Condren and Secretary, Department of Family and Community Service S
[2003] AATA 1311
•19 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1009
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES CONDREN Applicant
And
SECRETARY, DEPARMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date19 December 2003
PlaceWollongong
Decision The decision under review is affirmed.
[Sgd] Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - intellectual disability - suspension of pension while incarcerated on remand - suspension of pension - overpayment debt - special circumstances - decision affirmed
Social Security Act 1991 ss 23, 1158, 1223, 1237AAD
Acts Interpretation Act 1901 s 15AA
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Re Gilbert and Secretary, Department of Social Security (1987)13 ALD 518
REASONS FOR DECISION
19 December 2003 Mr S. Webb, Member 1. By Mr Condren’s request and consistent with the decision given orally at the hearing on 8 December 2003, the reasons for the decision are set out in writing below.
decision under review
2. Mr Condren sought review of the decision of the Social Security Appeals Tribunal dated 3 June 2000 to affirm a primary decision to suspend payment of Disability Support Pension during the period of his detainment in custody on remand (T2).
issue
3. The issue for determination by the Tribunal is whether Mr Condren was entitled to be paid Disability Support Pension during the period he was remanded in custody. In particular, the Tribunal must determine whether Mr Condren was in ‘psychiatric confinement’ and whether he was detained in a ‘psychiatric institution’ undergoing a course of rehabilitative treatment during this period.
legal principles
4. Mr Condren’s claim is under the Social Security Act 1991 (“the Act”). Under the Act, a social security pension, including Disability Support Pension, is not payable to a person who is ‘in gaol’ or who is ‘undergoing psychiatric confinement because the person has been charged with an offence’ (s.1158). The meaning of the term ‘in gaol’ includes ‘a period of custody pending trial or sentencing for an offence’ (s.23(5)). The term ‘psychiatric confinement’ includes the psychiatric section of a hospital and ‘any other place where persons with psychiatric disabilities are, from time to time, confined’ (s.23(8)) but does not include confinement in a psychiatric institution during the period when the person is undertaking a course of rehabilitation (s.23(9)). For Mr Condren’s challenge against the suspension of his disability support pension during the period of his incarceration to succeed the Tribunal must be satisfied that he was not ‘in gaol’ or in ‘psychiatric confinement’ because he was charged with an offence.
5. In cases in which a person is over paid a social security pension the amount of the overpayment is a debt to the Commonwealth (s.1223). The right of the Commonwealth to recover such a debt may be waived if special circumstances are found to exist (s.1237AAD) or the debt may be written off (s.1236). The meaning of the term ‘special circumstances’ has been considered by previous courts and tribunals and is interpreted to mean circumstances that are unusual, uncommon or exceptional (see Re Beadle and Director-General of Social Security (1984) 6 ALD 1; Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 155).
factual context
6. Mr Condren has an intellectual disability from birth. He is in receipt of a Disability Support Pension. On 21 October 2002, he was arrested, charged with using a telephone to make threats against Telstra. He was refused bail and was remanded in custody. He remained in custody in the Silverwater Remand Centre until the charge was dismissed for lack of evidence and he was released on 9 December 2002 (T9). Mr Condren sought and was accepted for transfer to the Disability Unit at Long Bay gaol but no bed was available in that Unit during the period of his incarceration (T16).
7. Mr Condren was paid $62.17 Disability Support Pension for the period 21 and 22 October 2002. His pension was suspended from 23 October 2002 until 9 December 2002 inclusive.
8. During the period of incarceration Mr Condren’s home was broken into and items of his property were stolen, and he accumulated debts that subsequently he had to repay.
summary findings
9. Disability Support Pension was not payable during the period of Mr Condren’s custody on remand. He was not in psychiatric confinement nor was he undertaking a course of rehabilitation.
10. Mr Condren was incorrectly paid Disability Support Pension on 21 and 22 October 2002 in the amount of $62.17, which is properly raised as a debt to the Commonwealth.
11. There are special circumstances in Mr Condren’s case that warrant waiver of the Commonwealth’s right to recover the debt of $62.17 from Mr Condren.
decision
12. The decision under review is affirmed.
reasons for the decision
13. Making this decision I have considered all of the evidence, the submissions of the parties, relevant caselaw and legislation.
is disability support pension payable during the period mr condren was in custody?
14. I am satisfied that Mr Condren’s Disability Support Pension was not payable during the period from 21 October 2002 until 9 December 2002 while he was remanded in custody.
15. It is not in dispute that Mr Condren was remanded in custody from 21 October 2002 until 9 December 2002 having been charged with an offence and refused bail. It is also not in dispute that he was accepted for transfer to the Disability Unit in Long Bay gaol but no beds were available, in consequence of which he was kept in protective custody at the Silverwater Remand Centre. The reason for him being so kept was the requirement to protect him, being intellectually disabled, from others in the Remand Centre.
16. In Mr Condren’s submission he was, in effect, in psychiatric confinement and would have received rehabilitation support had he been transferred to the Disability Unit in Long Bay Gaol. Mr Condren noted that he did not suffer from an intellectual disability rather than from a treatable psychiatric condition. He contended that confinement in the Long Bay Disability Unit would fall outside the terms of the preclusion on payment of pensions during periods of incarceration.
17. While sympathetic to Mr Condren’s circumstances, I am unable to accept this submission. Mr Condren was remanded in custody having been charged with a criminal offence and was not released on bail because of the serious nature of the charge. It follows that he was either in gaol or in psychiatric confinement because of the offence with which he had been charged. That is, his circumstances are within the strict terms of s.1158 precluding payment of his Disability Support Pension during the period of his custody on remand.
18. The fact is Mr Condren was not transferred to the Long Bay Gaol Disability Unit but would have been had a bed been available in that Unit. I accept that he was kept in protective custody at the Silverwater Remand Centre because of his intellectual disability. There is no evidence Mr Condren was undergoing a course of rehabilitation during the period he was held in custody. I do not accept his prospective submissions concerning what may have occurred by way of rehabilitation if he had been transferred to the Long Bay Gaol Disability Unit. Nor do I accept his contention that such circumstances would not enliven the prevention on payment of pensions pursuant to s.1158.
19. In Mr Condren’s submission, the mandatory prevention on payment of pensions to persons while in gaol or in psychiatric confinement should not be applied in his circumstances. I do not agree. I accept that the Long Bay Gaol Disability Unit is a place where persons with psychiatric disabilities are confined from time to time. I am satisfied that Mr Condren’s confinement in protective custody on remand in the Silverwater Remand Centre pending his transfer to the Long Bay Disability Unit is consistent with ‘psychiatric confinement’.. However, that does not resolve the matter in Mr Condren’s favour. The simple fact is he did not undergo any course of rehabilitation during the period of his incarceration and is not, therefore, within the terms of the exception to the definition of ‘psychiatric confinement’ set out at s.23(9).
20. Mr Condren submitted that inference could be drawn from his circumstances that he would have been within the terms of the exception and that the Tribunal should exercise discretion under the Acts Interpretation Act 1901 (“the Interpretation Act”). The inference Mr Condren is seeking is remote from the evidence before me. There is no evidence that a course of rehabilitation was planned for Mr Condren were he to be successfully transferred to the Long Bay Gaol Disability Unit and I am unable to make findings in that regard. Considering the purpose of the Act and s.15AA of the Interpretation Act I am not satisfied that the construction sought by Mr Condren is made out. The intention of the legislature to prevent a person receiving a pension during periods when they are also being provided for in custody at the expense of the taxpayer is clearly stated. This is not inconsistent with the beneficial nature of the Act and the social security support it provides to those in need (see Re Gilbert and Secretary, Department of Social Security (1987)13 ALD 518 at [14]). I am not persuaded that the purpose or object of the Act is promoted by a construction of s.23 or s.1158 that permits a person in Mr Condren’s circumstances to avoid the prevention on payment of his pension.
21. On Mr Condren’s evidence, which I accept, he suffered adverse consequences as a result of his period of custody on remand. His accommodation was broken into and his property was stolen, in relation to which he claimed insurance. He encountered difficulties maintaining his public housing accommodation and accumulated a rental debt in that regard. These circumstances highlight the difficulties facing a person who is remanded in custody for a period having been charged with a serious criminal offence and who is dependent upon social security pension for their sole income. The pension on which the person depends is suspended during the remand period and is reinstated on release, leaving him or her without income during the period of custody. In Mr Condren’s case, the difficulty such loss of income represents is accentuated by his intellectual disability. Nevertheless, the terms of the statute are clear and apply to persons in Mr Condren’s circumstances. Mr Condren did not undergo a course of rehabilitation in a psychiatric institution and does not, therefore come within the terms of the exception to the rule from which he seeks relief.
overpayment debt to the commonwealth
22. It follows that the $62.17 Disability Support Pension Mr Condren received for the period 21 and 22 October 2002 was not payable. Constituting an overpayment, that amount is a debt to the Commonwealth (s.1223) for which Mr Condren is liable.
special circumstances
23. In certain circumstances the Commonwealth’s right to recover the debt may be written off or waived. I am satisfied that Mr Condren’s debt cannot be written off and is more appropriately waived in the special circumstances of his case. It is not in dispute that special circumstances exist and Mr Condren did not knowingly or otherwise fail to comply with a section of the Act.
24. What is required is the balancing, on the one hand, of the fact that Mr Condren was overpaid an amount of money from the public purse and, on the other hand, the totality of Mr Condren’s circumstances. Mr Condren is dependent upon his Disability Support Pension for his sole income. He was without income during the period of his remand, in consequence of which he was unable to pay the rental on his home and accumulated a debt in that regard. His home was broken into and his property was stolen during this period, some of which he recouped by claim on his insurance. He was detained in protective custody in isolation because he was unable to transfer to the Long Bay Gaol Disability Unit. He was released on 9 December 2002, the charge against him having not been proved.
25. I am satisfied that special circumstances exist whereby it is appropriate to waive Mr Condren’s small debt to the Commonwealth.
conclusion
26. Mr Condren is not entitled to be paid Disability Support Pension during the period of his custody on remand and his overpayment debt in the amount of $62.17 is waived in the special circumstances of his case.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: A. Krilis
AssociateDate of Decision 19 December 2003
Representative for the Applicant Self-Represented
Advocate for the Respondent Emerson Thistlethwaite
Relevant sections of the Social Security Act 1991
1158Some social security payments not payable during period in gaol or in psychiatric confinement following criminal charge
An instalment of a social security pension, a social security benefit, a parenting payment, a mobility allowance or a pensioner education supplement is not payable to a person in respect of a day on which the person is:
(a) in gaol; or
(b)undergoing psychiatric confinement because the person has been charged with an offence.
Note 1: For in gaol see subsection 23(5).
Note 2: For psychiatric confinement see subsections 23(8) and (9).
23 General definitions [see Notes 2 and 5]
23(5) For the purposes of this Act, a person is in gaol if the person:
(a)is imprisoned in connection with the person's conviction for an offence; or
(b)is being lawfully detained in a place other than a prison, in connection with the person's conviction for an offence; or
(c)is undergoing a period of custody pending trial or sentencing for an offence.
…
Psychiatric confinement
23(8)Subject to subsection (9), psychiatric confinement in relation to a person includes confinement in:
(a) a psychiatric section of a hospital; and
(b)any other place where persons with psychiatric disabilities are, from time to time, confined.
23(9)The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement.
…
1237AAD Waiver in special circumstances
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 a false representation; or
(ii)failing or omitting to comply with a provision of this 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.
Relevant sections of the Acts Interpretation Act 1901
15AA Regard to be had to purpose or object of Act
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
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