Bayfield and Secretary, Department of Family and Community Services
[2005] AATA 161
•22 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 161
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/98
GENERAL ADMINISTRATIVE DIVISION ) Re BRADLEY BAYFIELD Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date22 February 2005
PlaceCanberra
Decision The decision under review is affirmed. The matter is remitted to the Respondent to make appropriate arrangements for the recovery of Mr Bayfield’s debt in accordance with these reasons.
..............................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - Carer Allowance - carer and caree not in single residence - failure to inform - overpayment - debt - debt not a result of administrative error - no special circumstances – capacity to repay – arrangement for deferred recovery - decision affirmed
Social Security (Administration) Act 1999 s 179
Social Security Act 1991 ss 954, 1223, 1234, 1236, 1237A, 1237AAD
Re Snell and SDFACS [2002] 66 ALD 606
Re Channells and SDFACS [2004] AATA 53
Re Young and SDFACS [2004] AATA 948
Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Security v Hulls (1991) 22 ALD 570
Director-General of Social Security v Hales (1983) 47 ALR 281
REASONS FOR DECISION
22 February 2005 Mr S. Webb, Member 1. By this application Bradley Bayfield is seeking review of a decision, which was affirmed by the Social Security Appeals Tribunal (“SSAT”), to raise and recover an overpayment debt in the amount of $3,574.49 as a result of payment of Carer Allowance during the period from 23 January 2002 to 25 August 2003.
2. The matter came on for hearing in Canberra on 9 December 2004. Mr Bayfield represented himself and Ms C. Collis, Centrelink Service Recovery Team, represented the Respondent Secretary. Mr Bayfield and Ms Susan Curtis (nee Baker) gave oral evidence. Materials were tendered and labelled during the hearing.
3. At conclusion of the hearing I directed Mr Bayfield to provide medical evidence on or before 17 December 2004, and set a timetable for written submissions by the Respondent and Mr Bayfield thereafter. Mr Bayfield filed additional medical evidence on 16 December 2004 (Exhibit A3). The Respondent’s written submissions were filed on 27 January 2005 (Exhibit R3) and the Applicant’s final written submissions were filed on 16 February 2005 (Exhibit A4).
factual context
4. Mr Bayfield lodged an application for Carer Allowance on 25 October 2001 (T3). The application was in relation to care he was providing to his mother, Marianne Bayfield, with whom he was residing at 4 Brisbane Street, Parramatta Park, Cairns at that time.
5. On 8 November 2001 he and his mother attended an interview with Ms Susan Baker (subsequently Curtis). However, there is no Centrelink record of that interview in evidence. Ms Curtis gave evidence, which I accept, that the eligibility criteria for Carer Allowance and Carer Payment were discussed during this interview.
6. On 14 November 2001 Centrelink sent a letter to Mr Bayfield informing him that he should attend a Centrelink office with documents to prove his identity before 12 December 2001 (T6 folio 26). That letter also set out Mr Bayfield’s obligation to inform Centrelink within 14 days, inter alia, “if… you change your address… [or] If the person[s] you care for…stops living with you”.
7. Mr Bayfield stated that he and his mother attended a Centrelink office in December 2001 and discussed his entitlement to Carer Allowance in the event he changed his address, but there is no Centrelink record of that attendance in evidence. Nonetheless, I accept that Mr Bayfield did in fact attend a Centrelink office in December 2001 as he claims. I also accept his evidence that he was told that his entitlement to Carer Allowance would continue so long as he continued to provide daily care to his mother. There is no evidence before me that Mr Bayfield informed Centrelink that he and his mother would cease living in the same residence.
8. On or about 23 January 2002 Mr Bayfield moved into a house he had purchased at 4 Dollisson Street, Manunda. On that day he informed Centrelink about his change of address (T7 and T8). There is no evidence before me that he informed Centrelink that his mother would not be moving with him into the new residence. The evidence is, in fact, that Marianne Bayfield continued to reside at the residence in Parramatta Park.
9. Mr Bayfield’s evidence that he continued to provide daily care to his mother until his departure from Cairns in February 2004 is not in dispute.
10. On 25 July 2002 Centrelink wrote to Mr Bayfield at 4 Dollisson Street, Manunda, informing him of the rate of Carer Allowance then payable (T9). That letter set out Mr Bayfield’s notification obligations in relation to any relevant change in his circumstances.
11. Ms Curtis alleged that in or about March 2003 Mr Bayfield and his mother attended an interview with her in the Cairns Centrelink office to discuss overpayment of Carer Allowance. Ms Curtis stated that she was sure that the interview had taken place prior to April 2003, when she was transferred to Yarrabah (Oral evidence and Exhibit R2). However, there is no Centrelink record of that interview in the evidence and Mr Bayfield has no recollection of it occurring.
12. Curiously, Mr Bayfield continued to be paid Carer Allowance until 30 August 2003, when his payments were cancelled following a review (T10-T14). I note that those documents record that Mr Bayfield ceased living at the same address as his mother on 23 January 2003 and it was on that basis that the original overpayment was calculated and subsequently raised in the amount of $1,346.82.
13. On 1 September 2003 Mr Bayfield requested a review of the determination to raise an overpayment debt (T15).
14. On 11 September 2003 an Authorised Review Officer (“ARO”) decided that the original decision was incorrect and that the period of the overpayment was from 23 January 2002 until 25 August 2003, giving rise to a recoverable debt of $3,574.49 (T20-T23).
15. Mr Bayfield applied for review of the ARO’s decision by the SSAT. On 9 January 2004 that Tribunal decided to affirm the decision (T2).
16. Mr Bayfield lodged an application for review of the decision by the Administrative Appeals Tribunal (“Tribunal”) on 11 March 2004 (T1).
issues for determination
17. It is not in dispute that Mr Bayfield satisfied the eligibility criteria for Carer Allowance until 23 January 2002. The issue for determination is whether he was eligible for Carer Allowance in the period from 23 January 2002 until 25 August 2003 and, if not, whether an overpayment debt was correctly raised and whether the decision to recover the debt is the correct and preferable decision in the circumstances.
legal principles
18. Mr Bayfield’s application rises for consideration under s 179 of the Social Security (Administration) Act 1999 and relevant sections of the Social Security Act 1991 (“the Act”). The eligibility criteria for Carer Allowance are set out at s 954 of the Act, inter alia:
“954(1) A person is qualified for carer allowance for a disabled adult (the care receiver) if:
…; and
(d) because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and
...”
19. Plainly the requirement is that both the care giver and the care receiver must reside in a single private residence (Re Snell and SDFACS [2002] 66 ALD 606; Re Channells and SDFACS [2004] AATA 53; Re Young and SDFACS [2004] AATA 948).
20. If a person receives an amount of Carer Allowance without entitlement, that over payment is a debt due to the Commonwealth (s 1223). However, if such a debt is attributable solely to administrative error of the Commonwealth and the amount was received in good faith, the debt must be waived (s 1237A). There is discretion conferred upon the Secretary, or in those shoes this Tribunal, to make arrangement for the repayment of the debt (s 1234), or to write off (s 1236) or to waive (s 1237AAD) the debt in certain circumstances.
summary findings
21. Mr Bayfield ceased residing in the same residence as his mother on 23 January 2002 but continued to provide her with daily care during the period in issue.
22. Mr Bayfield informed Centrelink about his change of address on 23 January 2002, but he did not inform Centrelink that he and his mother would not be residing at the same address from that day forward.
23. In consequence, Mr Bayfield was not entitled to the Carer Allowance payments he received between 23 January 2002 and 25 August 2003. The amount so paid is a debt due to the Commonwealth.
24. Mr Bayfield’s debt is not solely attributable to an administrative error of the Commonwealth.
25. There are no special circumstances to warrant exercise of the discretion to waive recovery of Mr Bayfield’s debt.
26. In the circumstances it is not appropriate to write off Mr Bayfield’s debt. He has the capacity to repay the debt by arrangement of appropriate instalments or deductions. Recovery of the debt in that way will not result in severe financial hardship.
27. Mr Bayfield and his wife are presently experiencing financial difficulties and are in straitened financial circumstances. The family’s present difficulties servicing their debts and providing for their essential living requirements are due, in part, to Mr Bayfield’s incapacity for work and their reduced income as a result. However, their difficulties are significantly increased by decisions they have made, with an eye to the future, to retain heavily encumbered assets and assets that are not essential in their present circumstances even though, by Mr Bayfield’s own account, they do not have the capacity to service their debts and meet their weekly living costs. However, Mr Bayfield expects to return to employment and to improve his financial position without the need to dispose of any assets.
28. In the circumstances, as a result of the arrangement of his assets and liabilities, Mr Bayfield has only limited present capacity to repay the debt. Notwithstanding that it is appropriate to arrange for the recovery of Mr Bayfield’s debt by instalments or deductions commencing six months from the date of this decision with the level of the instalments or deductions being determined at an appropriate level, taking into account his financial circumstances at that time.
decision
29. The decision under review is affirmed. The matter is remitted to the Respondent to make appropriate arrangements for the recovery of Mr Bayfield’s debt in accordance with these reasons.
reasons for the decision
30. Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.
31. The evidence is plain enough that Mr Bayfield ceased to be entitled to Carer Allowance on the day that he and his mother commenced residing at different addresses, in different private residences. That event occurred on 23 January 2002. I so find.
32. Mr Bayfield continued to receive Carer Allowance payments totalling $3,574.49 from 23 January 2002 until 25 August 2003. Mr Bayfield gave oral evidence that he recalled receiving one letter from Centrelink during that period. In all likelihood that letter is the letter at T9. Mr Bayfield contends that the wording of the letter is ambiguous and the obligations set out therein are not conjunctive. However, as can be seen from the words on the page, there is a conjunctive requirement in relation to the matters in issue in these proceedings: “You must tell us if: you change your address…; You must also tell us if the person(s) you care for: stops living with you…” [emphasis added].
33. I am satisfied that Mr Bayfield was overpaid Carer Allowance, to which he was not entitled, in the amount of $3,574.49 as a result of his failure to inform Centrelink that his mother ceased residing with him on and after 23 January 2002. Pursuant to s 1223 of the Act that amount is a debt to Commonwealth for which Mr Bayfield is liable. I so find.
34. It is necessary to consider whether recovery of Mr Bayfield’s debt is appropriate in the circumstances.
35. In Mr Bayfield’s submission the debt arose because of a Centrelink error, whereby he was told that he would continue to be entitled for Carer Allowance so long as he continued to care for his mother on a daily basis. The evidence is that Mr Bayfield informed Centrelink about his change of address on 23 January 2002. There is no evidence that he informed Centrelink in December 2001 or on 23 January 2002 that he and his mother would be living in different residences. At the highest, his evidence was that he could not recall whether he had done so. In the absence of that crucial information it can be understood that a Centrelink officer may have informed Mr Bayfield that he would continue to be entitled to Carer Allowance so long as he continued to provide daily care to his mother.
36. While a claimant should be entitled to rely upon the advice he or she is given by the Commonwealth concerning matters of entitlement (Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543), it does not follow that such a person is entitled to rely on advice that is based on incomplete information they have provided concerning their relevant circumstances. The onus was on Mr Bayfield to inform Centrelink of the entirety of his changed circumstances, and specifically that his mother would not be residing with him on or after 23 January 2002. I am satisfied that he did not impart such information to Centrelink in his discussions at that time.
37. That being so, I am satisfied that there was no administrative error in the advice that was provided to Mr Bayfield by Centrelink officers concerning his entitlement to Carer Allowance in December 2001 or January 2002.
38. Even if I accepted that Mr Bayfield did inform Centrelink of the entirety of changes in his residential arrangements with his mother, and I do not, it would not follow that this case would necessarily resolve in a manner favourable to Mr Bayfield. The evidence is that he was informed about the eligibility requirement for Carer Allowance at the time, that carer and caree must live in the same private residence. I am satisfied that he was informed of those requirements, and his obligations attaching therefor, by Ms Curtis (nee Baker) on 8 November 2001 and in letters dated 14 November 2001 and 25 July 2002 (T6 and T9 respectively). On that basis, it cannot be said that Mr Bayfield received the overpaid amounts in good faith: he either knew or had reason to know that he was not entitled to those payments (Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 at 129-130).
39. It follows that Mr Bayfield’s debt was not due solely to an administrative error of the Commonwealth and cannot be waived pursuant to ss 1237A(1) of the Act.
40. It remains to determine whether it is appropriate in the circumstances to write off the debt pursuant to ss 1236(1) or to waive recovery of all or part of the debt pursuant to ss 1237AAD(1) or to make an appropriate arrangement for recovery of the debt pursuant to s 1234 of the Act. As will appear, I am satisfied that Mr Bayfield has some capacity to repay the debt and its recovery by appropriate deductions or instalments would not result in his family suffering severe financial hardship. That being so, it is not appropriate to write off Mr Bayfield’s debt. Furthermore, I am satisfied that the circumstances in which Mr Bayfield finds himself are not special circumstances whereby it would be appropriate to waive his debt. For circumstances to be special they must be unusual, uncommon or exceptional, or such that strict enforcement of the liability created would be unjust, unreasonable or inappropriate (Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3; Secretary, Department of Social Security v Hulls (1991) 22 ALD 570 at 581). Simply, in this case the circumstances are not unusual, uncommon or exceptional and nothing unjust, unreasonable or inappropriate has occurred or would occur by strict application of the relevant sections of the Act.
41. The evidence given by Mr Bayfield was that he and his wife are suffering financial hardship as a result of his medical condition and incapacity for work. Careful consideration of their circumstances reveals, and I find, that:
(a)Mr Bayfield injured his lower back at the L5/S1 level at work on 1 March 2004. He suffers from and is in receipt of treatment for chronic pain and major depression. Mr Bayfield’s evidence was that on or about 2 June 2004 he returned to work on light duties but his symptoms became worse and he has not worked since September 2004. On 1 November 2004 Dr D. McGrath reported that “his recovery will be slow… Re-deployment is certainly the best option which has already begun” (Exhibit A3). Mr Bayfield receives treatment in relation to his back condition and depression that is paid for by his employer’s insurer, QBE (Exhibit A2).
(b)Mr Bayfield gave evidence that he is in a rehabilitation program and is hopeful of obtaining work in the gaming industry in 2005. However, a certificate issued by Dr R. Kruger, general practitioner, states that Mr Bayfield was unfit for work from 17 January 2005 and is due for further medical assessment on 17 March 2005 (Exhibit A4).
(c)Mr Bayfield suffers an incapacity for work as a result of the injury and receives periodic compensation payments at the rate of $227.11 per week. He also receives Family Tax Benefit of approximately $200 per fortnight. Mr Bayfield gave evidence that he has consulted a lawyer in relation to compensation issues and litigation may ensue.
(d)Mr Bayfield and his wife were married on 10 July 2004. Mrs Bayfield is not employed. She gave birth to their son on 30 September 2004 by caesarean section. Since birth, the child has suffered ill-health and has required periodic medical treatment for asthma.
(e)Mrs Bayfield receives Carer Payment and Carer Allowance of approximately $425 per fortnight in respect of caring for her mother.
(f)Mr Bayfield, his wife and child live with his mother-in-law in her house. Mr Bayfield’s evidence was that they pay his mother-in-law $150 per week rent.
(g)Mr Bayfield estimated that the family’s weekly living costs exceed their combined income by approximately $100 to $200 per week.
(h)Mr Bayfield owns the property at 4 Dollisson Street, Manunda. In his oral evidence he estimated the value of that property to be approximately $180,000, but subsequently tendered a real estate agent’s appraisal of its market value: “between $150,000 and $160,000” (Exhibit A4). There is a mortgage over that property with $138,405 outstanding. Mr Bayfield stated that the mortgage repayments are approximately $220 per week. The property is rented by his father who pays $120 per week rent.
(i)Mr Bayfield owns a 1998 model Holden car that he purchased in October 2003 for approximately $20,000. He gave evidence that he took out a loan to purchase the vehicle and is required to repay $121 per week. Mr Bayfield gave evidence that he has applied for relief from those repayments on hardship grounds and is awaiting a response. He estimated that the value of the vehicle is approximately $12,000. His oral evidence was that the outstanding balance of the loan was approximately $18,000. Subsequently in written submission he stated that the outstanding amount was $19,313 (Exhibit A4).
(j)Mrs Bayfield owns a 1996 model Nissan car that Mr Bayfield stated has an insured value of $9,000. Mrs Bayfield does not hold a driver’s licence and the family cannot afford to pay the cost of registration on that vehicle. Nonetheless, Mr Bayfield gave evidence that the vehicle is owned without encumbrance and he and his wife have decided not to sell it as “it would only sell for two or three thousand dollars”. Subsequently in written submissions Mr Bayfield stated that the value of the vehicle was “between $5,000 and $7,000 (it would be less because it is unregistered)” (Exhibit A4).
(k)On Mr Bayfield’s evidence:
(i)his wife took out a personal loan for $15,000 in June 2004 to pay for their wedding on 10 July 2004. Evidence subsequently tendered indicates that the outstanding balance of the loan was $13,773 on 15 February 2005 (Exhibit A4);
(ii)he and his wife have a debt of approximately $8,500 on an AGC store card, which is being repaid at the rate of $20 per month and legal action to recover the debt is pending;
(iii)he has a Visa Credit Card with an outstanding balance of approximately $4,200 and his wife has a Visa Credit Card with an outstanding balance of approximately $5,300, the combined repayments of which are approximately $300 per month but only $50 per fortnight is being repaid on the basis of financial hardship (see attachments to Exhibit A4)..
42. Plainly enough, on that evidence, Mr Bayfield’s family is experiencing financial difficulties that are, in part, a result of his present incapacity.
43. Mr Bayfield and his wife claim to be living beyond their present limited means. Mr Bayfield’s evidence was that their weekly costs exceeded their weekly income by up to $200, and they are forced, in consequence, to rely upon the Salvation Army from time to time. There is no evidence to corroborate Mr Bayfield’s claims in that regard. Furthermore, in those claimed circumstances, it is difficult to understand why it is necessary to retain two vehicles, one of which is significantly encumbered, when only Mr Bayfield holds a driver’s licence and neither he nor his wife are presently earning in employment. Similarly, it is questionable whether Mr Bayfield can afford to maintain his investment property at 4 Dollisson Street, Manunda. Plainly, on the evidence Mr Bayfield placed before me he could improve his present financial difficulties by realising the value of his investment property and applying part of the proceeds to pay out the loan on his car, thereby reducing his weekly outgoings by at least $220 per week. Furthermore, the sale of Mrs Bayfield’s car, that is unregistered and which she is unlicensed to drive, would enable the family to pay bills or reduce debts. Such changes would reduce Mr Bayfield’s claimed outgoings by an amount that is greater than the weekly shortfall he has claimed.
44. On the evidence before me, the family retains assets and has options to alleviate their present financial difficulties. Furthermore, Mr Bayfield is optimistic about obtaining employment in the near future. It is surprising that Mr Bayfield and his wife have chosen to retain unnecessary assets when doing so is so plainly to their financial detriment during a difficult period. Nonetheless, even if I was satisfied that Mr Bayfield had no options to improve his financial circumstances, and I am not, financial hardship alone is not a sufficient reason to waive a debt under s 1237AAD (Director-General of Social Security v Hales (1983) 47 ALR 281).
45. Mr Bayfield asserted that his medical conditions constitute special circumstances sufficient to warrant waiver of his debt. I do not agree. While unfortunate, Mr Bayfield’s medical conditions are not in any way unusual, uncommon or exceptional. Many are those who suffer from periods of compensable temporary incapacity as a result of employment related lumbar spine conditions. I note Dr McGrath’s assessment that Mr Bayfield’s incapacity is likely to improve, albeit gradually. I note that Mr Bayfield is receiving weekly worker’s compensation payments in respect of his incapacity and that his previous employer’s insurer is paying his medical treatment costs.
46. In Mr Bayfield’s submission the recent amendment of the Act to permit eligibility for Carer Allowance in certain circumstances without the requirement for the care giver and the care receiver to reside in a single residence constitutes a special circumstance whereby his debt should be waived. I do not agree. The law is to be applied as it stood at the time of Mr Bayfield’s claim and during the period that he was overpaid Carer Allowance from 23 January 2002 until 25 August 2003. Mr Bayfield was overpaid Carer Allowance on the basis of the eligibility criteria for that allowance then in force. The introduction of amended eligibility criteria almost two years later is not a circumstance that is a “special circumstance” for the purposes of s 1237AAD.
47. In Mr Bayfield’s submission the delay in raising the debt for which he is liable is a special circumstance that renders waiver of the debt appropriate. I do not agree. The evidence is that Mr Bayfield’s Carer Allowance was cancelled and an overpayment debt was raised following a review of his mother’s circumstances on or about 30 August 2003. It is true that the original amount of the debt that was raised was calculated on the basis that Mr Bayfield and his mother had not been residing in the same house since 23 January 2003 (T12). That factual error was rectified on 1 September 2003 (T17). Mr Bayfield asserted that Centrelink was at fault for not having compared data on his and his mother’s files, which would have revealed that he and his mother were not residing at the same address from 23 January 2002. It is indeed unfortunate that Centrelink did not review the case until August 2003. It is desirable in the administration of the social security scheme that the files of customers who are in receipt of a benefit or a payment are periodically reviewed. Nonetheless, the onus was on Mr Bayfield to inform Centrelink of the crucial change in his living arrangements with his mother that terminated his entitlement to Carer Allowance at that time.
48. Considering the totality of Mr Bayfield’s circumstances, I am not satisfied that his circumstances are within the ambit of “special circumstances” whereby it would be appropriate to waive his debt to the Commonwealth. It follows that I am reasonably satisfied that it is not appropriate to waive the Commonwealth’s right to recover Mr Bayfield’s debt pursuant to s 1237AAD.
49. Considering all of Mr Bayfield’s circumstances it is appropriate to arrange for recovery of his debt in an appropriate manner pursuant to s 1234 of the Act. I note the beneficial nature of the social security legislation. I am satisfied that it is desirable to temporarily defer recovery action for a period of six months from the date of this decision and thereafter to recover the debt by deductions or instalments, the amount of which is to be determined on the basis of Mr Bayfield’s financial circumstances and his capacity to repay the debt at that time. It is reasonable to expect that a six month period will be sufficient for Mr Bayfield to address his present financial difficulties, whether by rearranging his affairs or by obtaining employment if his health permits.
conclusion
50. For the reasons stated above the decision under review is affirmed and the matter is remitted to the Respondent to make appropriate arrangements to recover the debt from Mr Bayfield in accordance with these reasons.
I certify that the preceding 50 paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 9 December 2004
Date of Decision 22 February 2005
Representative for the Applicant Self
Representative for the Respondent Ms C. Collis
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