Antoniadis and Secretary, Department of Social Services
[2013] AATA 842
•27 November 2013
[2013] AATA 842
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/3855-56
Re
PETER ANTONIADIS
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert
Date 27 November 2013 Place Melbourne The decision under review is affirmed
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Member
SOCIAL SECURITY – disability support pension – age pension – overpayment – failure to declare changes to income and assets – special circumstances – decision affirmed
Legislation
Social Security Act1991
Social Security (Administration) Act 1999
Cases
Jones v Dunkel (1959) 10 CLR 298
REASONS FOR DECISION
Mr Conrad Ermert
INTRODUCTION
Mr Antoniadis, the Applicant, received disability support pension from 20 September 1984 until 26 March 2010, when his benefit was transferred to an age pension. He continues to receive age pension benefits. In his claim for pension benefits Mr Antoniadis stated he had no income. Centrelink is the service provider acting for the Department of Social Services, the Respondent, and its predecessor departments. Centrelink determined his disability support pension and age pension payments on the basis that Mr Antoniadis had $3,000 in an account with the ANZ Bank and that he had household and personal effects with a value of $5,000.
From the start of his pension payments Centrelink sent a number of notices to Mr Antoniadis instructing him to declare changes to his income and assets. On 7 January 2010 Mr Antoniadis signed a Transfer to Age Pension – Income and Asset Review Form in which he again declared his assets as comprising only the ANZ bank account of $3,000 and household assets of $5,000.
Subsequently, Centrelink became aware that on 23 December 2010 Mr Antoniadis lodged $130,721.26 into a term deposit with the National Australia Bank (NAB). Further enquiries revealed other accounts in the name of Mr Antoniadis with the ANZ Bank and the NAB. On 7 February 2013 an officer of Centrelink decided that Mr Antoniadis had been paid pension benefits exceeding his entitlements. The officer made decisions to raise and recover two debts from Mr Antoniadis. The debts consisted of $32,168.85 overpayment of disability support pension between 10 August 2005 and 16 March 2010; and $31,789.36 overpayment of age pension between 17 March 2010 and 11 May 2012.
Mr Antoniadis requested a review of the Centrelink decision. On 6 June 2013 an Authorised Review Officer (ARO) affirmed the original decisions. Mr Antoniadis sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 25 July 2013 the SSAT affirmed the decision of the ARO.
This matter is an application for review of the SSAT decision.
THE HEARING
At the hearing Mr Antoniadis gave evidence on oath with the assistance of an interpreter in the Greek language. Mr de Uray, Principal Government Lawyer, represented the respondent.
I took into evidence the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
THE ISSUES
There was no dispute between the parties regarding the key facts of the pension benefits paid to Mr Antoniadis, the information provided to Centrelink on the forms submitted by Mr Antoniadis, the dates of the periods in question and the method of calculation of the overpayments. Matters in contention were the ownership of sums of money held in bank accounts in the name of Mr Antoniadis, and whether he received and understood the notices sent to him by Centrelink.
Accordingly the issues to be determined are:
·Does Mr Antoniadis owe a debt of $32,168.85 for overpayment of disability support pension between 10 August 2005 and 16 March 2010; and
·Does Mr Antoniadis owe a debt of $31,789.36 for overpayment of age pension between 17 March 2010 and 11 May 2012; and if so,
·Are there special circumstances that apply in this case such that the debts can or should be written off or waived.
THE EVIDENCE
Mr Antoniadis stated that he was never aware that he should declare the sums of money in the other bank accounts. He said he did not receive any letters telling him to do so. Also, he did not realise that he was not able to put another person’s money into his accounts. Mr Antoniadis said he is suffering a damage due to his lack of ability with the English language.
Mr Antoniadis stated that he has approximately $393,000 which he considers to be not much after 50 years in Australia. The interest from this amount is not enough to live on.
Under cross-examination, Mr Antoniadis agreed that while he has lived in Australia for 50 years, his English is not very good. He said that he could not read English well, that he may speak English to some extent but he does not know the meaning of many things, and when writing in English he copies the writing of Greek acquaintances.
When asked about a letter of enrolment in the Carlton Adult Reading & Writing Program Inc. adult literacy course from February 1998 to February 1999 (T-document 14, page 41) Mr Antoniadis said the course was about learning to use a computer. Mr Antoniadis was asked about his application for review of the SSAT decision (T-document 1, pages 1 to 4). He agreed that he completed the form and wrote the accompanying letter but stated that he was assisted by someone. He would not disclose the identity or any details of the assistant.
Mr Antoniadis was asked about the report by a psychiatrist, Dr Elizabeth Nuttall, of an interview on 1 November 1984. The report did not mention any problems with the English language or the need for an interpreter. Mr Antoniadis did not remember the interview.
Responding to a series of questions about his financial circumstances Mr Antoniadis said that, since 1975 he had lived in a free-standing private residence in Richmond, which he owns outright. He did not know its market value. He said he had approximately $392,000 in the bank, and he owed nothing on his credit card. He agreed that he owed $80,000 to $90,000 but would not answer the question of whether it was a gambling debt.
When asked about his health Mr Antoniadis said he was not in good health. He had high blood pressure which was controlled by medication, diabetes which was treated by tablets, problems with his eyes and he was becoming forgetful.
Mr Antoniadis was asked whether he had ever reported mail delivery problems to Australia Post or to Centrelink. He said that as he was not aware of problems he had no reason to complain. He stated that he had received nothing from Centrelink. However, he later conceded that he had received a number of Centrelink letters that he brought with him to the hearing. Mr Antoniadis was asked about the following statement in the SSAT decision: He did not read any of the correspondence sent to him by Centrelink because his English is not very good …. He responded that he did not receive any of the documents. However, he then acknowledged that he had received the Centrelink letter dated 24 May 2013 advising him of his debt repayments (T-document 51, page 185) and other letters in the last year.
Mr Antoniadis was asked about the Transfer to Age Pension – Income and Asset Review form which he signed on 7 January 2010 (T-document 30, pages 108 to 117). On that form he had ticked the box in Question 15 declaring as complete and correct that he had $3,000 in an ANZ saving account. He said that part of the form was completed by a Centrelink person who then told him to sign the form. He said he did not understand the meaning of the wording about any additional accounts.
Mr Antoniadis was taken to the ANZ document titled Reconstruction of Term Deposit Account in the account name of Peter Antoniadis (T-document 64, page 313), which showed an account balance varying between $19,907.60 and $43,675.40. He was then taken to a National Bank document titled Passbook Reconstruction also in the account name of Peter Antoniadis (T-document 66, page 323). When asked about the source of the amounts shown as Proceeds from O/Seas, Mr Antoniadis stated that the money came from his brother in Greece, to help with his son’s drug problem.
When asked if he disputed the calculations of the debt Mr Antoniadis said that because of his difficulties with the English language he did not know anything about the method of calculating the debt. He did not dispute the amounts shown in the ANZ bank and NAB account records. However, he stated that $160,000 of the money was not his, but belonged to a friend in Greece. He would not disclose the identity of the friend, nor provide any corroborating evidence, as the friend was a married lady.
SUBMISSIONS
Mr Antoniadis submitted that nobody had ever explained to him in the Greek language that he was not permitted to use his accounts for money that belonged to other people. He contended that he attended a meeting with people at Centrelink in 1985 at which he showed them his schooling certificates. He said he was asked how much money he had and he told them $3,000. He contended that at the time that was all he had. He said he was not asked about other accounts, particularly the NAB accounts in which he had money. He contended that no-one made it clear to him that he had to declare those accounts as well.
Mr de Uray submitted that there was no law prohibiting Mr Antoniadis from accepting other people’s money into his accounts. He said the issue was whether the money could be identified as belonging to another person. In this case Mr Antoniadis would not explain the ownership of the funds. Mr de Uray said he relied on the decision of the High Court in Jones v Dunkel, which he said established that where evidence was not adduced without sufficient reason the court can infer that it does not exist.
Mr de Uray said that he relied on the contentions in the Secretary’s Statement of Facts and Contentions dated 17 October 2013. In that document Mr de Uray submitted that Mr Antoniadis failed to notify Centrelink of the assets held in various bank accounts, despite having been advised of his obligation to do so in a number of notices. Mr de Uray further submitted that Mr Antoniadis’s evidence on the ownership of the assets, that he had not received the Centrelink notices and his inability to understand his obligations was not tenable.
Mr de Uray contended that Mr Antoniadis owed debt to the Commonwealth for the overpayments of disability support pension and age pension benefits and that there were no grounds for the debts to be waived or written off.
THE LEGISLATION
The relevant legislation is contained in the sections of
·the Social Security Act 1991 (the Act), and
·the Social Security (Administration) Act 1999 (the Administration Act)
referred to in my consideration below.
CONSIDERATION
Does Mr Antoniadis owe debts to the Commonwealth?
The Act requires that a person’s disability support pension and age pension are to be calculated taking into account an income and assets test. The relevant test in this case is the income test.
Section 8 of the Act defines income as including amounts earned, derived or received by the person for the person’s own use or benefit. Section 1072 of the Act provides that a person’s ordinary income for a period is the person’s gross ordinary income from all sources for the period. Note 2 includes deemed income from financial assets as affecting the amount of a person’s ordinary income. Section 1076 of the Act provides a formula for determining the amount deemed to be earned on financial assets held by the person.
Mr Antoniadis’s evidence is clear that during the periods in question he had money in accounts in his name in the ANZ bank and NAB. He agreed with the amounts shown in the T-documents, as exemplified by the account reconstructions in T-document 64 and T-document 66. However, Mr Antoniadis contended that not all the money in those accounts belonged to him. His oral evidence was that $160,000 belonged to a woman in Greece whom he would not name. He also stated that the amounts shown in T-document 66 as proceeds from overseas were payments from his brother for assistance with the drug problem of Mr Antoniadis’s son. Mr Antoniadis would provide no further information about these sums of money.
The accounts in the ANZ bank and NAB are in the name of Mr Antoniadis. He stated that not all the money belongs to him or is for his own use or benefit. However, he has produced no evidence which could corroborate his statements and indeed he refused to do so. In the absence of any corroboration, I am satisfied that the amounts of money in those accounts did in fact belong to Mr Antoniadis and were for his use. I find accordingly.
Consequently, I find that the money in those accounts during the period in question forms part of the assets of Mr Antoniadis. In accordance with Section 1076 of the Act, he is deemed to receive income from those assets. In accordance with Section 1072 of the Act, that income is to be taken into account in the calculation of his disability support pension and age pension benefits.
Mr Antoniadis’s benefits were calculated and paid on the basis of his having no income, only $3,000 in a declared bank account and household assets of $5,000. When recalculated on the basis of income deemed to have been earned from his ANZ and NAB term deposit accounts, Centrelink determined that Mr Antoniadis has been overpaid $32,168.85 in disability support pension and $31,789.36 in age pension benefits.
Mr Antoniadis did not dispute the calculations of the overpayments. His only relevant contention was that he did not own all the money in the accounts and it was not all for his use. I have already found against this contention. Accordingly, I find that Mr Antoniadis has been overpaid disability support pension and age pension benefits in the amounts determined by Centrelink.
Section 1223(1) of the Act provides that where a person obtains a benefit from the Commonwealth to which the person was not entitled, the amount of the overpayment is a debt due to the Commonwealth. Accordingly, I find that Mr Antoniadis owes debts to the Commonwealth of $32,168.85 for overpayment of disability support pension and $31,789.36 for overpayment of age pension.
Can the Debts be Waived or Written Off
Section 1237A(1) of the Act states that the Secretary must waive the right to recover a debt that is attributable solely to an administrative error by the Commonwealth. In this case there are no contentions of administrative errors by the Commonwealth. I find this section of the Act does not apply.
Section 1236(1A) of the Act allows the Secretary to write off a debt if, and only if, the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown or it is not cost effective for the Commonwealth to take recovery action. In this case there are no contentions that the debt is irrecoverable or that Mr Antoniadis does not have the capacity to repay the debt. His whereabouts are known and the debt is already being recovered by deductions from his pension payments. I find this section of the Act does not apply.
Section 1236(1C) provides that a debtor is taken to have the capacity to repay the debt unless the recovery would result in the debtor being in severe financial hardship. Mr Antoniadis gave evidence that he has approximately $392,000 in the bank, he owns his residence in Richmond outright and has no credit card debts. He stated he owed a sum of $80,000 to $90,000 but would provide no details. Accepting the existence of a $90,000 debt, I consider Mr Antoniadis to have significant assets such that he could not be in severe financial hardship resulting from the recovery of his debt to the Commonwealth.
As a consequence, I find that Mr Antoniadis’s debts may not be written off under the provisions of section 1236 of the Act.
Section 1237AAD of the Act provides that:
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.
In the Respondent’s Statements of Facts and Contentions Mr de Uray listed the details of 28 notices sent by Centrelink to Mr Antoniadis between May 1986 and March 2010. The notices included the obligation on Mr Antoniadis to inform Centrelink of changes to the value of his assets and income and all details regarding term deposits and back accounts. Mr de Uray contended that Mr Antoniadis knowingly failed to comply with these notices issued to him under section 68(2) of the Administration Act and, as a consequence, section 1137AAD(a)(ii) of the Act has not been satisfied.
Mr Antoniadis gave evidence that he had never received the notices from Centrelink telling him that he had to declare his bank accounts.
I note Mr Antoniadis’s evidence that he has lived at the same residence since 1975 and in that time he has had no occasion to report problems with mail deliveries to Australia Post. I note also his evidence that he has received mail from Centrelink for the past year. Mr Antoniadis was asked about the section of the SSAT decision which records his evidence as He did not read any of the correspondence sent to him by Centrelink because his English is not very good…. He restated that he did not receive any of the documents.
I do not accept as credible that Mr Antoniadis received none of the notices sent to him.
There is no dispute that Mr Antoniadis did not comply with the directions contained in the notices to advise Centrelink of the existence of the bank accounts in his name. However, section 1237AAD(a) requires me to be satisfied that he knowingly failed to comply with the notices. Mr Antoniadis contends that his lack of capability with the English language is such that he could not understand the letters and no-one read them to him in the Greek language.
In considering this issue, I note that Mr Antoniadis attended the adult literacy program conducted by Carlton Adult Reading & Writing Program Inc. from February 1998 to February 1999 (T-document 14, page 41). However, Mr Antoniadis stated the program was to teach people how to use a computer. I also note the report of Dr Nuttall, in which she recorded a detailed interview with Mr Antoniadis. She makes no mention of Mr Antoniadis having difficulties with the English language. This is despite their discussions having covered topics which would be particularly difficult for people with limited English language skills. Dr Nuttall makes no mention of an interpreter being present. I also note the report by Mr Gayton dated 17 December 1984 of his interview with Mr Antoniadis on 14 December 1984 (T-document 7, page 27). Mr Gayton stated I did not have the aid of an Interpreter; I did not need an Inerpreter (sic), as he speaks very good English.
From this evidence, I am not satisfied that Mr Antoniadis’ knowledge of the English language is such that he did not understand enough of the content of the notices to recognise at least the need for translation. He gave no evidence of seeking translation assistance for these notices. I accept that his evidence to the SSAT, that he received the notices but did not read them, represents the facts of the situation. Accordingly, I am satisfied that he received the notices but chose not to read them or have them translated. Accordingly, I am satisfied that Mr Antoniadis knowingly failed to comply with the obligations of the notices. As a consequence, I find that the provisions of section 12377AAD(a) are satisfied, and I am not permitted by the Act to waive the right to recover all or part of the debts.
Although not required to do so, I find that Mr Antoniadis’s evidence adduced no special circumstances that might have enlivened sub-sections (b) and (c) of section 12377AAD. The only issues canvassed were issues of his health, which is unremarkable, with his blood pressure and diabetes controlled by medications. There are no other circumstances which Mr Antoniadis submitted as being in any way special.
CONCLUSION
From the evidence I find that Mr Antoniadis was overpaid $32,168.85 in disability support pension benefits and $31,789.36 in age pension benefits. I find Mr Antoniadis owes debts in those amounts to the Commonwealth. I find further that there are no circumstances that permit the debts to be written off for a period or waived.
DECISION
I affirm the decision under review.
I certify that the preceding 48 (forty eight) paragraphs are a true copy of the reasons for the decision herein of
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Associate Legal
Dated 27 November 2013
Date of hearing 13 November 2013 Applicant In person Advocate for the Respondent Mr Tim de Uray
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