Baats and Secretary to the Department of Family and Community Ser Vices

[2003] AATA 1118

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1118

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/731

GENERAL ADMINISTRATIVE  DIVISION

Re:         WILHEIMAS JOHANNES BAATS

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             17 October 2003

Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal varies the decision under review and decides that there is a debt to the Commonwealth owed by the applicant in the amount of $1562.78.

(sgd) G.D. Friedman
  Member

SOCIAL SECURITY ‑ age pension ‑ receipt of foreign pension ‑ failure to notify increase ‑ overpayment ‑ debt to Commonwealth  

Social Security Act 1991 s1064, 1223(1), 1223(5), 1236, 1237A(1), 1237AAD

REASONS FOR DECISION

17 October 2003  G.D. Friedman, Member

1.      This is an application by Wilheimas Johannes Baats (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 10 June 2003.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 10 April 2003 to raise and recover a debt of $1374.21 arising from an overpayment of age pension to the applicant for the period 8 January 1998 to 1 January 2003 (the relevant period).

2.      At the hearing on 17 October 2003 the applicant represented himself, and Mr S. Meehan, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T54), together with one exhibit (Exhibit R1) tendered by the respondent.

BACKGROUND

4.      The applicant has been receiving age pension.  During the relevant period he also received two foreign pensions in the form of payments from the Netherlands.  Between 14 October 1997 and 23 December 2002 Centrelink sent 23 notices to the applicant advising him that he must inform Centrelink if the income from his foreign pensions increased.  From 1 January 1998 the rate of the applicant’s foreign pension increased, but Centrelink had no record from the applicant of notification of the increase. 

5.      On 24 February 2003 Centrelink decided that the applicant had been overpaid the amount of $1374.21 in age pension during the relevant period, and that this amount was a recoverable debt.  On 10 April 2003 an authorised review officer affirmed that decision.    

6.      On 7 May 2003 the applicant sought review of the decision by the SSAT.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 10 July 2003 for review of the decision.

EVIDENCE

7.      In oral evidence the applicant said that each month he receives two pensions from the Netherlands.  The amounts he receives vary because of fluctuations in the exchange rate..  He told the Tribunal that he receives payments at various times of the month, and these are paid directly into his bank account.  Therefore, he cannot notify Centrelink of the amounts of the payments until after payment has been received.  The applicant emphasised that he believed that Centrelink's calculations were incorrect as a result of the currency changes, computer error or administrative errors.  He also referred to discrepancies between the Centrelink figures and those from the Australian Taxation Office. 

8.      The applicant agreed that he has received letters regularly from Centrelink, requesting advice if the amounts of his pensions changed.  He acknowledged that he has not notified Centrelink of changes in the amounts of the pensions, but said this was because of the problems already mentioned.  He said that Centrelink’s calculations would be more accurate if they were based on his monthly income instead of his annual income.  The applicant also acknowledged that Centrelink may have overpaid him age pension, but was not able to quantify the amount.

CONSIDERATION OF THE ISSUES

9. Section 1064 of the Social Security Act 1991 (the Act) provides that the rate of age pension is to be calculated in accordance with the Rate Calculator set out in the Act, based on the person’s annual income.  Section 8 of the Act defines income as an income amount earned, derived or received by a person for the person’s own use or benefit.

10. Mr Meehan submitted that the income received by the applicant from his foreign pensions constituted income for the purposes of the Act. He referred to the amended calculations (Exhibit R1) which show that the amount of age pension received during the relevant period in excess of the applicant’s entitlement is $1562.78. Mr Meehan submitted that this amount is a debt owed to the Commonwealth under s1223(5) of the Act (as it then was), for the period 1 January 1998 to 30 June 2001; and under s1223(1) of the Act for the period 1 July 2001 to 1 January 2003. He submitted that there were no grounds for writing off or waiving the debt.

11.     In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

12. The Tribunal acknowledges that the applicant believes that the system used by Centrelink to process his foreign pensions and calculate age pension is incorrect. However, the Tribunal agrees with Mr Meehan that the applicant was required to inform Centrelink within 14 days of any change in the amounts of pension received. The applicant did not do so. The Tribunal is satisfied that the foreign pensions constitute income for the purposes of the Act. On the material presented by the respondent the Tribunal finds that the applicant received an overpayment of age pension totalling $1562.78 to which he was not entitled. The Tribunal finds that this is a debt owed to the Commonwealth under s1223(5) of the Act (as it then was) for the period 1 January 1998 to 30 June 2001; and under s1223(1) of the Act for the period 1 July 2001 to 1 January 2003.

13. There is no evidence of administrative error by Centrelink before the Tribunal, to justify waiver of the debt under s1237A(1) of the Act. There is no evidence before the Tribunal that special circumstances (other than financial hardship alone) exist, to justify waiver of the debt under s1237AAD of the Act. Centrelink has already recovered $1374.21 of the debt, and it is therefore not appropriate to write‑of the debt under s1236 of the Act.

DECISION

14.     For reasons given orally at the hearing, the Tribunal varies the decision under review and decides that there is a debt to the Commonwealth owed by the applicant in the amount of $1562.78.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Olympia Sarrinikoloau

Clerk

Date of hearing:  17 October 2003

Date of decision:  17 October 2003
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr S. Meehan, Centrelink