Bun Theng Kuoch and and Secretary, Department of Social Services

[2014] AATA 793

[2014] AATA  793

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4855
Re	Bun Theng Kuoch
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

File Number	2013/4858
Re	Ly Eng Kham
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	30 September 2014
Date of written reasons	27 October 2014
Place	Melbourne

In application 2013/4855, the Tribunal affirms the decision of the Social Security Appeals Tribunal on 23 August 2014 as varied by Centrelink’s recalculations which:

1. Affirmed Centrelink’s decision to cancel disability support pension on 13 July 2012;
2. Found that the applicant has debts owing to the Commonwealth of:
1. $14,358.48 for disability support pension (DSP) for the period 11 July 2011 to 2 July 2012;
2. $30,053.91 for Newstart Allowance (NSA) for the period 5 August 2008 to 10 July 2011;
3. $36,471.22 for NSA for the period 5 May 2004 to 4 August 2008; and
4. $12,104.22 for NSA for the period 9 October 2002 to 6 April 2004.
3. Found that the full amount of $92,987.83 is recoverable by the Commonwealth.

In application 2013/4858, the Tribunal affirms the decision of the Social Security Appeals Tribunal on 23 August 2014 as varied by Centrelink’s recalculations which:

1. Affirmed Centrelink’s decision to cancel disability support pension on 13 July 2012;
2. Found that the applicant has debts owing to the Commonwealth of:
1. $1,392.72 for parenting payment single for the period 25 September 2002 to 4 May 2004;
2. $41,310.22 for parenting payment partnered (PPP) for the period 5 May 2014 to 4 August 2008;
3. $11,173.70 for PPP for the period 12 July 2011 to 2 July 2012; and
4. $31,406.77 for PPP for the period 5 August 2008 to 10 July 2011.
3. Found that the full amount of $85,283.41 is recoverable by the Commonwealth.

..........................[Sgd]......................................

G. D. Friedman, Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Newstart – Parenting Payment –  overpayment of entitlement – whether special circumstances exist  – gambling disorder – cultural difficulties

LEGISLATION

Social Security Act 1991 (Cth) s 1237AAD

CASES

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9; [2007] FCA 25.

Groth v Secretary, Department of Social Security (1995) 40 ALD 541; [1995] FCA 52.

Beadle v Director-General of Social Security (1985) 60 ALR 225; 7 ALD 670.

REASONS FOR DECISION

G. D. Friedman, Senior Member

27 October 2014

1. There are two matters before me, and they are decisions of the Social Security Appeals Tribunal that was made on 23 August 2013.  They involve Mr Kuoch and his wife, Ms Kham. That tribunal affirmed cancellation of some debts and set aside other debts for reconsideration.  The net effect of those decisions was that Mr Kuoch and Ms Kham owed a significant amount each by way of overpayment of Social Security benefits.  For convenience, I heard both matters together.

2. There is no dispute that the applicants owe Centrelink large amounts of money each. The only question before me is whether I should waive part or all of each or one of those debts. Under section 1237AAD of the Social Security Act 1991, paragraph (b) reads:

   There are special circumstances other than financial hardship alone that make it desirable to waive

   If that is satisfied, then the Secretary, or the Tribunal, may waive the right to recover all or part of the debt.

3. Now, there is no dispute that the debts arose because Ms Kham's sister had a bank account in Australia into which she deposited large sums and the applicants, particularly Ms Kham, withdrew money from that account and that both applicants used a large proportion of that money to gamble at the casino.  The relevant case law is contained in decisions such as Angelakos,[1] Groth[2], and Beadle.[3] The term "special circumstances" is not defined in the Social Security Act but those cases make it clear that I need to consider whether the circumstances in this case are unusual, uncommon or exceptional in that there must be something to distinguish today's case from the ordinary or usual.

   [1] Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9; [2007] FCA 25.

   [2] Groth v Secretary, Department of Social Security (1995) 40 ALD 541; [1995] FCA 52.

   [3] Beadle v Director-General of Social Security (1985) 60 ALR 225; 7 ALD 670.

4. Mr Kuoch arrived in Australia as a refugee in 1983; Ms Kham arrived in 1992.  They have three children aged 8, 16 and 20 and all live together in a property for which there is a mortgage, and the applicants are repaying the mortgage.  I accept that both Mr Kuoch and Ms Kham have limited English skills, particularly Mr Kuoch, and I accept that he cannot speak English or write English. Ms Kham has some English comprehension, but I accept that generally her English skills are not sufficient to enable her to carry out a usual conversation in English.  I accept Mr Kuoch's evidence that he has very little knowledge of financial affairs within his family and that he relies on his wife to pay the bills and to organise the financial affairs.  I also accept that at the time the debts were incurred, which was over a long period, the applicants did not necessarily know that the money from the sister would be taken into account as far as their Social Security benefits were concerned.  The question is:  from when they did know and in the subsequent period, should they repay the debts?

5. It was put to me that I should take into account the cultural profile of the Cambodian community in Australia, that some members of the community have language difficulties and that gambling is not uncommon within that community.  It was also put to me that people who fled from the Pol Pot regime in Cambodia may be highly traumatised, which may explain some of their actions.  I accept that there are members of the Cambodian community who suffer trauma, however there is no expert evidence before me today dealing with the specific circumstances of the applicants in this case.  While there may be Cambodian members of the community who are traumatised, there are also members of the Cambodian community who live a normal life and are able to do everyday things such as fulfil their obligations.  Mr Kuoch has been here over 30 years; Ms Kham has been here over 20 years.  There is no evidence before me that they in particular have suffered trauma to the extent that it impacts on their dealings with Centrelink in this particular case.

6. It was put to me that the gambling disorder suffered by both applicants is a major factor that I need to take into account, and that some Cambodian members of the community find it shameful to discuss their gambling and to seek treatment.  I have before me two reports from Dr Ian Katz, consultant psychiatrist.  In his first report dated 3 February 2014 he stated that both applicants fulfil the criteria for a condition of gambling disorder, although he found no evidence of underlying mania in either of them to explain their chronic gambling behaviour.  When he was asked about the likely impact of any pathological gambling on the applicant's understanding of Centrelink income disclosure requirements he expressed the view that the pathological gambling is not likely to affect the understanding of either of them of their Centrelink requirements.  In his second report dated 2 August 2014, Dr Katz clarified his first report and said that the gambling disorder for each of them is of moderate severity.  

7. Both applicants said that they continue to gamble on a regular basis.  Both applicants said that the amounts they gamble vary but it is clear to me that quite a lot of money, we are talking several hundred dollars or up to several hundred dollars at a time, is gambled by the applicants.  Ms Kham said that she gambles because she is bored.  She also said she gambles to try and win money to pay household bills.  She also said that she would like to seek treatment but would prefer to do that herself rather than through a professional counsellor, and it was suggested to me that the lack of facilities in the Khmer language to deal with gambling is one factor that I should take into account.  Mr Kuoch, similarly, said he still gambles; that he frequently gambles.  He said his wife gives him money. 

8. I do not accept the submission that the lack of treatment is due to a lack of facilities in the Khmer language.  There is no evidence before me that either applicant has attempted to either undertake counselling or treatment, or seek treatment with the assistance of an interpreter.  Further, it is clear to me that the applicants have three children in their family, they have the ability to pay the mortgage and clearly have the ability to organise their financial affairs.  Clearly this involves significant contact with schools, with government bodies, with authorities, with paying electricity and telephone accounts, et cetera, and all these are carried out despite their lack of English skills. 

9. Therefore, I do not accept that their lack of treatment for their gambling addiction is due to cultural or language issues. 

10. On the question of receiving mail from Centrelink, Ms Kham told me that other than reading the figures or some of the figures on some of the letters she does not really pay much attention to those letters.  Mr Kuoch told me that where necessary he asks his son, Phillip to translate letters for him and I heard that Phillip attended with the applicants to their solicitor to act as an interpreter.  As Phillip lives in the same household as his parents it makes perfect sense to me that any doubt about the contents of any official mail could be taken to Phillip for translation as Phillip was born in Australia and obviously speaks perfect English. 

11. For those reasons I do not accept that lack of English skills or unfamiliarity with Centrelink absolved the applicants from their responsibilities to reply to the obligations contained in Centrelink correspondence. 

12. Ms Kham told me today that her sister no longer provides significant financial assistance, but she did say that her sister helps with some expenses and it is clear that the sister contributes significantly to the cost of the applicants' visits to Cambodia.  Given the amounts of money that both applicants told me they lose or spend at the casino - and I am referring to the current situation - it is more than likely in my view that the sister continues to provide what I would consider to be a reasonable amount of money to the household. 

13. By their own evidence, the applicants together receive about $4,000 per month in social security benefits.  Their mortgage repayments, including the other loan, are more than $2000 per month.  It would seem even without a detailed list of income and expenditure, assets and liabilities that the applicants are receiving funds additional to their social security benefits and the small amount that their son, Phillip is paying.

14. It was put to me that repayment of the debts would cause significant financial hardship to both applicants.   I do not accept that submission.  The amounts that they are receiving in social security benefits, plus whatever amounts are received from the sister, in my view are sufficient for them to make modest repayments.  In effect, they have had interest-free loans for a considerable period.  Payment of a small amount by regular deduction from their income in my view would not cause them undue financial hardship. 

15. I accept that Mr Kuoch has medical conditions that involve depression as well as a gambling disorder.  That in itself does not constitute a special circumstance for the purpose of the Act.  It was put to me that I should waive the debts or part of the debts because of the uncontrollable pathological nature of the gambling disorder.  I have already referred to Dr Katz' two reports and in my view those reports of the gambling disorder are insufficient to constitute a special circumstance. 

16. It was put to me that the applicants had no capacity to understand their Centrelink obligations.  As I have already said language skills on their own are insufficient to constitute special circumstances, particularly when both applicants have been in receipt of social security benefits for a considerable period and, as a consequence, would have or should have the capacity to make enquiries with Centrelink about anything that they do not understand regarding the social security system. 

17. I take into account further that despite recognising that they have considerable debts to the Commonwealth both applicants not only have spent large amounts gambling but have made a number of trips to Cambodia which they are entitled to do, but it does not demonstrate a recognition that they have received money to which they are not entitled.  This is particularly evident in recent visits to Cambodia when they knew that they had debts to Centrelink and they knew why the debts arose. 

18. For those reasons I find that the circumstances of both applicants do not constitute special circumstances for the purposes of section 1237AAD, and therefore it is not appropriate to waive the debts in full or in part.

    DECISION

19. In application 2013/4855, the Tribunal affirms the decision of the Social Security Appeals Tribunal on 23 August 2014 as varied by Centrelink’s recalculations which:

    1. Affirmed Centrelink’s decision to cancel disability support pension on 13 July 2012;
    2. Found that the applicant has debts owing to the Commonwealth of:
    1. $14,358.48 for disability support pension (DSP) for the period 11 July 2011 to 2 July 2012;
    2. $30,053.91 for Newstart Allowance (NSA) for the period 5 August 2008 to 10 July 2011;
    3. $36,471.22 for NSA for the period 5 May 2004 to 4 August 2008; and
    4. $12,104.22 for NSA for the period 9 October 2002 to 6 April 2004.
    3. Found that the full amount of $92,987.83 is recoverable by the Commonwealth.

    In application 2013/4858, the Tribunal affirms the decision of the Social Security Appeals Tribunal on 23 August 2014 as varied by Centrelink’s recalculations which:

    1. Affirmed Centrelink’s decision to cancel disability support pension on 13 July 2012;
    2. Found that the applicant has debts owing to the Commonwealth of:
    1. $1,392.72 for parenting payment single for the period 25 September 2002 to 4 May 2004;
    2. $41,310.22 for parenting payment partnered (PPP) for the period 5 May 2014 to 4 August 2008;
    3. $11,173.70 for PPP for the period 12 July 2011 to 2 July 2012; and
    4. $31,406.77 for PPP for the period 5 August 2008 to 10 July 2011.
    3. Found that the full amount of $85,283.41 is recoverable by the Commonwealth.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

............................[Sgd].....................................

Associate

Dated 27 October 2014

Dates of hearing	12 August 2014; 30 September 2014
Advocate for the Applicant	Mr E Dyrenfurth
Solicitors for the Applicant	Dyrenfurth Legal Services
Advocate for the Respondent	Mr T De Uray
Solicitors for the Respondent	Department of Human Services