Daly and Secretary, Department of Family and Community Services - [2005] AATA 740

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 740
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/140

GENERAL ADMINISTRATIVE DIVISION
)

Re WILLIAM AND CHERYL DALY

Applicant

And

SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr KS Levy, Member
Date4 August 2005
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and in substitution decides that:

(a)      In respect of the debt relating to the increase in payments made to            both the applicants as a result of non-reporting of commission            earnings of Mrs Daly from 10 December 2001, the amounts of            overpayments in that respect are waived; and

(b)     The matter be remitted to Centrelink for recalculation.

..............................................
KS Levy
  Member

CATCHWORDS
SOCIAL SECURITY – Disability support pension – partner allowance – overpayment – administrative error – advised commission based income not declarable income – special circumstances waiver of debt – debt attributable solely to administrative error of Commonwealth – debt waived – matter remitted to Centrelink for recalculation
Social Security Act 1991 s1068-G7B, 1223,1236, 1237
Gerhardt and the Secretary, Department of Employment, Education and Training [1996] AATA 10941
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (2003) 76 ALD 105,
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Dranichnikov v Centrelink (2003) 75 ALD 134.
Groth v Department of Social Security (1995) 40 ALD 541
Secretary, Department of Social Security v Hales (1998) 153 ALR 259
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) FCAFC 3
REASONS FOR DECISION

4 August 2005 Dr KS Levy, Member

1. This is an application by William and Cheryl Daly lodged under section 29(1) of the Administrative Appeals Tribunal Act 1975. The application seeks redress through an appeal against a decision of the Social Security Appeals Tribunal dated 7 February 2005. That decision affirmed previous decisions (as revised) by Centrelink in respect of each of the applicants under the Social Security Act 1991 (“the Act”).
2. The previous decisions by Centrelink were initially made on 16 September 2004 and raised debts as follows:
(a)In respect of William Daly – a debt to recover overpaid disability support pension for the period 10 July 2001 to 28 March 2003 - $2,191.99;
(b)In respect of Cheryl Daly – a debt to recover overpaid partner allowance for the period 10 July 2001 to 3 March 2003 - $2,692.62.

3. Those decisions were varied by an Authorised Review Officer on 25 November 2004 by reducing the debts raised against each of the applicants to:
§In respect of William Daly - $2,072.35
§In respect of Cheryl Daly - $2,271.60

4. These revised debts were further amended on 25 May 2005 to waive debts which accrued due to the wages of Cheryl Daly, and following that waiver the following amounts were then determined to be the debts:
§ In respect of William Daly - $1,221.34 (an amount of $851.01 waived under section 1237A(1) of the Social Security Act 1991)
§ In respect of Cheryl…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Daly and Secretary, Department of Family and Community Services [2005] AATA 740
Case: [2005] AATA 740
Decision Date: 4 August 2005

CaseChat Overview and Summary

In the case of Daly and Secretary, Department of Family and Community Services, the Federal Circuit Court addressed a dispute concerning the waiver of a debt attributable to an administrative error in the calculation of a disability support pension and partner allowance. The applicants, Daly and her partner, sought a waiver of an overpayment in their disability support pension and partner allowance due to an administrative error by Centrelink, the body responsible for administering social security payments. The error involved the non-reporting of commission earnings by Mrs Daly, which led to an overpayment from December 2001.

The central legal issue before the court was whether the debt resulting from the administrative error could be waived under the applicable provisions of the Social Security Act 1991. The applicants argued that the overpayment was a direct result of Centrelink's failure to correctly inform them that commission-based income was not to be declared as income for the purposes of their pension entitlement. The Secretary of the Department of Family and Community Services contended that the debt was not eligible for waiver as it was not solely attributable to the administrative error.

The court held that the debt could be waived as it was solely attributable to the administrative error of the Commonwealth. The court relied on previous cases such as Gerhardt and Secretary, Department of Employment, Education and Training, Sekhon v Secretary, Department of Family and Community Services, and Dranichnikov v Centrelink, which established that where an administrative error leads to an overpayment, and the error is acknowledged by the Department, the debt may be waived under special circumstances. The court noted that the error was significant and had a direct impact on the calculation of the pension entitlements, leading to the conclusion that the overpayment should be waived.

The Tribunal set aside the decision under review and decided that the debt relating to the overpayment should be waived. The court further ordered that the matter be remitted to Centrelink for recalculation of the applicants' entitlements, ensuring that the correct amount of pension and partner allowance is paid moving forward.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution decides that:

(a) In respect of the debt relating to the increase in payments made to both the applicants as a result of non-reporting of commission earnings of Mrs Daly from 10 December 2001, the amounts of overpayments in that respect are waived; and

(b) The matter be remitted to Centrelink for recalculation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM AND CHERYL DALY