Macedonia.  She had completed primary school in Macedonia and had worked in various factories after her arrival in Australia.  Mrs Angeloski confirmed that at the original interview when she lodged her DSP claim, she had been told, via an interpreter, that she must notify Centrelink if her hours of work increased or decreased from the current level of 12 hours per week.  Mrs Angeloski said that she had utilised her three weeks of annual leave to visit Macedonia between 11 July 2003 and 8 August 2003.  She believed she had not informed Centrelink of her return as this information had been provided prior to her departure.  She resumed work at 12 hours per week on her return. 

16.     Under cross-examination Mrs Angeloski said her husband dealt with all the bills they received and Centrelink communications.  She had understood that if she worked more hours her DSP payment would decrease.  She identified the Centrelink officer she first saw as being tall, bald and named “Damien”. 

17.     In response to a question posed by the Tribunal, Mrs Angeloski said her Work Cover claim was settled for f $80,000 on 8 or 9 August 2006 and she was sacked two months later.

MR KLIME ANGELOSKI

18.     Mr Angeloski was recalled to the witness box to provide further details of his wife’s WorkCover payment.  He said that after legal expenses she had received $66,000.  This had been reported to Centrelink.  The money had been used to pay off some of their mortgage and other bank debt and approximately $25,000 remained in their joint bank account. 

DOCUMENTARY EVIDENCE

19.     The T Documents contained the payment summaries for Mr and Mrs Angeloski from August 2003 to July 2005, showing the basic fortnight DSP payments varying between $370.40 and $400.60 (T40 and T41).  The T Documents also contained pay summaries from Ensign Services (Australia) Pty Ltd (Ensign Services), Mrs Angeloski’s employer, showing her gross earnings from 1 July 2002 to 30 April 2003 as $7,047.62.  Centrelink assessed the CAI at $9,762.16, presumably on the basis of the employer’s pay summary sheets (T9, p23).  The original documentation up to 7 July 2003 has been destroyed by Centrelink (T34).

20.     Various interviews, advices and contacts between Mr and Mrs Angeloski and the Darebin or Preston Centrelink offices are recorded at T35 to T42.  Of particular importance is the entry relating to Mr Angeloski’s visit to the office on 7 July 2003 when he made an enquiry regarding the DSP portability prior to he and his wife going overseas (T35, p123).  This entry states:

Name: Klime Angeloski

aus 021 completed and portability script run – pls note partner will be returning earlier than husband – advised to advise office of ret also cusotmer [sic] has stopped worked [sic] and earnings [sic]. updated

21.     Following Mr Angeloski’s attendance on 7 July 2003, Centrelink wrote to him confirming his advice (T10, p25).  The next information advice of the same day stated that Mr Klime Angeloski’s CAI was $799.44.  Mrs Angeloski was sent an identical (but for the name and customer number) letter.  Information advice letters to Mrs Angeloski dated 19 November 2003 and 12 December 2003 showed a CAI of $556.04 (T17, p41).  An advice to Mr Angeloski dated 7 September 2004 declared their CAI to be $667.26 (T19, p46); despite the fact that Mr and Mrs Angeloski provided an update of earnings and income on 19 November 2003.  Ensign Services provided details of Mrs Angeloski’s salary payments from 20 May 2003 to 1 November 2005, over which period of time her salary increased from $172.36 per week to $188.88 per week (T22).

22.     The T documents include the calculations of the debt owed by Mr Angeloski (T23) and Mrs Angeloski (T24). 

23.     The decision of the ARO (T29) outlines the issues and basis for her decision at the commencement of her letter.  Under the heading Decision under review the debt owed is stated to be $2225.59.  In the last line of the letter the ARO states I have therefore decided that you do have a debt of $222.59 (sic) which must be repaid (T29, p107).  The letter to Mrs Angeloski contains the same amounts of debt owed and bears the same date. 

24.     Exhibit A2 outlines the debt calculations between19 November 2003 and 11 December 2003.  The Secretary has conceded that the overpayments during this period were due solely to an administrative error.  This concession has reduced the debt Mr and Mrs Angeloski each owe by $51.04, to $2,174.55.

RELEVANT LEGISLATION

25. Section 1237A of the Social Security Act 1991 (the Act) provides the grounds for waiving all or part of a debt due to the sole administrative error of Centrelink:

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).

26. Section 1237AAD of the Act addresses the waiving of all or part of a debt due to special 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 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.

Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt.

27.     The Social Security (Administration) Act 1999 deals with requirements to give information of changes of circumstances. 

SUBMISSIONS

28.     The Secretary submitted that the Tribunal should consider the overpayments in five distinct periods:

(a)12 July 2003 to 19 August 2003: It was contended that the monies paid during this time were not received in good faith as Mr and Mrs Angeloski well knew that their annual income was greater than $779.  While administrative errors had occurred, the failure to receive the monies in good faith meant that the overpayments during this period were not due to sole administrative error;

(b)20 August 2003 to 18 November 2003: Mrs Angeloski had received a $7.00 per week pay increase during this period which she had failed to report to Centrelink.  As a result, she had not received the DSP payments during this period in good faith.  This meant that the overpayments during this period were not due to sole administrative error;

(c)19 November 2003 to 11 December 2003: The Secretary conceded that the overpayments during this period were due solely to Centrelink’s administrative error;

(d)12 December 2003 to 14 June 2004: Again, the Secretary argued that the DSP payments during this period were not received in good faith as the information notices had advised that the CAI was $556.00 and Mrs Angeloski should have informed Centrelink of its error in estimating her income.  This meant that the overpayments during this period were not due to sole administrative error; and

(e)15 June 2004 to 28 October 2005: During this period Mrs Angeloski had received another small pay increase and had not informed Centrelink of this change.  As a result she had not received her DSP in good faith.  This meant that the overpayments during this period were not due to sole administrative error.

29.     The Secretary relied on the decisions in Re Cochrane and Secretary, Department of Employment and Workplace Relations [2006] AATA 394, Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424, Pledger v Secretary, Department of Family and Community Services [2000] FCA 1576 and Re Secretary, Department of Family and Community Services and Reardon [2002] AATA 33, all of which considered the meaning of the term good faith.

30.     With respect to the question of waiver of the debt, the Secretary conceded that Mr and Mrs Angeloski had not knowingly made a false statement or representation or failed or omitted to comply with the provision of the Act.  However, there were no special circumstances that could be identified, as Mr and Mrs Angeloski’s financial status was reasonably sound and they have already exhibited their ability to repay the debt by way of fortnightly withholdings of $30.00 from their ongoing entitlement. 

31.     Mr Longo identified major administrative errors as being the deletion of the records held up to 7 July 2003; the failure of Centrelink to update or correct its records following Mrs Angeloski’s report of her constant working hours and her income on 19 November 2003; and the failure to enter into the records that her travel to Macedonia on 11 July 2003 was for a period of three weeks and was taken during her annual leave from her employment with Ensign Services.  None of these errors had been corrected, resulting in incorrect estimates of CAI throughout the period under consideration.  At all times Mrs Angeloski had relied on her original income declaration of 12 May 2003 and her income had never exceeded this amount throughout the period.  As she had already supplied Centrelink with the correct information she was not under a duty to respond to their information notices containing incorrect estimates of the CAI.  The Centrelink officer had on 7 July 2003 reached an incorrect assumption that she was no longer working when obtaining information from Mr Angeloski that he was no longer earning an income.  There had been essentially no changes in Mrs Angeloski’s circumstances despite the small pay rises she was awarded as her income never reached the originally estimated CAI. 

32.     Mr Longo contended that the Secretary should have called the Centrelink officer named “Damien” (presumably the Damien Sheehan whose name appears on some T documents) to give evidence to the Tribunal as to the content of the interview at the time of Mrs Angeloski’s claim for DSP.  This contention was based on the decision of Haggerty v Department of Education, Training and Youth Affairs [2000] FCA 1287 where the Federal Court of Australia held that the test of good faith was a subjective one; and given the evidence of Mr and Mrs Angeloski, they had received the payments in good faith.  Mr Longo identified the only factor that could be regarded as special circumstances were the repeated administrative errors that had occurred.

33.     The parties relied on several decisions regarding notice, the concept of good faith and the interpretation of the meaning special circumstances. 

34.     The Secretary relied on the Federal Court decision of Jazasievska in relation to the term good faith, wherein the court stated (at paragraphs 40 and 41):

Prima facie, s 1237A(1) is concerned with actual personal receipt by the debtor of the payment or payments which give rise to the debt. The issue of good faith is, for the purpose of the section, to be determined when the debtor commences to exercise control over the payment by retaining it. It is at this time that the recipient must act with the requisite good faith. A lack of good faith does not mean that the recipient of the payment must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive and retain the payment when he or she receives the payment and decides to exercise control over it by retaining it.

A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists…

35.     The term good faith was also considered by the Federal Court in Pledger (at paragraphs 59 and 108):

59. What seems to emerge from these authorities is that whether a payment has been received in good faith can only be determined after a careful consideration of the actual state of mind of the recipient of that payment. In that sense the test is entirely subjective, and not objective. However, plainly idiosyncratic views as to what might be regarded as acceptable behaviour, including the standards of a "Robin Hood", will not be regarded as amounting to "good faith". It should be noted, in this regard, that wilful blindness is itself a state of mind: Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 219-220.

…

108.    It is for the AAT, standing in the shoes of the respondent, to determine whether some, or all, of the payments made to the applicant were received in good faith. In arriving at that determination, the AAT will need to make findings of fact which are significantly more specific that those previously made. It will need to determine, for example, whether the applicant genuinely believed, during the relevant period, that she was entitled to some form of social security pension or benefit which was broadly equated to the amount that she was receiving by way of carer pension. The question is, of course, what she believed, and not what some reasonable person might have believed. However, an unreasonable belief is less likely to be accepted as having been genuinely held.

36.     The Tribunal considered the term good faith in the matter of Reardon and stated:

The Tribunal is of the view, that in all the circumstances discussed above, Mrs Reardon had reason to know that she was receiving Rent Assistance when in fact she was not paying rent.  She turned a blind eye to information which would have properly informed her of her circumstances and alerted her to her being paid Rent Assistance for which she had no entitlement.  The Tribunal also notes Mrs Reardon's evidence that she did notice the increase in her payment and while her further evidence was that she did not doubt this or do anything to inform herself by contacting the Department or seeking assistance from her husband, if Mrs Reardon had read the reverse of the letters, then she would have, in the Tribunal's view, been alerted to the fact that there was a departmental error for which she should seek some clarification. 

It is the Tribunal's finding that there was objective information available to Mrs Reardon in the form of the departmental correspondence and in particular, the information contained on the reverse of the letters which, if read, would have alerted her to some error.  Further, in relation to subjective considerations, Mrs Reardon was aware of a large increase in her Family Allowance, but she did nothing to satisfy herself as to why this occurred.  While it may have been sufficient, in the absence of correspondence from the Department, for Mrs Reardon not to clarify such an increase, the Tribunal is dealing with all the circumstances of this case, where very clearly Mrs Reardon was being informed by the Department of the Rent Assistance, yet she was failing to read this information which would then have alerted her to the error.  Mrs Reardon has a responsibility to read correspondence sent to her by the Department.  It contains important information and that is why it is sent.  The Tribunal asked itself whether Mrs Reardon’s failure to read the reverse of the notices, in addition to her doing nothing in relation to her clear evidence that she was aware of there being an increase in Family Allowance, can be excused as indicating that she received the Rent Assistance in good faith.  The answer, in the Tribunal's view, must be "No"…

37.     In Re Cochran the Tribunal stated at paragraph 37:

Nevertheless, I am satisfied that Ms Cochrane had good reason to know that the amount of her income recorded in the letters she received from Centrelink on 20 and 22 December 2004 was incorrect. It was her responsibility to read those letters with reasonable attention to the amount of earned income specified. Had she done so, she would in all likelihood have realised that the fortnightly amount recorded was substantially less than the fortnightly amount of her earnings as recorded on her pay slips. She failed to do so and it cannot be said, therefore, that she received the erroneous payments of PPS after 20 December 2004 in good faith.

38.     The Secretary referred the Tribunal to the decision of the Federal Court in Haggerty, where French J addressed the meaning of good faith:

I do not take what his Honour [in Prince] said in that case as supporting the proposition that a person can be found to be receiving payments other than in good faith simply by reason of the fact that there are facts in existence which are known to the recipient sufficient to negative the recipient's entitlement. In my opinion that is not a sufficient criterion. Knowledge of relevant facts is not enough to generate reason to know of the lack of entitlement.

…

Concern, puzzlement, upset and a perception of unusual circumstances, coupled with absence of further inquiry, are not enough themselves to constitute want of good faith …

In other words, the test of good faith is regarded by French J as being subjective. 

39.     The Secretary addressed the concept of sole administrative error relying on the decisions of Re Secretary, Department of Family and Community Services and Trio [2002] AATA 0865 70 ALD 206, Re Vidovic and Secretary Department of Workplace Relations [2006] AATA 520 and Re Ward and Secretary, Department of Employment and Workplace Relations [2006] AATA 187.

40.     In Trio Deputy President Forgie analysed the decisions in Prince, Haggerty and Jazazievska, concluding that the principles drawn from these cases were:

…good faith must be determined by reference to the state of mind of the recipient of the payment and where the recipient suspects that he or she is not entitled to the payment and has an objective basis for that suspicion he or she cannot have received it in good faith.

In Re Vidovic the Tribunal found that special circumstances existed in that the applicant had always been prompt in complying with his obligations and also that the amount of the relevant increase in his wages was minimal.

41.     In Re Ward the Tribunal applied the subjective test in Haggerty and determined that for part of the relevant time the applicant, Mr Ward, had received Centrelink payments being totally unaware of their source. Given that all payments from all sources were deposited into his bank account that portion of his debt relating to Centrelink payments was waived pursuant to s 1237A of the Act.

42.     Mr Longo also addressed the question of notice given and relied on the decision in Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169 where Justice Matthews said (at paragraph 31):

Section 163 is a penal provision. Non compliance with it is potentially punishable by imprisonment. Accordingly, it needs to be interpreted in a manner which is favourable to the individual concerned. It should certainly not be construed so as to impose strict liability. An element of fault on the part of the individual concerned is thus inherent in the concept of “refusing or failing” to comply with the section. This element is, in my view, entirely absent in the case of the applicants’ response to the respondent's letter of 7 September 1989.

and at paragraph 37:

… Construed strictly, the notices required that the department be notified in the case of eventualities which never occurred in the case of the applicants. It follows that there was no refusal or failure to comply with any of those notices. Accordingly there was no failure or omission to comply with a provision of the relevant legislation and no debt due by the applicants to the respondent.

The facts of this case are similar to those under consideration. 

43.     Mr Longo noted that there were decisions wherein the existence of administrative errors was held to amount to special circumstances (Re White and Secretary, Department of Family and Community Services [2004] AATA 13).

TRIBUNAL’S DELIBERATIONS

44.     The Tribunal found Mr and Mrs Angeloski to be truthful witnesses and notes their poor comprehension of the English language.  Unfortunately, the Tribunal has not been made aware of their ability to read in the English language, although Mr Angeloski’s evidence suggests this is very limited. 

45.     In her claim for DSP Mrs Angeloski declared her income to be $176.16 per week in payment of 12 hours work per week.  This was independently confirmed by her employer on 12 May 2003.  On 19 November 2003 a further declaration regarding her income was provided to Centrelink with Mrs Angeloski’s earnings unchanged.  Centrelink’s estimates of the CAI in May 2003 and on 6 June 2003 bear little or at least no readily discernible relation to her declared earnings.  The exact nature of the advice given by Centrelink officer “Damien” in May 2003 is unknown.  Mr and Mrs Angeloski claim they were told to report any increase or decrease in her hours worked.  This interview was conducted with the assistance of a Macedonian interpreter and there is no way of knowing exactly what was conveyed to Mr and Mrs Angeloski by the interpreter.  However, the Tribunal does not reject their interpretation of the advice given.  The Secretary has not elicited “Damien’s” recollections of the meeting.  The Tribunal does not consider this to be an oversight of importance given the passage of time and the interposition of an interpreter at the interview.

46.     On 7 July 2003 a Centrelink officer cancelled Mrs Angeloski’s declared CAI of $9,762.16 (T37, p143) after a recorded interview with Mr Angeloski who confirmed he was not working (T35, p123).  Mrs Angeloski stated that she was going to Macedonia for three weeks – the period of her annual leave.  While her evidence was that she did not inform Centrelink of her return on 8 August 2003, this is not so.  Centrelink records show that Mrs Angeloski or her representative telephoned Centrelink on 11 August 2003 to advise of her return (T31, p141).  Mr and Mrs Angeloski did not alert Centrelink to the CAI errors in their information notices.  They did not understand the sums of money quoted, given that they had provided Mrs Angeloski’s earnings on 12 May 2003 (as confirmed by the employer on the same date) and a further declaration of earnings on 19 November 2003.  They felt secure that they had provided all the requested documentation regarding their combined assessment income on three occasions.  They did however find the figures quoted puzzling.  The Tribunal has a similar reaction.  The information notices tax the Tribunal’s understanding, let alone that of someone whose command of English is minimal.  Leaving aside these considerations, it is difficult to infer a duty on the part of Mr and Mrs Angeloski to inform Centrelink of Centrelink’s mistakes, when the correct data has been provided and Mrs Angeloski’s earnings have never exceeded the baseline established on 6 June 2003 by Centrelink.  The Tribunal agrees with and follows the reasoning of Justice Mathews in Vitalone regarding the subject of notice. 

47.     The Secretary has submitted that despite the presence of acknowledged administrative errors, the majority of the DSP payments were not received in good faith as Mr and Mrs Angeloski failed to query the Centrelink estimate of their CAI, have failed to report Mrs Angeloski’s two pay rises of approximately $7.00 per week in 2003 and 2005 and should have known that their DSP entitlements were affected by the latter.  The Tribunal does not accept this argument as at no time did Mrs Angeloski’s earnings from employment exceed the 6 June 2003 estimate of $9,762.16.  Centrelink incorrectly deleted this CAI estimate from her record on 7 July 2003 and it was not restored in her computer file after the further income declaration of 19 November 2003.

48.     The online records are at times attributed to Mr Angeloski and at times to Mrs Angeloski regardless of to whom the recorded data relates.  Mr Angeloski has been nominated by his wife as her representative.  The failures of Centrelink officers to accurately record the data are further administrative errors.  The ARO’s decision of 7 February 2006 that the debt owed by each of Mr and Mrs Angeloski is $222.59 is also presumably an error, though a mere typographical one.  If in fact this was the decision of the ARO, that debt has been repaid in excess, as $30.00 per fortnight has been withheld from their respective DSP payments in recovery of the debt from 7 February 2006 until 14 July 2006.  In addition, the debt has been reduced by the sum of $51.04 each by the Applicant’s concession that a sole administrative error operated from 19 November 2003 to 11 December 2003.

49. The Tribunal finds that the debts raised have resulted from repeated and cumulative administrative errors solely by Centrelink and waives all debt in accordance with s 1237A of the Act. Accordingly, the Tribunal has not found it necessary to consider the question of special circumstances. 

50.     The Tribunal affirms the decision under review. 

I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision of:

Miss E.A. Shanahan, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  20 March 2007
Date of decision:  26 April 2007
Solicitor for applicant:                  Mr M. Pike, Centrelink Legal Services Branch
Solicitor for respondent:              Mr J. Longo, Victorian Legal Aid