Colette and Department of Family and Community Services
[2000] AATA 868
•29 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 868
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1890
GENERAL ADMINISTRATIVE DIVISION )
Re IRIS COLETTE
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell
Date29 September 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
[Sgd] Dr J D Campbell
Member
CATCHWORDS
Social Security – widow's pension - overseas - advice to department - temporary residence in New Zealand - permanent residence in New Zealand - debt - waiver - sole administrative error - good faith - special circumstances
Social Security Act 1991, ss 657, 1215, 1224, 1237A, 1237AAD
Article 8A of the Social Security Agreement between Australia and New Zealand (1995)
Secretary, Department of Education, Employment and Youth Affairs v Prince (1997) 50 ALD 186
Kulakov and Secretary, Department of Social Security (1991) 63 SSR 879
Zaccardi and Secretary, Department of Social Security (1995) 40 ALD 760
Hajar and Secretary, Department of Social Security (1988) 16 ALD 716
Re Ivovic and Director General of Social Security (1981) 3 ALN N95
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
REASONS FOR DECISION
Dr J D Campbell
Mrs I Collette ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 19 November 1999, which affirmed the decision, dated 17 November 1997, of the delegate of the Secretary, Department of Family and Community Services ("the Respondent") to cease payment of the widow's pension to the Applicant and raise and recover a debt of $2487.80 for the period 26 June 1997 until 18 September 1997. This latter decision was affirmed by an authorised review officer on 10 August 1999.
A hearing was held before the Tribunal in Sydney on 9 May 2000 at which the self represented Applicant presented her evidence by telephone. The Respondent was represented by Ms Mantaring, an advocate from the Administrative Law Section of Centrelink.
The following material was placed in evidence before the Tribunal:
Documents prepared pursuant to the Administrative Appeals Tribunal Act 1975. T1-T22, pp1-67
Letter and attachments from the Applicant to the Administrative Appeals Tribunal dated 1 March 2000 Exhibit A1
Respondent's statement of facts and contentions dated 6 April 2000 Exhibit R1
issues
The relevant issues in this matter are:
1.whether the Applicant was overpaid widow's pension for the period 26 June to 18 September 1997 in the amount of $2487.80; and if so
2.whether this overpayment is a debt to the Commonwealth; and if so
3.whether the debt should be recovered; and if so
4.whether there are special circumstances which the Tribunal should consider.
legislation
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 657, 1215, 1224, 1237A, 1237AAD and Article 8A of the Social Security Agreement between Australia and New Zealand (1995).
backgroundThe Applicant was granted a widow B pension on 3 September 1988. In October 1996 the Applicant was advised that she must notify the Respondent within 14 days if she were to go outside Australia. Failure to do so would mean a departure certificate would not be issued, and without such a departure certificate payment would stop after six months absence (T4). In an advice from their New Zealand counterpart on 9 September 1997, the Respondent was advised that the Applicant had arrived in New Zealand on 23 May 1997 and had applied for a New Zealand benefit (T5), with Australian payments being ceased on 15 September 1997 (T6), date of effect being 18 September 1997 (T7).
The Applicant advised the Respondent in correspondence dated 18 September 1997 and 5 November 1997, that she had sold her home in Kiama (NSW) and that she had purchased a home in New Zealand, where she intended to reside for a few years. As the widow B pension is only portable for a period of four weeks, the Applicant was considered to have been overpaid for the period 26 June 1997 to 18 September 1997 (T8). An advice of debt for $2487.80 was raised and issued to the Applicant on 17 November 1997 (T9). A review and affirmation of this decision was undertaken by the authorised review officer on 10 August 1999. Further review by the SSAT on 19 November 1999 resulted in affirmation of the primary decision (T2).
applicant's evidenceThe Applicant told the Tribunal that in early 1997 she made an enquiry concerning the payment of her widow B pension in relation to temporary or permanent departure and residence in New Zealand. It was her understanding that the advice given indicated that she would continue to receive payment from the pension for six months. Further the Applicant stated that she had telephoned the New Zealand equivalent Department and that she had been advised that she was allowed to be paid after arrival in New Zealand.
The Applicant stated that on 23 May 1997 she arrived in New Zealand, not being sure how long she intended to stay in the country. Shortly after, she began thinking about staying in the country and she visited the New Zealand Department of Social Security some ten days after arriving, to discuss pension issues.
In her initial days in New Zealand, the Applicant stated she was staying with friends and that during the June/July period of 1997 she moved to live alone in a house which she purchased, following the sale of her home in Kiama (NSW). During this period the Applicant suffered from a virus, which although debilitating, did not require hospitalisation.
The Applicant further stated that some time during July/August 1997, she again visited the New Zealand Department of Social Security to make application for a New Zealand pension, and was advised that there was a six month residency requirement before payments would commence.
The Applicant stated that she advised the Australian Department of Social Security some three times in August/September 1997, with her widow B pension being stopped in September 1997. Further, one of the letters she said she sent in August/September 1997, advised the Department of how much she had received for the sale of her townhouse at Kiama.
In addressing issues of special circumstances, the Applicant stated that she lives alone in a house, which she owns, and has a car, which she drives. She has no other investments and apart from the debt in question has no other major debts. The Applicant assessed the value of her assets at NZ$200,000.
The Applicant indicated that her only income was NZ$149 a week and that her expenses were similar to what she had detailed prior to the SSAT hearing, contained in her letter dated 16 October 1999 (T22), and further detailed in her letter of 1 March 2000 (Exhibit A1).
Further the Applicant stated that she had the following medical impairments:
a)degenerative lumbar spondylosis and scoliosis with osteophyte formation; this condition has existed for a number of years and causes her particular pain symptomology, for which she has purchased a "Sonoid" machine, which is to be paid off at NZ$22 per week commencing 26 November 1999 for a period of two years (approx). As a result of her back condition, the Applicant stated that she ceased work in 1990, and at the time of the hearing she stated that she:
was unable to sit for more than 20 minutes;
was able to drive a car for short distances;
requires help with heavy housework on a weekly basis;
is able to wash and cook and do some shopping;
is unable to garden or mow lawns (outside help); and
does not experience difficulties with walking.
b)irritable bowel syndrome, which appears to be aggravated by stress.
submissions
The Applicant submits that the overpayment in this matter arose because of mistaken advice given to her by the enquiry counter employee of the Respondent at Shell Harbour in the early months of 1997, when she sought advice on temporary and permanent departure from Australia and was advised that her pension (widow B) would be paid for a period of six months after her departure.
The Applicant submits that as a result of that advice she has on all occasions attempted to keep the Respondent aware of her circumstances, and that in doing so has been particularly frustrated by their apparent lack of timely response to many of her letters.
Further the Applicant submits that she has undertaken all her activities in good faith and that at all times has attempted to do as required and as a consequence it is her submission that the following circumstances exist, which would allow discretion to be exercised to waive the debts:
the nature of advice given;
the gap of five months in which she would not be entitled to
pension payment.;
her viral illness during June/July 1997;
her medical condition; and
her tightened financial circumstances.
The Respondent submits that the Applicant failed to advise the Respondent of her departure, seek interview or obtain a departure certificate as nominated in correspondence of 9 October 1996, and which she had done previously in relation to trips to the UK; that this was the prime cause for the continued payment of widow B pension beyond the period of four weeks which was permitted in relation to temporary New Zealand residence; that the widow B pension was ceased as soon as the Respondent was notified by their New Zealand counterpart; and the debt had been correctly calculated and raised.
In relation to the issue of special circumstances, the Respondent submitted that there was nothing unusual, uncommon or exceptional in any of the circumstances for which the Applicant sought particular consideration.
consideration and findingsThe Tribunal considers the issues in this matter to be particular, and that the difficulties in communication that have been highlighted are a product of these circumstances. The Tribunal observes that the Applicant stated that she visited the Shell Harbour office of the Respondent in the early months of 1997 and made particular enquiries in relation to continuance of widow B pension and temporary or permanent relocation. It is stated by the Applicant that she was given particular advice, upon which she said she relied.
Nevertheless it is noted that the Applicant was provided with specific advice by the Respondent on 9 October 1996, which included advice that the Applicant must inform the Respondent within 14 days of deciding to go outside Australia, with a failure to so inform resulting in an inability to get a departure certificate, which in turn would result in automatic cessation of payment after six months. The Tribunal notes that the general information is not inconsistent with what the Applicant stated she was told during her visit to the Shell Harbour office of the Respondent in the early months of 1997.
The Tribunal further notes that the Applicant did leave Australia on 23 May 1997 and arrive in New Zealand on the same day, undecided as to her intention to stay temporarily or settle permanently. The Tribunal also notes that the Applicant did not notify the Respondent prior to her departure from Australia, despite being advised to do so, an activity which she had previously done in relation to visits to the United Kingdom.
The Tribunal further notes that the Applicant considered staying permanently in New Zealand within a short period, and within ten days of arrival made enquiries concerning pension issues with the New Zealand Department of Social Security.
In considering all these issues the Tribunal finds that while particular advice may have been given to the Applicant in relation to enquiries at the Shell Harbour office in the early months of 1997, there remains a clear duty on the Applicant to notify the Respondent within fourteen days of her deciding to travel to New Zealand. This is a duty which the Tribunal finds that the Applicant did not discharge irrespective of whether she was departing Australia on a temporary or permanent basis. Further the Tribunal finds that the visit to the New Zealand Department of Social Security some ten days after arrival to New Zealand to discuss pension issues does not discharge the onus to notify the Respondent as required of the departure from Australia.
In further consideration the Tribunal notes the relevant legislation which provides:
Item 5 of Article 8A, Portability of Benefits, of the Reciprocal Agreement between Australia and New Zealand:
"A person who, by virtue of this Agreement or otherwise, is in receipt of a disability support pension, a wife pension, a widow b pension or a sole parent pension and who is present but not ordinarily in New Zealand, shall be eligible to continue to receive that benefit for up to four weeks during a temporary absence from Australia."
Sections 389 and 390 of the Act require that a recipient of a widow B pension advise the Respondent when a specified event or change in her circumstances occurs or is likely to occur. The Tribunal has already found that the Applicant did not discharge her duty in this regard, and therefore she has failed to comply with a provision of the Act and accordingly any payment of widow B pension must terminate after a four week period of temporary absence for Australia while temporarily residing in New Zealand. Further any payment received after the end of that four week period, constitutes a debt pursuant to subsection 1224(1) which states:
"If:
(a)an amount has been paid to a recipient by way of social security payment; and
(b)the amount was paid because the recipient or another person:
(i) made a false statement or a false representation; or
(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is debt due by the recipient to the Commonwealth."
In noting the particulars of the Applicant's decision to stay permanently in New Zealand, the Tribunal observes the particular date by which the Respondent was notified in the first instance by the New Zealand Department of Social Security (9 September 1997) and for what reason (application for New Zealand pension); the effective date of cessation of pension payment (18 September 1997); the letter advising the Applicant of such actions to her Kiama Downs address (15 September 1997); letters from the Applicant to the Respondent dated 18 September 1997 and a later undated letter (4 November 1997) and 18 November 1997 and further the Respondent's notification of a debt of $2487.80 to the Applicant on 17 November 1997. The Tribunal, while noting the Applicant's increasing frustration in relation to the difficulties in establishing effective communication with the Respondent, finds nevertheless that the debt and the quantum have been raised in accordance with the Act. Further, in commentary the Tribunal considers that in the absence of advice from the Applicant to the Respondent concerning residency intentions and change of address and the fact that widow B pension could only be paid for four weeks in New Zealand in a situation of temporary residency, the Respondent acted in an appropriate manner to cease the payments, although it would have been appropriate to send a copy of their letter of 15 September 1997 concerning the cancellation to the Applicant's New Zealand address, as provided by then by the New Zealand Department on 9 September 1997, as well as the letter sent to the Applicant's previous address.
The Tribunal, having found that the debt owed by the Applicant has been both correctly calculated and raised, moves to a consideration of write off and/or waiver. Secton 1237A(1) of the Act provides:
"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."
In considering the above section, the Tribunal, while noting that the Applicant considered that she had been given particular advice by the enquiry desk at the Shellharbour office of the Respondent in the early months of 1997, and further that she had acted upon this advice, has already found that the Applicant failed to advise the Respondent of her intending or actual departure from Australia in accordance with what she had been told she must do - instructions which were in accordance with the Act. Accordingly in this matter the Tribunal concludes that the Applicant did play a significant role in the administrative error which led to the overpayment and therefore this is not a situation in which the issue of sole administrative error can be considered. In arriving at such a finding the Tribunal has also considered the Applicant's contention that the New Zealand Department should have acted more promptly in notifying the Respondent of the Applicant's intentions and change of address, and finds such an argument wanting in terms of preciseness of detail as to when, what and at what stage an application for New Zealand pension was made as opposed to an enquiry about such pensions and what time delay existed before they are payable. Further the Tribunal finds that such an activity requested by the Applicant of a third party in another country, does not necessarily discharge her duty under the Act to notify the Respondent, as the prime duty to do so or ensure that it is done rests with the Applicant. Accordingly section 1237A(1) is not applicable in this matter.
In considering whether the debt could be written off, the Tribunal notes section 1236(1) of the Act which states:
"1236.(1) Subject to subsection (1A), the Secretary may on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236.(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt id recoverable 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) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt."
In considering the various factors nominated it is clear to the Tribunal that none of the circumstances exist, in that the Applicant has capacity to pay, the debt is recoverable at law and mechanisms are in place for its recovery.
Finally the Tribunal notes section 1237 AAD of the Act, which provides:
"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 the 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."
33.In addressing the issue of whether the Applicant knowingly failed or omitted to comply with a provision of the Act, the Tribunal in considering the fact of this matter, namely that the Applicant had a duty to inform the Respondent of her intention to depart Australia within 14 days, has already found that she did not do so. The Tribunal has already found that this duty already existed, irrespective of what advice the Applicant may have had in relation to an enquiry about pension payment. That the Applicant may have relied on particular advice, in no way relieves her of the onus of notifying the Respondent of her intention to travel to New Zealand some months later. In considering the issue of "knowingly" the Tribunal, being aware that the Applicant had received the letter of 9 October 1996, concludes that knowingly omitting to comply in this matter relates specifically to the Applicant failing to notify the Respondent of her intention to depart to New Zealand on either a temporary and/or permanent basis as she was required to do. That she did not do so is a matter which remains unexplained by the Applicant, other than by way of inference that early information as to payment of pension made it unnecessary. The decision not to inform the Respondent of her intention to travel to New Zealand was taken by the Applicant knowing that she had a duty to so advise, or at least having been provided with written advice that she should do so. Thus the Tribunal's finding that the Applicant knowingly failed to comply with a provision of the Act, in that while she may have been provided with earlier knowledge which satisfied her earlier enquiry, the Applicant had been provided with what she must do, and she knowingly failed or omitted to comply.
34.In addressing the issues of special circumstances the Tribunal acknowledges the areas of special circumstance nominated and in particular the financial circumstances and the medical disabilities of the Applicant. In relation to the financial circumstances, the Tribunal is aware of the long line of authorities that establishes that an Applicant's financial situation must be more than "straitened" and must be exceptional for them to be considered a special circumstance (Kolakov and Secretary, Department of Social Security (1991) 63 SSR 879, Zaccardi and Secretary, Department of Social Security (1995) 40 ALD 760); that it is relevant in ascertaining how the financial hardship arose (Re Ivovic and Director General of Social Services (1981) 3 ALN N95); and that the issue of claiming financial hardship when owning valuable asset must be considered (Hajar and Secretary, Department of Social Security (1988) 16 ALD 716).
35.In turning to the particulars of the Applicant's financial circumstances, the Tribunal, in noting the Applicant's evidence that she has unencumbered assets of some NZ$200,000, a negligible debt situation and a difficult yearly income and expense situation, finds that this, within the category of Social Security recipients is not uncommon, unusual or exceptional and cannot be considered to constitute special circumstances (Re Beadle and Director General of Social Security (1984) 6 ALD 1). In so finding the Tribunal does recognise that the Applicant is experiencing tightened financial circumstances as evidenced by the annual income and expense statement, but this, in itself does not constitute "special circumstances".
36.Similarly the Tribunal notes the nature and effect of the Applicant's two major continuing disabilities (degenerative lumbar spondylosis with associated scoliosis and irritable bowel syndrome) as well as the viral episode shortly after her arrival in New Zealand. The Tribunal, in noting an earlier decision where ill health was not considered to be a special circumstance (Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464), observes that apart from the temporary viral condition, the Applicant's medical disabilities were extant prior to her move to New Zealand, and apart from their continuance, they are disabilities which limit in part her activities. Nevertheless the Tribunal finds that such disabilities are not uncommon or unusual and that the Applicant's ill health either alone or in combination with her tightened financial circumstances do not constitute special circumstances.
37.As a consequence of the Tribunal's findings, subsections 1237AAD(a)(ii) and (b) are not satisfied and accordingly the debt cannot be waived.
determination:
The Tribunal affirms the decision under review.
I certify that the preceding 38 paragraphs are a true copy of the reasons for the decision herein of DR JD CAMPBELL.
Signed: .....................................................................................
AssociateDate of Hearing 9 May 2000
Date of Decision 29 September 2000
Representative for the Applicant Self RepresentedRepresentative for the Respondent Ms S Mantaring, Departmental
Advocate
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