Boussi and Secretary, Department of Social Services (Social services second review)

[2018] AATA 680

Boussi and Secretary, Department of Social Services (Social services second review) [2018] AATA 680 (27 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4827

Re:Mariam Boussi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:27 March 2018

Place:Sydney

The decision under review is varied to the extent that the correct debt amount is $11,268.83 in respect of carer allowance overpaid for the period 22 November 2013 to 22 November 2016.

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Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – carer allowance – overpayment – whether it is appropriate to write off the debt – whether debt arose solely from administrative error – Waiver – special circumstances – decision varied

LEGISLATION

Social Security Act 1991 (Cth) ss 123, 954, 1223, 1236, 1237A, 1237AAD

CASES

Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484

Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126

REASONS FOR DECISION

Senior Member A Poljak

27 March 2018

1. Ms Mariam Boussi, the applicant, has been in receipt of carer allowance from at least 17 July 2012, in respect of the care she provided to her two children Assad Boussi and Zahra Boussi.

2. On 22 November 2013, Assad departed Australia and remained outside of Australia until 3 January 2017, aside from three return trips of approximately three months, 1.5 months and 3.5 months respectively.

3. On 3 March 2017, the Department of Social Services (“the Department”) decided to raise and recover the debt of $11,268.83 in respect of carer allowance overpaid to the applicant in respect of care provided to Assad in the period 22 November 2013 to 22 November 2016. This decision was affirmed by an Authorised Review Officer (“ARO”) on 24 March 2017.

4. On 12 July 2017, the Social Security and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) varied the decision of the ARO to the extent that the correct debt amount owed by the applicant is $11,227.62, based on the relevant period being from 27 November 2013 to 22 November 2016. This is the decision under review in these proceedings (“the decision”).

5. The issues which arise in this case are:

   (a)whether the applicant owes a debt to the Commonwealth of overpaid carers allowance; and if so

   (b)whether there are any grounds to waive all or part of the debt.

   RELEVANT LEGISLATIVE PROVISIONS

6. The qualification criteria for carer allowance are contained in section 954 of the Social Security Act 1991 (Cth) (“the Act”).

7. Section 1223(1) of the Act provides:

   Subject to this section, if:

   (a)  a social security payment is made; and

   (b)  a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

   the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

8. The Secretary may, on behalf of the Commonwealth, write off a debt, for a stated period or otherwise, in certain circumstances. Subsections 1236(1) and (1A) of the Act provide:

   (1)  Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

   (1A)  The Secretary may decide to write off a debt under subsection (1) if, and only if:

   (a)  the debt is irrecoverable at law; or

   (b)  the debtor has no capacity to repay the debt; or

   (c)  the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

   (d)  it is not cost effective for the Commonwealth to take action to recover the debt.

9. Section 1237A(1) of the Act provides:

   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.

10. Section 1237AAD of the Act provides for the possibility of waiving all or part of a debt on the grounds of special circumstances.

    CONSIDERATION

11. The applicant does not dispute the fact that she ceased providing care to her son Assad when he left Australia on 22 November 2013. This is supported by Assad’s travel records and the applicant’s evidence. As such, I am satisfied that the applicant was not qualified for carer payment in respect of any care provided to Assad from the date that he left Australia on 22 November 2013. I also have no reason to cavil with the Secretary’s calculation of overpayment of carer payment totalling $11,268.83 in the period 22 November 2013 to 22 November 2016. This amount constitutes a legally recoverable debt pursuant to s 1223(1) of the Act.

12. The applicant and her husband are in receipt of carer payment/carer allowance and disability support pension respectively, receiving fortnightly social security income of $1602.60. The applicant is presently making repayments by withholdings of $20 per fortnight. At hearing, she advised that the current repayment plan was manageable. Consequently, I am satisfied that the applicant has capacity to repay the debt by instalments and it is therefore inappropriate to write off the debt for a stated period under s 1236 of the Act.

13. In order for the debt to be waived under s 1237A of the Act, it must be found that the debt was caused solely by administrative error; see Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 at [35].

14. There is no evidence before me to suggest that there was any administrative error by the Department that caused the overpayment to arise. The applicant alleges that she notified Centrelink in person that Assad had moved overseas, however there is no Centrelink record in evidence detailing this contact.

15. In any event, the applicant was sent a letter from the Department dated 6 March 2014, which specifically referred to the carer payment she was receiving for both Assad and Zahra. The applicant would have at least been aware on this date that she was still receiving carer payments for both children, yet she did not contact Centrelink and advise them that she had not cared for Assad since 22 November 2013. This is despite the applicant being reminded, in the letter dated 6 March 2014, of her obligation to advise the Department of any changes to her circumstances.

16. The applicant at hearing said that she did not read the letters she received from the Department so was unaware of what was happening with her payments. She also stated that she didn’t pay attention to the amount of social security she was being paid. In Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484 Cooper J observed:

    [41] A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists…

    [42] A recipient of a payment to which he or she is not entitled, cannot avoid the requirement of good faith in s 1237A(1) by the mere circumstance that the person arranges for direct payment to an account of that person with a financial institution and in consequence is unaware of the fact of the payment at the time of its actual receipt.

17. Accordingly, I am not satisfied that the applicant received the payments in good faith. The letter dated 6 March 2014, gave the applicant reason to know, or at the very least, reason to doubt whether, the payments she was receiving were correct especially given that the carer allowance payment she was receiving had not reduced following her son’s departure from Australia on 22 November 2013. The debt cannot be waived pursuant to s 1237A of the Act.

18. Turning to special circumstances, there is nothing in the circumstances described by the applicant, which are unusual or uncommon that would warrant exercise of the discretion to waive all or part of the applicant’s debt. While I accept that the applicant’s financial situation is reliant on her and her husband receiving carer payment/carer allowance and disability support pension respectively, they do receive a substantial fortnightly social security amount of $1602.60. As already stated, the applicant advised at hearing that the repayment plan which they have entered is manageable and does not cause them financial stress. No other special circumstances have been identified. Accordingly, I’m not satisfied that the applicant’s circumstances are sufficiently special to warrant exercising my discretion to waive all or part of the debt under s 1237AAD of the Act.

    DECISION

19. The decision under review is varied to the extent that the correct debt amount is $11,268.83 in respect of carer allowance overpaid for the period 22 November 2013 to 22 November 2016.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 27 March 2018

Date(s) of hearing:	23 March 2018
Applicant:	In person
Solicitors for the Respondent:	K Dunlop, Department of Human Services