Bruce and Secretary to the Department of Family and Community Services

[2002] AATA 578

DECISION AND REASONS FOR DECISION [2002] AATA 578

ADMINISTRATIVE APPEALS TRIBUNAL        Nº W2001/313
GENERAL ADMINISTRATIVE DIVISION
  Re:         LISA JANE BRUCE

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             12 July 2002
Place:            Perth

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review. 

……………(sgd G D Friedman)…………..

Member

1. SOCIAL SECURITY - parenting payment  - overpayment - recovery of debt - waiver of debt

Social Security Act 1991 s1223, 1237A, 1237AAD

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

REASONS FOR DECISION

12 July 2002  G.D. Friedman, Member

1. This is an application by Lisa Jane Bruce (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 7 August 2001, which affirmed a decision of Centrelink dated 26 October 2000.  In a decision dated 11 April 2001 an authorised review officer of Centrelink affirmed a decision to raise and recover a parenting payment debt of $2,294.12 for the period 13 May 2000 to 29 September 2000.

2. At the hearing of this matter on 12 July 2002 the applicant represented herself and Mr S. Ellis, advocate with Centrelink, represented the Department of Family and Community Services (the respondent).
   BACKGROUND

3. The applicant was receiving parenting payment whilst her husband was receiving newstart allowance and undertaking subcontracting work through his business.  Centrelink decided to cancel the newstart allowance from 15 April 2001 and the applicant continued to receive parenting payment which did not take into account any income from the husband's employment.  On 26 October 2000 Centrelink decided that the applicant had a parenting payment debt of $2,294.12 for the period 13 May 2000 to 29 September 2000.  On 11 April 2001 an authorised review officer affirmed the decision.  On 8 June 2001 the applicant sought review by the SSAT.  Following the decision of the SSAT the applicant on 31 August 2001 lodged an application with the Tribunal for review of the decision by the SSAT.
   EVIDENCE

4. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T15).

5. The applicant gave oral evidence and told the Tribunal that her husband had been a subcontractor and was reliant on newstart allowance during periods when he was not working.  She said that in about April 2000 he had been required to attend a job skills seminar conducted by a job network provider.  The applicant said that she informed the job provider that her husband was working and would be unable to attend.  He attended a second interview at which he was told that as he was working he did not need to attend further sessions.  She stated that soon afterwards Centrelink stopped sending fortnightly forms.

6. The applicant stated that when she received forms from Centrelink there was a nil amount shown for her husband's earnings, even though he had submitted the required information.  She said that the error was caused by Centrelink.  She stated that she was aware that on occasions the information about her entitlements might not have been  correct, and that the forms specified that any queries or errors should be directed to Centrelink.  She said that she took no action as she relied on Centrelink to make the correct calculations, and she believed she and her husband had acted appropriately.  She also said that at the time she did not examine her credit card or bank statements closely enough.  She said that she and her husband are an ordinary couple who have never intended to mislead Centrelink or obtain any payments to which they were not entitled.     
   CONSIDERATION OF THE ISSUES

7. Section 1223 of the Social Security Act 1991 (the Act) provides:

   1223.(1)  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.

1. Section 1237A of the Act provides:

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.

1. Section 1237AAD of the Act provides:

   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.

2. Mr Ellis stated that on 1 May 2000 Centrelink advised the applicant by letter of the information used in calculating her rate of parenting payment and of the information that she was required to provide to Centrelink.  On 11 May 2000 her husband's newstart allowance was suspended after he failed to notify the job network provider when requested to do so.  He was subsequently advised by letter dated 23 May 2000, and no further forms were sent to him.  On 12 May 2000 Centrelink sent a letter to the applicant advising her of the matters taken into account in calculating her parenting allowance.  On 13 May 2000 payments to her husband ceased.  On 15 and 23 May 2000 and 21 June 2000 Centrelink sent further letters to the applicant informing her of her obligations to notify a change in circumstances.  On 30 May 2000, 13 June 2000 and 27 June 2000 the applicant was paid parenting allowance in excess of her entitlement.  From 1 July 2000 the applicant was paid the full rate of parenting payment, to which she was not entitled, based on her husband's earnings.  Payments were suspended after the applicant contacted Centrelink on 3 October 2000.   

3. Mr Ellis submitted that because the applicant had received more than her entitlement the amount of overpayment becomes a debt to the Commonwealth under s1223 of the Act. He conceded that the Centrelink computer should have cross-referenced the information provided in relation to the newstart allowance received by the applicant's husband with parenting payment entitlements, and said that this was an administrative error by Centrelink. However he submitted that the applicant had been informed on numerous occasions of her obligations to inform Centrelink of changes to her financial situation and that of her husband, and to make inquiries if there was any confusion or uncertainty. Mr Ellis said that for this reason the debt did not arise solely due to administrative error by Centrelink, so the debt must not be waived under s1237A of the Act, and that no special circumstances exist that would justify use of the discretion to waive the debt under s1237AAD of the Act.

1. In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. The Tribunal accepts that the applicant was overpaid parenting allowance and that a debt to the Commonwealth exists under s1223 of the Act. The Tribunal also accepts that because of an administrative error by Centrelink some of the forms sent to the applicant regarding her parenting payment were incorrect. However the Tribunal accepts the submission by Mr Ellis that the applicant was sent numerous letters informing her of her obligations and that although she did not intend to mislead Centrelink, she did not comply with those requirements. Consequently the Tribunal finds that the debt was not attributable solely to administrative error by Centrelink, and that the debt must not be waived under s1237A of the Act.

1. In relation to whether special circumstances exist under s1237AAD, the Tribunal notes the decision of Re Beadle and Director-General of Social Security (1984) 6 ALD 1 in which the Tribunal stated that the question is whether the circumstances of the applicant can be described as unusual, uncommon or exceptional. In this case, on the available material, the Tribunal finds that there are no special circumstances that would allow the recovery of the debt to be waived.

1. For these reasons the Tribunal finds that the amount of overpayment to the applicant in the amount of $2,294.12 is debt to the Commonwealth and should be recovered.
   DECISION

2. The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member

(sgd)      Jason Lim
               Associate

Date of hearing:  12 July 2002
Date of decision:  12 July 2002
Advocate for applicant:            Self-represented
Advocate for respondent:        Mr S. Ellis, Centrelink