Damian Richards and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 609
[2013] AATA 609
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0547
Re
Damian Richards
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 29 August 2013 Place Melbourne The Tribunal remits the matter for reconsideration by the Secretary in accordance with the Directions below.
[sgd]........................................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – carer allowance – worker’s compensation periodic payments – payment of weekly earnings for six weeks for period in 2011 – impact, if any, of working credits – applicant’s reliance on Centrelink advice – applicant has multiple Centrelink registration numbers (CRNs) – data from one CRN provided – remitted for reconsideration
Legislation - Social Security Act 1991 s 17(1)(c), s 17(1)(f), s 1160, s 1161
Secondary Materials - Instructions from the Guide to Social Security Law
REASONS FOR DECISION
Miss E A Shanahan, Member
29August 2013
This application for review concerns whether Mr Richards is liable to repay carer payments that he received between 16 May 2011 and 24 June 2011 (the six-week period) from Centrelink. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs. During the six-week period, Mr Richards was receiving weekly worker’s compensation payments for a workplace injury he sustained on 14 June 2001.
On 1 August 2012 a Centrelink employee decided to impose a compensation preclusion period for the six- week period and to recover $1,762.86 paid to Mr Richards as carer payment during that period. Centrelink recovered this amount from QBE Insurance (the WorkCover insurer).
On 26 October 2012 Mr Richards sought an internal review of the original Centrelink decision by an authorised review officer (ARO). The ARO varied the original decision and determined that Mr Richards was not entitled to carer payment during the six-week period, confirming that the amount Mr Richards owed the Commonwealth was $2,061.62, representing the total carer payments he had received during the six week period.
Mr Richards then applied to the Social Security Appeals Tribunal (SSAT) for review of the ARO’s decision. The SSAT affirmed that Mr Richards was subject to a compensation preclusion period during the six-week period but reduced the debt by $320.84, having found the existence of special circumstances in the form of Mr Richards’ health combined with his parlous financial status.
Mr Richards then sought review of the SSAT decision by this Tribunal on the grounds that the sum of money received was worker’s compensation arising from an injury in 2001, a time when he was not receiving any Centrelink benefits or allowances. At the hearing, he also argued that the income received from the QBE Insurance (the WorkCover insurer) of $1,762.86 had not been offset by his working credits pursuant to s 1073D to J of the Social Security Act 1991 (the Act), which he had been advised by Centrelink would be the case.
Mr Richards was self-represented and gave his evidence by telephone. The Secretary, Department of Families Housing Community Services and Indigenous Affairs (the Secretary) was represented by Mr Tim Noonan, solicitor for the Department of Human Services. The Tribunal was provided with documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T-Documents).
The hearing was adjourned to obtain information relating to Mr Richards’ working credits. Mr Noonan subsequently provided further material to the Tribunal. Mr Richards made his submission by telephone, on 6 August 2013.
BACKGROUND TO THE APPLICATION
Mr Richards has been receiving various allowances from Centrelink since he injured his right shoulder at work in 2001. Since 22 January 2007 Mr Richards has been receiving carer payment and carer allowance, as he provides care for his father and his estranged partner, both of whom are on disability support pension (DSP). He has shared care of his child/children. Mr Richards, his father and his estranged partner are joint owners of the house in which they have all lived at various times. Mr Richards’ estranged partner moved to other accommodation in approximately March 2012 but Mr Richards remains her care provider for greater than 20 hours per week.
Mr Richards was aware of the impact of lump sum compensation payments on social security benefits because his father had received such payments from the Victorian Transport Accident Commission many years ago and this had impacted on his father’s DSP payments.
Mr Richards stated that he had established a motorbike repair business, conducted from his home garage, in 2007. He continued to work in this area until he injured his ankle in February 2008. During this period, he said he accessed his working credit payments of $1,000 every three months. As his worker’s compensation claim had been on foot since 2001, Mr Richards said that he had often asked Centrelink officers if any compensation payments he might receive would be offset by his working credits. Mr Richards told the Tribunal that it was his understanding that if he earned $600 per week working part time, he would still receive $230 per week in carer allowance.
The T-Documents lodged by the Secretary only provided Centrelink records generated between 1 April 2011 and 27 February 2013, with brief references to 2005 and 2007. The Secretary’s Statement of Facts and Contentions was accompanied by Supplementary T‑Documents, which recorded Mr Richards’ receipt of Newstart allowance and Newstart Stimulus commencing 28 March 2001. The Supplementary T-Documents also included a letter from Centrelink to Mr Richards advising of Centrelink’s intention to recover the sum of $1,762.86 from QBE Insurance.
Mr Noonan undertook to obtain further records and address the subject of working credits in order to substantiate, or otherwise, Mr Richards’ claim that Centrelink had assured him his working credits would apply to any worker’s compensation paid in the form of weekly earnings.
EVIDENCE BEFORE THE TRIBUNAL
Mr Richards’ evidence has been summarised under BACKGROUND TO THE APPLICATION.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Compensation Payment
Both QBE Insurance (T3) and Minter Ellison (T4) confirmed that Mr Richards’ worker’s compensation claim against Adecco Australia Pty Ltd had been settled and that Consent Orders had been lodged with the Magistrates’ Court on 4 July 2012 in the following terms:
(a)That the defendant pays weekly payments of compensation in accordance with the Act at the no current work capacity rate from 2 May 2011 to 24 June2011;
(b)That the defendant pays reasonable medical and like expenses to the plaintiff for the period 2 May 2011 to 24 June 2011.
According to the Centrelink record of compensation advice periodic payment, the period covered by these payments was 16 May 2011 to 24 June 2011 (the six-week period) at the gross rate of $690.00 per week (T5, p12). Centrelink recovered the sum of $1,762.86 from QBE Insurance.
CENTRELINK’S DETERMINATIONS
Centrelink reconsidered its treatment of the $690 per week payment for the six- week period as being ordinary income. Centrelink determined that it should have been a direct deduction equal to the carer allowance paid to Mr Richards during this period, that is, $2,083.70. This recalculation gave rise to a further debt owed by Mr Richards to the Commonwealth of $320.84 (T12).
THE NEED FOR FURTHER CENTRELINK DOCUMENTATION
Mr Richards was adamant that he had sought and received advice from Centrelink officers regarding the effect of any lump sum worker’s compensation payment he might receive. Mr Richards also insisted that he had sought and received advice from Centrelink of the impact, if any, of these payments on his accumulation of working credits. The Tribunal therefore directed that further Centrelink records relating to Mr Richards be provided.
On 18 June 2013 Mr Noonan provided the Tribunal with information relating to working credits with the relevant legislation and archived an online document regarding Mr Richards’ contacts with Centrelink for the period 17 January 2007 until 14 November 2012. These documents were provided to Mr Richards; who then requested, and was permitted, to provide oral submissions to the Tribunal at a telephone directions hearing. Mr Noonan, on behalf of the Secretary, sought that the Tribunal affirm the decision of the SSAT.
RELEVANT LEGISLATION
Part 3.14 of the Act includes provisions relevant to compensation payments. Section 1160 states:
1160 General effect of Part
(1)This Part operates in certain specified circumstances to do one or more of the following:
(a)reduce a person’s compensation affected payment;
(b)render a person’s compensation affected payment not payable;
(c)require the repayment of some or all of a person’s compensation affected payment;
because of the receipt of compensation by the person or the person’s partner.
(2)This Part applies whether or not there is any connection between the circumstances that give rise to the person’s qualification for the compensation affected payment and the circumstances that give rise to the receipt of compensation by the person or the person’s partner.
Section 1161 provides:
1161 Application of Part
(1)Subject to subsections (2) to (7), payments of a compensation affected payment are affected under this Part if:
(a)whether the compensation was received before or after the commencement of this Part, the compensation affected payment is:
(i) a newstart allowance in relation to which, under Subdivision BA of Division 1 of Part 2.12, the recipient of the allowance is not required to satisfy the activity test; or
(ii) a sickness allowance; or
(iii) a sickness benefit under the 1947 Act; or
(iv) a rehabilitation allowance under the 1947 Act payable in place of sickness benefit under the 1947 Act; or
(b)in the case of any other kind of compensation affected payment, the compensation was received on or after 1 May 1987 and the claim for the compensation affected payment was made on or after 1 May 1987.
...
(3)This Part applies to carer payment if:
(a)the compensation was received on or after 1 January 1993; and
(b)the claim for the carer payment was made on or after 1 January 1993.
Section 17 of the Act defines compensation affected payments as s 17(1)(c) a social security benefit; or s 17(1)(f) a carer payment.
The Act also defines compensation in s 17(2)(b) as:
...
(b)a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c)a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; ...
Section 1173 of the Act describes the effects of periodic compensation payments on the rate of a person’s compensation affected payment and in particular s 1173(2) states:
(2)The person’s daily rate of compensation affected payment is reduced by the amount of the person’s daily rate of periodic compensation.
Section 1184K of the Act provides for special circumstances which may warrant treating a person’s compensation payment as not having been made as follows:
1184KSecretary may disregard some payments
(1)For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made; ...
Division 1AB of the Act deals with Working credit accrual and depletion rules and their consequences. Section 1073D provides:
1073DTo whom do working credit accrual and depletion rules apply?
The rules in this Division apply to a person (a working credit participant):
(a)who is receiving a social security pension or a social security benefit; and
(b)whose rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and
(c)who has not reached pension age; and
(d)to whom the student income bank does not apply.
SUBMISSIONS
The Secretary relied on his written submissions in his Statement of Facts and Contentions and sought an order that the Tribunal affirm the decision of the SSAT.
Prior to making his oral submissions, Mr Richards forwarded to the Tribunal a copy of his PAYG payment summary for the year ending 30 June 2013. He drew to the Tribunal’s attention the fact that this document declared that the period during which he received worker’s compensation payments was from 7 August 2012 until 9 August 2012. Mr Richards noted that this does not tally with the QBE Insurance advice provided to Centrelink in July of 2013.
In his oral submissions, Mr Richards reiterated his earlier evidence to the Tribunal regarding his enquiries as to the effect of working credits on any future worker’s compensation derived payments. In particular, Mr Richards recalled an enquiry he had made on 5 October 2012 and the advice he was given by a Centrelink officer that working credits would be taken into account in determining his compensation affected payments, that is, his carer payment for the period under consideration.
Mr Richards believed that the Centrelink records were deficient in that there was no reference to these conversations and advice. Mr Richards said he was certain that he had made a far greater number of contacts with Centrelink than those recorded between 17 January 2007 and 14 November 2012. Mr Richards expressed his intention to obtain, or have reviewed, the recording of his enquiry and the advice provided by a Centrelink officer on 5 October 2012.
TRIBUNAL’S DELIBERATIONS
Based on the evidence presented at the hearing on 12 June 2013, the Tribunal accepts that the calculation of Mr Richards’ debt to the Commonwealth resulting from his worker’s compensation periodic payments at the no current work capacity rate of $690 per week has been correctly calculated. This debt was reduced to $320.84 following the reimbursement of Centrelink of $1,762.86 by QBE Insurance. The SSAT had determined that the remaining debt of $320.84 was not recoverable, having found that special circumstances existed sufficient to waive the debt as provided by s 1184K of the Act.
Despite the Secretary’s identification of the issue before the Tribunal as being the existence of any special circumstances to warrant treating any of the worker’s compensation paid to Mr Richards as not having been made, the order he sought was affirmation of the decision of the SSAT of 4 January 2013.
Mr Richards was adamant that the Centrelink records were deficient, particularly with respect to his enquiries and the advice given relating to working credits.
The Tribunal adjourned the hearing and requested that the Secretary provide further Centrelink records. These records were received on 18 June 2013, following which Mr Richards’ oral submissions were heard. Mr Richards maintained his earlier arguments that these records were incomplete in that they were fewer in number than he recalled, and were silent on the question of working credits and any alleged advice given to Mr Richards on this question.
The Tribunal subsequently received 216, A4 pages of Centrelink’s Online Documentary Recording Archives and Online Documentary Records. These records cover the period between 17 January 2007 and 14 November 2012, with selected payment summaries from 2001 and an entry of 22 January 2013. All of these entries identify Mr Richards as CRN 302686801B. [The Tribunal has assumed that CRN is an abbreviation for customer registration number.] The Tribunal has been unable to find any reference in these entries to an enquiry relating to working credits. However, the possibility of Mr Richards receiving worker’s compensation payments is recorded, prior to the settlement of his claim; and following the settlement, the entries refer to the effect of this payment on his carer payment. Nor is there any record of working credits being utilised in 2007 – 2008.
The entry of 1 August 2007 is relevant to Mr Richards’ submissions. On that day, according to the record, Mr Richards complained that on 3rd and again on 4th May 2007 he had telephoned Centrelink to enquire about his eligibility for two carer allowance bonus payments and that he had been on the telephone for a considerable time. Mr Richards had been denied eligibility as his later formal claim had been out of time. Investigations by an ARO confirmed that Mr Richards had been on the telephone for a lengthy period and For longer than required for the simple enquiry as indicated in the docs. As a result, the decision to deny eligibility for the carer bonus allowance was set aside by the ARO and the bonus was paid.
Perhaps more salient is the entry of 23 March 2012 which states:
This Customer has multiple CRNs.
*The following CRNs are associated:
304 751 717H
This of course raises the possibility that the advice Mr Richards claims he was given and perhaps other relevant data is contained in another series of records under a different CRN.
The Tribunal therefore does not have sufficient data to determine Mr Richard’s eligibility for working credit accrual.
The fact that Mr Richards has multiple CRNs adds weight to his arguments such that it would be unfair for this Tribunal to proceed to making a definitive decision. Section 42D of the AAT Act empowers the Tribunal to remit matters to a decision-maker for further consideration. Section 42D(1) states:
(1)At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
For the reasons given above, the Tribunal remits the matter in accordance with s 42D of the AAT Act to enable the Secretary to consider Mr Richards’ complete Centrelink records and if indicated, reconsider the reviewable decision within 90 days of this direction.
I certify that the preceding 36 (thirty‑six) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. [sgd]............................................................
Administrative Assistant
Dated 29 August 2013
Date of hearing 12 June 2013 Date final submissions received
6 August 2013(at a telephone directions hearing) Applicant In person Advocate for the Respondent Mr Tim Noonan, Department of Human Services
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