Cortes-Monroy and Secretary, Department of Family and Community S Ervices

[2004] AATA 131

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 131

ADMINISTRATIVE APPEALS TRIBUNAL      )

)    Nos T2003/65 and T2003/66

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SONIA CORTES-MONROY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

ReSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And          SONIA CORTES-MONROY

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date11 February 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

Social Security – parenting payment – sole administrative error – whether payments received in good faith – waiver.

Social Security Act 1991 – s1237A(1)

REASONS FOR DECISION

11 February 2004 Miss Mary Imlach (Senior Member)

1.      This matter relates to a cross-appeal on the decision made by the Social Security Appeals Tribunal (SSAT) in its decision of 20 march 2002.

2.      The SSAT decided:

(1)That it confirmed the decision of Centrelink to cancel Mrs Cortes-Monroy’s parenting payment from 5 November 2000.

(2)That it waived recovery of Mrs Cortes-Monroy’s debt of $19,904.39 under s1237A of the Act on the basis that the overpayments were due solely to administrative error made by the Commonwealth and that Mrs Cortes-Monroy received the amounts overpaid in good faith.

3.      The application by Mrs Cortes-Monroy was not withdrawn, but  she conceded that the SSAT decision, namely that the cancellation of parenting payments to her was not an issue.

Background to the Application

4.       Mrs Sonia Cortes-Monroy, was granted a Widows’ A Pension in December 1985 when her husband, an Australian citizen, died.   In 1987 Mrs Cortes-Monroy moved back to Chile, the country of her origin.

5.      The Widows’ A pension was changed through amending legislation to sole parent pension in 1989 and in 1997 was changed again to parenting payment.

6.      Mrs Cortes-Monroy ceased to be eligible for parenting payment in November 2000 when her son Paul turned 16 years of age.

7.      The Department, due to administrative error continued to make the parenting payments.

8.      The Department conceded sole administrative error in its statement of facts.

9.      The only issue before the Tribunal is whether the over-payments, totalling $19,904.39 were received by Mrs Cortes-Monroy in good faith.

10.     Mrs Cortes-Monroy conceded that she had received parenting payments to which she was not entitled and that there is a debt of $19,904.39 owing to the Commonwealth as a result.   The Tribunal is asked to determine whether or not the right to recover the debt should be waived.

Consideration

11.     The only section that warrants consideration in this case is 1237(A)(1), which reads:

“1237A(1) 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.”

12.     I accept Mrs Cortes-Monroy’s evidence that she understood the payment she received had two components, a parenting component and a pension component.

13.     I accept the Mrs Cortes-Monroy’s evidence that she believed after her son turned a certain age her payments would be reduced, but that she would continue to receive some form of payment, in her mind, her widow’s pension.

14.     I find that the letter of 17 April 2000 from the Department to Mrs Cortes-Monroy was ambiguous and was partially responsible for her confusion.

15.     I find that at the time the Mrs Cortes-Monroy received the parenting payments from 5 November 2000 to 18 September 2002 she did so in good faith.

16.     In all the circumstances, s1237A(1) applies and  the right of the Commonwealth to recover the debt must be waived.

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  1 December 2003
Date of Decision  11 February 2004
Counsel for the Applicant         Mr Hamish Locke
Solicitor for the Applicant          Hobart Community Legal Service
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink