Ballantyne and Secretary, Department of Family and Community Services

[2002] AATA 246

DECISION AND REASONS FOR DECISION [2002] AATA 246

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/757

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      BARBARA BALLANTYNE          
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr M D Allen, Senior Member      

Date15 April 2002 

PlaceSydney  (heard at Taree)

Decision      The decision under review is set aside and the Tribunal substitutes its decision, namely that the Applicant Barbara Ballantyne is indebted to the Department of Family and Community Services in the sum $6917.70, which sum is to be recovered from payments by the Respondent to the Applicant at the rate of $30 per fortnight or such other lesser sum as the Respondent deems appropriate.  

M D Allen
  Senior Member
CATCHWORDS
Social Security – over payment of parenting payment and parenting allowance – whether over payment arose out of deliberate understatement of income by the Applicant or by innocent mistake – whether special circumstances existed
Social Security Act 1991 s1224, 1236, 1237AAD
Secretary, Department of Social Security v Ellis 24 AAR 535  
re L and Secretary, Department of Social Security  21 AAR 412

REASONS FOR DECISION

Mr M D Allen, Senior Member                  

1. By application made 4 June 2001 the Applicant sought review of a decision made by a delegate of the Respondent and affirmed by a Social Security Appeals Tribunal on 3 May 2001, that the sum of $6917.70 representing an overpayment of parenting payment and parenting allowance be recovered from her.

2. Subsection 1224(1) of the Social Security Act 1991 states 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 the provision of this Act or the 1947 Act;
      the amount so paid is a debt due by the recipient to the Commonwealth."

Subsection 1236(1A) then provides:

"The Secretary may decide to write off a debt under subsection (1) if, and only if;
(a) the debt is irrecoverable at law;
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt."

Section 1237AAD then states:

"The Secretary may waive the right to recover all or part of the 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."

1. In this matter subsequent to the decision of the Social Security Appeals Tribunal, the matters in issue before the Tribunal have been narrowed, in short the questions which ultimately where before me to decide was whether the Applicant had knowingly made a false statement or false representation and if that question was decided in the negative, whether special circumstances existed that made it desirable to waive the recovery of the amount owing.

2. The facts are within a relatively small compass.  During the period in question the Applicant was in receipt first of all of parenting payment, which later was renamed as parenting allowance.

3. As a recipient of the parenting payment and/or parenting allowance the Applicant was required to notify to Centrelink her income from her employment and her partners employment on the applications for the payment of newstart allowance, which were lodged by her partner each fortnight.  It was not disputed that the Applicant completed her partner's forms as he had significant literacy and numeracy problems.  The Applicant's rate of parenting allowance was then calculated according to the information provided on the forms.

4. In August 1998 the Applicant's partner commenced permanent casual employment. The Respondent was notified of the partner's employment but in September 1998 an employer declaration data match was completed for the Applicant's partner following information obtained from his employer.  That information indicated that an overpayment had occurred because of under-declared earnings.

5. In her evidence to the Tribunal the Applicant stated that she had asked at the office of Centrelink at Port Macquarie how to complete the relevant forms and was told to add up her gross earnings and her partners gross earnings each fortnight and show these amounts on the form nominated SU19 being a form for the continuation of the payment of newstart allowance lodged by her partner.

6. At document T2 page 9 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, there is set out in tabular form the period covered by the form SU19, the earnings declared for the appropriate period and the actual earnings of the Applicant and her partner.

7. The Applicant also presented to the Tribunal as Exhibit A2 her own calculations of these amounts however, as she was unable to obtain from the Respondent copies of all relevant SU19 forms, I accept the accuracy of the Social Security Appeals Tribunals calculations as that Tribunal had access to material contained on computer data bases.  In passing it must be said that it is unfortunate that an applicant such as Mrs Ballantyne wishes to challenge a decision of the Respondent, can not do so effectively because Centrelink is unable to properly store and retrieve its own records.

8. At the time the Applicant was completing the particular forms she had other issues to cope with it in her personal life.  Because of a violent personal relationship, which had occurred earlier in her life, the Applicant has been diagnosed as suffering from a post-traumatic stress disorder.  Whereas at times she was able to cope with employment I accept that that condition impinged upon her ability to rationally analyse financial documents.  In addition for part of the time her daughter suffered from a life threatening medical condition and was receiving specialist medical treatment at the John Hunter Hospital, Newcastle.   This particularly affected the Applicant, as her daughter had been born two years and two days subsequent to the neo-natal death of another daughter.

9. Having had the benefit of the Applicant giving evidence before me, I am satisfied that at the time she completed the particular forms she was doing her honest best to fill them out correctly.  This is corroborated by the fact that on occasions she made an error by declaring more income than had actually being earned by herself and her partner.

10. Although the Applicant's mistakes can be categorised as an innocent mistake, the central fact is that she has received public monies to which she was not entitled and pursuant to subsection 1224 of the Social Security Act 1991 there is a debt due to the Commonwealth. The false statement referred to in subsection 1224(1) does not require the falsity to be a deliberate act but as in the case of the Applicant an innocent mistake is sufficient to invoke the raising of a debt against the Applicant.

11. As the Applicant is currently in receipt of a social security payment, then pursuant to subsection 1236(1A)(d) of the Social Security Act 1991 the debt cannot be waived although the Applicant and her partner are in straightened financial circumstances.

12. I am however, as the Applicant did not knowingly make a false statement or false representation, able to consider whether there are special circumstances that make it desirable to waive the current debt.

13. The Applicant is currently in receipt of a disability support pension, which pension is reduced because the Department of Family and Community Services is deducting an amount of some $57.10 per fortnight in order to recover the over payment.  Her partner is in low paid work as his occupation is that of a labourer and according to the Applicant's evidence he earns the sum of $285 per week.  From the combined amount received by the family there is a payment of $150 per week as rent, $75 per week for the repayment of a loan, which enabled their car insurance to be paid and it is estimated that food costs $150 a week.  The Applicant has a 16-year-old daughter living with her and her 5-year-old daughter has just commenced school.  There is also in the family group an 18-year-old male who is unemployed but helps out financially when he can.  Currently the Applicant is re-paying a telephone account at the rate of $8 per week and the phone is restricted to incoming calls only.

14. In addition to above I take into account the fact that the Applicant is currently suffering from a post-traumatic stress disorder and has other physical disabilities arising out of the abusive relationship which occurred earlier in her life.  I also accept that the current proceedings and the debt itself are placing considerable strain on the Applicant and her partner.  As to what constitutes special circumstances, I refer to the decision of Carr J in Secretary, Department of Social Security v Ellis 24 AAR 535 where at page 539 his Honour said:

    " In Beadle v. Director-General of Social Security 7 ALD 670, a Full Court of this Court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s.102(1)(a) of the Act which provided for an extension of time in which to claim a family allowance "... in special circumstances ...". At 673/674 the Full Court said:

    "Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate. ... It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase "special circumstances", although lacking precision, is sufficiently understood in our view not to require judicial gloss."

    In Groth v. Secretary, Department of Social Security 40 ALD 541 at p.545, Kiefel J, after referring to Beadle, said:

    "... for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was,I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied."

    Later (on the same page) Kiefel J expressly approved the Tribunal's reasoning in holding that Mr Groth's circumstances were not out of the ordinary when Part 3.14 of the Act (in which ss.1168 and 1184 are to be found) had the same effect on him as it did on other persons qualified to receive a disability support pension. Her Honour added:

    "It [the Tribunal] went on to find that his circumstances and those of his family although difficult, did not constitute hardship and they could not be said to be different from other pension recipients."

15. In this matter I find that the Applicant together with her partner and family are in straightened financial circumstances.  A matter which has caused me concern is, to use the words of Matthews J re L and Secretary, Department of Social Security 21 AAR 412 at 427 that one cannot ignore the beneficial nature of social security legislation. As her Honour said:

    "The whole purpose of the legislation would be substantially undermined if recipients of income maintenance benefits were to have deductions made from their payments which would render them incapable of supporting themselves or their dependents."

16. In this matter, notwithstanding the Applicant's straightened circumstances, I do not believe that there is anything in the material before me, which in line with Ellis' case above, enables me to say that special circumstances exist. That having been said it seems to me that the deductions from the Applicant's disability support pension are excessive.  If deductions at the rate of $30 per fortnight were made from the Applicant's disability support pension, the amount outstanding would be repaid in a little over eight years.  It seems to me that this then gives some measure of relief to the Applicant who has incurred a debt not by any deliberate fraud on her part but by reason of an innocent mistake.

17. The decision under review will therefore be set aside and the Tribunal substitutes its decision that the Applicant is indebted to the Respondent in the sum of $6917.70, which sum is to be recovered from the Applicant at the rate of $30 per fortnight or whatever lesser amount the Respondent deems appropriate.

    I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  12 March 2002
    Date of Decision  15 April 2002
    Applicant  self represented   
    Solicitor for the Respondent    S Fahey