Bhalabhadrapatruni and Secretary, Department of Social Services (Social services second review)
[2015] AATA 849
•12 October 2015
Bhalabhadrapatruni and Secretary, Department of Social Services (Social services second review) [2015] AATA 849 (12 October 2015)
Division
GENERAL DIVISION
File Number
2015/1833
Re
Pandurangao Bhalabhadrapatruni
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Damien Cremean, Senior Member
Date
Date of written reasons:
12 October 2015
5 November 2015
Place Melbourne Decision is affirmed.
.................[sgd]...... ......................
Senior Member
SOCIAL SECURITY—Newstart allowance—overpayment—ensuing indebtedness—whether debt to be written off or waived or not—“solely” —“special circumstances”—decision affirmed.
Legislation
Social Security Act 1991 (Cth), sections 1236,1237A(1) ,1237AAD
Cases
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25
Re Gerhardt and Department of Employment Education and Training [1996] AAT 173
REASONS FOR DECISION
Dr Damien Cremean
5 November 2015
The Applicant, who is now residing in India, seeks review of a decision of the Social Security Appeals Tribunal (SSAT) made on 10 March 2015.
That decision affirmed a determination made by Centrelink (the service delivery agency for the Department) on 31 October 2014 that –
(a)the Applicant received more in Newstart Allowance payment than he was entitled to receive during the period 3 October 2011 to 20 May 2014; and
(b)the Applicant must repay the ensuing debt of $17,416.05.
The hearing in this matter was conducted by telephone. The Applicant gave affirmed evidence but called no witnesses.
It is clear the Applicant received Newstart Allowance of $36,467.67from 3 October 2011 until 20 May 2014 (the relevant period). During the relevant period the Applicant’s wife, who is now also residing in India (but not with the Applicant) was earning regular income from the Sheila Baxter Training Centre (and/or Baxter Institute).
The Respondent contends that the Applicant’s wife made an application for a low income health card in which she was required to declare income. On 23 September 2014 Centrelink advised the Applicant that he had been overpaid Newstart Allowance between 8 August 2012 and 16 October 2012, because he had not correctly reported his wife’s income.
The Applicant sought to correct this version of events. In a document lodged with the Tribunal on 5 October 2015, he refers to a one sided outburst on 23 September 2014 from a staff member of Centrelink named Jenny, who was quite hostile and rang through to Canberra, he says, asking for a system error at Centrelink to be recorded as the reason why the overpayment had occurred. I am satisfied that nothing of any substance turns on whether this happened.
The Applicant then requested internal review of the 23 September 2014 decision. An Authorised Review Officer (ARO) made a determination on 31 October 2014 changing the debt period to 3 October 2011 to 20 May 2014 and recalculating the debt to be $17,416.05.
The Applicant did not dispute (and this was clarified with him) that the earnings of his wife, when taken into account in the calculation of his entitlement to Newstart Allowance, give rise to a debt of $17,416.05. That is, the calculation itself was not challenged by the Applicant. He contended however that the debt should be written off or waived. In a document he lodged with the Tribunal on 5 October 2015 he made a number of submissions in that regard referring to several authorities. In this document I also note that he makes an open offer —considering his age and employability - to honour 20 per cent of the debt due, which I think constitutes a significant admission.
The issues for determination by the Tribunal are thus whether the debt should be —
(a)written off under section 1236 of the Social Security Act 1991 (Cth); (the Act)
(b)waived under section 1237 A (1) of that Act; or
(c)waived pursuant to section 1237 AAD of that Act.
The Respondent contended that the debt should not be written off or waived.
A debt may be written off under section 1236 of the Act if, in brief, it is irrecoverable at law; the debtor has no capacity to repay it; the debtor’s whereabouts are unknown; and it is not cost-effective to seek to recover it.
I am satisfied that none of the conditions specified in section 1236 applies in this case. There is nothing in any of the Applicant’s materials to show that the debt is irrecoverable in law. On that basis alone I find he must fail under section 1236 of the Act. He has benefited to this point in having had $17,416.05 at his disposal — money paid wrongly or overpaid to him and to which he has no entitlement. This in the usual fashion is a debt recoverable in law.
There is nothing in the materials to show that the Applicant has no capacity whatever to repay the debt — although I agree his new circumstances in India will make this more difficult to do than if he was in Australia and it will perhaps take longer. Nonetheless he is still earning income in a job and I am not satisfied on any of the Applicant’s evidence that he lacks all capacity to pay it off over time; some capacity to make payments is sufficient for the purposes of the Act. The Applicant’s whereabouts are known and there is nothing in the materials to satisfy me that it is not cost-effective for the Commonwealth to take action to recover the debt.
I conclude on this point therefore, on the evidence, that nothing in the materials before me satisfies me that the debt should be written off under section 1236 of the Act.
A debt maybe waived under section 1237A(1) of the Act. That section provides that such portion of a debt as is attributable solely to an administrative error on the part of the Commonwealth must be waived if that portion of the debt was received in good faith.
There is no evidence before me that the Applicant received any part of the debt in question other than in good faith. I have no basis to make a finding that the Applicant is dishonest.
But I am not satisfied that the debt or any portion of it has arisen solely due to administrative error on the part of the Commonwealth. In the first place, I make the finding that there is no error on the part of the Commonwealth which I can identify. And this is despite what the Applicant says Jenny said on 23 September 2014. If Jenny did refer to system error — and I make no finding that was said – I cannot draw any inferences from that of administrative error. A system error could be a reference to any one of a number of things.
I find that the debt has come about by the failure of the Applicant to correctly report his wife’s earnings. He was required to do this and failed to do so. If there was any error on the part of the Commonwealth (and I do not find there was), given my finding above, the debt could not be solely due to that error. The word solely means exclusively: Re Gerhardt and Department of Employment Education and Training [1996] AAT 173. In such circumstances I consider the Note to the section applies: section 1237A(1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
I therefore reject the view that the debt may be waived under section 1237A.
A debt may be waived under section 1237AAD of the Act. To be waived a debt must not have resulted from the debtor knowingly making a false statement of failing to comply with a provision of the Act. (See section 1237 AAD(a).) Further, there must exist special circumstances making it desirable to waive the debt and those circumstances must be other than financial hardship alone. (See section 1237AAD(b)).
I have indicated that I do not have a basis for finding the Applicant is dishonest. I am not satisfied on the evidence that he knowingly made a false statement or false representation which resulted in the debt accruing. (See section 1237AAD(a)(i) of the Act.) However I am satisfied that I may find, and I do, that the Applicant knowingly failed to comply with a provision of the Act resulting in the debt accruing. He knew of the requirement to correctly report his wife’s earnings and this he failed to do.
But even if the Applicant did not know of this requirement, there are in my view no special circumstances making it desirable to waive the debt. For special circumstances to arise there must be something that distinguishes the case from the ordinary or usual case: see Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 at [33]. I acknowledge that the Applicant will face considerable hardship in having to repay the debt. This is so especially considering the lower wage he is now earning and the rate of exchange. But I cannot see any other circumstances in the materials which would be out of the ordinary or the usual. For example, he is not sick or ill and in need of money for his medical care. He is a working man in a regular job in India. The Act makes it clear in any event that financial hardship alone is not sufficient.
I therefore find there are no special circumstances in this case. The argument based on waiver under section 1237 AAD is also rejected.
In consequence, the Tribunal affirms the decision under review.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien Cremean
.....................[sgd].................................
Associate
Dated 5 November 2015
Date of hearing 12 October 2015 Applicant Pandurangao Bhalabhadrapatruni Advocate for the Respondent Anna-Lisa Short Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Appeal
-
Standing
0
1
0