Basil O'Connor Jillian Griffith and Secretary, Department of Social Services
[2015] AATA 187
•26 March 2015
[2015] AATA 187
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4451 and 2014/4452
Re
Basil O'Connor
Jillian Griffith
APPLICANTS
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Christopher Kendall, Member
Date 26 March 2015 Place Perth The Tribunal affirms the decision under review
....(Sgd) C Kendall............
Dr Christopher Kendall, Member
CATCHWORDS
SOCIAL SECURITY – age pension – overpayment – debt due to the Commonwealth – whether recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink – no “special circumstances” – SSAT decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 44(1) – s 55(a) – s 1064 – s 1223(1) – s 1236 – s 1236(1) – s 1236(1A) – s 1237 – s 1237A(1) – s 1237AAD
Social Security (Administration) Act 1999 – s 66A – s 68 – s 68(2)
CASES
Gilvonio and Secretary, Department of Social Services [2003] AATA 148
Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
Locke and Secretary, Department of Social Services [2014] AATA 904
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
SECONDARY MATERIALS
Guide to Social Security Law – 6.7.3.30
REASONS FOR DECISION
Dr Christopher Kendall, Member
26 March 2015
BACKGROUND
On 4 August 2014, the Social Security Appeals Tribunal handed down a decision (the ‘SSAT decision’) that affirmed a decision made by Centrelink that an age pension debt of $21,552 was owed by Mr Basil O’Connor and Ms Jillian Griffith for overpayments by Centrelink to Mr O’Connor and Ms Griffiths during the period 24 September 2009 to 4 April 2013 (the ‘relevant period’).
Mr O’Connor and Ms Griffiths now seek a review of the SSAT decision.
RELEVANT FACTS AND EVIDENCE
Mr O’Connor is approximately 73 years of age. His partner, Ms Griffiths, is approximately 72 years of age.
Ms Griffith suffers from poor health. In particular, as noted in the SSAT decision, she suffers from severe lymphedema and type 2 diabetes. Ms Griffith suffered a stroke approximately 9 years ago and her current medication costs weigh heavily on the couple’s minds.
Mr O’Connor is the sole income earner for the couple. He works as a truck driver for Southern Timber Industries. Mr O’Connor advised the Tribunal that he would like to retire but is of the view that he cannot do so because he is currently repaying his Centrelink debt of $21,552 at a rate of $400 per month.
In relation to the calculation of the actual debt now owed by Mr O’Connor and Ms Griffith, the Tribunal was assisted by a detailed Statement of Facts, Issues and Contentions provided by the Secretary, Department of Social Services (the ‘Secretary’). That Statement provided a factual analysis of these proceedings to date with which Mr O’Connor and Ms Griffith did not disagree.
In that regard, the Tribunal notes as follows.
When Mr O’Connor first claimed the age pension, he advised Centrelink that his income from employment with Southern Timber Industries was approximately $67,579.80 per annum. Centrelink recorded that Mr O’Connor received $2,522.30 income per fortnight and calculated the rate of pension payable to both him and Ms Griffith accordingly.
Mr O’Connor’s income varied/fluctuated fortnightly during the relevant period.
Throughout the relevant period, Mr O’Connor and Ms Griffith were sent numerous notices which advised them of the requirement to notify Centrelink within 14 days of any change in their circumstances, including changes to their income (or their partner’s income). Notices were sent to Mr O’Connor and Ms Griffith on the following dates: 8 April 2009, 21 May 2009, 24 August 2009, 22 September 2009, 31 March 2010, 20 May 2010, 30 March 2011, 19 May 2011, 17 May 2012 and 3 April 2013.
Each of these notices was sent pursuant to section 68(2) of the Social Security (Administration) Act 1999 (the ‘Administration Act’), which allows the Secretary to give a notice that requires a person to advise Centrelink of specified events or changes in circumstances.
The Tribunal notes, for example, that the letter to Mr O’Connor dated 8 April 2009 states:
WHAT YOU HAVE TO TELL US ABOUT
You must tell us within 14 days (28 days if residing in New Zealand) if any of the things listed below happen, or may happen. You can tell us by writing to us, by calling, or you can come in and talk to us at any of our offices. This is an information notice given under social security law.
If your income changes (income means your gross income before you pay any tax, or if self-employed, your net profits after allowable deductions). That is, if your combined income, not including financial investments or maintenance, increases.
Further, in relation to the letter of 22 September 2009, Mr O’Connor and Ms Griffith were both advised as follows:
Information used for calculating your regular payment … fortnightly earnings amount $2,522.30.
You must tell us within 14 days if any of the things listed below happen or may happen:
If your income changes (income means gross income before you pay tax …).
It is clear to this Tribunal that notices of this sort are intended to ensure that pension recipients comply with section 66A of the Administration Act, which provides that a person has a general obligation to provide Centrelink with information about any changed financial circumstances that might alter their pension entitlements within 14 days from the date their financial circumstances change.
Section 68 of the Administration Act further provides that the Secretary can require a person in receipt of a benefit to notify Centrelink of a specified event or change in circumstances.
In its decision, the SSAT found that the letter above dated 22 September 2009 was a notice consistent with section 68 of the Administration Act, requiring Mr O’Connor and Ms Griffith to notify Centrelink within 14 days if their combined income changed.
This Tribunal agrees with that finding. Given Mr O’Connor’s fluctuating income, Mr O’Connor was thus required to advise Centrelink fortnightly of any changes to his income.
The SSAT decision notes that Mr O’Connor had advised the SSAT as follows:
a) He received a letter from Centrelink dated 24 August 2009 which advised him:
What you need to do
You will only have to report fortnightly if Centrelink sends you a Reporting Statement ...
Your first Reporting Statement will be issued before 20 September 2009 and then every 12 weeks as variable income continues.
b)He had taken various documents, including payslips, to Centrelink in May 2010, May 2011, May 2012 and April 2013. Centrelink date stamped the documents. It was only in April 2013 that a Centrelink officer asked him for all his payslips so the debt could be calculated;
c)On 4 January 2011 he received a letter from Centrelink which advised him that his age pension had been reviewed on 15 December 2010 and that all details about his age pension were correct.
d) In his opinion, Centrelink had failed to act on information he provided.
In evidence before this Tribunal, Mr O’Connor drew the Tribunal’s attention to a letter dated 24 August 2009 sent to him from Centrelink. The Tribunal notes that the letter contains a clause that reads:
What will change
From 20 September 2009, customers over Age Pension age will have their pension payment calculated on the actual employment income earned over the preceding fortnight.
This means that if you (or your partner) have variable employment income, you will need to report your employment income to Centrelink on a fortnightly basis. This will include fortnights where no employment income has been earned.
Centrelink will not be able to calculate and pay your (or your partner's) pension until this information has been received.
What you need to do
You will only have to report fortnightly if Centrelink sends you a Reporting Statement.
The Reporting Statement will provide you with the following information:
• Your future reporting requirements (when to report and for what period)
• Your notification obligations (what to report)
• Your reporting options (how you can report)
Your first Reporting Statement will be issued before 20 September 2009 and then every 12 weeks as variable income continues.
If you do not receive a Reporting Statement then you do not have to do anything.
The Tribunal notes that the same letter also contains the following clause:
Please note that you must still notify Centrelink of any other changes in your circumstances within 14 days of when they occur.
In evidence before this Tribunal, Mr O’Connor explained that he took various documents, including payslips, to Centrelink in May 2010, May 2011, May 2012 and April 2013. These documents accurately report Mr O’Connor’s salary from Southern Timber Industries. All evidence of a fluctuating income.
The Tribunal also notes that Mr O’Connor did receive a letter from Centrelink on 4 January 2011 that advised him that his pension entitlements had been reviewed on 15 December 2010 and which read: “all details about your pension are correct.”
The evidence shows that, other than on those occasions outlined by Mr O’Connor in evidence before the Tribunal, Mr O’Connor did not comply with Centrelink’s notice to him to report changes in his income every two weeks.
The evidence shows that on 12 April 2013, Centrelink sent to Mr O’Connor a letter requesting verification of his gross fortnightly earnings from 1 November 2008.
On 30 April 2013, Mr O’Connor provided Centrelink with all relevant payslips.
On 28 March 2014, a Centrelink officer decided that:
·in the period from 24 September 2009 to 18 April 2013, Mr O’Connor was overpaid age pension payments of $20,364.80, having being paid $22,251.77 and being entitled to $1,886.97; and
·in the period from 1 January 2009 to 18 April 2013, Ms Griffith was overpaid age pension payments of $14,643.54, having being paid $22,265.89 and being entitled to $7,622.35 (the ‘original decision’).
On 31 March 2014, Mr O’Connor and Ms Griffith requested an internal review from Centrelink of the original decisions.
On 13 May 2014, an authorised review officer (an ‘ARO’) varied the original decision on the basis that Mr O’Connor and Ms Griffith were overpaid in relation to their age pension and that the debts were recoverable, but the original calculations of the debt were incorrect. The ARO recalculated that in the period from 25 September 2009 to 4 April 2013 each of Mr O’Connor and Ms Griffith were overpaid $21,552.00 in age pension and that this amount was a recoverable debt to the Commonwealth (the ‘ARO decision’).
On 8 July 2014, Mr O’Connor and Ms Griffith lodged an application with the SSAT for a review of the ARO decision.
As noted above, on 4 August 2014, the SSAT affirmed the ARO decision.
ISSUES
The issues for consideration by this Tribunal are:
1.Whether Mr O’Connor and Ms Griffith have been overpaid age pension during the relevant period;
2.If so, whether this overpayment is a debt owed to the Commonwealth; and
3.If so, whether recovery of all or part of the debt should be written off or waived.
In relation to issue 3 above, in making this determination, the Tribunal must examine:
a)Whether the debt can be written off because of a number of circumstances listed in section 1236 of the Social Security Act 1991 (the ‘SSA’);
b)Whether the debt can be waived because the debt arose ‘solely’ as a result of an administrative error on the part of the Commonwealth; and,
c)If not, whether the debt can be waived because of ‘special circumstances’ that make it desirable to wave the debt as per section 1237 of the SSA (noting that this can only occur if there is evidence that the person seeking to have the debt waived did not ‘knowingly’ make a false statement or misrepresentation relevant to the debt in question).
ANALYSIS
Have Mr O’Connor and Ms Griffith been overpaid the age pension?
Section 44(1) of the SSA provides that an age pension is not payable to a person if the person’s age pension rate would be nil.
Section 55(a) of the SSA provides that a person’s rate of age pension is calculated by applying “Pension Rate Calculator A” at the end of section 1064 of the SSA.
In relation to this issue, the SSAT decision explains as follows:
5. The pension rate calculator provides that a person's and the person's partner's rates of age pension are reduced by their combined income.
6. In this case Mr O'Connor and Ms Griffith's age pensions were calculated on the basis of erroneous information about Mr O'Connor's income. Consequently, Mr O'Connor and Ms Griffith were paid more age pension than they were entitled to receive.
7. The Centrelink authorised review officer's decision statement about Mr O'Connor's and Ms Griffith's debts reads:
From 25 (sic) September 2009 to 4 April 2009 (sic) you were paid a total of $21,910.37 ... I have worked out you should have been paid $358.37. This means you have a debt of $21,552 (folios 4 of each of the authorised review officer's decision statements).
8. From the other material in the papers the authorised review officer wrote 4 April 2009 (in the above quotation) in error. The correct date is 4 April 2013. However, the error added to Mr O'Connor's confusion about the correct amount of his and Ms Griffith's debts.
9. The Tribunal examined the debt calculation sheets (folios 176 - 199 in Mr O'Connor's bundle of papers and folios 82 to 105 in Ms Griffith's bundle of papers) and noted that for a period from 31 May 2010 to 20 May 2011 any entitlement Mr O'Connor and Ms Griffith had to age pension was further reduced by compensation payments. After reviewing the debt calculations the Tribunal was satisfied the debt calculations were accurate. For most of the fortnights in the period from 24 September 2009 to 4 April 2013 Mr O'Connor and Ms Griffith's were not entitled to be paid age pension because of their combined level of income.
In the circumstances, the SSAT found that Mr O'Connor and Ms Griffiths had each been overpaid age pension in the amount of $21,522 during the relevant period.
In their Statement to this Tribunal, the Secretary contended that:
… because the correct amount of Mr O’Connor’s income was not taken into account in calculating the rate of age pension payable to Mr O’Connor and Ms Griffith, Mr O’Connor and Ms Griffith have both been overpaid age pension. The Secretary further contends that the amount of the overpayments has been correctly calculated in the Centrelink debt calculators applicable to Mr O’Connor and Ms Griffith.
Although Mr O’Connor and Ms Griffith disagreed that they should be required to re-pay the debt amount in question, in evidence before this Tribunal, they agreed that the amount in question was the correct amount after applying the calculation provisions of the SSA – that is, $21,552.00.
This Tribunal agrees with the findings of the SSAT that Mr O’Connor and Ms Griffith were overpaid the age pension during the period 24 September 2009 to 4 April 2013. The Tribunal also agrees that Mr O’Connor and Ms Griffith were overpaid $21,552.00.
Is the overpayment of $21,552.00 a debt owed to the Commonwealth?
Section 1223(1) of the SSA provides that if a social security payment is made and the person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit, then the amount of the payment is a debt due to the Commonwealth by the person and the debt arises when the person obtains the benefit of the payment.
The overpayment of age pension to Mr O’Connor and Ms Griffith for the relevant period of $21,552.00 is a debt due to the Commonwealth pursuant to s 1223(1) of the SSA.
Can all or part of the debt be waived or written off?
Writing off the debt
Section 1236(1A) of the SSA provides that the Secretary (and, in his shoes, the Tribunal) may write off a debt due to the Commonwealth under s 1236(1) of the SSA if, and only if:
a)the debt is irrecoverable at law; or
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)it is not cost effective for the Commonwealth to take action to recover the debt.
Section 1236(1A)(a), (c) and (d) of the SSA do not apply in this case because Mr O’Connor’s and Ms Griffith’s debt is recoverable at law, the couple’s whereabouts are known and, according to the Secretary, it is cost effective for the Commonwealth to take action to recover the debt from Mr O’Connor and Ms Griffith.
In relation to section 1236(1A)(b), the evidence shows that Mr O’Connor is currently re-paying the debt in question at an amount of approximately $400.00 per month and that he currently has the capacity to do so.
There is no evidence before the Tribunal at this stage to indicate that, as per section 1236(1A) of the SSA, Mr O’Connor and Ms Griffith are unable to re-pay the debt in question.
Accordingly, this is not a situation whereby the $21,552.00 debt can be waived pursuant to section 1236(1A) of the SSA.
The Tribunal is sympathetic to Mr O’Connor’s concerns that, given his age, his ability to keep working long term (and thus pay back the debt at the rate he is currently paying it back at) will change in the future. In that regard, the Tribunal echoes the sentiments of the SSAT, wherein it was stated:
28. … the Tribunal appreciates Mr O'Connor's circumstances will change and his capacity to repay the debt at the current rate may not be able to be sustained. On this point the Tribunal advised Mr O'Connor that he and Ms Griffith can approach Centrelink and discuss a manageable level of debt repayment.
Waiver of the Debt
Can the debt be waived because of an administrative error on the part of the Commonwealth?
Section 1237A(1) of the SSA provides that 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”.
The “Note” to s 1237A(1) of the SSA states that s 1237A(1) “does not allow waiver of a part of a debt that was caused partly by an administrative error and partly by one or more other factors (such as error by the debtor)”.
In relation to the meaning of the word “solely” in section 1237A(1) of the SSA, the Tribunal notes Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173, relied on by the SSAT in determining Mr O’Connor’s and Ms Griffith’s case, and Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126, as outlined by the Secretary in submissions before this Tribunal.
As noted in the SSAT decision, in Re Gerhardt the AAT held (at [40]):
There is nothing ... which indicates that any meaning should be given to "solely" other than its ordinary meaning. Applying those ordinary meanings to the subsection mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error. The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth's administrative error (i.e. they are incidental to the Commonwealth's error), then it may be that the debt is attributable solely to the Commonwealth's administrative error. Whether it is or is not attributable in that situation to the Commonwealth's administrative error will be a question of fact.
In Sekhon, the Full Federal Court held (at [35]):
The ordinary or usual interpretation of the phrase “attributable solely to” is that it refers to the single or sole cause of the relevant act or event. The word “attributable” means “capable of being attributed”. It involves an objective assessment of causation. The words “a debt attributable solely to an administrative error” can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
This Tribunal also notes the “Guide to Social Security Law”, which provides at 6.7.3.30 as follows:
In general, wherever a mistake has been made in administering a payment, the debt will arise ‘solely to an administrative error’ providing the recipient’s conduct has not contributed to the debt in any way.
Examples of administrative error include mistakes in:
·Calculating the amount of a payment,
·Determining which social security payment/s a person is entitled to be paid, and
·Correctly actioning information provided by the recipient.
The requirement that part of the debt must have arisen ‘solely’ from administrative error means that there must have been no other factors that caused the debt to arise or contributed to the debt arising. The part of the debt must have arisen as a result of administrative error alone.
Having reviewed the evidence before it, this Tribunal is unable to conclude that the debt in question arose solely because of administrative error on the part of the Commonwealth. It is certainly the case that Mr O’Connor and Ms Griffith did provide Centrelink (on a few occasions, and as early as 2010) with evidence that showed that Mr O’Connor’s income fluctuated and that no decision was made by Centrelink in relation to incorrect payments until 2013.
It is also the case, however, that Mr O’Connor had a clear obligation to provide Centrelink with an update of his income every two weeks and that he failed to do so. The terms of the notices sent to him in that regard are clear. As explained by the SSAT:
19. The Tribunal accepts Mr O'Connor went to Centrelink periodically with some of his payslips. However, the notices provided to Mr O'Connor obligated him to advise Centrelink within 14 days each time his income varied. Mr O'Connor's income varied each fortnight (folios 104 - 159 of Mr O'Connor's papers provide his payslips over the period). Consequently, he was required to advise Centrelink each fortnight of the changed income.
20. The Tribunal appreciated Mr O'Connor believed in the absence of a Reporting Statement he was not obligated to advise Centrelink of his income each fortnight. However, the Tribunal's view was that the notices sent to Mr O'Connor and Ms Griffith on 22 September 2009, and subsequently, created a fortnightly reporting obligation because Mr O'Connor's income changed fortnightly.
21. The Tribunal concluded Mr O'Connor's and Ms Griffith's failure to notify Centrelink of the changes in their income within 14 days of becoming aware that it changed constituted an error on their part, which contributed to cause of the debt. For section 1237 A of the Act to be invoked, the error which led to the debt must be solely Centrelink's error. In this case Mr O'Connor and Ms Griffith's contributed to the cause of the debt so it could not be waived under this provision.
This Tribunal agrees with these findings. It is at least arguable that, had Mr O’Connor and Ms Griffith complied with the fortnightly reporting requirements imposed on them, the debt for which they now find themselves liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given their failure to comply with the fortnightly reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth.
In the circumstances, section 1237A of the SSA has no application to the facts of this case and the debt in question must not be waived under section 1237A.
Can the debt be waived due to “special circumstances”?
Section 1237AAD of the SSA provides that the Secretary (and, in his shoes, the Tribunal) “may” waive the right to recover all or part of a debt if he 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 [the SSA], the [SSAA] 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.
The SSAT found that Mr O’Connor and Ms Griffith did not “knowingly” contribute to the debt by making false statement statements or failing to comply with the provisions of the social security legislation.
The Secretary advised in evidence before this Tribunal that it supported that finding.
This Tribunal agrees with the SSAT finding in relation to this issue.
As such, the Tribunal can turn its attention to whether or not “special circumstances” exist (other than financial hardship alone) that make it desirable to waive the debt.
The SSA does not define what is meant by the term “special circumstances” as used in section 1237AAD of the SSA. As explained in the Secretary’s Statement of Facts, however, there is a considerable body of case law to assist the Tribunal in relation to this issue.
In that regard, the Tribunal notes the summary of this case law provided by Senior Member Walsh in Locke and Secretary, Department of Social Services [2014] AATA 904, wherein the Tribunal stated (at [40] and [41]):
40. … The Tribunal has said that the expression “special circumstances’ in s 1237AAD(b) of the SSA should be interpreted and applied in the same way as the identical expression in s 1184(1) of the SSA is interpreted and applied: Re Secretary, Department of Social Security and Duzevich [1996] AATA 63; 41 ALD 461 at [32] per DP Hotop.
41. In summary, it has been held for circumstances to constitute “special circumstances” (for the purposes of s 1184(1) of the SSA and, it follows, s 1237AAD(b) of the SSA), they must be circumstances which are “unusual, uncommon or exceptional”, be “markedly different from the usual run of cases”, “special” or “out of the ordinary” and they include “events which would render the (strict application of the rule in question) unfair or inappropriate”: see for example, Re Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD at 3 per Toohey J; Beadle and Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ; Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at [545] per Kiefel J and Dranichnikov v Centrelink [2003] FCAFC 133; [2003] 75 ALD 134 at [66] per Hill J. Circumstances might be “special” although they apply to more than one person or class of persons, provided they are not of universal application (for example, they are a common or universal characteristic of social security recipients): see Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 441; (2010) 185 FCR 52 at [65].
In evidence before this Tribunal, the Secretary also referred to Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114, wherein Deputy President Forgie stated (at [80]):
…“special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances…that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it…He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement…The system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act…
In evidence before this Tribunal, Mr O’Connor and Ms Griffith argued that the “special circumstances” provision in section 1237AAD should apply to them because:
·Mr O’Connor and Ms Griffith are both aged in their early 70s. Ms Griffith has health problems, including suffering from severe lymphedema and type 2 diabetes. She also had a stroke approximately 9 years ago. She also required ongoing medication, evidence of which was provided to the Tribunal.
·Mr O’Connor is the sole income earner for the family and his income fluctuates depending on the hours he works. He continues to work as a truck driver for Southern Timber Industries, but would like to retire due to his age and his desire to spend more time with Ms Griffith.
·The debt would not have occurred had Centrelink noted the information it had been provided by Mr O’Connor (as early as 2010) in relation to his fluctuating income.
In hearings before the SSAT, the SSAT found:
22. Mr O'Connor is currently repaying his and Ms Griffith's debt to Centrelink at $400 per month. The Tribunal discussed with him whether this caused hardship, and it was satisfied in the current circumstances, where he is employed and has some cash reserves, it did not.
23. There is a general expectation expressed in various Administrative Appeal Tribunal and Court decisions that people overpaid benefits will ordinarily repay them. In this case the Tribunal found Mr O'Connor's or Ms Griffith's circumstances are not special to the extent that they should not be expected to repay their debts.
Having reviewed the evidence before it, the Tribunal agrees with these conclusions. In relation to the issues of age, ill health and medical expenses, there is no evidence that indicates that Mr O’Connor’s and Ms Griffith’s circumstances are "out of the ordinary" such that they fall within the term “special circumstances”. Regrettably, the couples’ situation is not uncommon to many recipients of social security payments: cf Gilvonio and Secretary, Department of Family and Community Services [2003] AATA 148.
The Tribunal has already made clear its view that, in relation to the re-payment of the debt, once Mr O’Connor ceases to work he and Ms Griffith should contact Centrelink in order to discuss re-payment options that accommodate inevitable changes in their financial circumstances.
In relation to the issue of what might best be referred to an administrative error on the part of Centrelink when it did not take into account the financial information Mr O’Connor provided to it as early as 2010, this Tribunal find as follows.
Given Centrelink’s size and the number of claims it processes, delays in processing will, unfortunately, occur and mistakes will, inevitably, be made. The question this Tribunal is required to ask is whether what happened to Mr O’Connor and Ms Griffith was sufficiently different from what can and what does occur so as to make their situation fall within “special circumstances”.
Mr O’Connor and Ms Griffith had a clear obligation to report Mr O’Connor’s fluctuating income on a fortnightly basis. While not doubting that Mr O’Connor and Ms Griffith did what they believed to “be the right thing”, the fact remains that the debt in question is not a debt that is solely attributable to Centrelink. As stated above, it is arguable that had Mr O’Connor and Ms Griffith complied with the fortnightly filing notices of which they were clearly advised, the mistake in question may have been caught much sooner.
While not excusing Centrelink’s failure to note Mr O’Connor’s fluctuating income when it had evidence before it as early as 2010 that could have alerted it to a change in Mr O’Connor’s circumstances, the Tribunal notes that, when taken as a whole, Mr O’Connor’s and Ms Griffith’s circumstances are not so “unusual, uncommon, exceptional, markedly different, special or out of the ordinary that they represent “special circumstances” as that expression is understood to mean”: Locke at [43].
Accordingly, Mr O’Connor’s and Ms Griffith’s debt should not be waived under section 1237AAD of the SSA.
DECISION
For the reasons outlined above, the Tribunal affirms the SSAT decision.
I certify that the preceding 75 (seventy - five) paragraphs are a true copy of the reasons for the decision herein of Dr Christopher Kendall, Member
....(sgd) T Freeman.................
Associate
Dated 26 March 2015
Date of hearing 17 March 2015 Applicants In person Representative for the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor
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