Daniels and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 1080

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1080

ADMINISTRATIVE APPEALS TRIBUNAL      NºW2006/218

GENERAL ADMINISTRATIVE DIVISION

Re:         TERRANCE DAVID DANIELS

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             13 December 2006

Place:            Perth

Decision:The Tribunal affirms the decision under review.

......[Sgd G.D. Friedman].........
  Senior Member

CATCHWORDS

SOCIAL SECURITY - parenting payment partnered ‑ overpayment ‑ debt to Commonwealth ‑ waiver ‑ whether special circumstances exist

Social Security Act 1991 ss 5(3), 500, 500D(1), 1223(1), 1237A, 1237AAD

Social Security (Administration) Act 1999 s 80

Groth v Department of Social Security (1995) 40 ALD 541

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Gerhardt and Department of Employment, Education and Training (AAT 10941, 17 May 1996)

REASONS FOR DECISION

13 December 2006  G.D. Friedman, Senior Member

1.      Terrance Daniels received parenting payment partnered (PPP) for his child Brody (born on 19 October 1990) based on Brody’s earnings as an apprentice chef.  On 17 May 2006 Centrelink decided that Mr Daniels had incurred a debt of $5,748.87 for the period 28 March 2005 to 17 February 2006.  Mr Daniels claims that the debt should be waived as it was due to an administrative error by Centrelink.   

2.      The issues before the Tribunal are whether a debt to the Commonwealth arises from the overpayment and, if so, whether the debt should be waived.

LEGISLATION

3.      The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Section 500 of the Act states that a person is qualified to receive parenting payment if, among other things, the person is an Australian resident and has at least one PP child. Under s 1223(1) of the Act an overpayment of PPP is a debt to the Commonwealth.

Section 500D(1) of the Act states:

A child is a PP child of a person if:

(a)       the child is a child of the person; and

(b)       the person is a member of a couple; and

(c)       the child has not turned 6; and

(d)       the person is the principal carer of the child.

4. Section 5(3) of the Act states that:

A young person who has not turned 16 cannot be a dependent child if:

(a)       the young person is not in full-time education; and

(b)       the young person is in receipt of income; and

(c)       the rate of that income exceeds $107.70 per week.

Note:   the amount in paragraph (c) is indexed annually in line with CPI increases

WAS THERE AN OVERPAYMENT OF PPP?

5.        Mr Daniels did not appear at the hearing, but his partner Ms E. Cockbain told the Tribunal that he received PPP for Brody until 16 February 2005, when this payment was suspended because he did not respond to a request from Centrelink for information.     

5.       Ms Cockbain told the Tribunal that in February 2005 she contacted a Centrelink call centre by telephone on an unrelated matter and told an officer about Brody’s apprenticeship.  She said that she was informed that she did not need to contact Centrelink again until his earnings reached $11,233.00.  She said that she estimated that the threshold figure would be reached in February 2006.  Ms Cockbain stated that in a further telephone call in about July 2005 another Centrelink officer gave the same advice, and she had no reason to question the advice because she assumed the officers had access to her file and Mr Daniels’ file which contained relevant information about the family’s income, and she believed that payments would cease when the threshold had been reached.

6.       Ms Cockbain explained that in February 2006 she telephoned Centrelink because she believed that Brody had reached the threshold, and was informed that she had incurred a large debt because Brody’s income had exceeded the threshold.  On 4 May 2006 Mr Daniels was notified that he had been overpaid $5050.75 in PPP. Ms Cockbain stated that she handled all matters concerning Mr Daniels’ Centrelink payments, and that he had no intention to mislead Centrelink or to breach social security legislation in any way.  She admitted that in June 2005 when completing the Claim for Parenting Payment she had overlooked three boxes relating to dependent children or students, and said that by failing to complete the form Centrelink had used information that had been provided previously, and was no longer correct.  She said that this oversight should have been noticed by the Centrelink office in Geraldton, and that a simple telephone call from that office would have clarified the situation and avoided any overpayment to her or to Mr Daniels.  She said that Centrelink was responsible for Mr Daniels’ debt, and that he should not have to repay it. 

7.       Centrelink documents show that Brody commenced an apprenticeship on 28 March 2005 and earned a minimum of $216.00 gross per week, so he was not a dependent child for PPP purposes from that date.  Mr Daniels’ PPP was cancelled from 9 May 2005 because no response had been received by Centrelink from him within 13 weeks of a request for information.  On 4 July 2005, 13 July 2005 and 10 August 2005 Centrelink sent letters to Mr Daniels informing him that he must tell Centrelink if, among other things, Brody was no longer a dependent child, that is, he earned more than $152.15 per week.  Ms Cockbain said that Mr Daniels probably received the letters, but did not reply because she handled all Centrelink matters for the family and had relied on the advice received by telephone.   

8.        In relation to the family situation, Ms Cockbain stated that she and Mr Daniels are low-income earners.  She told the Tribunal that she works at a supermarket 20 to 38 hours per week, and her earnings vary.  Brody earns $300 per week after tax and pays $60 per week board.  She and Mr Daniels pay $260 per week in rent, and Mr Daniels is a self-employed truck driver whose earnings vary.  She said that they are in financial difficulty, and Mr Daniels requires medication which costs $110 per month.

IS THERE A DEBT TO THE COMMONWEALTH?

14. The Tribunal finds that Mr Daniels was overpaid PPP in the amount of $5,748.87 for the period 28 March 2005 to 17 February 2006. Under s 1223(1) of the Act the Tribunal finds that that this amount is a debt owed to the Commonwealth.

SHOULD THE DEBT BE RECOVERED?

15. Section 1236 of the Act provides for a write‑off of the debt under certain circumstances. However, the Tribunal finds that Mr Daniels has the capacity to repay the debt over an extended period, and the debt is not irrecoverable at law. Therefore, there are no grounds to write off the debt.

16. Section 1237A of the Act provides for waiver of a debt arising from administrative error:

“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.

1237A.(1A)..Subsection (1) only applies if:

(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.”

Mr Daniels did not provide information about Brody's income to Centrelink when he lodged his claim for PPP and he did not respond to the Centrelink notices sent to him on 4 July 2005, 13 July 2005 and 10 August 2005 which required him to advise when Brody was no longer dependent. Consequently the Tribunal finds that Mr Daniels’ debt to the Commonwealth was not attributable solely to administrative error by Centrelink. Therefore, the debt cannot be waived under s 1237A of the Act.

17. Section 1237AAD of the Act provides for waiver of the debt in certain other circumstances:

“1237AAD  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 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.”

18. The Tribunal accepts that Mr Daniels did not knowingly fail to meet his obligations under the legislation or knowingly make false statements. He therefore satisfies s 1237AAD(a) of the Act.

19. In respect of s 1237AAD(b) of the Act, the Tribunal notes that in ReBeadle v Director-General of Social Security (1984) 6 ALD 1, it was held that the special circumstances must be unusual, uncommon or exceptional so as to distinguish the case under review from the usual case.  In Groth v Department of Social Security (1995) 40 ALD 541 the Federal Court held that special circumstances would require something to take the case …out of the usual or ordinary case.

20.      The Tribunal takes into account Mr Daniels’ personal and family circumstances, including his financial situation and the income received by himself and Ms Cockbain.  The Tribunal finds that his personal circumstances are difficult.  However, Mr Daniels is a self-employed truck driver who receives income on a somewhat irregular basis.  Ms Cockbain receives remuneration for part-time employment.  Brody works and contributes $60 per week in board.  On balance the Tribunal is not satisfied that the situation in which Mr Daniels finds himself is vastly different from that of other social security recipients who have received overpayments.  The Tribunal is not satisfied that her circumstances constitute special circumstances (other than financial hardship alone). Hence, the waiver provisions of s 1237AAD of the Act do not apply.

DECISION

21.      The Tribunal affirms the decision under review.

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

........[Sgd S da Motta]................

Associate

Date of hearing:  7 December 2006

Date of decision:  13 December 2006
Advocate for applicant:                Ms E. Cockbain
Advocate for respondent:            Ms M. Conlon, Centrelink