BQCY and Secretary, Department of Social Services (Social services second review) - [2018] AATA 3038

BQCY and Secretary, Department of Social Services (Social services second review) [2018] AATA 3038 (24 August 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3003
Re:BQCY
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:24 August 2018
Place:Brisbane

The decision under review is affirmed.
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Deputy President Dr P McDermott RFD
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance debt – whether the applicant was overpaid amounts of rent assistance – whether special circumstances exist – whether debt should be waived or written off – applicant not entitled to rent assistance during relevant period – debt is payable to the Commonwealth – decision under review affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Changshu Longte Grinding Ball Co Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCA 1135
Minus v Selth (No 2) [2017] FCA 1233
Secretary, Department of Social Security v Hales (1998) 153 ALR 259
Ward and Secretary, Department of Families and Community Services (2000) AATA 212
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
24 August 2018
INTRODUCTION

This application is for the review of a decision to raise and recover a debt in respect of the overpayment of the rent assistance component of the applicant’s newstart allowance payment.
BACKGROUND
Ardee Court property
On 11 August 2014 the applicant made a claim for newstart allowance. On 5 September 2014 he declared in a rent certificate that he shared accommodation with his mother at Ardee Court, and that the rent paid for the property was $460 per week shared equally between him and his mother. A tenancy agreement signed on 23 September 2014 records the applicant and his mother as tenants.
On 28 October 2014, the applicant was advised of an overpayment of $270.85 in rent assistance because he was residing with his mother from 11 August 2014 to 9 September 2014. On 3 November 2014, his nominee was advised that the applicant was not eligible to receive the rent assistance component of newstart allowance because he is single, under the age of 25 and living with parents.
On 1 December 2014 the applicant claimed newstart allowance and declared that his home address was the Ardee Court property and that his share of rent was $230 per week. On 2 December he advised the Department that he was living with parents. The claim was granted on 3 December 2014 from 19 November 2014, which was the date when he advised the Department of his intention to claim a social security payment.
On 9 December 2014, the applicant was issued a notice which referred to the fact that the applicant was being paid rent assistance of $85.07 each fortnight and which contained the following statement:
What you must tell us
you are under 25 years of age, get Rent Assistance and you move in with your parent(s) or guardian(s)
A number of such notices were sent to the applicant in respect of his rent assistance payments on a number of dates between 15 December 2014 and 19 October 2015.[1]
[1] The dates when notices were sent were on 15, 23 December 2014; 9, 23 January 2015; 9, 20 February 2015; 6, 23 March 2015; 7,17 April 2015; 4, 18 May 2015; 1, 12, 26 June 2015; 8, 13, 27 July 2015; 10, 11, 21 August 2015; 7, 18 September 2015; and 2, 19 October 2015.
On 19 June 2015 the applicant and his mother were issued a Notice to Leave the Ardee Court property by 20 August 2015.
On 7 August 2015, the applicant declared in a rent certificate that the rent payable for the Ardee Court property was $460 per week and that his share of the rent was $230 per week, and that his mother was the other tenant liable to pay the balance of the rent. Another rent certificate that was lodged by his mother on the same date declared that the Ardee Court property was occupied by the applicant, his mother and brother and that the total rent per week was $460, for which the applicant and his mother shared equal responsibility.
Camoola Street property
On 14 August 2015 a tenancy agreement for the Camoola Street property was signed by the applicant, his brother and his mother: rent of $370 per week was payable under this agreement. On 20 October 2015 his mother confirmed that the applicant lived with her and they were on the lease agreement. On 24 November 2015 a rent certificate declared that the applicant's share of rent was $124.
Decisions to raise debt
On 16 March 2016 a decision was made to raise a debt against the applicant of $597.72 for the period 20 September 2015 to 25 December 2015. On 14 April 2016 the applicant was notified that he had been overpaid $597.72 in rent assistance for the period 20 September 2015 to 25 December 2015. On 26 October 2016, the applicant's nominee requested a review of the decision to raise a debt against the applicant.
On 7 December 2016, an authorised review officer set aside the decision, and determined that the applicant had been overpaid $2,567.08 of rent assistance for the period 19 November 2014 to 25 December 2015 (“the relevant period’). On 11 April 2017 the Social Services & Child Support Division of this Tribunal affirmed the decision of the authorised review officer. On 10 May 2017 the applicant made an application to this Tribunal for further review of the decision of the Social Services & Child Support Division.
WHETHER THE APPLICANT WAS ENTITLED TO RENT ASSISTANCE
Section 1070B of the Social Security Act 1991 (“the Act”) provides that a person qualifies for rent assistance if the person satisfies the common requirements set out in s 1070C of the Act, as well as the specific requirement applicable to the person’s social security payment.
There is no issue that the applicant meets the common requirements in s 1070C of the Act, which are that:
(a)the person is not an aged care resident, and is not taken to be an aged care resident for the purposes of the Rate Calculator concerned; and
(b)the person is not an ineligible homeowner; and
(c)the person pays, or is liable to pay, rent, other than Government rent, in respect of a period in respect of premises in Australia; and
(d)the person's fortnightly rent is more than the rent threshold amount.
Subsection 1070H(2) of the Act provides the specific requirement applicable for a recipient of newstart allowance:
The specific requirement is that:
(a)if the person:
(i)     is not a member of a couple; and
(ii)    is not living away from the principal home of a parent permanently or indefinitely;
the person has turned 25; and
(b)the person does not have a partner with a rent increased pension; and
(c)if:
(i)     the person is not a member of a couple, or is a member of an illness separated couple, a respite care couple or a temporarily separated couple; and
(ii)    the person is entitled to be paid family tax benefit;
either of the following is satisfied:
(iii)   the person's maximum Part A rate of family tax benefit does not include rent assistance;
(iv)   the person's maximum Part A rate of family tax benefit includes rent assistance and clause 38J of Schedule 1 to the Family Assistance Act applies to reduce the person's Part A rate of family tax benefit; and
(d)if:
(i)     the person is a member of a couple, other than an illness separated couple, a respite care couple or a temporarily separated couple; and
(ii)    the person, or the person's partner, is entitled to be paid family tax benefit;
either of the following is satisfied:
(iii)   the person's, or the person's partner's, maximum Part A rate of family tax benefit does not include rent assistance;
(iv)   the person's, or the person's partner's, maximum Part A rate of family tax benefit includes rent assistance but clause 38J or 38K of Schedule 1 to the Family Assistance Act applies to reduce the person's, or the person's partner's, Part A rate of family tax benefit.
I have to determine whether the two rented premises can be a "principal home of a parent" under section 1070H(2)(a)(ii) of the Act. In the application for review of the decision of the Social Services & Child Support Division the applicant has essentially contended that the "principal home of a parent" cannot be a “general tenancy agreement'. This submission is made on the basis of definitions in the Act. However, the definition of "principal home" in section 11A of the Act concerns the assets test and has no relevance to section 1070H of the Act.
The word "home” is not defined in the Act. In recent cases the Federal Court of Australia has emphasised that it is legitimate to have regard to definitions in the Macquarie Dictionary in construing legislation,[2] although sometimes the definition in the Oxford Dictionary has been preferred.[3] In this instance the definitions of “home” in both dictionaries are similar. In the online Macquarie Dictionary “home” has the definition of “a house, or other shelter that is the fixed residence of a person, a family, or a household”. In the Concise Oxford Dictionary (7th edition) a “home” is a “dwelling-place, or a fixed residence of family or household”. I am satisfied that the Ardee Court property and the Camoola Street property were, for the duration of the tenancies, a “principal home of a parent” within the meaning of section 1070H of the Act because it was the dwelling-place of a parent of the applicant, who is his mother. I am also satisfied that both properties were the “principal home” of the parent within the meaning of section 1070H of the Act. There is evidence that the mother of the applicant lived in both properties. This is because her name as a tenant is listed on both tenancy agreements; these agreements in Form 18a provide for a tenant to occupy the properties. There is no evidence that his mother had another residence during the duration of both tenancies.
[2] Changshu Longte Grinding Ball Co Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCA 1135 at [96] per Griffiths J.
[3] Minus v Selth (No 2) [2017] FCA 1233 at [34] per Logan J.
In considering the specific requirement in section 1070H of the Act, there is no evidence that during the relevant period the applicant was a member of a couple or that he did not live at the principal home of a parent. It is not necessary for me to disclose the birth date of the applicant; it is sufficient for me to find that the applicant did not turn 25 years of age before 25 December 2015, which was the concluding date of the relevant period.
The applicant did not meet the specific requirement in section 1070H of the Act and was therefore not eligible during the relevant period to receive rent assistance as a recipient of newstart allowance.
WHETHER THE OVERPAYMENT OF RENT ASSISTANCE IS A DEBT
The Act provides that where a social security payment is made, and the person to whom it is paid was not entitled to receive it, the amount of the payment is a debt due to the Commonwealth (s 1223(1)).
In Secretary, Department of Social Security v Hales (1998) 153 ALR 259, French J (who was later a Chief Justice of Australia) explained why social security payments that were paid to individuals in excess of their entitlement ought to be recovered. His Honour remarked:
“The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which lead to the overpayment and the circumstances of the persons concerned”.
There is no issue that the debt calculations that were calculated on 6 December 2016 are incorrect. Having reviewed the calculations I am satisfied that the applicant has received the sum of $2,567.08 in rent assistance.
Because the applicant had no entitlement to rent assistance the amount of $2,567.08 was a debt due to the Commonwealth (s 1223(1) of the Act).
DEBT WRITE OFF
The Secretary may write off a debt for a stated period if it is irrecoverable at law, if the debtor has no capacity to repay it, or if it is otherwise not cost effective for the Commonwealth to take action to recover the debt (s 1236(1A) of the Act). Where a debt is recoverable by way of social security payment deductions, a debtor is taken to have capacity to repay the debt unless recovery by those means would result in the debtor being in "severe financial hardship" (s 1236(1C) of the Act).
There is no evidence before me that the applicant is in severe financial hardship. The applicant had capacity to repay the total debt by instalments at a fortnightly rate of $50, and on 20 July 2017 he agreed to increase these instalments to $100 a fortnight. The earning capacity of the applicant has markedly increased since his application was considered by the Social Services & Child Support Division of this Tribunal.
DEBT WAIVER
Sole administrative error and receipt in good faith
Where a debt (or part thereof) has arisen solely as a result of administrative error by the Commonwealth, and the debtor had received the payment in good faith, the Secretary is required by s 1237A of the Act to waive recovery of that debt. However, the mere fact that there is an administrative error is insufficient to satisfy s 1237A of the Act. In Ward and Secretary, Department of Families and Community Services (2000) AATA 212, Deputy President Forgie explained (at [47]):
“This means that the Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor.”
The Secretary has quite properly conceded that there was an administrative failure to correctly note that the applicant was sharing accommodation with his mother. I, however, accept the submission of the Secretary that the failure of the applicant to comply with the written notices materially contributed to him being overpaid. The failure of the applicant to respond to the numerous notices precludes any finding that the debt is attributable solely to administrative error. Having regard to s 68(4) of the Social Security (Administration) Act 1999, the applicant had a statutory obligation to inform the Department if an event specified in the notices occurred and he did not comply with this requirement.
If I had found that this was a case of sole administrative error, the Secretary has submitted that I ought to find that the Applicant did not receive payments of rent assistance in good faith. Because the applicant had not given any evidence before the Tribunal I am unable to make a finding that the applicant had received the payment in good faith. Another reason why I would be unable to make a finding that the applicant had received the payments of rent assistance in good faith was because the applicant had previously incurred an overpayment of rent assistance while living with a parent.
Special circumstances
The Secretary may waive the right to recover all or part of a debt where there are special circumstances present such that waiver of the debt is desirable, and where the debt did not result from a person knowingly making a false statement or representation, or failing or omitting to comply with a relevant legislative provision (s 1237AAD of the Act).
The written submissions of the applicant did not address the matter of special circumstances. His representative informed the Social Services & Child Support Division of this Tribunal that the applicant had part-time employment, paid one third of $380 weekly rent, had no savings, and owed his mother $13,000 for a car loan. She also stated that he has depression, sugar diabetes and high cholesterol. Before this Division the representative informed the Tribunal that the applicant had limited education and had a history of experiencing abuse as a child when the child was outside of her care.
The Departmental records that are in evidence do not refer to the medical condition of the applicant. Because there was no medical evidence placed before the Tribunal and because the applicant did not appear I thought it fair to remit this application to the Secretary to give the applicant “an opportunity to provide any further evidence about the existence of special circumstances”. I issued directions requiring the applicant to lodge any evidence of special circumstances. No such submissions have been made by the applicant.
In the absence of any such submissions or any medical evidence I am unable to make a finding that warrants an exercise of the discretion to waive all or part of the debt. In coming to this conclusion I have taken into account that the evidence before me indicates that the earning capacity of the applicant has markedly increased since his application was considered by the Social Services & Child Support Division of this Tribunal.
DECISION
I affirm the decision under review.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated:            24 August 2018
Date of hearing:  23 March 2018
Date of close of submissions:  26 June 2018
Representative for the Applicant:       Ms Catherine O’Hare
Solicitors for the Respondent:           Department of Human Services
Representative for the Respondent:   Ms Maleah Underhill