Bonnici and Department of Family and Community Services - [2001] AATA 870

DECISION AND REASONS FOR DECISION [2001] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/66

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ANTHONY BONNICI
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Bell, Member
Date 19 October 2001

PlaceSydney

Decision The Tribunal affirmed the decision under review.
.

[sgd] Ms N Bell, Member
CATCHWORDS
SOCIAL SECURITY – rent assistance – overpayment – debt – whether the debt should be recovered – waiver of debt – administrative error – special circumstances

Social Security Act 1991 – sections 1224, 1237A, 1237AAD
Department of Social Security v Danielson (1996) 44 ALD 19
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Ms N Bell

This is an application by Mr Anthony Bonnici ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 4 December 2000 which affirmed the decision of a Centrelink officer of the Secretary, Department of Family and Community Services ("the Respondent") dated 22 September 2000, to raise and recover a debt of overpayment of $8251.53 rent assistance paid from 25 July 1996 to 12 September 2000. This earlier decision was reviewed and affirmed by an authorised review officer on 1 November 2000.
The     Applicant appeared on his own behalf and the Respondent was represented by Mr Bernard Slattery, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Applicant, Ms Linda Manning and Mr Raymond Lee gave oral evidence to the Tribunal. The following documentary evidence was before the Tribunal:
Exhibit          Document    Date
TD1 Documents lodged under section 37 of the Administrative Appeals Tribunal Act being T1 – T23, pages 1 – 75
A1      Letter to the Tribunal from the Applicant          6 September 2001
R1      Respondent's Statement of Facts and Contentions
R2      Respondent's supplementary submissions       10 September 2001
R3      Statement of Linda Manning        12 September 2001
R4      Statement of Raymond Lee          12 September 2001
R5      Accommodation History Print out
R6      Archive Retrieved Summary Print out (2 pages)
R7      Jobsearch allowance payment history for 1994/95 financial year

issues

It is not in dispute that:
a) during the relevant period the Applicant was not paying rent and therefore was not entitled to receive rent allowance;
b) the amount of rent allowance received by the Applicant in the relevant period was $8251.53;
c) the Applicant claimed age pension on 9 March 1995, giving his address as 33 Forsyth Street, West Ryde but making no claim for rent allowance;
d) Centrelink wrote to the Applicant on 11 April 1996 at 33 Forsyth Street, West Ryde advising him that he must inform Centrelink if his rent changes from $178.50 per week; and
e) the Applicant did not respond to this letter.
It is agreed between the parties that the issue to be considered by the Tribunal is whether the debt of overpayment of rent allowance in the above sum should be recovered.
evidence
The Applicant's evidence was that his reason for failing to respond to Centrelink's letter of 11 April 1996 was that he neglected to read the back of the letter and for that reason was unaware of his obligation to contact Centrelink.
The Applicant told the Tribunal that he purchased the house at Forsyth Street in 1992 and moved into the house in that year. He had separated from his wife in 1991. The Applicant said that in January and/or February 1992 he stayed with a friend in Maroubra. He paid rent there. He said that the only time he has ever claimed rent allowance was in respect of this period in 1992. He said that Centrelink never asked him for rent receipts.
The Applicant said that after he moved into Forsyth Street, he reached an agreement with his next-door neighbour whereby each would subdivide his block and build another dwelling behind the existing house. They have created, together, an easement between the two new lots. The Applicant said that during the process of building the new dwelling behind the old house on his property, he remained living in the old house and when the new dwelling was completed he moved into that. He said that he never left Forsyth Street after 1992.
The Applicant told the Tribunal that while he has some savings as set out in Exhibit A1, his car is very old and he will need to buy a new one soon. His current vehicle has about ten months registration left on it. He also told the Tribunal about some current investigations into his health concerning a problem he has with constant shaking. Apart from his separation from his wife in 1991, he pointed to no other difficult or out of the ordinary circumstances.
Ms Manning, an officer of Centrelink, gave evidence of her meeting with the Applicant in September 2000 and of her recollection of the Applicant's statement to her that he was paying rent for a brief period in 1996 until his home in Forsyth Street was finished on 12 July 1996. Ms Manning confirmed that she wrote a handwritten note to this effect, appearing on document T4. She also confirmed that documents T7 and T8 are file notes written by her. These notes indicate that the Applicant had been renting following his separation from his wife in June 1996 and that after July 1996 he was no longer paying rent. Ms Manning said that it is difficult to remember the exact conversation she had with the Applicant and was unable to indicate whether he may have been referring to an earlier time. She also conceded, in cross examination, that she was now unsure of whether she had met face-to-face with the Applicant or had simply spoken to him over the telephone.
Ms Manning then gave evidence of the process by which, in 1996, rent allowance was arranged to be paid. She said that payment of rent allowance required processing by one officer and approval by another. Generally, a person claiming rent allowance would have been required to produce either a statement from the landlord or a rent receipt. They would also be required to complete a form giving details of address and rent paid. She said that in emergency situations a person would be paid rent allowance without this documentation, but that payment would cease after two weeks if it had not been produced.
Mr Raymond Lee, an authorised review officer with Centrelink, gave evidence of his telephone conversation with the Applicant in which the Applicant acknowledged having paid rent while living at a friend's flat in Maroubra while his new house was being built. He was unable to recall his particular telephone conversation with the Applicant but gave evidence of his usual practice of making file notes of conversations of the day of the conversation or of the day following.
Exhibits R5, R6 and R7 are computer-generated print outs concerning the Applicant. Exhibit R5 indicates that there is no record on the Centrelink computer system of dealings between Centrelink and the Applicant prior to 23 June 1994. Exhibit R6 is a list of the various types of records available in relation to the Applicant. The list shows that the earliest payment records concerning the Applicant relate to the 1994/95 financial year. A print out of these records at Exhibit R7 indicates that while the Applicant received job search allowance from 30 June 1994, during the 1994/95 financial year he received no rent allowance payments.
submissions
The Applicant submitted that the only thing he failed to do was to look at the back of the letter from Centrelink dated 11 April 1996. He submitted that he never asked for rent allowance and that his 1995 claim for age pension shows him living in his own home. He submitted that Centrelink simply made a mistake. He also argued that he should not be penalised on the basis of one failure arising out of one contact made with him, by Centrelink, in five years.
The Applicant argued that he is unable to repay the debt. He submitted that the little money he has is used by him to supplement his pension and allow him to survive.
Mr Slattery, for the Respondent, submitted that given the Applicant's failure to respond to Centrelinks letter of 11 April 1996, his debt to the Commonwealth arises under section 1224 of the Social Security Act 1991 ("the Act").
Mr Slattery submitted that there is no error at all on the part of the Respondent. He submitted that it is simply not possible for rent allowance to be paid inadvertently and that, notwithstanding the absence of any record of the claim by the Applicant for rent allowance, the decision of the Federal Court in Secretary, Department of Family and Community Services v Danielson (1996) 44 ALD 19 is authority for the proposition that the absence of formal records is not fatal to a conclusion, on the balance of probabilities, that a particular communication was made to the Department or its agency. Mr Slattery pointed to the evidence of Ms Manning and Mr Lee, of their discussions with the Applicant in relation to rent paid by him. He argued that there are significant problems with the Applicant's evidence at the hearing, in that there is no record of any payment of rent allowance prior to April 1996.
Mr Slattery submitted that, in the absence of any error at all by the Respondent, the provisions of section 1237A of the Act, allowing for waiver of the debt, are not available to the Applicant. He submitted that waiver could therefore only be available pursuant to section 1237AAD of the Act. In this respect, he submitted that there is no suggestion, or indeed evidence, of the Applicant having knowingly failed to comply with his obligations, but that the Applicant's circumstances are not "special" within the meaning of that provision. He agreed that the Applicant is in a tight economic situation, but noted that, unlike most social security recipients, he does have some other funds available to him. He also submitted that, other than some possible issues in relation to the Applicant's health, there are no other issues of a special nature. In particular, the Respondent does not concede that there was any administrative error on the part of the Respondent or any error that would amount to a special circumstance.
consideration
There being no dispute in this application as to the debt in the sum of $8251.53 being owed by the Applicant to the Commonwealth, the only issue to be considered by the Tribunal is whether the debt should be recovered.
The provisions of the Act relevant, in the circumstances of this application, to the issue of waiver of recovery, are sections 1237A and 1237AAD. These sections provide as follows:
"Administrative error
1237A (1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note:    Subsection (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).
…
Waiver in special circumstances
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
(c)       it is more appropriate to waive than to write off the debt or part of the debt."
The Applicant does not dispute that he did not respond to Centrelink's letter of 11 April 1996. It is also not in dispute that that letter advised the Applicant that he must inform Centrelink if his rent changes from $178.50 per week. It follows that the continued payment of rent allowance to the Applicant, following Centrelink's letter of 11 April 1996, cannot be said to be solely attributable to an error on the part of the Commonwealth. Therefore, waiver, pursuant to section 1237A of the Act, is not available to the Applicant.
It remains to be considered whether waiver pursuant to section 1237AAD of the Act is desirable. Mr Slattery, for the Respondent, made it clear that the Respondent does not assert any knowing failure by the Applicant to comply with the provisions of the Act. Nor did Mr Slattery submit that the Applicant had knowingly made a false statement or false representation. The Tribunal must therefore consider whether "there are special circumstances (other than financial hardship alone) that make it desirable to waive" the debt.
The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 is often quoted in relation to the interpretation of "special circumstances". In that decision, the Tribunal said at ALD 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."
The Applicant gave evidence of his financial circumstances to the effect that, while he has some savings, these are needed by him to supplement his pension and to cover the cost of the purchase of a car, given the dilapidated state of his current vehicle. There is no reason for the Tribunal to reject his evidence in this respect.
The Applicant also gave evidence, albeit in very general terms, of current medical investigation into his shaking. That shaking was evident in the proceedings before the Tribunal. However, presumably because of the early stages of that investigation, he gave no evidence of the possible causes of that physical condition or of its effects on him.
The Applicant also maintained that he had never claimed rent allowance and referred repeatedly to the absence of such a claim in his application for Age Pension, which also contained a statement to the effect that he owned his home. He later, however, stated that he had claimed rent allowance in respect of a short period in 1992, following his separation from his wife, when he stayed at the unit of a friend.
While the Respondent was unable to produce any documentary evidence of a claim for rent allowance or of rent receipts in support of a claim, Ms Manning gave evidence of the Respondent's usual procedure in processing such claims. She, and Mr Lee, also gave evidence of the statements made to them by the Applicant, to the effect that he had claimed rent allowance in 1996. At the hearing, Mr Slattery produced a computer print out which showed an absence of any record of rent allowance having been paid to the Applicant in the 1994/95 financial year or prior to that period.
The presence of some error on the part of Centrelink may be one of a range of circumstances that can be taken into account in deciding whether a person's circumstances are "special" within the meaning of section 1237AAD. In this case, the evidence to support such an error is inconclusive. The absence of records of a claim by the Applicant supports the Applicant's contention that he made no claim, but it is difficult to see how payment could commence spontaneously or inadvertently, given the system of processing described by Ms Manning. In addition, Ms Manning's and Mr Lee's evidence, of their discussions with the Applicant, casts considerable doubt on his assertion that he made no claim. In these circumstances, the Tribunal cannot be comfortably satisfied that an error was made by the Commonwealth and so cannot take this into account as one of a range of circumstances relevant to the exercise of the discretion under section 1237AAD.
The Tribunal considers that the remaining circumstances, that is, the Applicant's financial circumstances and his uncertain health, do not have a quality of "unusualness" sufficient to render them "special" under section 1237AAD of the Act.
For these reasons, the Tribunal considers that neither section 1237A nor the discretion in section 1237AAD of the Act is available to the Applicant to have the debt waived.
determination
The Tribunal affirmed the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: R Quinn     .....................................................................................
  Associate
Date/s of Hearing  14 September 2001
Date of Decision       19 October 2001
Representative for the Applicant   Self
Solicitor for the Respondent         Mr B Slattery