BETTY GREENBERRY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2009] AATA 717

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 717

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1898

GENERAL ADMINISTRATIVE DIVISION		)
Re		BETTY GREENBERRY

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date22 September 2009

PlaceSydney

Decision The decision under review is affirmed.

....................[Sgd]...................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – carer payment – already receiving service pension – debt due to the Commonwealth – whether debt should be waived – “special circumstances” – decision under review is affirmed.

Social Security Act 1991 (Cth) ss 202, 1223(1), 1236(1A), 1237A(1), 1237AAD

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

Beadle v Director-General of Social Security (1985) 7 ALD 670

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435

Re Colaiacolo and Secretary, Department of Social Security [1985] AATA 91

Re Davy and Secretary, Department of Employment & Workplace Relations (2007) 94 ALD 693

Re Hajar and Secretary, Department of Social Security (1988) 16 ALD 716

Re Secretary, Department of Family & Community Services and Jonauskas (2001) 65 ALD 553

Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

REASONS FOR DECISION

22 September 2009 Ms N Isenberg, Senior Member   

background

1.      Mrs Greenberry cared for her husband, Ken (‘Mr Greenberry Senior’), during his long final illness.  For some time before he passed away in February 2007, she was paid carer payment and carer allowance for her caring role. 

2.      On 15 May 2007, Mrs Greenberry attended a Centrelink office, apparently enquiring about her Department of Veterans’ Affairs (‘DVA’) pension.  Her Centrelink file notes that she was given a telephone number for DVA and told to contact DVA. 

3.      On 10 January 2008, Mrs Greenberry lodged a claim for carer payment as she was caring for her grandson, James, on a daily basis.  She was given additional forms to complete including an income and assets form which she later lodged.  On the form, she indicated that she was not receiving payments from an Australian government department other than Centrelink.  She was granted carer payment in respect of her care for James from 3 January 2008.  

4.      On 28 August 2008, Centrelink conducted a data matching program with DVA whose records showed that Mrs Greenberry had been receiving a DVA service pension since 12 December 1987.  Mr Greenberry Senior and Mrs Greenberry both served in the British services during WWII.  The available information from DVA’s records is unclear if this was related to her or her husband’s service.

5.      As a result, on 21 October 2008, Centrelink raised a debt of $12,559.93 against Mrs Greenberry for overpayment of carer payment for the period 3 January 2008 to 29 September 2008 (‘the relevant period’) on the basis that Mrs Greenberry was not entitled to receive carer payment while also receiving a DVA service pension.  That decision was affirmed on internal review and by the Social Security Appeals Tribunal.  On 5 May 2009, the present application for review was lodged.

issues before the tribunal

6.The issues are:

·Whether there is a debt of $12,559.93 owing to the Commonwealth by Mrs Greenberry due to the overpayment of carer payment in the period 3 January 2008 to 29 September 2008;

·If there is a debt, whether there is any reason the debt should not be recovered.

legislation

7. A person is precluded from receiving carer payment if he or she is already receiving a service pension: section 202 of the Social Security Act 1991 (‘the Act’).

8. The relevant legislation in respect of recovery of debts is contained in the Act, in particular sections 1237A and 1237AAD.

the hearing

9.      l had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), which I took into evidence.  The following documents were also tendered:

·a bundle of Mrs Greenbury’s documents lodged on 27 August 2009; and

·a bundle of documents relating to the respondent’s request for information from Dun & Bradstreet (Australia) Pty Ltd.

10.      Mrs Greenberry is nearly 83 and was assisted by her son, Andre (‘Mr Greenberry’), who also gave evidence.

consideration of evidence and findings

11. The respondent submits, and I accept, that Mrs Greenberry owes a debt of $12,559.93 to Centrelink for overpayment of carer payment during the relevant period. The legislation is clear: Mrs Greenberry was not entitled to receive carer payment while in receipt of a DVA service pension pursuant to section 202 of the Act.

12. Subsection 1223(1) of the Act provides that if a payment is made to a person who is not entitled to that payment then the amount so paid is a debt due to the Commonwealth. In this case, there is a debt due to the Commonwealth pursuant to subsection 1223(1) of the Act.

are there any reasons why the debt should not be recovered?

13. The Act makes provision in limited circumstances for debts not to be recovered. Pursuant to subsection 1236(1A) of the Act, a debt may be written off in very specific circumstances, only if:

i.the debt is irrecoverable at law; or

ii.the debtor has no capacity to repay the debt; or

iii.the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

iv.it is not cost effective for the Commonwealth to take action to recover the debt.

14.      None of these circumstances apply to Mrs Greenberry.  The debt is being recovered by deductions from Mrs Greenberry’s Centrelink carer allowance payments of $105.10 per fortnight at the rate of $15.00 per fortnight.  Mrs Greenberry had no idea how much her DVA pension is.  Mr Greenberry did not know either as he does not have access to his mother’s bank account; Mrs Greenberry has lost her bank passbook 5 times and it is now retained by the bank.  The DVA website notes that the maximum fortnightly service pension rate for a single pension is $569.80.  The evidence was that Mrs Greenberry has no other assets, and so it is reasonable to assume that her DVA pension is at or near the maximum.

15. Consequently, it is inappropriate to write off the debt under section 1236 of the Act as Mrs Greenberry has the capacity to repay the debt.

16.      A debt may be waived under subsection 1237A(1) providing two conditions are met:

·     the debt arose solely because of an administrative error made by the Commonwealth; and

·     the payments were received by the debtor in good faith.

Was the debt solely attributable to an administrative error made by the Commonwealth?

17.      Mr Greenberry submitted that Centrelink was on notice from 15 May 2007 that his mother was receiving a service pension and should not therefore have paid her carer payment when it was later claimed. 

18.      It is unclear why Mrs Greenberry attended Centrelink to enquire about a DVA pension.  It was soon after the death of her husband and Mr Greenberry thought it might have been to cancel his father’s pension.  Mr Greenberry is himself a veteran and could not explain why the family had his mother make enquiries at the wrong agency.

19.      Upon careful reading of the Centrelink file note, it does not mention that Mrs Greenberry was being paid a service pension, only that she produced a DVA concession card.  Mrs Greenberry herself had no recollection of attending Centrelink to enquire about her DVA pension but the nature of her enquiry appears to be such that it related to a DVA matter as that is where she was referred. 

20.      Mr Greenberry also contended that his mother did not seek carer payment but that Centrelink had ‘offered’ it.  However to proceed with an application a claim must be made.  Centrelink, correctly in my view, notes that on her income and assets form no mention was made of the DVA pension notwithstanding that a claimant is specifically asked at Question A17, “Do you (and/or your partner) receive payments from an Australian government department other than Centrelink? E.g. DVA payment …”. The “No” box was ticked.

21.      Mr Greenberry said that he had completed that form and had his mother sign it.  He could not explain why he had omitted reference to the DVA pension his mother was receiving.  He did observe that his father had handled all his parents’ finances, and after he passed away the family had difficulty piecing together ‘the paperwork’.  I note however that the claim form was completed in January 2008, nearly 12 months after Mr Greenberry Senior had passed away.  As Mrs Greenberry receives her pension at least monthly, I do not accept that receipt of the DVA pension had gone unnoticed in that time. 

22.      I therefore find that the debt did not arise solely from Centrelink’s error.  Having come to this view it was not necessary for me to consider whether the payments were received in good faith. 

waiver under section 1237AAD: “special circumstances”

23.      The waiver is only available if the debt did not result wholly or partly from the debtor (or another person) knowingly making a false statement or a false representation, or failing or omitting to comply with a provision of the legislation.

24.      Therefore, before considering Mrs Greenberry’s circumstances I must be satisfied that she is not precluded from consideration on this basis.  

25.      While the omission to note the DVA pension on the income and assets form was conceded by Mr Greenberry to be a false statement, I accept that Mr Greenberry, on his mother’s behalf, did not intentionally or deliberately set out to mislead Centrelink. Inadvertent or unintentional failure does not constitute “knowingly”, even when an applicant knows he or she needs to notify Centrelink: Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435.

Are there special circumstances (other than financial hardship alone) that make it desirable to waive the debt?

26. The Act provides no guidance as to the meaning of the term “special circumstances” in that provision. In Beadle v Director-General of Social Security (1985) 7 ALD 670 (‘Beadle’s Case’), the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss” (at [674]). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security (1984) 6 ALD 1) where (at [3]) the Tribunal had acknowledged that the term was “incapable of precise or exhaustive definition" and that, to be special, the circumstances “must have a particular quality of unusualness that permits them to be described as special”. See also Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 per Besanko J at [33].

27.      In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Full Federal Court's decision in Beadle’s case, observed (at 545) that special circumstances:

… would require something to distinguish... [the]… case from others, to take it out of the usual or ordinary case. …It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

28.      Evidence was given about several aspects of Mrs Greenberry’s personal circumstances which were said to be ‘special’.

Financial Hardship  

29.      Mr Greenberry said, and I accept, that his mother has no assets other than some furniture.  Mrs Greenberry said she had no idea what she had done with the $12,000.00 excess she had received. 

30.      Mrs Greenberry currently receives carer allowance of $90.10 per fortnight (after repayment) in addition to her DVA service pension.  I was informed that on 18 June 2008, she received a carer supplement payment of $1,200.00.  Mrs Greenberry said she was not interested in money and will go to the bank every month and withdraw whatever she has received. 

31.      Mrs Greenberry lives with her 3 adult grandsons in a house owned by her (other) son.  She pays her son no rent as such but will leave him some money on the kitchen table, or when he might drive her somewhere.  She pays for the lawn to be mowed and may buy food for the grandsons.  She cleans and she sometimes cooks for them.  She goes out with a friend once a week for coffee and goes to the club where she might play the poker machines a little.  There was no evidence that she has any debts.       

32.      In Re Colaiacolo and Secretary, Department of Social Security [1985] AATA 91, the Tribunal stated that the factor of financial hardship alone is not sufficient to amount to special circumstances unless it is “exceptional” and not merely “straitened”.

33.      In Re Hajar and Secretary, Department of Social Security (1988) 16 ALD 716, the Tribunal stated at [43] that:

Financial hardship has been considered as a possible component of special circumstances in a number of decisions. It is clear, however, that standing by itself, it would not amount to a "special circumstance": Re Beadle (1984) 6 ALD 1 at 4.  Furthermore the financial circumstances must be more than straitened. They must be "exceptional": (Re Colaiacolo [1985] AATA 91 at 19).

34.      The respondent submitted, and I accept, that Mrs Greenberry’s financial situation is neither straitened nor exceptional.

Age, ill health and the motor vehicle accident

35.      Mrs Greenberry is nearly 83.  When asked about her health she said that she takes ‘7 tablets a day’ for her thyroid and heart, but is otherwise in good health.  She is able to care for the house and maintains a vegetable patch.

36.      Mr Greenberry expressed concern about his mother’s capacity.  In his submission he wrote that his mother’s “diminished mental state has caused her to make many mistakes”.  In fact, it was clear from the evidence of both Mr and Mrs Greenberry that the relevant documents were not authored by her but by family members and that she was merely asked to sign them.  I note, however, that despite the family’s concern about Mrs Greenberry’s ‘diminished capacity’ no steps have been taken to arrange enduring guardianship or other similar measures, and she is the carer of one grandson.

37.      In July 2008, Mrs Greenberry caused a very serious motor vehicle accident at Penrith, in which several people were seriously injured.  It has never been ascertained why the accident occurred, other than to eliminate vehicle failure.  As a result, Mrs Greenberry was charged with driving offences and has had to relinquish her licence.  She had neglected to pay her comprehensive insurance and was pursued by several insurance companies.  Those debts have been written off due to her inability to pay them.

38.      The motor vehicle accident caused Mrs Greenberry considerable distress.  The letter from her doctor, Dr Bassa, describes her remorse, and that she is tearful and emotional and at times incoherent.  This was also my observation of Mrs Greenberry at the hearing. 

39.      Dr Bassa also wrote of Mrs Greenberry’s dependence on her late husband and that she had become very frail and frightened, disorganised and vulnerable after he died.  This too, was consistent with my observation of her at the hearing. 

40.      In Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464, the Tribunal found ill health alone was not enough to be considered a special circumstance. The respondent contends that it is not uncommon, unusual or exceptional for elderly persons to suffer ill health or frailty: Re Secretary, Department of Family & Community Services and Jonauskas (2001) 65 ALD 553 at 554.

conclusion

41.      Each matter is different.  In the present matter, I accept that Mrs Greenberry was devastated by the loss of her husband and that her own condition has deteriorated since that time, and she has become frail.  She has become, at least insofar as her financial arrangements are concerned, now dependent on her family, just as she was formerly reliant upon her husband.  She was mortified at the accident she had caused.  However, Mrs Greenberry has had the benefit of over $12,000.00 to which she was not entitled.  She cannot account for the money, but I accept that money as such, does not interest her, and she spends all that she receives. 

42.      Taxpayers are entitled to expect that in the ordinary course money paid to Centrelink beneficiaries, which they are not entitled to receive, will be recovered: Secretary, Department of Social Security v Hales (1998) 82 FCR 154. Recently, that approach was adopted in Re Davy and Secretary, Department of Employment & Workplace Relations (2007) 94 ALD 693 at 716.

43. For the reasons given above, I have come to the conclusion that Mrs Greenberry’s circumstances, taken together, are not sufficiently unusual or unfair that would justify a waiver of some of the debt under section 1237AAD of the Act.

decision

44.      Accordingly, the decision under review is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed: ..........................[Sgd]..........................
  Associate: Jennifer Wong

Date of Hearing        11 September 2009
Date of Decision        22 September 2009 

Appearance for the Applicant        Mr A Greenberry

Advocate for the Respondent        Mr G Lozynsky, Centrelink Legal Services