CJCY and Secretary, Department of Social Services (Social services second review)
[2019] AATA 5636
•13 December 2019
CJCY and Secretary, Department of Social Services (Social services second review) [2019] AATA 5636 (13 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/3419, 2019/3421
Re: CJCY
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO Member
Date of Decision: 13 December 2019
Dated of Written Reasons: 7 January 2020
Place:Melbourne
For the reasons provided during the hearing, the Tribunal affirmed the decision in respect of backdating of the rental assistance and set aside the decision in respect of the DSP debt, and remitted it to the Secretary to waive $2,000 from CJCY’s total debt as special circumstances have been found.
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Ms Anna Burke AO Member
Catchwords
SOCIAL SECURITY – DSP - overpayment receiving single rate when partnered – debt due to the Commonwealth – whether recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink –special circumstances – back payment of rental assistance - rental assistance not payable for rent outside of Australia -failure to advise Centrelink of change of circumstances.
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999Cases
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Bota and Secretary, Department of Social Services (Social services second review) [2018] AATA 2508
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Re Anderson and Secretary, Department of Families and Community Services [2002] 69 ALD 494
Re Callaghan and Secretary Department of Social Security [1996] 45 ALD 435
Groth and Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
YKBJ and Secretary, Department of Social Services [2015] AATA 65Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke AO Member
7 January 2020
INTRODUCTION
CJCY (the Applicant) sought a second tier review of decisions made by the Secretary of the Department of Social Services (the Respondent) that he had a Disability Support Pension (DSP) debt of $6,795.88 and could not be granted rent assistance from a date earlier than 5 January 2018.
On 7 August 2018 the Department of Human Services (Centrelink) raised a debt of $6,795.88 against CJCY for the period 5 April 2017 to 16 April 2018 on the basis he was a member of a couple and not entitled to be paid at the single rate. On 20 September 2018 Centrelink rejected CJCY’s claim for rent assistance to be backdated to January 2016. Centrelink is the service provider for the Department of Human Services.
The application was heard on 13 December 2019, CJCY was self-represented and Mr James Henderson, government lawyer in the Freedom of Information and Litigation Branch of the Department of Human Services appeared for the Respondent.
The Tribunal provided an oral decision at the hearing. CJCY has subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975, these are those reasons.
BACKGROUND
On 29 November 2018, CJCY was granted the DSP at the single rate.
On 9 November 2015, CJCY advised Centrelink that he had married in Bangladesh on 12 February 2015 and his wife remained in Bangladesh indefinitely.
On 23 November 2015, Centrelink advised CJCY that he would be paid a single person DSP even though he had a partner, as his partner was not residentially qualified to receive a payment and he met the criteria for financial difficulty. He was advised that he was required to inform the Centrelink if any circumstances related to either him or his partner changed.
On 17 December 2015, CJCY departed Australia to complete a year study towards his degree in Bangladesh and subsequently returned to Australia on 16 February 2017.
On 25 July 2016, CJCY’s wife was granted a subclass 309 visa (provisional partner) which provided her with the right to work in Australia.
On 5 April 2017, CJCY’s wife arrived in Australia and they commenced living together.
On 15 January 2018, CJCY advised Centrelink of a change in address and that he had been paying the rent at the address since 2 February 2017. Centrelink issued CJYC a rent certificate for completion.
On 25 January 2018, CJCY lodged a rent certificate, advising Centrelink that he did not share accommodation with other people, with Centrelink inclusive of a copy of his lease agreement and he was granted rent assistance from 15 January 2018 as a component of his DSP.
On 5 January 2018, CJCY’s son was born and subsequently on 26 February 2018 CJCY made an application for family tax benefit (FTB). FTB was finally granted on 20 September 2018 inclusive of rent assistance, CJCY received back pay for the period 5 January to 20 September 2018. CJCY and his wife have subsequently separated.
On 7 December 2018, a departmental Authorised Review Officer (ARO) reviewed the decision to raise and recover a DSP debt of $6,795.88 and affirmed the decision as CJCY had not advised Centrelink that his partner had entered Australia and commenced living with him. The ARO found that CJCY had been overpaid from 5 April 2017 to 16 April 2018 by $6,795.88 as this was the difference between the single rate of payment compared to the partnered rate of payment. The ARO also determined that special circumstances did not exist to enable the debt to be waivered.
On 7 December 2018, the ARO reviewed the decision to not pay arrears of rent assistance from 15 June 2016 to 4 January 2018 and affirmed the decision. Centrelink advised rent assistance could not be paid for overseas accommodation and CJCY had first re-applied for rent assistance on 25 January 2018 in connection with his claim for FTB on the birth of this child.
On 22 May 2019, the Social Security and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO in respect of disability support pension and the debt arising from an overpayment, and the date of effect for rent assistance.
On 13 June 2019 CJCY sought a review of the AAT1 decision by this division of the Tribunal. He disagrees with the decision made as he believed the first decision was not fair.
THE ISSUES IN CONTENTION
For the debt decision, the Tribunal needed to consider the following relevant issues:
(a)whether CJCY was overpaid DSP;
(b)if so, is the debt recoverable; and if yes
(c)should the debt be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 ("the Act"); or whether special circumstances exist such that the debt should be waived pursuant to section 1237AAD of the Act.
For the rent assistance decision the Tribunal needed to consider whether the Applicant could be granted rent assistance from a date earlier than 5 January 2018.
RELEVANT LEGISLATION
Section 117 outlines how to work out a person's DSP rate:
A person's disability support pension rate is worked out:
(a) if the person is not permanently blind and paragraph (b) does not apply to the person--using Pension Rate Calculator A at the end of section 1064
Section 1064 outlines how the calculation for the various entitlements including the DSP:
(1) The rate of:
(a) age pension; and
(b) disability support pension of a person who has turned 21, or of a person who has not turned 21 and has one or more dependent children; and
….
is, subject to subsection (2), to be calculated in accordance with the Rate Calculator at the end of this section.
…
Members of a couple
1064-A2 Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis (see points 1064-E2 and 1064-G2 below). They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis (see section 1070V).
…
1064-B1 A person's maximum basic rate depends on the person's family situation
Section 4 defines Family relationships–couples
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis
Section 24 provides that a person may be treated as not being a member of a couple (subsection 4(2)):
(1) Where:
(a) a person is legally married to another person; and
(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act
Section 1070C outlines common requirements for eligibility for rental assistance: that the person is not an aged care recipient, is not an ineligible homeowner, is liable to pay rent in respect of premises in Australia and the persons fortnightly rent is more than the rent threshold amount. The effect of the provision is to help individuals cover the cost of their rent.
The legal effect of section 1070C is that rent assistance cannot be paid for rent related to overseas accommodation.
Section 1223 of the Act outlines how debts arise from lack of qualification, overpayment etc.:
(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.
Section 1237A(1) of the Act provides grounds for the decision-maker to waive recovery of any part of the debt. The Act provides that the decision-maker must waive a debt if it was attributable solely to an administrative error made by the Commonwealth and the debtor received the payments in good faith.
Section 1236 of the Act allows the decision-maker to write off a debt if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost-effective for the Commonwealth to take action to recover the debt.
Section 1237AAD of the Act allows the decision-maker to waive all or part of the debt if they are satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration 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.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. CJCY also gave oral evidence at the hearing of this matter.
DSP debt
The parties did not dispute that CJCY was a member of a couple in accordance with section 24 of the Act as he was legally married and residing with his wife. The Tribunal found that CJCY was a member of a couple at the relevant time the debt arose.
The Respondent argued that there were no special reasons in accordance with section 24 of the Act to determine that CJCY and his wife were not a member of a couple. The Respondent contended:
·they had the ability to pool and share resources, enjoy the economies of scale and were not prevented from doing so;
·CJCY’s wife’s visa afforded her work rights in Australia and it was open to her to obtain employment;
·CJCY had access to Social Security and family assistance payments;
·there was no evidence of financial hardship in the relevant period;
·CJCY and his wife were not separated by illness or imprisonment nor were they no longer living in separate countries from 5 April 2017;
·there were no unexpected changed circumstances outside of CJCY’s control; and
·it was not for the taxpayer to subsidise or bear the costs of CJCY’s wife’s choice to move to Australia.
CJCY was adamant that he had never hidden the fact he was married and Centrelink records indicate he had advised them of his marriage as they had continued to grant him the single rate of the DSP as his wife was living overseas. CJCY believed Centrelink should have been aware that his wife had entered the country and that they had been living as a couple. CJCY was of the opinion he had advised Centrelink of his change of circumstances.
CJCY argued strenuously that he did not expect the taxpayer to bear the burden of supporting his wife. He also argued that she had never claimed Centrelink benefits, was unable to work at the time because of her English language skills and was prevented from working as she suffered significant illness during her pregnancy.
CJCY indicated to the Tribunal that the case law cited by the Respondent in their statement of issues facts and contentions (Boscolo v Secretary, Department of Social Security, Bota and Secretary, Department of Social Services, Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs) were irrelevant to his circumstances, indeed arguing his situation was more pressing as his wife had no access to any other income.
The Respondent argued that CJCY had a debt to the Commonwealth because he had failed to advise the department of his change in circumstances; he did not advise the department that his wife had arrived in Australia on 5 April 2017 and was living with him at the time. As a result his DSP was incorrectly paid at the single rate, not the partner rate and a debt had arisen. The Respondent indicated that the records showed CJCY had been in contact with Centrelink around this time in respect of other issues with his payments but had not advised of his change in circumstances as required under the law and which had been conveyed to him on numerous occasions through written correspondence from Centrelink.
CJCY advised the Tribunal that Centrelink had not provided a complete picture of his circumstances, they had not mentioned all the facts and he believed they only relied upon what suited them. He stressed that Centrelink had failed to mention that he had already paid back a substantial debt in respect of his previous Newstart allowance, a debt he claimed Centrelink has never explained. He also highlighted that it had taken eight months for his FTB to be paid even though he was clearly entitled as his child had been born and that his FTB had subsequently been cancelled and he is now under review for his DSP. CJCY stated that he does not have the capacity to pay the debt and Centrelink are not merely taking $20 a week but sometimes taking up to as much as $150 from his current benefits and he is struggling to pay the rent and support his child who is in his care.
The Tribunal having assessed all the information found that CJCY was a member of a couple during the period 5 April 2017 to 16 April 2018 as he and his wife were living together in Australia. It also found that they had the opportunity to pool their resources as a couple and although his wife was not working at the time she was not precluded from working in Australia or accessing Centrelink benefits. Additionally, the Tribunal found that there was no special reason for CJCY to not be considered a member of a couple in accordance with section 24 of the Act, as he and his wife were not separated by illness or imprisonment nor were they living in separate countries.
The Tribunal found that CJCY owed a debt to the Commonwealth of $6,795.88 as he had been paid his DSP at the single rate for the period 5 April 2017 to 16 April 2018 when he was a member of a couple. The Tribunal then explored if any of the debt was attributable to administrative error on the Respondent’s part; or if there were special circumstances in which to write off or waive all or part of the debt.
Writing-off the debt
The Tribunal, standing in the shoes of the Secretary, has the discretion to write-off the debt under section 1236 of the Act.
There was no evidence before the Tribunal that the debt was irrecoverable at law or that it was not cost effective for the Commonwealth to take action to recover the debt. CJCY was repaying the debt by way of fortnightly deductions from his current benefits and his whereabouts were clearly known. As such, CJCY did not meet the criteria as established in section 1236 of the Act and the Tribunal was unable to write-off the debt.
Waiver the debt on the basis of administrative error
Under section 1237A of the Act, the Tribunal has discretion to waive the right to collect a debt, if it was due solely to administrative error.
The Respondent submitted that the debt had not arisen as a result of administrative error and there was no evidence before the Tribunal of such an error; consequently section 1237A of the Act was not satisfied.
Waiver of all or part of the debt in special circumstances
The Tribunal, standing in the shoes of the Secretary, also has the discretion to waive all or part of a debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 1237AAD must be satisfied.
The Respondent contended that there was no evidence to suggest that CJCY’s circumstances are such that they can be considered special to the extent that waiver of part or all of the debt is warranted under section 1237AAD.
Knowingly
The term ‘knowingly’ has not been defined in the Act, although it has been considered extensively by the Tribunal in similar circumstances.
In Re Callaghan and Secretary Department of Social Security [1996] 45 ALD 435, Deputy President Forgie said:
There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge rather than constructive knowledge, that he or she is making a false statement or representation that he or she is failing or admitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act of omission.
The Tribunal found that CJCY’s debt did not arise because he knowingly made false statements or declarations. The Tribunal found that CJCY did not deliberately act dishonestly with any intention to mislead Centrelink. However, CJCY contributed to his own situation by failing to inform Centrelink of his change in circumstances in that on his return to Australia on 16 February 2017 he was living in rental accommodation and that his wife had commenced living with him on 5 April 2017.
Special circumstances
The expression ‘special circumstances’ has not been defined in the Act. However, the meaning of special circumstances has been considered extensively by the Federal Court and the Tribunal.
In Ryde v Secretary, Department of Family and Community Services [2005] FCA 886, Branson J said:
[…] the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for special circumstances discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.
In Groth v Secretary, Department of Social Security [1995] FCA 1708, Kiefel J said:
[…] for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
In summary, it has been held that for circumstances to constitute special circumstances they must be circumstances which are “unusual, uncommon or exceptional, markedly different from the usual run of cases, special, or out of the ordinary, and they include events which would render (the strict application of the rule in) question unfair or inappropriate.”[1]
[1] YKBJ and Secretary, Department of Social Services [2015] AATA 65.
CJCY was adamant he needed to tell his story which he considered demonstrated his situation constituted special circumstances to enable the debt to be waivered. As outlined earlier in paragraph 37, CJCY believed Centrelink had contributed to his debt through their numerous administrative actions many of which he has complained about through various channels. He also stated that at no stage had he hidden that he was married and believed he had inform Centrelink that his wife had commenced living with him in Australia.
CJCY told the Tribunal he had travelled to Australia many years before when he was still a student in Bangladesh to see the world but this was against the wishes of his parents. He stated that he had not intended to stay in Australia but he had met and married his first wife, who was a Christian, with whom he has two children. His parents disowned him, refusing to see him and he suffered mental anguish as a result. During this turbulent period he was also placed in detention and then deported back to Bangladesh where he remained for a year and a half whilst his spousal visa was finalised. He expressed his anguish at being detained as he was not an illegal immigrant or a criminal.
CJCY advised the Tribunal that he was in a great deal of stress during this time of his life as he had no family support and could not make friends being ostracised from his community as he had married a Christian. During this period there was also a great deal of concern for the safety of his children, he described he had many dealings with DHS, the Family Court and Child Support. He also advised that on his eventual return to Australia, DHS had been urgently in touch concerned with the welfare of his children, according to CJCY his children were subject to abuse at the time. His first marriage subsequently broke down and his two elder children are currently residing in foster care having been removed from their mother and according to CJCY are refusing to see him. CJCY stressed to the Tribunal that he is continuing efforts to regain access to his two older children. This situation, he stressed, continues to impact him.
CJCY advised the Tribunal that he has been diagnosed with numerous mental health issues and is in the care of a psychiatrist. He and his second wife have subsequently separated and she returned to Bangladesh for a time but she has now returned to Australia. He advised the Tribunal his child from his second marriage is in his care.
CJCY was adamant that he wished to have a successful life in Australia and was saddened that his migration story was not one of success but of tragedy. He stated that he is making every effort to ensure he can create a better life for himself and his children.
The Respondent contended that CJCY’s debt could not be waivered under section 1237AAD of the Act as his circumstances as a whole are not sufficiently unusual, uncommon or exceptional so as to make his case markedly different from the ordinary run of cases and otherwise special. Additionally, they argued CJCY had had the benefit of the DSP to which he was not entitled and there is no injustice or unfairness in requiring him to repay the debt.
The Tribunal found that CJCY’s circumstances on the whole were sufficiently unusual uncommon and exceptional as to make his case markedly different from the ordinary run of cases and therefore determined to waive a proportion of the debt. The Tribunal found that CJCY had contributed to his situation by failing to make a simple phone call to Centrelink around 5 April 2017 in which he could have advised of his change in circumstances, that his wife had commenced living with him in Australia, he had changed address and was paying rent at the time. The Tribunal did not think CJCY’s situation warranted cancellation of the whole debt as he had contributed to the making of his circumstances and he had already had benefit of moneys for which he was not entitled. However, the Tribunal determined that an amount of $2,000 was warranted to be waivered in recognition of his hardship and special circumstances.
Rental assistance
CJCY is adamant that for all periods he was renting he should have been entitled to rental assistance.
The respondent argued that CJCY cannot be granted rent assistance from a date earlier than 5 January 2018 for the following reasons:
·Centrelink had advised him on numerous occasions that his DSP no longer include rent assistance from 15 June 2016 and he needed to seek a review within 13 weeks if he disagreed with this decision and he had failed to do so;
·he did not advise Centrelink of a change in address or that he was paying rent on his return to Australia on 16 February 2017;
·he first advised Centrelink he was paying rent on 15 January 2018 in accordance with the Act and rental assistance could not be paid earlier than this date;
·rental assistance is only payable for rent to occupy premises in Australia as a principal place of residence, he could not be paid rent assistance for the period he was living overseas in Bangladesh;
·FTB inclusive of rental assistance had been granted from 5 January 2018 for the birth of his child and there was no provision under the Act for an earlier eligibility date as the benefit is linked to the birth of the child.
The Tribunal, considering all the facts, found there was no ability to grant backdating of rental assistance beyond 5 January 2018 and affirmed the original decision under review.
DECISION
The Tribunal afforded CJCY abundant time to express his argument, reference to case law and to tell his story before it made its oral determination.
The Tribunal affirmed the decision in respect of backdating of the rental assistance and set aside the decision in respect of the DSP debt, and remitted it to the Secretary to waive $2,000 from CJCY’s total debt as special circumstances have been found.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, AO Member
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Dated: 7 January 2020
Date of hearing: 13 December 2019 Applicant: Self-represented Advocate for the Respondent: Mr James Henderson
Government Lawyer FOI and Litigation Branch
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