Bell; Secretary to the Department of Family and Community Service S
[2003] AATA 953
•25 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 953
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/755
GENERAL ADMINISTRATIVE DIVISION
Re: SECRETARY TO THE
DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES
Applicant
And: JOHN ARTHUR BELL
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 25 September 2003
Place: Melbourne
Decision:The Tribunal varies the decision under review, by deciding as follows:
(a)that the respondent was overpaid disability support pension between 15 November 1999 and 27 March 2001;
(b)that the exact amount owed by the respondent to the Commonwealth be re‑calculated by Centrelink; and
(c)that the respondent's marriage‑like relationship terminated on or about 30 June 1997 and therefore no debts arise from a failure to declare the respondent's partner's income.
(sgd) E.A. Shanahan
Member
SOCIAL SECURITY - disability support pension - newstart allowance - variable employment - whether in marriage‑like relationship - failure to declare earnings in full - debt owed to the Commonwealth - discretion to waive - administrative error
Social Security Act 1991 ss.4(2)(a), (3), 24(1), 657, 1223(1), (5), 1224, 1236, 1237A,
1237AAD
Re Hazim and Secretary, Department of Family and Community Services (2002) 68 ALD 39
Re Holmes and Secretary of Department of Social Security (AAT 4046, 23 December 1987)
Boscolo v and Secretary, Department of Social Security (1999) 90 FCR 531
Staunton‑Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Re Peck and Secretary, Department of Social Security (1992) 76 SSR 1107
Re Griffiths and Secretary to Department of Social Security (1994) 82 SSR 1202
Re Secretary, Department of Social Security and Szelag (1992) 26 ALD 57
REASONS FOR DECISION
25 September 2003 Miss E.A. Shanahan, Member
1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) made on 3 June 2002, wherein the SSAT determined that the respondent (John Arthur Bell) was not in a marriage‑like relationship during the relevant periods and that, while overpayment of disability support pension had been made from 15 November 1999 to 27 March 2001, this debt was waived as being totally attributable to an administrative error on the part of Centrelink (s1237A(1) of the Social Security Act 1991 (the Act)). The primary decision‑maker, a delegate of Centrelink, had assessed the total debt owed as $26,636.03, based on the respondent's failure to correctly declare his income and failure to declare his partner's income. An authorised review officer (ARO) affirmed this decision on 18 December 2001.
2. At the hearing before the Tribunal, the applicant was represented by Mr B. Sparkes, a Centrelink advocate, and the respondent by Ms D. Rasheva, of counsel, instructed by Legal Aid Victoria. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The parties tendered the following documents:
An extract from the Guide to Social Security Law Exhibit A1
An extract from the Guide to Social Security Law,
Rates of Pension Exhibit A2
Details of Ms L. Opletal's pay slips Exhibit A3
Payment summary for the respondent Exhibit A4
An extract from Centrelink's computer regarding employment
earnings of the respondent Exhibit A5
An extract from the Guide to Social Security Law, detailing
qualifications for disability support pension during employment Exhibit A6
A witness statement of Mr D. Mortimer, Centrelink investigation
officer) dated 28 April 2003 Exhibit A7
Bundle of five statutory declarations from a variety of persons Exhibit R1
The respondent and Ms Opletal attended the hearing and gave evidence, as did Mr Mortimer.
ISSUES BEFORE THE TRIBUNAL
3. The issues before the Tribunal were, first, whether the respondent had failed to declare his income at all times, and, secondly, whether or not he was in a marriage‑like relationship with Ms Opletal and therefore should have declared her, as his partner, income. There was no dispute regarding the respondent's qualification for disability support pension.
4. On 7 September 2001, a decision was made to raise debts for the following periods:
newstart allowance from 4 July 1997 to 10 July 1997,
newstart allowance payments from 11 July 1997 to 26 November 1998,disability support pension payments from 10 December 1998 to 24 June 1999,
and similar payments for
21 July 1999 to 27 March 2001
The debt owing to the Commonwealth, in total, was $26,636.03.
5. At the commencement of the hearing Mr Sparkes advised that the newstart allowance debt of $10,129.10, for the period 11 July 1997 to 26 November 1998, was not due to the respondent's failure to advise his earnings, but only the failure to advise of Ms Opletal's earnings.
BACKGROUND TO THE APPLICATION
6. The respondent had known Ms Opletal from approximately 1992, as their respective sons were friends. One of Ms Opletal's sons moved into the respondent's home in Glen Waverley, and some time later Ms Opletal and her other son took up residence at Glen Waverley. Ms Opletal and her sons rented accommodation from the respondent. The families frequently spent weekends in Bonnie Doon water skiing. In late December 1996, after a marriage‑like relationship had commenced between the respondent and Ms Opletal, they decided to buy a property in Bonnie Doon as a holiday house. A mortgage was taken out in joint names and the property, at 9 Hillcrest Road, Bonnie Doon (the Bonnie Doon property), was purchased. The respondent took up permanent residence at the Bonnie Doon property in approximately February 1997 and Ms Opletal shortly thereafter, when she obtained employment at a local hospital. The respondent obtained employment as a truck driver with Mt Buller & Mansfield Freight (Buller Freight). At this time a marriage‑like relationship existed between the respondent and Ms Opletal. The applicant maintains that this relationship continued until late 2001, whereas the respondent and Ms Opletal contend that their marriage‑like relationship ceased late June 1997 or early July 1997.
7. Having lost his job as a truck driver, the respondent applied for newstart allowance on 27 June 1997 and remained in receipt of such payments until 26 November 1998. He notified Centrelink of some, apparently not all, of his earnings during this period and at no time declared a partner income for the purposes of estimating his newstart allowance. On 6 October 1998, the respondent applied for a disability support pension, which was subsequently granted. Centrelink was notified of his earnings intermittently and the disability support pension payments were suspended or reduced according to his earnings. At no time was Ms Opletal's income advised to Centrelink for the purpose of disability support pension calculations. On 13 March 2001, the respondent lodged a claim for worker's compensation for a work‑related injury and his disability support pension subsequently ceased. The respondent has not been in receipt of any social security payments since that date and has returned to Melbourne to live and work. On 1 December 1999, Ms Opletal re‑financed the loan on the Bonnie Doon property in her name alone, although the respondent was named guarantor.
EVIDENCE BEFORE THE TRIBUNAL
8. Mr Mortimer, a Centrelink investigation officer, working in a regional Customer Service Centre, had provided proof of evidence (Exhibit A7) and gave evidence to the Tribunal. Mr Mortimer outlined the normal procedures used by Centrelink to gather information about recipients of various pensions. Persons in receipt of a newstart allowance were required to complete a declaration of income on a fortnightly basis. Recipients of disability support pension are not required to submit fortnightly forms, but are instructed to advise Centrelink of any change in employment and income. The method of determining the payment of all allowances was described. If a recipient of a disability support pension is working for more than 30 hours per week or if income is beyond a certain amount, disability support pension will be suspended. This suspension is provided for in the legislation for up to a period of 2 years. A recipient of a disability support pension remains qualified throughout this period but payment will vary.
9. Mr Mortimer had been involved in the investigation of the respondent's employment and whether or not he and Ms Opletal were in a marriage‑like relationship. He and another officer had attended the Bonnie Doon property and interviewed the respondent. He confirmed to Ms Rasheva that at the time of the visit, the respondent was occupying the downstairs floor of the two‑storey property. During the interview, the respondent had volunteered the information that the photograph of a blond woman next to his bed was that of his current girlfriend. The respondent also informed the investigators that he had signed a statutory declaration to the effect that the Bonnie Doon property was to be owned by Ms Opletal only, despite the title at the time remaining in both names. Mr Mortimer confirmed that the Bonnie Doon property had been financed by a home loan and was jointly owned by the respondent and Ms Opletal.
10. Ms Rasheva took Mr Mortimer through the various documentation, confirming that the loan was granted in joint names, that the respondent had nominated Ms Opletal as his next of kin in various employment applications, and that Ms Opletal had described the respondent as her de facto husband in her application for employment to the local hospital. At the time of the interview, which Mr Mortimer thought was in about May 2001, the respondent had advised that the marriage‑like relationship between him and Ms Opletal had ceased shortly after they reallocated to Bonnie Doon. Despite that advice, the respondent had continued to nominate Ms Opletal as his de facto wife in 1999, as a contact person and was described as his partner by Combrook rehabilitation unit on 30 April 2001. In early 2001, the respondent was working in Melbourne and was living in a Melbourne suburb. Centrelink had subsequently received an anonymous telephone call to the effect that the respondent was travelling to and from Melbourne and Bonnie Doon, working in Melbourne during the week and residing in Bonnie Doon on the weekends.
11. In re‑examination, Mr Mortimer agreed that, in completing the worker's compensation claim form on 13 March 2001, the respondent had indicated that his marital status was a de facto relationship. The name of the de facto was not entered on the form. The respondent had maintained, throughout the interview with Mr Mortimer, that his relationship with Ms Opletal had ceased in 1997.
12. The respondent outlined his relationship to Ms Opletal who he had first met in approximately 1991, just prior to his second marriage. This marriage failed within a few years. In approximately 1993 he commenced seeing Ms Opletal on a more regular basis when they would socialise with friends. Ms Opletal's son, for reasons of his education, moved into the respondent's home in Glen Waverley and Ms Opletal paid the respondent $45 a week in rent. When a room in the respondent's home became vacant, Ms Opletal moved into the Glen Waverley property as a paying boarder. Toward the end of 1996, a sexual relationship developed between Ms Opletal and the respondent. In late 1996, they decided to purchase a holiday home in Bonnie Doon. As neither of them was able to afford to buy the property on their own, they did so jointly with the respondent contributing $5000 in cash to the $130,000 mortgage.
13. Both Ms Opletal and the respondent were employed in the Bonnie Doon area, but the respondent lost his job after approximately two months. While unemployed, he started gambling on the poker machines and drinking to excess. This caused friction between the couple and they commenced arguing over money. The respondent was not contributing to the mortgage, or the upkeep of the property. Their relationship ended, according to the respondent, late in June 1997. As the house was two‑storey and constituted two totally self‑contained areas, it was decided that the respondent would occupy the ground floor area and Ms Opletal the first floor area. The respondent was to pay rent but frequently was unable to do so, and Ms Opletal took total responsibility for the payment of the mortgage. In July 1997, the respondent had signed a statutory declaration to the effect that Ms Opletal had full control of the property and she was paying the mortgage.
14. The respondent had difficulty remembering exact dates and gave evidence that he had been involved in a motor cycle accident in 1988 wherein he suffered a head injury, which had affected his memory.. Following the time of their separation, the respondent stated they did not go out as a couple although their neighbours would occasionally visit for a drink. He had told his son and his brother of the separation and within a short period of time, the neighbours at Bonnie Doon became aware that he and Ms Opletal were occupying separate areas in the house. The respondent confirmed that there had been no sexual relationship between him and Ms Opletal since late June 1997. They had, however, travelled to Europe together in 2000, when Ms Opletal returned to visit her family in the Czech Republic. While they travelled to and from Prague together, the respondent had made his own way around the countryside, staying at backpacker hostels.
15. Ms Rasheva took the respondent through his various applications for employment over several years wherein he had declared Ms Opletal as his partner, de facto or next of kin. In his application for employment with Keath's Excavations Pty Ltd (Keaths), where he commenced working on 15 November 1999, the respondent had described Ms Opletal as his de facto. He told the Tribunal that he had done this so that he would not have to work on logging runs involving him to be away over night. He admitted this had been a lie. When applying for a job at the Delatite Shire in April 1998, he had described Ms Opletal as his next of kin or contact person as she was geographically the closest person. The respondent claimed he had had difficulty notifying Centrelink of his earnings while in receipt of a disability support pension as he was working in heavy timbered country and did not have access to telephones. He agreed that he was frequently late in advising Centrelink of his earnings. The respondent confirmed that he had moved away from the Bonnie Doon property approximately 2 years ago (i.e. May 2001 or June 2001). He is now living in Aspendale and working in Melbourne. During that period of 2 years, he would have visited Bonnie Doon up to 12 times.
16. In cross‑examination, the respondent stated he had no knowledge of the fact that he was still guarantor for Ms Opletal's current mortgage on the Bonnie Doon property. He felt he could not possibly have been accepted as a guarantor as he had no assets whatsoever. At the time of his WorkCover accident Ms Opletal had given him some advice regarding analgesics and what position to lie in, but had not provided any care. Once more, he went through the overseas trip to the Czech Republic and reiterated that he did not travel with Ms Opletal while within the Czech Republic. He agreed he had not informed Centrelink that he was going overseas for four to six weeks, as he did not realise he had a liability to do so. The respondent agreed he had lied in his application to the Keaths, when he stated he was in a de facto relationship. He justified this by saying that he was trying to guarantee his employment. When told by Centrelink he had to notify them after he earned $100 per week, he had interpreted this to mean the first $100 was exempt and had no influence on his rates of pension. Mr Sparkes asked the respondent when he had sold his home in Glen Waverley. He was unable to provide, or recollect, the date. He had certainly not declared ownership of the home in Glen Waverley when he applied for newstart allowance on 2 July 1997. Nor had he declared his joint ownership of the Bonnie Doon property. He had declared ownership of a block of land at Hervey Bay in Queensland.
17. The respondent was unable to remember when he had sold his home in Glen Waverley, but thought it must have been about August 1997. He pointed out that he had a memory problem secondary to his motor cycle accident in 1988. The respondent agreed that he had finished work with Buller Freight on either 26 June or 30 June, following which he travelled to Melbourne. When he returned to Bonnie Doon the next day, he signed the statutory declaration, prepared by Ms Opletal, transferring all interest in the Bonnie Doon property to her. There was some doubt as to the actual date of signing, as the respondent felt it was more likely mid‑July. While consideration had been given to selling the Bonnie Doon property after their relationship had finished, the value of the property had reduced considerably as a result of the drought.
18. Mr Sparkes went through the respondent's employment history in some detail, noting that he had been sacked by Buller Freight in June 1997. The respondent was of the opinion that his sacking had related to he and another driver reporting the carrying of meat in non‑refrigerated vehicles. This was in contrast to the employer's reasons for termination being that the respondent had lied to management, was unreliable and deceptive. In his application for work with Keaths, which commenced in November 1999, the respondent had named Ms Opletal as his next of kin. The respondent denied that he had ever declared Ms Opletal as his de facto to the authorised review officer.
19. The respondent confirmed that he was supposed to pay Ms Opletal rent of $60 or $70 a week, but frequently did not have the money. He purchased and cooked his own food, and would have shared a meal with Ms Opletal 3 to 4 times over a period of nearly 12 months. He had paid for his overseas trip to the Czech Republic and all expenses concerned with that visit. He agreed he had continued to visit the Bonnie Doon property until approximately 2001, but rarely visited thereafter. He was now living and working in Melbourne. During the period he was in receipt of disability support pension payment, the respondent had worked in a seasonal manner with varying weekly incomes and there were several periods when he did not work at all. When he was working pension payments had been reduced. Mr Sparkes had conceded that, while receiving newstart allowance, the respondent had actually declared all of his income. The respondent could not recall whether or not he had ever under declared his income for the purposes of disability support pension. He also reiterated his problems of contacting Centrelink by telephone because of the hours he had been working while truck driving.
20. While in a marriage‑like relationship with Ms Opletal in Bonnie Doon, the respondent's Glen Waverley home had been occupied by Ms Opletal's sons. They were not paying rent but were expected to care for the house and maintain the garden, which they failed to do. Because of this lack of care, the respondent put the property on the market, sold it within a week and, after repaying the mortgage on that home, he had approximately $40,000 in cash, which he used to pay off his motor vehicle loan, to purchase a new motor vehicle and to pay some other debts. Despite repeated questioning, the respondent was unable to provide the exact dates or exact amounts relating to loans.
21. Ms Opletal's evidence supported that given by the respondent. She confirmed there had been a marriage‑like relationship for a period of six months, commencing in December 1996 and ending late June 1997. She had ended the relationship because the respondent had lost his job, had resumed gambling and drinking, and had also been seen in the presence of other women. She alone was paying the mortgage and the respondent only very occasionally paid her rent after the dissolution of their relationship. In July 1997 she prepared a statutory declaration, which he subsequently signed. She did not obtain legal advice at the time, but in 2001 did consult a solicitor and had the property transferred to her name alone. She was unaware that the respondent was named as guarantor in the mortgage that she had taken out on the Bonnie Doon property in late 2001. She confirmed that, when the respondent did visit the Bonnie Doon property, he lived quite separately in the downstairs area. In late 2000 they travelled together to Prague, as she had many years before suggested that he should visit Europe.
22. Ms Opletal agreed she had stated in May 1997 that the respondent was her de facto husband at the time she commenced working at the local hospital. She claimed her details had not been updated since that time. All sexual relationships had ceased after June 1997. In cross-examination, Ms Opletal stated that she had destroyed the statutory declaration after she had had the property transferred solely into her name, late 2001/early 2002. She confirmed that they had, after the end of June 1997, lived in separate parts of the houses, that the respondent had rarely paid any rent but he occasionally mowed the lawn and did minor renovations. She had ended the relationship because she felt the respondent had lied to her and was untruthworthy.
23. In answer to a question posed by the Tribunal, Ms Opletal believed that the Glen Waverley house had been sold some time prior to October 1997.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
24. The T documents contain detailed reports and data relating to the respondent's earnings during the period under consideration and also to his payments for newstart allowance and disability support pension by Centrelink during the same period. Records of payment from his various employers have also been included in the T documents. The employers' records also note, up until March 2001, as does the WorkCover claim, that the respondent nominated Ms Opletal as either his de facto, his next of kin or next contact person.
25. The T documents contain several statutory declarations and at the hearing the respondent tendered further statutory declarations (Exhibit R1) made by relatives of both the respondent and Ms Opletal, and also by members of the Blair family who reside at 7 Hillcrest Road, Bonnie Doon. The family members and a close friend, Mr R. Fitzpatrick, were adamant that the marriage‑like relationship between the respondent and Ms Opletal had ceased at the end of June or early July 1997. The statutory declarations of the Blair family, namely Cheryl, Peter and Ian Blair, were less equivocal in their statements, all stating to the best of their knowledge the respondent was resident in the downstairs section of the property and Ms Opletal in the first storey section of the property.
SUBMISSIONS
26. Mr Sparkes identified the primary issue as to whether or not a marriage‑like relationship had existed after 27 June 1997 and continued until March 2001. Section 4(3) of the Act outlines the criteria …in forming an opinion about the relationship of parties as a member of a couple. The Tribunal noted this, as it was by the SSAT and the Department of Family and Community Services.
27. Mr Sparkes drew the Tribunal's attention to the fact that the ownership of the Bonnie Doon property was transferred to Ms Opletal only after Centrelink had raised the debt owed by the respondent to the Commonwealth. He also pointed out the statutory declaration (since destroyed) does not have the force of a contract or a deed. Mr Sparkes submitted that the major factors indicating an ongoing marriage‑like relationship were, first, the parties lived in the same residence (Re Sturges and Director-General of Social Security (1983) 5 ALN N151); secondly, they did share some meals, some duties and occasionally watched television together; and, thirdly, in the year 2000 they undertook an overseas trip for a period of four to six weeks. Mr Sparkes contended, on the balance of probabilities, there was a marriage‑like relationship and that s24 of the Act, discretionary powers in conjunction with s4(6), should not apply (Boscolo v and Secretary, Department of Social Security (1999) 90 FCR 531.
28. Thus, a debt arose to the benefit of the Commonwealth and none of the waiver provisions (s1237A or s1237AAD) applied. The respondent's failure to advise his earnings to Centrelink was limited to the period November/December 1999 to March 2001. Mr Sparkes submitted there was no administrative error on the part of Centrelink and that the SSAT's decision was wrong in law (s94 of the Act).
29. The major issue of the respondent's credibility was commented upon. The Tribunal's attention was brought to the fact that the respondent's evidence was inconsistent, he had admitted to making false statements and also to failing to advise Centrelink of property owned in June 1997.
30. Ms Rasheva submitted that the respondent was living separately but under the same roof as his former partner, Ms Opletal. She referred to the decisions of Re Hazim and Secretary, Department of Family and Community Services [2001] AATA 204; Re Holmes and Secretary of Department of Social Security (AAT 4046, 23 December 1987); and Staunton‑Smith v Secretary, Department of Social Security (1991) 32 FCR 164. Ms Rasheva further submitted the respondent's failure to pay rent and other support in respect of the Bonnie Doon property related to his gambling habit. She contended that the respondent was a credible witness and had not declared his income to Centrelink while in receipt of disability support pension because he had not received instructions to do so.
31. Ms Rasheva sought leave to obtain the report dated 11 March 1994 of Associate Professor J. Horne, Reader in Psychology, regarding the respondent's psychological assessment secondary to his 1988 head injury. Leave was granted and further submissions were requested following the receipt of Associate Professor Horne's report. Ms Rasheva submitted that the respondent's evidence was suggestive of a problem with his memory. In addition, it was put that the fact that the respondent and Ms Opletal had purchased the Bonnie Doon property, in joint tenancy, was of no consequence (Re Peck and Secretary, Department of Social Security (1992) 76 SSR 1107; Re Griffiths and Secretary to Department of Social Security (1994) 82 SSR 1202; and Re Secretary, Department of Social Security and Szelag (1992) 26 ALD 57). Ms Rasheva stated that there was no marriage‑like relationship.
32. The Tribunal subsequently received the report of Associate Professor Horne who had assessed the respondent in December 1993 and March 1994. Associate Professor Horne, after extensive psychological testing, concluded that the respondent had significantly and permanently impaired concentration, poor recall and dis‑inhibited mood consistent with right frontal/temporal lobe damage. The respondent was found to be bright/average on testing for arithmetic and comprehension. Following receipt of this report, the applicant made further written submissions on 30 June 2003 and the respondent on 27 June 2003.
33. The applicant conceded that the inconsistencies in the respondent's evidence could be attributable to his past head injury, but did not account for matters such as his failure to declare ownership of the Glen Waverley house and his continuing practise to 13 March 2001 to declare Ms Opletal as his de facto. The latter matters, it was contended, went to the respondent's credit.
34. The respondent submitted that the inconsistencies in evidence related to cognitive difficulties and that the respondent and Ms Opletal's ignorance of financial matters have resulted in their apparent continued joint ownership of the Bonnie Doon property until late 2001/early 2002.
CONSIDERATION OF THE EVIDENCE
35. The Tribunal found the evidence at times confusing. It was, however, clear that the respondent did not declare his ownership of the Glen Waverley property or his joint ownership of the Bonnie Doon property when applying for newstart allowance and had failed to declare his earnings in totality while in receipt of social security payments.
36. On the evidence of the respondent, Ms Opletal and the statutory declarations provided by various persons (Exhibit R1), a marriage‑like relationship existed between the respondent and Ms Opletal from December 1996 to the end of June or early July 1997. After that date, they continued to live separately under the same roof, until approximately March 2001. The Tribunal accepts the evidence that the marriage‑like relationship ceased on or about 30 June 1997.
37. Various entries in the T documents record that both the respondent and Ms Opletal had declared themselves to be in a de facto relationship. The respondent continued to do so, or at least to name Ms Opletal as his next of kin or person of contact, after 30 June 1997.
38. The Bonnie Doon property remained in joint names until late 2001, when Ms Opletal re‑financed the loan in her name. Evidence was given that the respondent signed a statutory declaration in July 1997 to the effect that ownership of this property was to be in Ms Opletal name only. He surrendered his interest in her favour. This statutory declaration was destroyed in late 2001.
39. The applicant conceded that there was no debt owing by the respondent while he was in receipt of newstart allowance, based on his earnings.
40. As the Tribunal accepts the marriage‑like relationship ceased on 30 June 1997, Ms Opletal's income has no bearing on the calculation of the respondent's newstart allowance and disability support pension payments after that date.
41. Disability support pension payments from 15 November 1999 until 27 March 2001 were in excess due to the respondent's failure to declare his total earnings. This gives rise to a debt owed to the Commonwealth. The SSAT had waived this debt under s1237A(1) and s1237A(1A) of the Act on the basis of an administrative error by Centrelink. In the SSAT's opinion, Centrelink had failed to cancel the respondent's disability support pension, as he was not qualified for this pension between 15 November 1999 and 27 March 2001. He had worked greater than 30 hours per week during this period.
42. The Act provides that, if disability support pensioners work greater than 30 hours per week or if income earned precludes payment of the pension, the individual remains qualified for disability support pension but payment is suspended (trans p.12, line 28).
43. The Tribunal finds that the respondent owes a debt to the Commonwealth for overpayment of disability support pension during the period 15 November 1999 to 27 March 2001. The matter is remitted to Centrelink for re‑calculation of the amount of the debt.
44. As the marriage‑like relationship with Ms Opletal ceased on 30 June 1997, no debts arose from a failure to declare Ms Opletal's income.
I certify that the forty‑four [44] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 6 June 2003
Date of Decision: 25 September 2003
Advocate for the applicant: Mr B. Sparkes, CentrelinkSolicitor for respondent: Ms D. Rasheva, Legal Aid Victoria
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