Chen and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 933

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 933

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2006

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUN CHEN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date21 October 2008

PlaceSydney

Decision The decision under review is affirmed.

................[sgd]..............................

Mr S E Frost
  Member

CATCHWORDS

SOCIAL SECURITY - parenting payment - overpayment - Centrelink error - failure to notify earnings - write off or waiver - decision affirmed

Social Security Act 1991 - s 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 - s 68(2)

REASONS FOR DECISION

21 October 2008 Mr S E Frost, Member        

Introduction

1.      Mr Chen received parenting payment during a period when he was not entitled to it. 

Issues

2.      There are two issues.  The first is whether Mr Chen was overpaid parenting payment to the extent of $15,652.59.  The second is whether, if he has been overpaid, the debt should be written off or waived, in whole or in part.

Has Mr Chen been overpaid?

3.      Yes.  In fact, Mr Chen did not seriously suggest otherwise.  Instead, his focus was on the circumstances that led to the overpayment.

4.      The summary of his case is that the overpayment was caused by a mistake on the part of Centrelink.  He said that he should not be held liable for Centrelink’s mistakes.  He admitted that he does not know how the law works, but he operates on the basis of common sense.  They made a mistake.  It was not his job to make sure that Centrelink got everything right.

5.      It all started in late 2004 or early 2005, at a time when he was receiving parenting payment and his wife was receiving newstart allowance.  She was reporting her earnings fortnightly, by lodging with Centrelink the forms that had been sent to her for that purpose.  He was also reporting fortnightly – both his earnings (which were presumably nil) and his wife’s – but instead of lodging forms, he was logging on to the Centrelink website and reporting online. 

6.      In December 2004, his wife got a job.  After a time, when her earnings became too great, she stopped receiving newstart allowance.  Of course, once that happened, she no longer had to report her earnings.

7.      Meanwhile, Mr Chen was still reporting for both himself and his wife, on the website, for parenting payment purposes.  Then, in about April 2005, Centrelink discontinued the website reporting facility.  Mr Chen became aware of this, not because Centrelink notified him that the facility was being withdrawn, but because he tried to log on one day and found that he could no longer report to Centrelink that way.  So he simply stopped reporting.  He did not phone Centrelink to ask why the facility was not available, or to find out if there were some forms he should fill in.  He did not write and ask for any explanation of the change.  He did not go in to a Centrelink office to talk to someone about his reporting obligations.  He just stopped reporting.

8.      Centrelink was now receiving no information at all about either Mr Chen’s earnings or those of his wife.  The impression that this created for Centrelink was that neither of them had any earnings.  So, in a letter dated 27 April 2005, Centrelink notified Mr Chen that:

Your partner’s fortnightly earned income [is] $0.00.

9.      The letter also notified Mr Chen that he would receive a parenting payment of $360.30 on 12 May 2005.  It went on to explain:

Your payment is worked out using both your and your partner’s incomes.

…

You must tell us if any of these things happen or are likely to happen:

…

your partner’s total personal income goes over $600.00 a fortnight;

…

10.     Mr Chen’s wife’s fortnightly earnings were already around $1,200 per fortnight.

11.     The payment of $360.30 that Mr Chen was about to receive was to be the first payment of that magnitude since 3 February 2005 – seven fortnights earlier – when he had received $356.00.  For each intervening fortnight, he had received no payment at all, except a small payment of $69.74 on 4 April 2005.

12.     So, for three months he had received virtually nothing.  Then he was notified that his wife’s fortnightly income was “$0.00” and his next payment would be $360.30.  And this all came about directly after he had been unable to report his and his wife’s earnings online. 

13. Yes, Centrelink had made a mistake. But so had he. He had not paid any attention to the letter he got from Centrelink. He did not do what the letter required him to do (this letter is a “notice” for the purposes of s 68(2) of the Social Security (Administration) Act 1999).  He would receive a later letter from Centrelink, dated 6 July 2005, which also notified him that his wife’s fortnightly income was “$0.00”, and telling him that he had to tell Centrelink if her income went over $600.00 per fortnight.  And still he did nothing.  That is why he continued to receive parenting payment when he was not entitled to it.

14.     Mr Chen has been overpaid, and he has a debt due to the Commonwealth.  The amount of the overpayment, $15,652.59, was uncontested.

Should the debt be written off or waived?

15. The debt cannot be written off under s 1236 of the Social Security Act 1991 (“the Act”) because the debts are not irrecoverable, Mr Chen has the capacity to repay, his whereabouts are known and it is cost effective to recover the debt.

16. The debt cannot be waived under s 1237A of the Act because it is not attributable “solely” to an administrative error made by the Commonwealth.

17. Nor can the debt be waived under s 1237AAD of the Act because it is not the case that there are special circumstances (paragraph (b)).

18.     Therefore, there is no justification for write off or waiver of the debt and it should be recovered in full.

Conclusion

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         ................[sgd]................................................................
  Associate

Date of Hearing  19 September 2008
Date of Decision  21 October 2008
Appearance for the Applicant   Self-represented  
Solicitor for the Respondent     Mr G Lozynsky, Centrelink Legal Services and   Procurement Branch