Binks and Secretary, Department of Family and Community Services

[2004] AATA 257

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 257

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/517

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LEE-ANN BINKS

Applicant

And

SECRETARY, DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date12 March 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.....................(Sgd).....................

J Cowdroy
  Member

CATCHWORDS

SOCIAL SECURITY- overpayment - parenting payment - whether administrative error occurred - non-disclosure of change in circumstances – cross-reference of administration records - waiver of debt - whether debt should be waived in whole or part

Family Assistance Act 1999 ss 22A

A New Tax System (Family Assistance) (Administration) Act 1999 ss 71(2), 97(1), 101

Beadle v Director General of Social Security (1984) 6 ALD1

REASONS FOR DECISION

12 March 2004  Ms J Cowdroy, Member

1.      By decision dated 5 June 2003, the Social Security Appeals Tribunal affirmed a decision made by Centrelink to raise and recover a debt of $1,136.97, representing an overpayment of family tax benefit for the period 1 July 2001 to 6 August 2002. 

Hearing

2. This matter was heard in Brisbane on 12 December 2003. The applicant, Ms L Binks gave evidence. The T-documents were admitted into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and marked as Exhibit 1.  Additionally, the following material was received into evidence:

Exhibit 2 Bundle of documents regarding Bradley Bink’s claim for Youth Allowance;

Exhibit 3 Authorised Review Officer Margaret Dixon’s notes of conversation with Ms Binks.

3.      The matter was determined by reference to the oral evidence of the applicant, the submissions of the parties, the tendered material, relevant case law and legislation. 

Background

4.      The following matters serve by way of background information and are not in dispute.   Mrs Binks was in receipt of family tax benefit in respect of her son Bradley and two other children.  Bradley commenced receiving youth allowance on 18 June 2001.   From that date, Bradley ceased to be a family tax benefit child of the applicant.

5.      Mrs Binks was sent letters by Centrelink on 26 June 2001,12 October 2001, 26 February 2002, 3 June 2002, 6 June 2002 and 26 June 2002 in which she was advised of her obligations to notify Centrelink if any of her children received a social security payment. 

The Issues

6.      The issues for the Tribunal to determine are:

(a)whether the applicant received an amount of family tax benefit to which she was not entitled;

(b)      whether such an amount is a debt to the Commonwealth; and

(c)       whether the debt should be recovered.

Legislative Framework

7.      The relevant legislation is contained in the Family Assistance Act 1999 (the FA Act) and the Family Assistance Administrative Act 1999 (the FAA Act). 

8.      To qualify for the receipt of family tax benefit in respect to a child the child must be in the recipient’s care.  Section 22A of the FA Act states, in effect, that a child cannot be in a recipient’s care for the purposes of family tax benefit if the child receives a social security payment.  

9. In respect of debts of family tax benefit, Section 71(2) of the FAA Act provides:

“71.(2)  If:

(a)an amount (the received amount) has been paid to a person by way of assistance; and

(b)the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.”

10. In respect of waiver of debt arising from error, Section 97(1) of the FAA Act provides:

“97.(1)  The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.”

11. Section 101 of the FAA Act provides for waiver if special circumstances exist:

“101.  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 a false representation; or

(ii)failing or omitting to comply with a provision of the family assistance law; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)       it is more appropriate to waive than to write off the debt or part of the debt.”

Evidence

12.     It is the applicant’s submission that through several discussions with Centrelink officers, sufficient information was provided to Centrelink to ensure the amount of family tax benefit she received was correct. 

13.     Ms Binks has three children, in respect of which she was being paid family tax benefit.  Centrelink had sent a claim for youth allowance to Bradley in February of 2001, who turned 16 in April of that year. She claimed parenting payment on 18 June 2001, which was rejected on 21 June 2001 due to the family’s income.   She visited the Biggera Waters Centrelink office to enquire about her entitlements.  At that time she was informed by the Centrelink officer that Youth Allowance for Bradley had not been approved at that time..  She was also advised that she would continue to receive base rate of family tax benefit whilst Bradley remained at school.’  Shortly afterwards, Bradley received advice that Youth Alllowance had been granted with effect from 18 June 2001.

14.     The Tribunal was referred to a document headed “A quick rates guide to payments for families”..  The circled amounts were indicated to Mrs Binks by a Centrelink officer, as the amounts of family tax benefit to which she entitled.  That included an amount of $37.38 per fortnight for Bradley.

15.     On 12 October 2001 Ms Binks attended an interview with a Centrelink officer regarding a previous overpayment/debt.   At that time the applicant mentioned that Bradley was in receipt of youth allowance.  The officer at that time was unable to access the youth allowance file. 

16.     On 11 February 2003 she attended another appointment at Centrelink in relation to the overpayment/debt.   She expressed her concern at the possibility of Bradley incurring a debt.  The officer to whom she spoke tried to access Bradley’s youth allowance file, again without success.    She expressed similar concerns to a Centrelink officer on 15 March 2002. 

17.     Mrs Binks acknowledged receipt of six letters over the period 26 June 2001 to 26 June 2002, which are all similar to the letter at T11-52, advising her of the obligation to report any change in circumstances. A list was provided to the applicant of changes that were required to be reported, including whether any children were in receipt of a social security or benefit, or whether any dependant 16 years or over was receiving a social security payment.  The applicant did not read those letters, as she did not believe there was any need to do so.  She held a belief that her payments were correct, a belief that was reinforced by the fact that she had regular contact with various officers at Centrelink. 

18.     In particular, the applicant expressed concern that it took Centrelink 14 months to become aware that she was receiving amounts of family tax benefit to which she was not entitled. 

19.     In respect to the family’s circumstances, a recent borrowing of $10,000 was made to purchase a second car.  Previously her partner’s employer had provided a vehicle.  There is a mortgage of about $150,000 and monthly commitments of about $1000.    Her net weekly income from employment is $148-$248 and her husband will be resuming full time employment within a matter of days.

20.     The respondent acknowledged the applicant was advised in the meeting of 18 June 2001 that Bradley’s records of payment could not be accessed. This was because Bradley’s claim was lodged on this same date and was therefore not yet registered in the database.  As a result of this, no conflict of payments existed between social security payments and parenting payments at that time (T33-139).  

21.      The applicant was sent letters confirming she was receiving a parenting payment for her three children, including Bradley.  On each occasion the letter requested the applicant to advise the Family Assistance Office within 14 days ‘if your FTB child…receives a social security pension or benefit’.

22.     Those letters mentioned that the Family Assistance Office used the information provided in ‘data matching with other government agencies to detect and prevent incorrect payments and fraud’ (T11-52). The letters did not specify this data matching was carried out on a regular basis, as the applicant believed to be the case.  

23. It was acknowledged that an adjustment should have been made to the applicant’s social security entitlements when youth allowance was granted. However, it cannot be said that the debt arose solely because of administrative error, as the applicant contributed to the error by failing to advise Centrelink that Bradley was receiving a payment. As a result of this failure to advise, the debt cannot solely be attributed to administrative error and nor were there any circumstances which would warrant waiver of the debt under Section 101 of the Act.

Findings and Consideration

24. It is not in dispute that the applicant received payments family tax benefit for Bradley, to which she was not entitled. According to Section 71(2) of the FAA Act, the amount receives constitutes a debt to the Commonwealth and I am satisfied that the debt has been accurately calculated. I find that a debt exists in the sum of $1,136.97.

25.     Section 97(2) of the FAA Act allows the Secretary to waive the right to recover the proportion of the debt that is attributable solely to an administrative error made by the Commonwealth if:

(a)      the payments were received by the debtor in good faith; and

(b)      the debtor would suffer severe financial hardship if it were not waived.

26.     Clearly, the respondent was in receipt of information which would have enabled it to adjust the rate of family tax payment which was being paid to the applicant.   Whilst the notices sent to the applicant required her to notify if Bradley was in receipt of Centrelink payments, this should not absolve the respondent from acting responsibly and efficiently in ensuring that the applicant received her correct entitlement.  

27.     Clearly, the respondent’s inaction in this regard has had serious consequences for the applicant.  The Tribunal was also mindful of Mrs Binks evidence that an officer of Centrelink circled her entitlements on the brochure promulgated by Centrelink which would reinforce her view that she was being paid the correct entitlement.   However, notwithstanding this belief, Mrs Binks contributed to the error by not reading the notices sent to her which, if read, would have alerted her to the fact that Bradley’s youth allowance might not have been taken into account.   Consequently, the applicant is not able to avail herself of the provisions of Section 97 of the FAA Act. 

28.     Even if a finding was made that the debt arose solely from administrative error on the part of the respondent, I find that she would not suffer severe financial hardship if the debt were not waived.  The family’s financial situation is reasonably buoyant when compared to many other recipients of social security benefits. 

29. The Tribunal also considered section 101 of the FAA Act. That provision requires a finding of special circumstances which warrants the non-recovery of all or part of the debt. The term “special circumstances” has been the subject of much judicial interpretation.

30.     In Beadle v Director General of Social Security (1984) 6 ALD1, the Full Court of the Federal Court said at page 3:

“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 upon 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 cases.  This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”

31. Applying those principles, the Tribunal finds that there are no special circumstances that would trigger the application of the discretion contained in section 101 of the FAA Act. In those circumstances, the Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         Nicca Grant
  Associate

Date/s of Hearing  11 December 2003
Date of Decision  12 March 2004

The Applicant appeared in Person
For the Respondent                  Mr S Letch, Departmental Advocate