Appleton v Secretary, Department of Family & Community Services
[2000] FCA 1157
•21 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
Appleton v Secretary, Department of Family & Community Services
[2000] FCA 1157ADMINISTRATIVE LAW – SOCIAL SECURITY – “recoverable debt” – debt due and owing to Commonwealth – overpayment – conviction under s 1350 of Social Security Act 1991 (Cth) – knowingly obtaining payment – understatement of amount earned and days worked – false statements or representations.
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Crimes Act 1914 (Cth)
Data-matching Program (Assistance and Tax) Act 1990 (Cth) s 11
Social Security Act 1991 (Cth) ss 1222A, 1224
Social Security Act 1947 (Cth)TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 referred to
FCT v Raptis (1989) 89 ATC 4,994 referred to
Department of Social Security v Cooper (1990) 26 FCR 13 referred to
FCT v Perkins (1993) 93 ATC 4,524 referred toPAUL JOHN APPLETON AND HELEN MARGARET APPLETON v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
W 49 OF 1999LEE J
21 AUGUST 2000
SYDNEY (via telephone link to Perth)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 49 OF 1999
ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER
BETWEEN:
PAUL JOHN APPLETON
HELEN MARGARET APPLETON
APPLICANTSAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
RESPONDENTJUDGE:
LEE J
DATE OF ORDER:
21 AUGUST 2000
WHERE MADE:
SYDNEY (via telephone link to Perth)
THE COURT ORDERS THAT:
The “appeal” be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 49 OF 1999
ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A SENIOR MEMBER
BETWEEN:
PAUL JOHN APPLETON
HELEN MARGARET APPLETON
APPLICANTSAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
RESPONDENT
JUDGE:
LEE J
DATE:
21 AUGUST 2000
PLACE:
SYDNEY (via telephone link to Perth)
REASONS FOR JUDGMENT
This is an “appeal” pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) which “affirmed” decisions of the Social Security Appeals Tribunal (“the SSAT”) that a sum of $16,595.05 was a “recoverable debt” recoverable by the respondent from the first-named applicant (Mr Appleton) and that the sums of $3,358.03 and $3,033.10 were “recoverable debts” recoverable by the respondent from the second-named applicant (Mrs Appleton).
Section 44 of the AAT Act provides that an “appeal” to this Court from a decision of the Tribunal is on a question of law only and, therefore, the matter in respect of which jurisdiction is conferred on the Court does not include adjudication on a question of fact. Upon determination of material facts by the Tribunal, the controversy constituting the matter in respect of which jurisdiction is conferred consists only of issues of law. (See: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 per Gummow J at 180-182.)
The “questions of law” recited in the “notice of appeal” filed by Mr and Mrs Appleton - who at all times were unrepresented - were numerous. In most respects they concerned questions of fact and not questions of law.
On 23 January 1998 the SSAT determined that the sum of $16,595.05, paid to Mr Appleton in various amounts between 9 January 1991 and 10 April 1996 as “Jobsearch” and “Newstart” allowances, was a debt due to the Commonwealth under s 1224 of the Social Security Act 1991 (Cth) (“the Act”). The SSAT also determined that sums paid to Mrs Appleton as “partner allowance” and “parenting allowance” in the same period ($3,358.03 and $3,033.10 respectively) were debts due to the Commonwealth under s 1224 of the Act. The Court was advised that by deductions made from social security payments paid to Mr and Mrs Appleton since September 1996, the debts of each of them had been reduced by $1,584.31 and $2,678.65 respectively. Subsequent to the hearing of the “appeal” the Court was advised that the sum claimed as a debt owed by Mrs Appleton in respect of the payment to her of a parenting allowance exceeded the proper calculation of that sum by $221.70. The respondent undertook to the Court to take administrative steps to reduce the sum claimed from Mrs Appleton from $3,033.10 to $2,811.40.
The Act repealed the Social Security Act 1947 (Cth) (“the 1947 Act”) when it came into force on 1 July 1991. Part of the benefits paid (referred to above) had been paid under the 1947 Act. In relevant respects, s 1222A of the Act provides as follows:
“If an amount has been paid by way of social security payment under this Act or the 1947 Act, the amount is a debt due to the Commonwealth if, and only if:
(a)a provision of this Act, the 1947 Act or the Data-matching Program (Assistance and Tax) Act 1990 expressly provided that it was or expressly provides that it is, as the case may be;…”
No issue arose as to the application of the 1947 Act to the payments made to Mr and Mrs Appleton before 1 July 1991 that were included in the sums claimed from them as debts due to the Commonwealth.
Section 1224 of the Act reads as follows:
“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 relevant facts as found by the Tribunal were as follows:
“3. During the periods under review Mr Appleton was periodically employed as a relief teacher by the Western Australian Department of Education and in private schools, receiving his salary on a P.A.Y.E. taxation basis. He was also registered for Newstart allowance to cover periods when he was unemployed or underemployed, submitting the appropriate forms to disclose his other earning on a fortnightly basis. As is common in those situations, it was difficult for him to estimate what his earnings would be in future periods. Mrs Appleton was entitled to partner allowance and parenting allowance depending upon Mr Appleton’s income from fortnight to fortnight.
4. On 15 August 1996 a delegate made the decision to raise and recover from Mr Appleton an overpayment of $16593.05 for the period and also to recover from Mrs Appleton an overpayment of partner allowance of $3358.03 and parenting allowance of $3033.10 for the period. The delegate’s decision was reviewed and affirmed by an authorised review officer on 16 October 1996, and the applicants sought review by the SSAT on 28 October 1997. Meanwhile on 8 September 1997 Mr Appleton was convicted in the Court of Petty Sessions on 34 counts of knowingly obtaining payment of an allowance which was only payable in part, contrary to s.1347 of the Act and sentenced to imprisonment for a maximum of 12 months and minimum of 2 months. He was ordered to pay reparation of $15294 (T62/223-4). His appeal to the Supreme Court was dismissed and his application for leave to appeal the dismissal to the Full Court of the Supreme Court was denied.
5. Before this Tribunal Mr Appleton admitted that he received Jobsearch allowance for periods during which he was working as a teacher for the WA Education Department and at a private school. He also has admitted that he frequently filled in forms sent to him fortnightly, known as Recipient Notification Statements (‘RN Statements’), which contained false information. The false information was that he understated the number of days he worked during the period under consideration and/or he understated the amount received from such employment. It was as a result of these false statements that the respondent calculated benefits in excess of the applicant’s actual entitlements.
6. Mr Appleton did not contest the fact of conviction though he believes it was wrong. He explains the false statements by saying that often, at the time of filling in the Claim form he had not received notification of actual earnings from the Department and was therefore unable to know whether he would receive casual loading (which would appear as extra time worked). He said it would only be confusing to refer to these periods of work and that he had at times received verbal advice from officers not to do so. On very many forms he therefore answered ‘no’ to question 5, which asked have you worked during the period. And he often understated amounts earned, even when he had answered ‘yes’ to question 5. On some occasions he claims to have entered a ball park figure for a days work – like $150. But he did not enter a figure for all the days he knew he had worked.”
On those facts the Tribunal was satisfied that Mr and Mrs Appleton had received social security payments that had been made because of statements made by Mr Appleton in forms submitted by him to the respondent and that the statements or representations contained therein were false. There was evidence to support the findings of the Tribunal. Mr Appleton submitted to the Tribunal, and to the Court, that the forms completed by him which contained the false statements were not forms that complied with the requirements of the Act. The essence of Mr Appleton’s argument was that the forms were not forms the Act required him to complete and, therefore, any information obtained from statements volunteered by him could not have provided foundation under the Act for the making of a social security payment thereunder.
For an amount to be a debt due to the Commonwealth pursuant to s 1224 it is not necessary that the false statement or representation made by a person be a statement made in a document that complies with the requirements of the Act in respect of the form thereof.
The relevant facts under s 1224 are whether a statement or a representation has been made to the respondent; was the statement or representation false; and did the statement or representation cause a social security payment to be made to the person said to be a debtor under s 1224.
As noted above, it is a question of fact whether a statement was made and whether it caused a social security payment to issue. Whether the payment was one authorised by the Act will not be relevant. The only issue will be whether a false statement by a person caused a social security payment to be made to that person or to another. The Tribunal made the relevant findings of fact.
Mr Appleton sought to submit further that steps taken for recovery of the debts had relied upon, but did not comply with, the Data-matching Program (Assistance and Tax) Act 1990 (Cth) (“the Data-matching Act”). Section 11 of the Data-matching Act provides that where an agency (in this case the respondent) considers taking action to recover an overpayment, solely or partly, because of information provided pursuant to the Data-matching Act, the agency must not take that step until written notice has been given.
Although referred to in passing by Mr Appleton, compliance with the Data-matching Act was not an issue put squarely before the Tribunal for determination. Notwithstanding that it may be argued that no question of law could arise in respect of the Tribunal’s decision in that regard (see: FCT v Raptis (1989) 89 ATC 4,994 at 4,999; Department of Social Security v Cooper (1990) 26 FCR 13; FCT v Perkins (1993) 93 ATC 4,524 at 4,526), I permitted Mr Appleton to make submissions thereon and the respondent to lodge written submissions in reply after the hearing of the “appeal”.
The submissions of the respondent in reply to the submissions of Mr Appleton on the Data-matching Act set out the relevant material before the Tribunal. The debts found to be owing to the Commonwealth under s 1224 of the Act were established as such by evidence before the Tribunal that payments were made to Mr and Mrs Appleton because of false statements made by Mr Appleton as to the amounts he had earned, or was earning, at relevant times. The information provided to the respondent under the Data-matching Act repeated information already held, namely that at some time in the relevant period Mr Appleton had been employed by a private school. It may have inspired the respondent to direct further enquiries to Mr Appleton but, in itself, it provided no ground for taking action under s 1224. The decision to recover from Mr and Mrs Appleton the overpayments that had been made to them was based on information obtained from Mr Appleton and from further enquiries made by the respondent thereafter. That information showed that the statements made by Mr Appleton to the respondent, and relied upon by the respondent for the calculation of social security payments, were false.
It is unnecessary to consider whether it would have been of any consequence if it had been demonstrated that s 11 of the Data-matching Act had not been complied with in respect of the recovery action taken against Mr or Mrs Appleton.
In the course of the hearing a question arose whether the order for reparation referred to by the Tribunal resulted in any reduction of the debt owed to the Commonwealth by reason of Mr Appleton serving a period of imprisonment whilst the reparation order was in force. It was accepted that under the Crimes Act1914 (Cth) a sum due under a reparation order did not abate by reason of service of a term of imprisonment in respect of the same matter.
Mr and Mrs Appleton have not shown that any error occurred in the decision-making process carried out by the Tribunal and the “appeal” must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 21 August 2000
Mr Appleton appeared in person. Counsel for the Respondent: Dr J T Schoombee Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 March 2000 Date of Judgment: 21 August 2000
0
3
0