Butler and Secretary, Department of Family and Community Services

[2004] AATA 215

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 215

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/461

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHELLE BUTLER

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date2 March 2004 

PlaceSydney

Decision The Tribunal affirms the decision under review and in so doing notes that the quantum of debt is $635.56.

[Sgd] Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY - Parenting payment - Overpayment - Casual worker - Waiver - Sole administration error - Special circumstances - Decision affirmed

Social Security Act 1991 (Cth) sections 1223, 1237A(1), 1237AAD

Secretary, Department of Family and Community Services and Danielson (1996) 49 ALD 19

Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190

REASONS FOR DECISION

2 March 2004    Dr Campbell, Member

1.      On 26 February 2003 the Social Security Appeals Tribunal affirmed the decision of an authorised delegate at Centrelink dated 29 November 2002 to raise and recover a parenting payment single debt of $1,312.73 for the period from 23 June 2000 to 1 March 2001 from Ms Butler. The decision of the Centrelink delegate had been affirmed by an authorised review officer on 20 January 2003. Prior to the hearing the debt was recalculated by an authorised officer with the debt owed by Ms Butler nominated at $1,213.20. During an adjournment during the hearing, a further re-calculation was undertaken by an authorised review officer and both Ms Butler and the Tribunal were informed that the debt owed by Ms Butler for the period 21 July 2000 to 15 February 2001 was $635.56. Ms Butler seeks to have the decision set aside, with the outstanding debt of $635.56 being waived.

2.      Ms Butler is a single mother with two children. Ms Butler is a qualified personnel manager and works part time as a casual worker as an assistant accountant and/or as a payroll supervisor. During the period 23 June 2000 to 2 March 2001, Ms Butler worked in casual employment for Penrith Personnel for the period 7 July 2000 to 2 March 2001 and earnt $11,954. During the period 23 July 2000 to 11 February 2001 Ms Butler worked on alternate Sundays for Kackell Pty Ltd, trading as Lander Toyota and earnt $4,480. There is no dispute between the parties as to the correctness of these facts. Ms Butler believes she provided Centrelink with all the necessary fortnightly and twelve-week review data summary of her earnings from the two companies. The Respondent contends that Ms Butler did not provide all the necessary and required earnings data, on a timely basis with particular reference to earnings from Kackell Pty Ltd (Lander Toyota) and as a consequence Ms Butler was overpaid family payment single  for the period in question in the amount of $635.56.

3.      The issues to be determined by the Tribunal are:

(a) whether there is a debt due and owed to the Commonwealth by Ms Butler and if so the quantum of that debt;

(b) whether there are grounds for the waiver of the debt, namely:

(i)  whether the debt was attributable solely to administrative error made by the Commonwealth with the overpayment having been received by the Applicant in good faith; or

(ii) whether there are any special circumstances that make it desirable to waive all or part of the debt.

4.      The Tribunal, for the reasons detailed later in this decision finds that Ms Butler did receive an overpayment of family payment single during the period 21 July 2000 to 15 February 2001; that the amount of overpayment is $635.56 and that the debt is a debt owed by Ms Butler to the Commonwealth (the debt has already been repaid). The Tribunal concluded that the debt should not be waved either all or in part, as both parties had contributed in part to the circumstances surrounding the overpayment and that no special circumstances existed.

consideration and findings

5.      In addressing the relevant issues in this matter, the Tribunal observes that there is no disagreement between the parties as to the earnings of Ms Butler for the period 21 June 2000 to 2 March 2001 and accordingly finds that Ms Butler earnt:

·     $11,954 from Penrith Personnel for the period 7 July 2000 to 2 March 2001; and

·     $4,480 from Kackell Pty Ltd for the period 23 July 2000 to 11 February 2001.

6.      The Tribunal, in noting that the overpayment has arisen as a consequence of under-reporting or under-recording of income earned by Ms Butler during this period, observes that Ms Butler, while experiencing some difficulty with the nature of the calculations undertaken, does not dispute the quantum of overpayment namely $635.56.The Tribunal notes that Ms Butler experienced difficulty with the concept of annualising each fortnightly income stream to calculate the pension entitlement.

7.      The Tribunal acknowledges that Ms Butler believes that she provided the Centrelink with all the necessary information that was required as to the name of her employers and the amount of earnings. The Tribunal also notes that Ms Butler has not retained a record of her notifications for the period in question, but has maintained and retained diarised information for subsequent years. The Tribunal further observes that Ms Butler states that she returned completed 12 week review Forms to Centrelink, there being evidence of such for one occasion, namely the data entry for 6 November 2000 where an amount of earnings of $5,804 is recorded for a previous 12 week period. Further the Tribunal observes that as a consequence of a cross matching exercise on 18 December 2000 Centrelink was made aware that Ms Butler was receiving income from Lander Toyota and that she had been working there since 24 July 2000. The Tribunal is mindful that Ms Butler states that she was contacted by a person (Kathy) around that time (18 December 2000) to be told that there was no discrepancy evident to Centrelink.

8.      The Tribunal also acknowledges that the Respondent believes that there is no record of Ms Butler having advised Centrelink of her commencing her employment with Lander Toyota in late July 2000, with their first knowledge of such employment being on 18 December 2000 as a consequence of the cross matching exercise with the Australian Taxation Office. Further the Respondent contends that while Ms Butler may have advised of her earnings from Penrith Personnel there is no documentary record which would indicate that earnings from Lander Toyota had been advised to Centrelink within the appropriate 14-day time frame. The Tribunal also notes that the Respondent acknowledges that any documentation relating to the 12-week review records has been destroyed for the period in question.

9.      In addressing these two sets of contentions the Tribunal observes that written documentation between the parties evidencing any advice that Ms Butler may have given concerning either her employers or her earnings during the period in question is very limited. The Tribunal observes that the first documentary evidence of Ms Butler's employment with Lander Toyota is on 18 December 2000, and that such information was derived from a cross matching exercise with the Australian Taxation Office.

10.     Further the Tribunal notes that the documentation from Centrelink to Ms Butler, namely letters dated 30 June 2000, 9 August 2000, 6 November 2000, 8 December 2000 clearly nominates that Ms Butler is obliged to inform Centrelink of any commencement or cessation of work and of any increase in income, which is further defined in each letter.

11.     The Tribunal in addressing the letter of 9 August 2000 notes that the records indicate that Ms Butler did advise that she had a gross income of $1,056 for the fortnight ending 18 August 2000 (T10). Further the payment records for Penrith Personnel indicate that Ms Butler was paid $1,052 for weeks six and seven of the 2000/01 financial year (T32). This would suggest to the Tribunal that limited albeit nil earnings have been declared in this advice concerning Lander Toyota, with Ms Butler having commenced employment on 23 July 2000.

12.     Further the Tribunal in addressing the 12 week advising of earnings lodged on 31 October 2000 notes that the quantum earned was $5,804. An analysis of the Penrith Personnel Payments to Ms Butler (T32) indicate a gross payment of $5,420 for the first twelve weeks of financial year 2000. The Tribunal also notes that Ms Butler earned $4,480 from Lander Toyota in the period between 23 July 2000 and 11 February 2001, this being a period of 30 Sundays. This would equate to approximate average fortnightly earnings of $299, or for the first twelve-week review period, to an income of $1,493 approximately. While the Tribunal has not been made aware of any particular circumstances in relation to any variation of Sunday employment at Lander Toyota by Ms Butler, the Tribunal's analysis would suggest an under reporting of income for this 12 week period, when the income streams are merged.

13.     In addressing the letter of 8 December 2000 (T20), Ms Butler having advised Centrelink of her cessation of work at Penrith Personnel being 9 December 2000 on 8 December 2000, the Tribunal notes that the parenting payment single was calculated using an annual income of $10.50. It would appear to the Tribunal that such an annual income assessment would indicate that Centrelink had no identified earnings stream being advised to them by Ms Butler as a consequence of her employment with Lander Toyota. The Tribunal further notes that there is no further correspondence before the Tribunal that would indicate to the Tribunal that Ms Butler advised of any increase in her annual income assessment of $10.50 detailed in the Respondent's letter of 8 December 2000 until 13 March 2001 when Ms Butler advised of earnings from McLean Partners of $1,020 per month.

14.     In Secretary, Department of Family and Community Services v Danielson (1996) 44 ALD 19, the Court considered circumstances in which relevant fortnightly continuation forms had been destroyed. In such circumstances the court found that there was a body of evidence available capable of sustaining an inference as to the amount declared in the continuation forms. The Tribunal in adopting such an approach, is satisfied on balance that the body of material before it is sufficient to sustain that Ms Butler had either not reported or alternatively under- reported the totality of her earnings from Lander Toyota during the relevant period.

15.     In stating as it has that there has been under reporting of a particular income stream, the Tribunal in particular is not drawing any inference as to Ms Butler's conduct in this matter. It would appear to the Tribunal that Ms Butler was particular in approaching her task, but for whatever reason an under-reporting of income occurred.

16. The Tribunal accordingly concludes that a debt of $635.56 has been correctly raised and is a debt arising by Ms Butler for the period 21 July 2000 to 15 February 2001 pursuant to section 1223(1) of the Act.

waiver

17. Section 1237A(1) of the Act provides for the debt to be waived where the debt is solely attributable to the administrative error made by the Commonwealth and that such payments leading to the debt were received in good faith by the debtor.

18.     In this matter it is clearly evident that on 18 December 2000 Centrelink were made aware that Ms Butler was employed by Lander Toyota. Further, following a review, the Centrelink officer considered that there were no discrepancies evident as a consequence of the cross matching exercise with the Australian Taxation Office. The Tribunal recognises this as an administrative error by the Commonwealth.

19.     In assessing whether the debt was solely attributable to this error, the Tribunal, mindful of the decision in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, concludes that the error was but one cause of the debt creation. In so stating the Tribunal has already concluded that for whatever reason Ms Butler has either not reported or under-reported the earnings from Lander Toyota during the relevant period, and this in the Tribunal's view is a significant cause of the debt, with the officer's error contributing to a continuation of the debt accrual process. Further the Tribunal observes that the available documents indicate that after the administrative error of 18 December 2000, no record exists of Ms Butler making contact with Centrelink until 13 March 2001, when advice is given concerning commencement of work with McLean and partners with a monthly income of $1,020. The Tribunal has difficulty in understanding the reason for Ms Butler not advising Centrelink that her annualised income was more than $10.50, consequent to her being requested to do so in the letter from Centrelink of 8 December 2000 and in the circumstance that it would appear that income streams were still being derived from employment at Penrith Personnel and Lander Toyota (T32, T31). Whether such a failure by Ms Butler to do so arose from misunderstanding or omission, a contribution to the debt creation did ensue.

20. In summary the Tribunal concludes that the administrative error by the Centrelink officer, noted to have occurred on 18 December 2000, is not the sole cause of the debt, as it is evident that a failure by Ms Butler to advise Centrelink of all necessary information relating to employment with Lander Toyota and the income stream from the same source contributed to the debt creation before and after the administrative error. The Tribunal further concludes that waiver pursuant to section 1237A(1) of the Act is not appropriate in the circumstances of this matter.

21. In addressing section 1237AAD of the Act, the Tribunal notes the circumstances of Ms Butler and her two children, and in particular the learning difficulties experienced by one of the children. Upon consideration the Tribunal does not consider such circumstance to be unusual, uncommon or exceptional, with the consequence that the circumstances cannot be considered to be special circumstances as detailed in section 1237AAD(b). Accordingly waiver pursuant to section 1237AAD of the Act cannot be actioned in this matter.

determination

22.      The Tribunal affirms the decision under review and in so doing notes that the quantum of debt is $635.56.            

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Campbell, Member

Signed:         Neil Glaser
  Associate

Dates of Hearing  1 December 2003, 16 January 2004
Date of Decision  2 March 2004
Representative for the Applicant    Michelle Butler (Self-represented)
Counsel for the Respondent          George Lozynsky