Curle, Secretary, Department of Family and Community Services

[2004] AATA 130

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 130

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/311

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And SHARON MARIE CURLE

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date11 February 2004

PlaceHobart

Decision The decision of the Social Security Appeals Tribunal dated 26 November 2002 be varied in that Centrelink’s decision to raise and seek to recover a debt in the amount of $7,712.93 being a compensation charge relating to the period 11 July 2001 to 19 June 2002 be reinstated.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

Compensation – affected payments – parenting payment – whether respondent precluded from receiving parenting payments – special circumstances – sole administrative error – whether the respondent received the overpayments in good faith.

Social Security Act 1991 – 1237A

Re Gerhardt and Secretary, Department of Employment, Education and Training (AAT Decision No 10941, 17 May 1996)

Re Secretary, Department of Family and Community Services and D’Amelio (13 September 1999) V1999/490, (Unreported)

REASONS FOR DECISION

11 February 2004 Miss Mary Imlach (Senior Member)        

1.      This matter relates to an application for review of a Social Security Appeals Tribunal (SSAT) decision dated 26 November 2002, which

·affirmed Centrelink’s decision to preclude Mrs Curle from receiving compensation – affected payments from 5 April 2001 to 13 November 2002; and

·varied Centrelink’s decision to raise and seek to recover a debt in the amount of $7,712.93, being a compensation charge relating to the period 11 July 2001 to 19 June 2002, to the extent that recovery of that part of the debt that accrued from 13 February 2002 be waived.

2.      The matter was heard in Hobart on 14 October 2003.   The applicant was represented by Mr Brian Sparkes.   The respondent appeared and was represented by Mr Hamish Locke of Hobart Community Legal Service.

3. The T documents, pursuant to s37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence.   The matter was decided on the basis of the oral evidence of the respondent, the exhibits and the written and oral submissions of the parties.

Background to the Application

4.      A decision was made by a Centrelink officer on 28 June 2002 to preclude the respondent from receiving compensation affected payments from 5 April 2001 to 13 November 2002 on the basis that the respondent had received a compensation payment of $95,000.00 on 11 April 2001.

5.      The parenting payment received by the respondent from 11 July 2001 to 19 June 2002 was consequently cancelled.   On 12 July 2002 a notice was sent to Mrs Curle advising her that Centrelink had raised a debt against her for $7,712.93 being the amount of parenting payment that had been received by the respondent for the period 11 July 2001 to 19 June 2002.

6.      The respondent disagreed with Centrelink’s decision and asked for it to be reviewed.   The decision was reviewed and affirmed by an authorised review officer of Centrelink on 2 September 2002.

7.      The respondent applied to the SSAT for a review of Centrelink’s decision on 20 September 2002.

8.      A hearing of the SSAT on 19 November 2002 decided to –

·     affirm Centrelink’s decision to preclude Mrs Curle from receiving compensation-affected payments from 5 April 2001 to 13 November 2002; and

·     vary Centrelink’s decision to raise and seek to recover a debt in the amount of $7,712.93 being a compensation change relating to the period 11 July 2001 to 19 June 2002, to the extent that recovery of that part of the debt that accrued from 13 February 2002 be waived.

Applicant’s Case

9.      The compensation lump sum payment of $95,000 paid to the respondent on 11 April 2001 resulted under social security law in a preclusion period of 84 weeks from 5 April 2001 to 13 November 2002.

10.     The respondent was not entitled to receive parenting payments totalling $7,712.93 paid to her from 11 July 2001 to 19 June 2002, and consequently the amount of $7,712.93 was a debt due to the Commonwealth.

11.     The respondent in her claim for parenting payment on 17 July 2001 stated she had not received any compensation or damages payment (T4, p58).  The respondent had received such a payment 12 weeks earlier (T2, p3).

12.     The social security law provides that where a person receives compensation which is wholly or partly in respect of lost earnings or lost capacity to earn, then a person is precluded from receiving social security payments during the lump sum preclusion period.

13.     The respondent in her claim for a parenting payment on 17 July 2001 stated she had not received any compensation or damages payment (T4, p58).   The respondent had received such a payment 12 weeks earlier (T2, p3).

14.     The respondent had also answered “no” to the question “Have you (or your partner) ever had an illness for which you could claim compensation or damages?"   The respondent had received such an injury for which she had claimed and received compensation.

15.     There is provision in the law for all or part of a preclusion period apply if there are “special circumstances” in a particular case.    The Authorised Review Officer and SSAT were both of the view that the respondent’s circumstances were not sufficiently unusual to justify treating part or all of the compensation payment as having not been received.

16.     The Health Insurance Commission informed Centrelink on 13 February 2002 that the respondent had received the lump sum compensation payment of $95,000.00 on 4 April 2001.

17.     A lump sum preclusion period from 5 April 2001 to 13 November 2002 was imposed by Centrelink.

Applicant’s Contentions

18.     That there are no special circumstances that warrant treating the whole or part of the compensation payment received by the respondent as not having been made to her.

19.     That the respondent was correctly subject to a compensation preclusion period from 5 April 2001 to 13 November 2002 and that the period had been correctly calculated.

20.     That the debt in the sum of $7,712.92 was correctly raised against the respondent and that the SSAT decided the matter wrongly in so far as it decided the debt accruing from 13 February 2002 to 19 June 2002 should be waived under the provisions of s1237A  of the Act.

21.     That there was no evidence whatsoever to warrant the invocation of s1184K of the Act.

22.     There is no proper basis to waive any part of the debt, first, because the overpayment was not solely the consequence of an error by Centrelink and secondly, because the overpayments were not received in good faith, indeed the overpayments were due solely to the actions of the respondent.

Respondent’s Case

23.     There are special circumstances which exist so as to allow the Secretary to decide that some or all of the compensation award received by the respondent ought to be considered to have not been made.  These circumstances are based on extreme financial hardship, the respondent’s ill health and incorrect an insufficient legal advice.

24.     The applicant had actual knowledge from 13 February 2002 that the respondent was not entitled to receive the parenting payment and failed to take action until 19 June 2002.    That part of the debt from 13 February 2002 to 19 June 2002 can be attributed to the sole administrative error of the applicant.

Consideration

25.     The issues for the Tribunal to determine are:

·     Whether there are special circumstances which warrant the preclusion period to be reduced in whole or part.

·     Whether there is any basis on which to waive any part of the respondent’s debt:

(i)because the overpayment was due to the sole error of the applicant;

(ii)because the overpayments were not received in good faith.

It was agreed between the parties –

(i)     The respondent had received the sum of $95,000.00 in April 2002 which was defined correctly as a compensation payment pursuant to the social Security Act law.

(ii)     The compensation preclusion period had a duration of 84 weeks i.e. 5 April 2001 to 13 November 2002.

(iii)    The quantum of the debt owed to the Commonwealth as an overpayment of $7,712.93 was calculated correctly.

26.     The respondent gave notice that she would make submissions on the special circumstances relating to her application.

27.     Evidence was given for the applicant by Mrs Lorraine Brcic, a Specialist Compensation Officer in Centrelink.

28.     Mrs Brcic gave evidence that Centrelink relied upon the customer answering truthfully the question whether they had received a compensation settlement or whether a compensation matter was pending.   Having received that advice from the customer, Centrelink then endeavoured to find out the status of a compensation matter.    Centrelink enquired as to whether a person WAS receiving periodical payments or whether a lump sum payment had been made, by following up and getting verification of that payment by documentation.   A formal assessment was done and advice of the preclusion period given.   All this was dependent on the applicant advising the status of the compensation matter.   Mrs Brcic also gave evidence that there are other ways of verifying payment of compensation payments, for example by data matches done by a run with the Health Insurance Commission, as was done in the case of the respondent. 

29.      Specific evidence was produced by the applicant of the computer data match done with the Health Insurance Commission (T5, P61) which brought up the name of the respondent showing the lump sum payment to her of $95,000.00.

30.     It was agreed between the parties that the preclusion period, the length of the period and the resultant debt of $7,712.93 was not in issue.

31.     The main issue for the Tribunal to consider was whether the debt was attributable “solely” to administrative error of the Commonwealth.

32.     Mr Sparkes referred the Tribunal to the decision in Re Gerhardt and Secretary, Department of Employment, Education and Training  (AAT Decision No 10941, 17 May 1996).   In that matter the Tribunal considered whether the Department should waive the right to recover a debt arising under the Student Assistance (Youth Training Allowance) Amendment Act 1994..   Deputy President Forgie  having considered the meaning of the word “solely” said:

“36… in its ordinary meaning, the word `solely’ means “only” or `to the exclusion of all else’”.

33.     The Tribunal was also referred by the applicant to the decision in Secretary, Department of Family and Community Services and D’Amelio V1999/490 (Unreported).The case was very similar to the case before the Tribunal in that it involved data-matching under the Data Matching Act.    In both the case of D’Amelio and the case before the Tribunal, the respondent had failed to act in a manner which would have either reduced or prevented the overpayment.

34.     The Tribunal finds as a matter of fact that the respondent on her own evidence provided a false answer to two questions in her application for parenting payments, both of which would have alerted Centrelink to her ineligibility to receive parenting payments.

35.     The Tribunal finds for the purposes of subsection 1237A(1) of the Act which provides:-

“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.”

That the overpayment was not due to the sole administrative error of the Commonwealth and that the payments were not received in good faith by the respondent.

36.     The Tribunal finds that the evidence of special circumstances brought by the respondent was insufficient to support her contention that the provisions of subsection 1237AAD of the Act should be invoked.

Decision

37.     The decision of the Social Security Appeals Tribunal dated 26 November 2002 be varied in that Centrelink’s decision to raise and seek to recover a debt in the amount of $7,712.93 being a compensation charge relating to the period 11 July 2001 to 19 June 2002 be reinstated.

I certify that the 37 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  15 September 2003, 14 October 2003
Date of Decision  11 February 2004
Counsel for the Applicant         Mr Brian Sparkes
Solicitor for the Applicant          Centrelink
Counsel for the Respondent     Mr Greg Sando
Solicitor for the Respondent     Hobart Community Legal Service