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

[2020] AATA 2642

Brookes and Secretary, Department of Social Services (Social services second review) [2020] AATA 2642 (4 August 2020)

Division:                  General Division

File Number:          2020/0255

Re:Sharon Brookes  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:S Taglieri SC, Member

Date:4 August 2020

Place:Hobart

The Tribunal varies the decision under review in accordance with these reasons.

.....[sgd]..................................................................
S Taglieri SC, Member

Catchwords

SOCIAL SECURITY – disability support pension – debt – member of a couple – whether the Applicant was partnered in the relevant period – whether correct that debt raised due to being paid at the single rate – whether all or part of the debt can be written-off or waived – special circumstances established – decision varied.

Legislation

Social Security Act 1991

Cases

Beadle and Director-General of Social Security (1984) 6 ALD 1

Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

S Taglieri, Member 

4 August 2020

BACKGROUND

1. The Applicant has for several years been in receipt of disability support pension (DSP). Between 22 August 2012 and 11 June 2018 (the relevant period), she was assessed for DSP and paid at the single rate.

2. The Respondent raised a debt against the Applicant for over payment of DSP, because it says the Applicant should have received DSP at a partnered rate in the relevant period.

3. This review concerns the Applicant's grievance about the debt, which the Respondent says is for an amount of $41,246.62.

4. The Applicant disputes that she is indebted and has unsuccessfully sought to overturn the Respondent's decision regarding the existence of the debt. Upon reviews to an Authorised Review Officer and then the Social Security and Child Support Division of this Tribunal (SSCSD), the determination as to the existence of the debt was affirmed.[1]

   [1] On 31 October 2018 and 10 December 2018 respectively.

5. On 28 July 2020, the Tribunal conducted a hearing by telephone in respect of the Applicant’s further review to the General Division of this Tribunal. The Respondent was represented by legal counsel and the Applicant was self-represented.

   EVIDENCE RECEIVED AND PARTIES' CONTENTIONS

6. The Tribunal received in evidence without opposition from either party, the original T documents comprising 734 pages,[2] and supplementary T documents.[3]

   [2] Exhibit T1.

   [3] Exhibit T2 (S1 – S5).

7. The documents before the Tribunal demonstrate the factual history and events that informed the Respondent to determine that there had been overpayment of DSP.

8. On 7 June 2016, Services Australia, formerly the Department of Human Services, on behalf of the Respondent, requested completion of a ‘Mod P - Partner Details’ form. This form was not completed and returned by the Applicant, resulting in suspension of payment of DSP to her.

9. On 7 July 2016 the Applicant completed a ‘Confirmation of Relationship’ form in which she identified Dwayne Leonard Edwards (Mr Edwards) as her partner. Mr Edwards also signed a form, reciprocating information that the Applicant was his partner. Following receipt of confirmation from the Applicant and Mr Edwards that they were partners, the Respondent determined that the Applicant should receive DSP at a partnered rate.

10. However, on 28 July 2016, the Applicant and Mr Edwards each supplied ’Relationship Details’ forms in which they described their status as friends living together. The Respondent then resumed making payments to the Applicant at a single rate.

11. On various dates throughout 2017, Services Australia made requests for information to third parties concerning the financial relations between the Applicant and Mr Edwards and their relationship status. As a result of the enquiries, it was discovered that:[4]

    (a)Mr Edwards was a signatory to the Applicant's bank account from April 2017;

    (b)the Applicant and Mr Edwards signed joint rental agreements for household goods;

    (c)the Applicant conveyed to Make it Mine Pty Ltd that she was in a de facto relationship;

    (d)the Applicant had advised Housing Tasmania that Mr Edwards was a friend or tenant and they jointly signed a lease agreement; and

    (e)the Applicant and Mr Edwards also jointly signed a rental agreement for a property at Elphin Road and were known to a neighbour as “definitely a couple”.

    [4] T Documents: T66, pp 226-288; T69, pp 293-297; T71, pp 300-304; T72, pp305-356; and T77, pp 369-383.

12. Having gathered the information above which provided evidence about the Applicant’s joint financial and lifestyle arrangements with Mr Edwards from at least August 2012,[5] a determination was made that they were members of a couple and partnered. As the Applicant had been paid at a single rate, not the lesser partnered rate of DSP, the Respondent calculated overpayment between 22 August 2012 and 11 June 2018, and a debt of $41,246.62 was raised.

    [5] T 71, T documents, p 304.

13. After the affirmation of the decision about the debt on 10 December 2018 by the SSCSD, additional enquiries were made by the Respondent about the nature of the Applicant’s relationship with Mr Edwards and their finances. The outcome of the enquiries resulted in the tender of the supplementary T documents at the hearing.

14. The supplementary T documents consist of the applicant’s GP and other medical records,[6] Centrelink Social Work Reports,[7] mutual records of the addresses recorded in the Respondent’s data system[8] and information provided by Magnolia Place.[9] This material demonstrates that:

    ·at various times, Mr Edwards was recorded as the Applicant’s next of kin, partner or de facto in connection with medical assessment and treatment she was having;[10]

    ·the Applicant in December 2019 had reported to Centrelink that she was subjected to domestic violence “on and off”, it was worse “in the last 18 months” and had “really deteriorated” in the last four to five months;[11]

    ·the Applicant had lived with Mr Edwards at four different addresses between 2011 and 2018;[12] and

    ·that the Applicant was provided with crisis support to avoid exposure to continuing domestic violence around the time a Police Family Violence order was made for her protection in 2019.

    [6] ST 3, Supplementary T Documents, pp 764-868.

    [7] ST 2, Supplementary T Documents, pp 744-763.

    [8] ST 5, Supplementary T Documents, pp 870-872.

    [9] ST 4, Supplementary T Documents, p 869.

    [10] For example, see Supplementary T Documents pp 826 -829; 844 and 847.

    [11] ST 2, Supplementary T Documents, pp 751–752.

    [12] ST 4 and 5, Supplementary T Documents, pp 869–872.

15. The Applicant addressed the Tribunal orally, her statements comprising of a mixture of information in the character of factual evidence and submissions in her case. She did not contest the recorded content of the T-documents and the particular information relied upon by the Respondent in arriving at the decision that she was a member of a couple in the relevant period.

16. The substance of the Applicant's position was that in the relevant period, she did not consider herself to be in a relationship with Mr Edwards as a couple. She stated that initially he had come to live in the same residence as a friend and to be a support when her ex-partner, Mr Barratt, had left. Over time, Mr Edwards entrenched his presence in her life.

17. The Applicant said that she was coerced, sometimes by physical violence, to complete documents stating that he was her partner. She also stated that during interactions with medical professionals about her health and well-being, Mr Edwards instigated his involvement and referred to himself as her partner or de facto. Alternatively, persons made assumptions about Mr Edwards’ relationship to her, which she was incapable of refuting due to her acute health status, fear of him or the fact that she was isolated and suffered both physical and mental health problems. The Applicant also stated that she had been the victim of domestic violence over a number of years and that she had been encouraged to seek a review of the decision about the debt, by a support worker.

18. In a final statement, the Applicant contended that if there was a debt, it should be waived because of the extreme challenges relating to her health and domestic violence. Although not articulated in a legal way, the essence of her argument was that these factors constituted “special circumstances” that warranted the exercise of discretion available in section 1237AAD of the Social Security Act 1991 (the Act).

19. The Tribunal specifically asked counsel for the Respondent if the Respondent contested the fact that the Applicant had been a victim of domestic violence. Counsel stated the Respondent did not.

20. The Respondent has provided a very detailed Statement of Facts, Issues and Contentions dated 26 June 2020 (SFIC) which has been considered. In it, the Respondent properly concedes that it is open for the Tribunal to waive the whole or part of the debt on the basis of the special circumstances waiver provision. The Respondent referred to the authorities relevant to the meaning of “special circumstances”, but none of them specifically relate to the facts and circumstances relied upon by the Applicant.

    CONSIDERATION AND DETERMINATION

21. The Tribunal has no hesitation in concluding that the evidence before it demonstrates that the Applicant and Mr Edwards were in a relationship as a couple in the relevant period. The pooling of funds, joint expenditure on rent, household goods and other supplies or expenses relating to their joint residences, demonstrate that many of the relevant criteria in section 4(3) of the Act, as explained in the Guide to Social Security Law,[13] were satisfied in the relevant period.

    [13] Part 2.2.5.10.

22. Having assessed the totality of the evidence adduced by the Respondent which was not disputed by the Applicant, the Tribunal is satisfied that the Applicant should only have received payment at a partnered rate during the relevant period.

23. While the Applicant explained, and the Respondent did not refute, that she was effectively trapped or enforced in the joint relationship, that does not detract from the fact of the nature of the relationship being as one of a couple.

    WRITE-OFF OR WAIVER?

24. The conditions required by section 1236 of the Act for “write-off” of the debt have not been established in this case. The Applicant has demonstrated, albeit under some financial hardship, that she is able to make payments towards repaying the debt over time. This hardship is not considered severe and does not outweigh the public policy reasons for recovery of the lawfully raised debt.

25. There is no evidence of administrative error leading to the existence of the debt in this case. The Respondent at all times acted upon the information given to it by the Applicant. It was only when the Applicant submitted, in a short space of time, competing declarations about her relationship status that the Respondent initiated enquiries, which then discovered the relevant facts about the relationship.

26. Accordingly, the debt should not be written-off pursuant to section 1237A of the Act.

27. After careful review of the evidence, the Tribunal is satisfied on the balance of probabilities and it not being contested by the Respondent, that the Applicant was exposed to episodes of domestic violence in her couple relationship.

28. The evidence does not permit any precise findings about the period over which the Applicant was exposed to domestic violence or whether it was continuous. However, the impression gained from the Applicant’s statements to the Centrelink Social Worker enable the Tribunal to be comfortably persuaded that by mid-2018, what had been an on-off, difficult relationship as a couple became worse.

29. In addition, the Applicant’s medical condition in the corresponding period was clearly problematic and uncontrolled, leading to attendances at hospital, investigations and specialist visits. The combination of health difficulties coupled with the violence and limited financial resources can reasonably be regarded as unusual and uncommon[14] in the Tribunal’s view.  That is, they are reasonably regarded as special circumstances.

    [14] Beadle and Director-General of Social Security (1984) 6 ALD 1 at [12].

30. The policy objectives relating to the general administration of the social security system are also relevant to whether the Tribunal should be persuaded that there are special circumstances,[15] warranting a waiver. In this regard, although the incidence of domestic violence is now known to be more common than previously understood and there is greater focus on addressing its socially destructive effects, this of itself does not prevent a finding of special circumstances in any given case. Each case is to be assessed on its own facts and circumstances. 

    [15] Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 at [80].

31. The discretion to waive based on special circumstances is only available if the debt did not result wholly or partly from the debtor or another person knowingly making a false representation.[16] The Applicant’s state of mind about the nature of her relationship with Mr Edwards has been largely consistent. That is, she initially regarded him as a friend who supported her, she did not have a sexual relationship with him and they lived together as friends. However, he then imposed his presence in joint residence and joint finances. She feared the consequences of resisting this imposition. These statements were not subjected to cross-examination and in those circumstances are accepted.

    [16] Section 1237AAD(a) of the Act.

32. Therefore, the conclusion reached is that objectively there was a relationship as a couple within the meaning of the Act, but subjectively, that is knowingly in the Applicant’s mind, that was not genuinely the case. Further, the fear and coercion to which the Applicant was exposed implies that she did not freely give false information and this is also relevant in the Tribunal’s view. The Tribunal is not satisfied that the Applicant knowingly and freely made false representations.

33. In consideration of the submissions by the Respondent at [5.68] of the SFIC and recognising that:

    (a)the conflicting information provided in 2016 implies potential disagreement about what information ought to be provided;

    (b)the Respondent has not contested that the Applicant was exposed to domestic violence and had significant health challenges;

    (c)the Applicant has a limited capacity to repay the debt over time;

    (d)Mr Edwards had equal access to combined payments from Centrelink to the Applicant’s account from at least April 2017; and

    (e)The Applicant will continue to suffer personal difficulties due to physical and psychological conditions indefinitely due to her permanent health conditions and past domestic violence;

    the Tribunal is satisfied that the debt should be partially waived by 30%.

34. The decision under review is varied. The amount of debt to be repaid by the Applicant for overpayment of DSP in the period 22 August 2012 to 11 June 2018 is $28,872.63, less sums already repaid since debt of number 73358761 was raised.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member

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Associate

Dated: 4 August 2020

Date of hearing:	28 July 2020
Applicant:	By phone
Solicitors for the Respondent:	Mr A Quanchi