Beazley and Department of Family and Community Services

[2001] AATA 196

DECISION AND REASONS FOR DECISION [2001] AATA 196

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/504

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

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date15 March 2001

PlaceBrisbane

Decision      The Tribunal affirms the decisions under review.         

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
SOCIAL SECURITY - overpayment of family allowance and sole parent pension - obligation to provide correct information to Centrelink - Centrelink's obligation to act on information given to it - whether waiver appropriate.

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

REASONS FOR DECISION

15 March 2001        Deputy President DP Breen, Presidential Member                  

1. This was an appeal against decisions by Centrelink made on 23 September and 30 September 1997 to raise and recover two debts against the applicant, Colleen Beazley, the first being a debt of sole parent pension in the amount of $10,477.90 and the second being a debt of family payment in the amount of $7,207.40 covering the period 4 January 1996 to 27 February 1997.  The decisions were affirmed by the Social Security Appeals Tribunal on 2 March 2000.

2. The matter was heard by me in Rockhampton on 8 December 2000.  Mrs Beazley represented herself and Mr N Foster, Departmental Advocate, represented the respondent.  Written submissions were received from the respondent on 2 February 2001.

3. Mrs Beazley gave oral evidence at the hearing and the following documents were made exhibits:

• Exhibit 1            "T" Documents

• Exhibit 2            Statement of Colleen Beazley dated 20.8.00

• Exhibit 3            Letter from the Deputy Principal of Moura State High School    dated 22.6.00

• Exhibit 4            Statutory Declaration of Michelle Anne Threadingham dated   3.7.00

• Exhibit 5            Statutory Declaration of Tammy Selina Maguire dated 13.7.00

• Exhibit 6            1996 Calendar

• Exhibit 7            Diary of Colleen Beazley

1. Mrs Beazley separated from her husband in 1994.  He obtained custody of their younger children and the older daughter, Krystal, went to live with her mother, firstly in Tasmania and then in Brisbane.  As a result of difficulties Krystal was having at school, it was decided that she would return to live with her step-father in Moura at the beginning of the 1996 school year to complete her education.  Mrs Beazley relocated to Yeppoon and then to Rockhampton in the first half of 1996.

2. Mrs Beazley stated that her ex-husband worked in the mines on shift work so she would travel out to Moura to look after all of the children when he was working the afternoon or night shift, which was generally three weeks out of four.  She also looked after the children on school holidays and they would often visit her on weekends at Rockhampton.  She said that she paid her ex-husband $35.00 a week towards Krystal's up-keep and that when she was in Moura she should assist in purchasing groceries and other things for all of her children.  This was oral evidence which the Tribunal was prepared to accept.

3. Mrs Beazley also provided to the Tribunal her diary for 1996 which recorded her activities during that year.  She had previously provided this diary to the Social Security Appeals Tribunal in 1999 for the review of her case at that level.  As pointed out by the respondent in written submissions, entries in the diary have been added to since that time.  While the Tribunal is of the view that this was probably done due to the insistence of both Centrelink and the Social Security Appeals Tribunal for some other evidence to corroborate Mrs Beazley, it is still a falsification of a document which reflects adversely on Mrs Beazley's reliability as a witness.

4. It must be noted, however, that the requirement by both Centrelink and the Social Security Appeals Tribunal for receipts and other documentation to prove things like the regular purchase of groceries, fuel and personal items is ridiculously onerous, given that the events occurred in 1996 and no investigation was begun until the end of 1997.  On matters like this, unless an application is extremely fastidious, you will only have their oral evidence to rely on.

5. During 1996, Mrs Beazley submitted four forms with respect to her sole parent pension and family allowance.  In February, she stated that she was living in Yeppoon and that Krystal was living with her.  In May, she stated that she was living in Rockhampton, that Krystal was living with both her and Mr Beazley but that she was separated from Mr Beazley.  In August, she stated that Krystal was living with "me +….".  In November, she left the part of the form explaining Krystal's living arrangements blank.  In January 1997, she again stated that Krystal was living with both her and Mr Beazley, but that they were separated.

6. Mrs Beazley could have made it clearer on these forms where Krystal was actually living and what the arrangements were, even if she had to attach an extra page to the form to explain the situation correctly.  People receiving social security benefits are obliged to ensure that correct and complete information is given to Centrelink to ensure that the correct benefits are paid.  Mrs Beazley did not sufficiently comply with that obligation.

7. However, Centrelink has also significantly contributed to this debt due to their failure to act on the information which was given to them, at an earlier date.  The fundamental basis for receiving sole parent pension is that a person is the sole or substantial provider for and care-giver to a child.  The statement on a sole parent pension form that a child is living with both parents who are in fact separated, is sufficient information for Centrelink to begin an investigation into what the actual arrangements are and whether eligibility still exists.  The form in August where it was stated that the child was living with the mother "+"  - the second person being left blank, should most definitely have alerted Centrelink to the fact that there was information they required that they did not have, in order to keep paying the pension.  Finally, the form in November should never have been processed until it was established where the child was living.

8. While it is true that the onus to provide the information is on the applicant, when there are serious questions raised on the information given with respect to a fundamental pre-requisite for eligibility, Centrelink should be investigating promptly.  If they had done so in May or August 1996, not only would the debt have been significantly less, but the evidence they required may have been more readily available.

9. In order to qualify for sole parent pension, Mrs Beazley had to have at least one dependent child or a maintained child and to qualify for family payment, she had to have at least one dependent child.

10. A "dependent child" under Section 5 of the Social Security Act 1991 is defined as a child under the age of 16 where:

• the adult has the daily care and control of the young person and makes decisions about their daily care and control; or

• where the child is not a dependent child of someone else and is wholly or substantially under the care and control of the adult.

1. A "maintained child" under the same Section, is defined as a young person who is not a dependent child of the adult, but is wholly or substantially maintained by the adult, and is not in receipt of social security benefits.

2. The Tribunal accepts that Mrs Beazley did visit her daughter regularly, and did play a role in her daughter's upbringing.  It also accepts that Mrs Beazley did assist her daughter financially as she could.  However, given the doubt case on Mrs Beazley's evidence as a result of the alterations to the diary, it is difficult to satisfactorily determine the true extent of her involvement.

3. While her involvement was clearly more than minimal, it would be unsafe for the Tribunal to make a finding that she was either wholly or substantially Krystal's care-giver.  This is particularly the case when it is clear that Krystal was living with her step-father and he was providing her with her basic living requirements, although neither parent was paying her school fees at the time.  While Mrs Beazley was taking on a carer's role, as Mr Beazley was the resident parent, the ultimate control of Krystal's daily care would have rested with him.  Therefore, it cannot be said that Krystal was a "dependent child" of Mrs Beazley and the Tribunal is reluctant to make a finding that she was a "maintained child", given the fact that the degree of care provided cannot be safely assessed.

4. As such, both of the debts do arise as Mrs Beazley was not entitled to sole parent pension or family allowance for that period.

5. This is not an appropriate case in which to write off the debt as subsection 1236(1A) of the Social Security Act is not satisfied.  Section 1237A allows for waiver if the debt is due solely to administrative error.  While Centrelink has been extremely lax in their handling of this matter, the lack of clarity in Mrs Beazley's answers on the relevant forms contributed to the error.  Therefore, the debt cannot be waived under this provision.

6. Section 1237AAD allows for waiver due to "special circumstances", unless the debt results wholly or partly from the debtor knowingly making a false statement or representation.  The statement need only be objectively false, but the applicant must actually know it to be untrue.  Mrs Beazley knew that Krystal was physically living in Moura with her step-father during 1996 and she knew that the information on those forms was untrue to the extent that it did not provide the complete picture to Centrelink, whether she actually meant to mislead them or not.  Therefore, the debt cannot be waived under this provision.

7. As the debts cannot be waived, they are debts owed to the Commonwealth.  I must say in conclusion that this has been a very unfortunate case.  While Mrs Beazley has not done herself any favours, Centrelink could have handled this better right from the start and saved everyone a lot of time, money and heartache.

8. For the above reasons the Tribunal affirms the decisions under review.

   I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

   Signed:         Emma Oettinger      
     Associate

   Date/s of Hearing  8.12.00
   Written submissions                 2.2.01
   Date of Decision  15.3.01
   Rep. for the Applicant              Applicant appeared in person
   Solicitor for the Respondent    Mr N Foster, Departmental Advocate