Bantick and Department of Family and Community Services
[2002] AATA 318
•8 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 318
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/285
GENERAL ADMINISTRATIVE DIVISION )
Re DIANNE BANTICK
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date8 May 2002
PlaceOrange
Decision The Tribunal determines that the decision under review be affirmed.
[SGD] Dr J D Campbell Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - itinerant work by husband - error in amount of payment - overpayment - sole administrative error - received in good faith - special circumstances
Social Security Act 1991 - sections 1064, 1223(5), 1237A(1), 1237AAD (as at 16 February 2001)
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
REASONS FOR DECISION
Dr J D Campbell, Member
In this matter Mrs Dianne Bantick ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 17 October 2001, which affirmed the decision dated 16 February 2001 made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") that the Applicant had been overpaid disability support pension in the amount of $808.20, for the period 3 November 2000 to 28 December 2000. This decision had been affirmed by an authorised review officer on 4 April 2001.
A hearing was held before the Tribunal in Orange on 18 March 2001, at which the Applicant was represented by her husband Mr Bantick. The Respondent was represented by Mr Bernard Slattery, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Applicant did not attend because of her medical condition, with her husband appearing on her behalf.
The following material was placed into evidence before the Tribunal:
Exhibit Description Date
T1-T14 pp1-32 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")
A1 Statement by Mr Bantick in relation to AAT March 2002
R1 Respondent's Statement of Facts and Contentions 12 March 2002
issues
The relevant issues in this matter are:
(a) whether the Applicant was overpaid disability support pension between 3 November 2000 and 28 December 2000; and if so
(b) whether the overpayment is a debt due and owed by the Applicant to the Commonwealth; and if so
(c) whether recovery of any or all of the debt should be waived.
legislation
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 1064, 1223(5), 1237A(1), 1237AAD of the Act (as at 16 February 2001).
backgroundThe Applicant has been in receipt of a disability support pension since 1997. Her husband commenced itinerant casual employment throughout Australia in late 1998. When not in casual employment, the Applicant's husband receives newstart allowance, and on occasions when he is employed, the amount of disability support pension paid to the Applicant has been reduced.
On 3 November 2000 Mr Bantick commenced casual employment (fruit picking) in Young, NSW. Prior to this activity Mr Bantick had been receiving newstart allowance. Mr Bantick declared his earnings to Centrelink and his newstart allowance was adjusted. At this point in time Mr Bantick and the Applicant were travelling Australia in a mobile home with Mr Bantick undertaking casual employment where and when available. They had maintained their postal address in Georgetown, Tasmania, this being their place of residence before seeking work on the mainland.
While Mr Bantick had notified Centrelink of the income he earned and his rate of Newstart Allowance had been adjusted, due to an oversight involving a coding error by Centrelink staff, Mr Bantick's earnings were not used in calculating the Applicant's rate of disability support pension payments during the period 3 November 2000 to 28 December 2000. This resulted in an overpayment of disability support pension of $808.29 to the Applicant during the period nominated.
On 16 February 2001 the Respondent notified the Applicant of the overpayment and the ensuing debt of $808.29 (T8, 9,10). Mr Bantick sought a review of this decision on behalf of his wife on 28 February 2001, but the decision remained unchanged, and again, following requests for review, this decision was affirmed by an authorised review officer on 4 April 2001 (T13) and by the SSAT on 17 October 2001 (T2).
evidenceMr Bantick, on behalf of the Applicant, detailed the following matters:
(a) He was born in 1942, educated to age 14 and lived and worked in Georgetown, Tasmania for many years. For a long period he worked for Southern Aluminium, before accepting a package in 1990, after which he returned to work for the same company, initially part time and later full time, until 1997. After ceasing this activity, he commenced casual employment as a fruit picker in the Tamar Valley. In late 1998 he, the Applicant and his son, moved to the mainland where he actively sought casual employment, while receiving newstart allowance the amount of which was adjusted when he was employed.
(b) Throughout his period of itinerant employment in mainland Australia, he has maintained his postal address in Georgetown, arranging each week for his postal box to be cleared by a friend and forwarded by express post to where he has established temporary residence.
(c) He did provide details of his earnings to the Centrelink office in Young, NSW during the period in question, and the Applicant first received advice of the overpayment on 28 February 2001, when the Respondent's letter of 16 February 2001 was received, having been forwarded on from George Town.
(d) Mr Bantick stated that he and the Applicant shared a joint account with a Credit Union, and that their first knowledge of the overpayment situation was the letter received from the Respondent on 28 February 2001, with statements from the Credit Union being received shortly after. In essence, Mr Bantick stated that "the bill" arrived (relating to the overpayment) even before either he or his wife were aware of the overpayment existing.Mr Bantick said that both he and his wife were aware that her disability support pension payments would be affected by his earnings from casual employment, and as such would have expected that his earnings would have had some affect on her pension payments during the period in question. Mr Bantick reaffirmed that he was particular in keeping Centrelink informed of his earnings, as there had been a minor overpayment prior to this overpayment and that there had been some subsequent difficulties.
Mr Bantick stated that he has great difficulty in accepting a situation where the Applicant owes money as a result of a Centrelink error, despite Centrelink having been informed of his earnings. He believes this to be unjust and unfair.
In addressing matters concerning special circumstances, Mr Bantick raised the following issues:
(a) The difficulties that he and the Applicant experience as a result of his casual employment as a mobile worker, living and working from a mobile home. By virtue of this activity he has been directed to report to Centrelink offices in various parts of the country and as a consequence may receive conflicting advice from different Centrelink offices over the same matter. Despite this, Mr Bantick stated that the issue of receiving conflicting advice from the Respondent was not relevant to the period in question and from which this matter is derived. Further, Mr Bantick raised the issue of misleading advice in relation to the availability of casual work and entitlement to rental assistance, as well as the increased mobile telephone costs (due to the absence of working fixed telephones in most park situations), in dealing with a dispute situation with the Department.
(b) In relation to his financial circumstances, the Applicant and he receive approximately $650.00 (including rental assistance) when he is not working, and that when he is working his average pay is about $100 a day, some six days a week, with a flat period of little available employment during the period August to October. Further he and the Applicant receive $140 gross per week from the rent of their home at Low Head, Tasmania.
(c) Mr Bantick stated that he has outstanding debts, including debts to the Taxation Department ($1200), accountant ($135), Mobile Home Repairs (expected to be approx $2000) and the normal operating expenses associated with a rental property (rates, land tax, agent's fees etc).
(d) Mr Bantick also indicated to the Tribunal that he had capital assets of home ($120,000), mobile home ($15 to 20,000), small superannuation account ($5000), and a small car ($350).
(e) In relation to health issues experienced by the Applicant, Mr Bantick stated the following:(i) laryngectomy 1993, with recurrence two years ago treated by laser therapy; experiences difficulty in public situations, and with day to day situation such as insect repellent use, etc;
(ii) low platelet disorder requiring monthly blood test and occasional transfusion; and
(iii) experiences gastric reflux for which special medication is required.
submissions
Mr Bantick, on behalf of the Applicant, contended that in this matter there has been no error committed by either he or the Applicant, that the Respondent failed to effect proper administration of data provided to them and as a result the Applicant has "ended up with a debt". This he believes to be unfair, a situation which he submitted is further reinforced by his first knowledge of the overpayment and the debt, being when he received the Respondent's advice of such in late February 2001.
Mr Bantick, in stating that he did not fully understand the phrase "in good faith", contended that at all times in this matter he had acted with integrity. Furthermore, he found himself frustrated with the actions of various officers of the Respondent when he tried to discuss the issue with them.
The Respondent acknowledged that there had been sole administrative error by Centrelink in this matter on the occasion when there was a failure to code in the advice received from Mr Bantick relating to his earnings during the period 3 November 2000 to 28 December 2000. The result of which was an overpayment to the Applicant.
Nevertheless, the Respondent contended that as a consequence of the Applicant and her partner being aware that earnings made by Mr Bantick during the course of casual employment would effect the amount of disability support pension paid to the Applicant, the Applicant cannot be said to have received the overpayments in good faith, even though knowledge of such payments was first made known to the Applicant by the Respondent's letter of 16 February 2001. In essence, the Respondent contended that the debt cannot be waived pursuant to section 1237A(1) of the Act.
Further the Respondent contended that the matters raised on behalf of the Applicant concerning special circumstances do not constitute special circumstances, and hence waiver under section 1237AAD is not appropriate.
consideration and findingsThe Tribunal recognises that the background facts to this matter are not in dispute between the parties, and that the real argument between the parties is whether or not the debt should be recoverable. Further the Tribunal notes that the Respondent accepts Mr Bantick as accurately describing the significant events which led to the creation of the difficulty between the parties. The Tribunal, while noting Mr Bantick's angst and frustration over the continuance of his non success in having the original decision reversed, concurs with the Respondent as regards Mr Bantick's detailing of the circumstances which have created the difficulties in this matter.
Accordingly the Tribunal makes the following finding of facts:
(a) the Applicant was in receipt of disability support pension at the time of the period in question, namely 3 November 2000 to 28 December 2000;
(b) both the Applicant and Mr Bantick were aware at the time in question that earnings made by Mr Bantick during the course of casual employment would affect the rate of payment of the Applicant's disability support pension;
(c) there had been a previous episode in which a small overpayment had occurred, as a result of Mr Bantick's earnings not being taken into account (January 1999, T3);
(d) Mr Bantick did declare his earnings to Centrelink at Young as a consequence of casual work as a cherry picker during the period 3 November 2000 to 28 December 2000, with the expectation that Centrelink would make the necessary adjustments to both his and the Applicant's rate of pension payments;
(e) tthe Applicant and Mr Bantick had particular arrangements in relation to their postal address with mail being forwarded weekly by a friend from their Georgetown Post Box by express mail to a relevant address provided by Mr Bantick;
(f) Mr Bantick has always advised Centrelink on behalf of himself and his wife, as the Applicant has difficulty in verbal communication following a laryngectomy in 1990, particularly where such communication is undertaken in public circumstances;
(g) the Applicant was first advised of the overpayment and the debt in late February 2001, when the Respondent's letter of 16 February was received;
(h) the Applicant's and Mr Bantick's first opportunity to receive the relevant Credit Union financial monthly statements did not occur until after receipt of the Respondent's letter of 16 February 2001; and
(e) the amount of overpayment for the period in question is $808.29
statutory framework
The relevant statutory framework is contained within sections 1223(5), 1237A(1), and 1237AAD of the Act (as at 16 February 2001) which provide:
"Incorrectly paid amount
1223(5) If:(a) an amount (the received amount) has been paid to a person by way of social security payment on or after 1 October 1997 or by way of fares allowance; and
(b) because the received amount had not been correctly calculated using the relevant rate calculator, or other provision for calculating the amount, or for any other reason, the received amount is greater than the amount (the correct amount) of social security payment or fares allowance that should have been paid to the person;the difference between the received amount and the correct amount is a debt due to the Commonwealth.
…Waiver of debt arising from error
Administrative error
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).
…Waiver in special circumstances
1237AAD 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 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: Section 1236 allows the Secretary to write off a debt on behalf the Commonwealth."
In addressing the issue of the overpayment the Tribunal finds that this amount of $808.29 has arisen solely as a consequence of administrative error by the Respondent. The result of the administrative error is the incorrect payment to the Applicant of $808.29 and pursuant to section 1223(5), this overpayment of $808.29 becomes a debt due and payable by the Applicant to the Commonwealth.
In further addressing the issue of sole administrative error the Tribunal notes the argument put, but not pursued, by the Respondent, that the Applicant herself had a duty to notify the Respondent of her husband's earnings. As the issue was not pursued, the Tribunal's only comment is that such a contention would have to be considered in light of the Applicant's speech disability and the custom and practice that had eventuated as a result of dealings between the parties in relation to previous notifications of such earnings to the Respondent. It would appear to the Tribunal that Mr Bantick has always had carriage of such matters, and in turn such advice has been acted upon by the Respondent.
The Tribunal, having concluded that the debt arose as a consequence of sole administrative error by the Respondent, must now address the issue of waiver pursuant to section 1237A(1) of the Act, and therefore consider whether the Applicant received such overpayment in good faith. The issue of receiving payments in good faith was discussed by Finn J in Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186 where at 189 he states:
"…It is clear in the present case that at all relevant times after 22 December 1993 Mr Prince actually knew that he had no entitlement to receive Austudy payments. Is the consequence of this that he could never claim that any of the payments he received from DEETYA as Austudy payments in 1994 were received in good faith even though at the time of receipt of the first three he was unaware that he had received the payment? In other words, can a receipt be otherwise than in good faith when the recipient is unaware that the payment has been received? The short answer to that in my view is "yes". Knowing that, in the relevant period, he had no entitlement to receive an Austudy payment, he was never in a position to be able to assert that any mistaken payment made to him was one to which he had entitlement. Thus while he may have received a payment of which he was ignorant, he could not, in the sense that I have explained, have received it in good faith..."
In this matter the factual situation has similar elements to that which existed in Secretary, Department of Education, Employment, Training and Youth Affairs v Prince [supra], namely that the Applicant was ignorant of receiving payments but had knowledge of not being entitled to such payments, that is, the Applicant was aware that such payments would not have been made if advice rendered by the Applicant had been acted upon by the Respondent. In addressing this issue in relation to the factual circumstances of this matter it is evident that both the Applicant and Mr Bantick knew that his earnings during the relevant period would have an effect on the rate of pension payments. As a consequence, the Tribunal concludes that the Applicant can never assert that any payment made to her by way of a mistake was one to which she had entitlement. The quantification of payments made by mistake in this matter is $808.29, with the Tribunal concluding that the receipt of such by the Applicant was not in good faith.
In addressing the issue of special circumstances the Tribunal notes the material which has been placed before it in relation to the following three issues:
difficulties as an itinerant worker in dealing with the Respondent;
financial circumstances; and
issues of health.
For special circumstances to be established, the Applicant's circumstances must be considered to be unusual, uncommon or exceptional (as discussed in Re Beadle and Director-General of Social Security (1984) 6 ALD 1), or as stated in Re Ivovic and Director-General of Social Services (1981) 3 ALN N95, the recovery of the debt must be seen to be unjust, unreasonable or exceptional.
In considering the issue of special circumstances, the Tribunal notes Mr Bantick's statement that the issues he noted as surrounding the relationship of an itinerant worker with Centrelink were not in play in this specific matter. The Tribunal concludes that the circumstances of communication between the Applicant and the Respondent were not unusual or exceptional in the creation of this matter.
In assessing the Applicant's financial circumstances, the Tribunal, while acknowledging the efforts made by Mr Bantick to seek and secure work, and that the Applicant and Mr Bantick have some difficulty in meeting day-to-day financial needs, concludes that the Applicant, while existing in tightened financial circumstances, is not in dire financial straits. In coming to such a conclusion the Tribunal has considered the capital assets of a home in Tasmania, the mobile home, the small superannuation nest egg, as well as the annual review and expense items including property rent, pension payments, earnings from Mr Bantick's employment activities and property expenses, living expenses, car maintenance expenses, and medical expenses for the Applicant. As a consequence, the Tribunal does conclude that the Applicant's financial circumstances are not unusual, uncommon or exceptional.
In addressing the Applicant's health disabilities, the Tribunal notes the laryngectomy in 1993 and the recurrence some two years ago. The Tribunal notes the difficulties that the Applicant has experienced as a result of this disability, as well as the apparent satisfactory treatment of the recurrence some two years ago. In particular terms this disability has caused some withdrawal and communication problems for the Applicant, but on the other hand has not prevented her from travelling with her husband in their mobile home. The Tribunal also notes that the Applicant has a history of low platelet counts for which she requires a regular blood test and for which she has had a transfusion in the past. The Tribunal also notes that she suffers from gastric reflux for which she receives therapy. These health disabilities constitute the basis for which the Applicant has been granted a disability support pension.
The Tribunal further considers that the Applicant, in having qualified for a disability support pension since 1997, possesses a range of disabilities congruent with others in a like situation. Accordingly, the Tribunal does not consider the Applicant's health disabilities to be uncommon, unusual or exceptional and as such concludes that they do not constitute special circumstances.
In summary, the Tribunal concludes that special circumstances are not found to exist in this matter and hence waiver pursuant to section 1237AAD or write off pursuant to section 1236 of the Act is not available to be exercised in this matter.
determinationThe Tribunal determines that the decision under review be affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: O. Caragianni .....................................................................................
AssociateDate of Hearing 18 March 2002
Date of Decision 8 May 2002
Representative for the Applicant Mr Bantick (Applicant's husband)
Advocate for the Respondent Mr Slattery
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