Bell and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 520

ADMINISTRATIVE APPEALS TRIBUNAL ) Nos N1999/274 & 1812

GENERAL ADMINISTRATIVE DIVISION )

Re      VALMA BELL
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent
DECISION

Tribunal Dr J.D. Campbell, Member

Date28 June 2000

Place Armidale
Decision The Tribunal determines that:: 1. the decisions under review be varied in so far as debt arising from overpayments for disability support pension for the period 29 June 1995 to 18 August 1995 and for additional family payment for the period 6 July 1995 to 18 August 1995 are waived; and 2. The remainder of both decisions is affirmed; and 3. The matters be remitted to the Respondent to recalculate the debt owing. (Sgd) Dr J D Campbell ……………………………… Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Family Payments – Duty to Notify – Purported Notification – Failure to Notify – Overpayment – Debt – Waiver – Knowingly – False Statement – Failing to Comply
Social Security Act 1991, sections 98, 132, 138, 879, 889, 1064, 1069, 1224, 1236 and 1237

Secretary, Department of Social Security v Hales (1998) 153 ALR 259
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797
Re Clack and Secretary, Department of Social Security (AAT 12617, 13 February 1998)
Re Brown and Secretary, Department of Family and Community Services [1999] AATA 113
Director-General of Social Services v Hales (1983) 47 ALR 281

REASONS FOR DECISION

Dr J.D. Campbell, Member

Mrs Valma Bell ("the Applicant") in these matters seeks a review of the following decisions:
(a)The decision of the Social Security Appeals Tribunal dated 15 October 1998 which affirmed the decision of an authorised review officer of Centrelink dated 11 May 1998. This latter decision affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 16 April 1998, which found that the Applicant owed a debt to the Commonwealth of $2,185.40 arising from overpayment of disability support pension during the period 29 June 1995 to 19 March 1998.
(b)The decision of the Social Security Appeals Tribunal dated 27 October 1999 which affirmed the decision of an authorised review officer of Centrelink dated 20 January 1999. This latter decision affirmed the earlier decision of a delegate of the Respondent dated 11 December 1998, which found that the Applicant owed debts to the Commonwealth of $1,774.30 and $10,125.80 for overpayment of additional family payment for the period 3 August 1995 to 21 December 1995 and family payments for the period 4 January 1996 to 26 March 1998 respectively.
A hearing was held before the Tribunal at Armidale on 16 February 2000 at which the Applicant was represented by Ms R. Lee, a solicitor from North and North West Legal Service. The Respondent was represented by Ms H. Schuster, an advocate from the Administrative Law Section of Centrelink.
The following written material was placed in evidence before the Tribunal:

Description    Exhibit No.
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1-T21, pp1-63
Supplementary documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T22-T57, pp64-153
Supplementary documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T58-T89, pp153-258
Statement of Mrs Valma Bell dated 10 February 2000 A1
Statement of Mr Gordon Bell dated 10 February 2000 A2
Medical Report Dr Robert Pollard dated 9 February 2000      A3
Medical Report Dr G De Gabriele dated 10 February 2000     A4
Applicant's Statement of Facts and Contentions dated 7 February 2000     A5
Respondent's Statement of Facts and Contentions dated 31 January 2000 R1

ISSUES

The relevant issues in this matter are:
(1) Whether the Applicant owes a debt arising from overpayment of:
(a)disability support pension of $2,185.40 during the period 29 June 1995 to 19 March 1998; and
(b)additional family payment of $1,174.30 during the period 3 August 1995 to 21 December 1995; and
(c)family payment of $10,125.80 during the period 4 January 1996 to 26 March 1998.
(2) Whether the debts should be recovered.

LEGISLATION

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 96, 132, 138, 879, 889, 1064, 1069, 1224, 1235 and 1237.
BACKGROUND
The Applicant lodged a claim for disability support pension on 27 June 1995 (T3). The Applicant's partner completed a partner's details form on the same day in which gross income earned per week was nominated as $650.00 (T4). A pay advice for the period ending 2 June 1995 for the Applicant's partner was submitted with the claim on 27 June 1995 which nominated the partner's gross income earned for that particular fortnight as $2,158.00 (T5). The Applicant's claim for disability support pension was approved on 2 August 1995 (T7) and she was notified of this approval on 4 August 1995 (T24). In the notification letter the Applicant was informed that she must notify the Respondent if, amongst a number of matters, the combined income became more than $650.73 per week (T24, p71).
On 16 August 1995 the Respondent notified the Applicant that additional family payment was granted to the Applicant and that this was free of the income and assets test due to her payment of disability support pension (T25). Payment of additional family payment and later family payment continued throughout the period in which a disability support pension was paid. A further letter was forwarded to the Applicant on 15 September 1995, advising of an increase in disability support pension rate and again reminding the Applicant that she did not get the full pension because of her income. The Respondent further stated that the Applicant had a duty to inform the Respondent within 14 days if her and her partner's combined gross income exceeded $650.73 per week (T27).
On 25 November 1997 the Repondent forwarded a letter to the Applicant requesting details of the Applicant's partner's gross wages (T37). On 23 March 1998 the Respondent in response to their request of 30 December 1997 (T43) received advice from the Applicant's partner's employer as to his fortnightly wages (gross) from 14 July 1995 until 16 February 1998 (T10). As a result of this advice the Respondent concluded that the Applicant had no entitlement for disability support pension at and since time of grant and that a debt of $2,185.40 was owing as a result of this overpayment (T14, p47). A letter was sent by the Respondent to the Applicant on 19 December 1997 ceasing her disability support pension from 25 December 1997 as she had not responded to their earlier letter requesting information (T39). Similarly family payments were reduced in a letter to the Applicant on 19 December 1997 (T40) and both disability support pension and family payments were recommenced in a letter sent to the Applicant on 30 December 1997, with payment of arrears for family payment (T41, 42). The Applicant was notified in a letter dated 16 April 1998 that her disability support pension payments should have never been paid because her partner's earnings had been too high and that the overpayments were recoverable as there had been a failure on her part to notify the Respondent of partner's earnings. This decision was reviewed by an authorised review officer and affirmed on 11 May 1998 and further affirmed on review by the Social Security Appeals Tribunal on 28 October 1998.
On 4 December 1998 the Respondent noted that the partner's earnings had been incorrectly coded at time of grant; that maximum additional family payment and family payment had been paid as a result of the payment of a disability support pension; that payments had been made for the period 6 July 1995 to 27 March 1998; and that the disability support pension grant letter was not issued until 4 August 1995 (T24). As a consequence the Respondent concluded that overpayments of disability support pension ($2,161.14), additional family payment ($1,774.30) and family payment $10,125.80) had occurred and that there was a debt due and owed by the Applicant, arising from a failure by the Applicant to notify the Respondent of her partner's increase in gross weekly earnings beyond the nominated amount of $650.73 per week. The Respondent considered that waiver of overpayment of additional family payment for the period 6 July 1995 to 3 August 1995 and of overpayment of disability support pension for the period 29 June 1995 to 4 August 1995 should occur as the Respondent did not issue the disability support pension grant advice until 4 August 1995. The decision regarding overpayment of family payment was notified by letter to the Applicant on 23 December 1998 (T83), affirmed by an authorised review officer on 20 January 1999 (T85) and affirmed by the Social Security Appeals Tribunal on 27 October 1999 (T59).
EVIDENCE
Mrs Valma Bell – The Applicant
Mrs Bell told the Tribunal that she suffered a severe right-sided stroke in 1994, having suffered from migraine for many years prior to that time. After the stroke the headaches became more severe and she was taking up to 16 tablets a day in an attempt to control the pain. As a consequence, her treating general practitioner suggested that she go to Centrelink and get a health care card. The Applicant stated that she, accompanied by her husband, went to Centrelink to enquire about the card and that a staff member helped her husband complete the necessary forms. The Applicant said that she was successful in her application and the card helped defray medical and pharmaceutical expenses.
The Applicant, a mother of two sons aged 18 and 15 ½, described to the Tribunal a lifestyle in which she stayed at home a lot; that she continued to experience problems with her right hand and foot and that if she walks a long way she experiences a pain in her right leg. She expects to have an operation in the future.
The Applicant stated that she remembers receiving notices from Centrelink and that she put them aside for her husband to read as she could not read. After her husband had read them she would take them to the accountant, where she would be given pieces of paper (tax returns) which she would take to Centrelink (she remembered because it was a long walk and she would have to stand in line). Similarly the Applicant stated that she used to receive telephone calls from Centrelink, but she could not remember them ringing about her husband's job. Further the Applicant stated that she was unaware of her husband's overtime and that she never knew about overpayments until much later.
In response to questions asked in cross-examination the Applicant stated that she took documents from the accountant to Centrelink on four to five occasions within a short space of time, but was unable to remember the years or the time of year. When shown an Income Tax Assessment Notification Form (p175), the Applicant was unable to identify whether this was the type of form she delivered to Centrelink.
In further exploration of her headaches the Applicant stated that they were severe in the head and neck areas and that she received a needle for them on average of once a month, but lately approximately once a week. She stated that she experiences headache every day, that she is right handed, is unable to read, has no trouble with hearing, and requires medication for sleeping. The Applicant stated that she left school after year nine and worked for Kentucky Fried Chicken and then as a house cleaner. She stated that she could remember receiving phone calls but never a domiciliary visitation from Centrelink.
Mr Gordon Bell – Applicant's Husband
Mr Bell told the Tribunal that he had been employed at New England Antimony Mines since August 1983 on a shift basis working 45 hours per week. About seven to eight years ago, as a foreman he would accrue overtime, when with no prior notice he would be called in for plant breakdown or non-attendance of a worker. His normal working hours per fortnight was 80.
In 1994 Mr Bell stated that in 1994 his wife had a stroke and he stayed home from work for a couple of months to look after her wife. It was his understanding that the headaches caused the stroke, and that the headaches have continued, requiring a lot of medication in the first six months and thereafter. Mr Bell, acting on his wife's doctor's suggestion, accompanied the Applicant to Centrelink for an arranged interview and completed the necessary forms in part with the assistance of a staff member. Mr Bell remembers discussions concerning overtime with the staff member and believes that at the time he was not sure how long the overtime would continue as the overall company activities were uncertain, the work force was being reduced and foremen not replaced.
In commenting upon the effects of the stroke on his wife, Mr Bell stated that his wife before the stroke was fun loving, outgoing, used to do everything and was a leader in the boys' brigade, while after she has become a different person, housebound, sleeping a lot of the time, in bed by eight o'clock most evenings, with her residual disabilities affecting everything she does.
In relation to notices received from Centrelink, Mr Bell stated that he would find them in a variety of places such as in books or under lounge chairs. Mr Bell stated that on occasions he would be asked to read certain notices, and further he can remember a request from Centrelink to detail income for financial year 1996/1997, which he asked his wife to take to the Accountant.
Mr Bell stated that Centrelink had never rung him on any issue, and that when in December 1999, Centrelink had requested a taxation assessment notice for 1998/99, both he and his wife took the form to Centrelink, only to be again asked for it some two to three weeks later. In relation to his wife's condition, Mr Bell stated that initially progress was good, but over the last few years there has been little improvement, with a bad period towards the end of 1999, during which she was requiring a needle per week. Mr Bell also stated that his wife often rings him at work.
In response to questions asked in cross-examination Mr Bell considered that level of income may have been a relevant factor in applying for and securing a card. In the conversation concerning overtime Mr Bell stated that he would not have known how long his level of overtime would have continued, but he would not have suggested that it would have ceased. Mr Bell stated that there was an increase in wage rate later on and that currently he was not earning at the $650.00 per week rate. Further there had been a period where compulsory overtime occurred, but this later no longer continued.
Mr Bell stated that it was his practice to undertake the responsibility for the financial affairs of the family. In this role he read all the bills coming in and in his view none went missing. However, in relation to letters addressed to his wife, it was his experience that he was unaware of what actually came to the house. It was at one stage suggested that he be a nominee, but Mr Bell stated that the paper work was never completed. Mr Bell stated that he could not ever remember reading a letter from Centrelink stating that there was a requirement to notify when the combined family gross income was greater than $650.73 per week.
Mr Bell confirmed that he did send his wife to the Accountant in response to letters received from Centrelink asking for details of income and he did not believe that the letter of 25 November 1997 (T37) was the first such request for the provision of such information. Mr Bell told the Tribunal that he considered it important for his wife to be allowed to try and do things and it was his recollection that his wife would have gone and collected the annual taxation assessment from the Accountant and taken it to Centrelink on several occasions. Mr Bell further confirmed that his wife managed an account into which such payments from Centrelink were credited and that this was in furtherance of her continued rehabilitation.
Finally in examination Mr Bell stated that it was not his intention to defraud and he did not believe he had done anything wrong. He did ask for statements and he did find a lot of letters around the home.
MEDICAL EVIDENCE
DR POLLARD
In a medical report dated 28 September 1999, Dr Pollard, the Applicant's treating general practitioner stated that the Applicant's stroke markedly altered her personality as well as causing her to be significantly physically handicapped. It was his opinion that issues pertaining to the overpayment had significantly increased her attendance frequency for medical assistance (T89).
In a further report dated 9 February 2000 Dr Pollard opined that the Applicant had become confused and distressed over the issue of overpayments and that the lack of resolution was not assisting in her well-being (Exhibit A3).
DR DE GABRIELE
Dr De Gabriele, a consultant geriatrician, in his report of September 1999 and in his statement of 11 February 2000 stated that the Applicant continues to suffer depression as there continues to be a major problem associated with overpayment of benefits to the family and confirms that the Applicant's overall medical condition is being destabilised by a continuation of the overpayment problem.
ACCOUNTANT'S EVIDENCE
In a statutory declaration dated 16 July 1999, Ms A. Gibbs, an accountant, details that as the accountant for the Bell family since 1994, she has given to Mrs Bell in respective years a copy of the 1995, 1996 and 1997 income tax assessment in order that she take the return to Centrelink. Further, the 1998 assessment was faxed to Centrelink on 25 November 1998. Ms Gibbs also records that Mr Bell's assessments have been issued in August or September since 1995.
SUBMISSIONS
The Applicant's solicitor submitted that the overpayments in these two matters should be waived under section 1237AAD of the Act. The issue of administrative error was not pursued by the Applicant's solicitor.
It was submitted for the Applicant that neither she nor her husband knowingly made a false statement or false representations, as the husband's fortnightly earnings including overtime were made available to the Respondent at the time the claim was submitted. Further it was contended that at the time of the claim neither the Applicant nor her husband were in a position to know how long the overtime situation would continue and that as a consequence any action by either the Applicant or her husband was innocent and not deliberate.
In relation to the Applicant failing or omitting to comply with a provision of the Act, it was submitted on behalf of the Applicant that the evidence would indicate that there was action undertaken by the Applicant to comply, when she attended upon the Accountant and collected copies of various yearly tax assessments to pass to Centrelink and that for whatever reason such data was either not received and/or recorded on Centrelink files. It was further contended on behalf of the Applicant that any failure or omission to comply by the Applicant which would include inappropriate dealing with correspondence and/or failure to deliver were not actions undertaken knowingly by the Applicant, as she no longer possessed the ability to read or the comprehension to work through the issues involved.
Further it was submitted that the Applicant's medical condition has destabilised as a result of the overpayments and this contention is supported by the opinions of both Drs Pollard and De Gabriele. As a consequence it was submitted that as in Re Clack and Secretary, Department of Social Security (AAT 12617, 13 February 1998), such contentions constitute special circumstances which would render further recovery inappropriate.

Further the Applicant's representative submitted, that as in Re Brown and Secretary, Department of Family and Community Services [1999] AAT 113 the Department has a responsibility to follow its own nominated procedures and that in these matters there was a failure by them to undertake a manual review in the case of fluctuating income. The failure by the Department to undertake a manual review it was submitted was one of the reasons for the continuance of the overpayments in these matters.
The Respondent submitted that the debts in these two matters were properly created pursuant to section 1224(1) of the Act and that the debts arose as a direct consequence of the Applicant's false statements at the time of the claim. In the alternate the Respondent submitted that the Applicant had failed to comply with the notices sent to her in relation to the level of income being above $650.73 per week and that this resulted in continued overpayment of disability support pension, additional family payment and family payment.
The Respondent submitted that waiver of debt on grounds of administrative error under section 1237A of the Act could not be sustained because the partner's actions contributed significantly to the outcome.
Further the Respondent contends that:
(a)the statement as to normal income at time of claim constituted a false statement or representation, made in full knowledge of the true circumstances; and
(b)the Applicant's circumstances are not "special" in that they are not unusual, uncommon or exceptional (Re Beadle and Director General of Social Security (1984) 6 ALD 1); and
(c)the Applicant's financial circumstances do not constitute "special circumstances" as the financial circumstances are not exceptional and not impecunious or in straitened circumstances (Director-General of Social Services v Hales (1983) 47 ALR 281); and
(d)the Applicant's medical condition, while causing the Applicant a continuing difficulty, is not of such severity or consequence to make it as unusual, uncommon or exceptional in a class of people with disability; and
(e)the intention of the legislation was to ensure that a person did not get paid from two sources in respect of the same period of time and that the Applicant by virtue of her husband's income received benefits to which she was not entitled (Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797).

CONSIDERATION AND FINDINGS

In these two matters an overpayment of disability support pension payments and consequential additional family payments and family payments has occurred as a direct consequence of a number of errors and in this regard the Tribunal makes the following findings of fact:
(a)The initial determination to grant the claim for disability support pension was in error, for despite whatever conversation occurred between the Applicant's partner and the decision maker, the attached pay documentation clearly defined that at the time of application, the Applicant's combined family gross income was greater than $650.00 per week; and
(b)the Applicant's husband thought that the issue of income may be relevant to this issue of claim for disability support pension (his evidence) and that the conversation with the staff member at the time of claim completion did canvas the issue of overtime, and in particular how long it would continue (partner's evidence); and
(c)That letters from the Respondent were received by the Applicant and dealt with in various ways - some were shown to her husband to read and others were misplaced under chairs or in books by the Applicant, this misplacement occurring as a consequence of the Applicant's medical condition; and
(d)the Respondent does not seem to have undertaken any form of review from the time the disability support pension was granted in mid 1995 until a request was made on 25 November 1997 to the Applicant to detail the Applicant partner's gross wages, with follow up action occurring on 30 December 1997 by way of a letter of inquiry from the Respondent to the partner's employer to detail wage payments; and
(e)the Applicant did attend upon the family accountant on a number of occasions to collect annual taxation assessments for her partner with the stated endeavour of taking them directly to Centrelink. There is no evidence that such were received by Centrelink or alternatively if received that any action was taken by Centrelink to analyse and review the material received; and
(f)the Applicant does have a chronic disability, arising from her stroke in 1994 and that this is characterised by right-sided weakness, memory loss, personality change, an inability to read and chronic severe headaches. The latter disability is significant and requires constant medication and medical attention; and
(g)the Applicant's partner encourages the Applicant's rehabilitation by encouraging solo activity, including the management of a bank account; and
(h)the Applicant's medical condition has been destabilised by the continued dispute over the overpayments (Drs Pollard and De Gabriele); and
(i)despite the Applicant's disabilities, including memory loss, there was no direct contact or approach by Centrelink to the Applicant's partner; and
(j)despite the Applicant's disabilities, including memory loss and obvious wayward dealing with Centrelink correspondence to herself, the husband at no stage made an approach to Centrelink to either ensure that all correspondence sent by Centrelink had been attended to appropriately or, indeed, where he requested his wife to deliver correspondence to Centrelink from the Accountant had he checked to see whether the documents had been received; and
(k)at no stage until his employer detailed his earnings over the period in question did the Applicant or the Applicant's husband make any attempt to notify the Respondent of a continuing average level of weekly income considerably in excess of $650.73 per week, upon which the Applicant was required to notify the Respondent.
The Tribunal further observes that there is no issue between the parties on the issue of credit of either the Applicant or her husband and that any activity in this matter as regards the Applicant and her husband has been as a result of innocent or non intended actions. In this regard the Tribunal finds that the actions of the Applicant have been much influenced by the effects of her disability and its sequelae, including memory loss and an inability to read, while the actions of her husband have been much motivated by his desire to assist his wife in a manner which will best assist in her rehabilitation. The Tribunal has no difficulty in accepting that the motivation to claim a disability support pension, with such an action having been suggested by her general practitioner, was to gain a health care card and this would assist in alleviating some of the burden of heavy medical and pharmaceutical expenses.
The Tribunal also acknowledges the Applicant's position as put by her advocate that the issue of administrative error was not to be pursued as it was difficult to contend that the overpayments arose solely as a result of administrative error by the Commonwealth. The Tribunal has already made a number of findings of fact and it is evident from a consideration of such that the Tribunal would have great difficulty in finding that with the exception of the original decision to grant disability support pension administrative errors arose solely as a consequence of error by the Commonwealth. In particular the Tribunal would point to the findings of fact relating to the husband's understanding that income was an important issue in disability support pension payments being approved and being continued to be paid; his knowledge of his wife's disabilities and her tendency to misplace correspondence to herself and particularly the failure by him to ensure that his continued level of income above the notifiable level was notified by the Applicant or by him on her behalf to the Respondent.
In turning to the issue of waiver under section 1237AAD, the Tribunal notes the section which provides:
"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
…"
The Tribunal in considering subsection 1237AAD(a)(i) finds that the Applicant did not knowingly make a false statement or representation, for although her signature appears on the claim, the Tribunal is of the view that the Applicant's level of comprehension, her memory loss and her inability to read, as well as her overall ability to reason, all arising from the stroke in 1994, make it difficult for the Applicant to do other than the simplest and most uncomplicated activities knowingly. Further, while she may appear to be able to do some simple activities such as collecting a tax assessment notice from the accountant to deliver to Centrelink, there is evidence to suggest that such forms may not have been delivered, albeit even if she did stand in a queue.
The issue as regards the Applicant's husband is in the Tribunal's view more contentious, as the husband was clearly the active instrument in formulating the details for the claim. Nevertheless it is clear in the Tribunal's view that he did give the necessary information to Centrelink by way of his pay slip and that thereafter, no matter what discussion took place between the husband and the Centrelink employee (and for which there is no record) a decision was taken by Centrelink to ignore the overtime component. In the absence of any evidence to suggest that somehow or other the Applicant's husband misinformed the Centrelink employee as to the nature and circumstances of his overtime and its continuance, and in particular the husband's denial that calculations made on the claim which resulted in the weekly income of $650.00 were made by him, the Tribunal finds that the Applicant's husband did not knowingly make a false statement or misrepresentation.
In considering subsection 1237AAD(a)(ii), the Tribunal finds that for the very same reasons expressed in paragraph 40 that the Applicant did not knowingly fail or omit to comply with a provision of the Act, namely the requirement to notify when the combined gross weekly earnings exceeded $650.73 as nominated in correspondence to her on 4 August 1995 and 15 September 1995 by Centrelink.
In the Tribunal's opinion the Applicant's husband has by his own evidence created concerns as to whether he knowingly failed or omitted to comply with a provision of the Act. In noting the husband's evidence that:
(a)he was responsible for the overall financial management of the family's financial affairs, including participation in the interview which led to the claim for disability support pension for his wife being approved; and
(b)he was aware that income levels of both partners were a determinant in the approval of his wife's disability support pension and its continuance.
(c)he was made aware of particular issues, although his memory for such issues is clouded, when his wife asked him to read letters addressed to her from Centrelink; and
(d)he was aware that his wife misplaced correspondence addressed to herself from Centrelink; and
(e)he was aware of his wife's memory difficulties and her inability to read as well as other aspects of her disabilities, yet he made no effort to ensure that material such as taxation assessment notices were actually delivered to Centrelink when requested, when his wife acted as the courier; and
(f)he was aware that for a period of two and a half years his average weekly earnings exceeded $650.73 per week and at no point during this period did he see the need to contact Centrelink on this or on any other issue.
The Tribunal, being aware that the Applicant's husband had much to contend with during the period in question, nevertheless concludes that his actions, including omitting to act, constructively amount to knowingly failing or omitting to comply with a provision of the Act. In so finding the Tribunal has weighed the husband's efforts, concerns and knowledge of his family, the family affairs and his wife's disabilities against his knowledge of issues concerning the claim for disability support pension and the continuance thereof and concludes that the husband by his very knowledge of his wife's disabilities was put on notice that as the financial affairs manager for the family, his wife was misplacing correspondence from Centrelink and could not necessarily be relied upon to put all relevant material to him for consideration and necessary action. Further the Tribunal is of a view that in relation to his own level of earnings, including overtime, continuing at a level beyond the nominated figure of $650.73 per week for some 30 months, the husband, by virtue of his own evidence, was on notice that it may well be an issue – an issue he did not pursue during this period with Centrelink by way of a telephone and/or written enquiry. The Tribunal is further reinforced in its view by the letters sent to the Applicant by Centrelink on 4 August 1995 and 15 September 1995, which the husband, while stating little memory for the contents at the time of the hearing, does not deny were received and that they would have been read at the time, but not necessarily with the scrutiny that their contents may have required.
In summary it is the Tribunal's conclusion that the Applicant's partner, being aware of the consequences of his wife's disabilities, and being aware of his responsibilities as the financial affairs manager for the household, did in the circumstances of these two matters knowingly fail or omit to comply with the notification requirements provisions which exist in the Act, when he failed to notify or have notification effected of his continued gross weekly earnings exceeding the nominated $650.73 per week. In making such a finding, the Tribunal has concerned itself with matters pertinent to the husband. It would be appropriate for the Tribunal to comment that the apparent absence of scrutiny and or review by Centrelink in these matters is a cause of much concern to the Tribunal, for it would appear that early intervention by way of appropriate review would have prevented the unfortunate outcome. Nevertheless it is the Tribunal's finding that the Applicant, by virtue of the actions, including omission to act by her husband, fails to satisfy subsection 1237AAD(a)(ii) of the Act.
The Tribunal, in considering the issue of special circumstances in these two matters, is drawn to a number of earlier cases from which the Tribunal is able to better understand and appreciate the meaning of the phrase special circumstances and indeed what circumstances may constitute special circumstances.
(a)In Re Beadle (supra), (1984) 6 ALD 1 Toohey J stated:
"An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of the cases. This is not to say that the circumstances must be unique but they have a particular quality of unusualness that permits them to be described as special."
(b)In Secretary Department of Social Security v Hales (1998) 153 ALR 259 French J stated at p267:
"The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstances is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purposes of enlivening the Secretary's discretion."
French J also said:
"From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be effected by the stress associated with the circumstances that led to the receipt of benefits in the first place … the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes."
(c)In Director General of Social Security v Hales (supra, 1983) Sheppard J stated:
"The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common: they will be impecunious and in straitened circumstances."
(d)In Re Groth (supra), the Tribunal at paragraph 41 stated:
"It seems to me that the purpose of the provisions [of Part 3.14] is to ensure that a person is not paid from two sources in respect of the same period of time. … Therefore, there will be special circumstances if the circumstances are such that it is unreasonable, unjust or inappropriate not to treat whole or part of a compensation payment as not having been made bearing in mind that the provisions are intended to ensure that a person is not paid from two sources in respect of the same period of time."
In these two matters the following circumstances are submitted on behalf of the Applicant to constitute special circumstances:
(a)Applicant's medical condition -
the medical sequelae of the Applicant's stroke in 1994 include personality change, memory loss, headache, inability to read and some physical incapacity; and
(b)departmental failure -
the granting by Centrelink of the disability support pension on 2 August 1995 was in error and their failure to review the Applicant's circumstances in accordance with their own instructions, ensured that the original mistake was perpetuated Re Brown (supra); and
(c)the continuance of the issue of the overpayments was in itself causing the Applicant increasing stress and that her medical condition was destabilising (Re Clack (supra).
The Tribunal in considering the circumstances nominated acknowledges that the Applicant has sequelae resulting from her stroke of 1994, and these include memory loss, personality change, headache, an inability to read and physical impairment. The Tribunal acknowledges that her continued rehabilitation program involves a variety of activities, which with perseverance she is able to undertake. Such activities, the Tribunal has been informed, include an ability to manage her own bank account, and to undertake some of the household duties. The Tribunal, in acknowledging that she is impaired as a consequence of a stroke, does not in the circumstances see the medical condition being described as possessing that particular quality of unusualness that permits it to be described as special. In effect it is the Tribunal's finding that the circumstances of her medical condition are not unusual, uncommon or exceptional.
In considering the issue of ongoing failure by Centrelink to undertake a review of the Applicant's circumstances in accordance with its own instructions, the Tribunal can only conclude that for whatever reason it occurred, it is administrative error and administrative error in these matters does not, in the Tribunal's view, constitute special circumstances, either standing alone or in combination with other circumstances.

In turning to the issue that the overpayments have led to increased stress on the Applicant causing some increased symptomatology for the Applicant, the Tribunal again concludes that an increase in stress levels is a natural consequence of any overpayment situation. In the circumstances of these two matters, the Tribunal was not addressed on matters pertaining to the financial circumstances of the Applicant, other than that her husband is no longer being paid at the overtime rate he was previously experiencing. The Tribunal, while sympathetic to the position the Applicant is in, can only conclude that the circumstance as presented is not an uncommon, unusual or exceptional circumstance.
Similarly when considering all the circumstances together, the Tribunal finds that they do not in themselves constitute an unusual, exceptional or uncommon set of circumstances which could be classed as special.
It is the Tribunal's finding that special circumstances are not found to exist in these two matters and accordingly the Applicant fails to satisfy subsection 1237AAD(b) of the Act.
Finally the Tribunal turns to a consideration as to whether any of the overpayments can be varied as a consequence of sole administrative error made by the Commonwealth. The Tribunal has also already considered that in the absence of any evidence to the contrary, the decision to grant the Applicant's claim for disability support pension was an administrative error. The Tribunal further finds that the decision was taken by the Respondent with evidence of overtime payments to the Applicant's husband being available, and that the decision to grant the Applicant's disability support pension in such circumstances was an administrative decision made in error and solely attributable to the Respondent.
As a consequence the Tribunal finds that waiver for administrative error under subsection 1237A(1) of the Act should occur for any overpayments that occurred from the commencement of payments for disability support pension and additional family payments until 18 August 1995, this being 14 days after the letter of notification of 4 August 1995 advising the Applicant of her grant of disability support pension and nominating that the Applicant must advise within 14 days where the combined gross weekly income exceeds $650.73.
DETERMINATION
The Tribunal determines that:
(1)the decisions under review be varied in so far as debt arising from overpayments for disability support pension for the period 29 June 1995 to 18 August 1995 and for additional family payment for the period 6 July 1995 to 18 August 1995 are waived; and
(2)the remainder of both decisions is affirmed; and
(3)the matters be remitted to the Respondent to recalculate the debt owing.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J.D. Campbell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  16 February 2000
Date of Decision  28 June 2000
Solicitor for the Applicant         Ms R. Lee
Solicitor for the Respondent    Ms H. Schuster

[2000] AATA 520

28 June 2000

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Overpayment

Debt

Duty to Notify

Failure to Notify

Fraudulent Claim