David and Secretary, Department of Family and Community Services

[2004] AATA 179

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 179

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          

N2003/811               

GENERAL ADMINISTRATIVE DIVISION		)
Re		Levente DAVID

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date24 February 2004

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – age pension – Australian citizen - during how much of Applicant’s continuous physical absence from Australia is Applicant considered resident – recovery of debt – special circumstances  - decision affirmed.

LEGISLATION

Social Security Act 1991 sections 1220(1), 1223(1), 1236(1) & (1A), 1237AAD, 1237A.

Administrative Appeals Act section 34B

REASONS FOR DECISION

Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Secretary, Department of Family and Community Services ("Centrelink") dated 5 November 2002 as affirmed by the Authorised Review Officer (“ARO”) on 17 December 2002 and the Social Security Appeals Tribunal (“the SSAT") on 14 April 2003. The decision was to cancel Mr David’s age pension and to raise and recover from him a debt of $5,442.68, being overpayment of age pension to him in the period 13 March 2002 to 29 October 2002.

BACKGROUND

2. Mr David was born on 26 April 1936 in Hungary.  He arrived in Australia on 28 September 1960 (T18/67) and was granted Australian Citizenship on 31 January 1969.

3. On 1 February 1972 Mr David departed Australia for Germany (T18/67) and did not return to Australia until 14 November 2001 (T18/67).  The next day he lodged a claim for, and was granted, Age Pension (T3/11-25).

4. In March 2002 Mr David was accused of criminal charges in Germany (T12/41-54) and immediately, on 13 March 2002, departed Australia for Germany to defend those charges.  After successfully defending those charges (T20/73) he remained in Germany and since that time has been undertaking a protracted custody battle for his daughter (T2/3).

5. On 4 November 2002 Mr David's Age Pension was cancelled and a debt of $5,442.68 was raised for the period 13 March 2002 to 29 October 2002.  The cancellation was on the grounds that Age Pension cannot be paid for any absence overseas that started within 2 years of the date Mr David returned for permanent resettlement in Australia. (T11/39).  On 13 February 2003 Mr David's debt was written off under s1236 as he was overseas indefinitely.

6. However on 1 January 2003 an agreement between Australia and Germany in relation to social security came into effect under the Social Security (International Agreements) Act 1999 (‘the Agreement’). On 29 September 2003 Mr David was granted Age Pension from 30 July 2003 under the Agreement and withholdings therefrom were commenced to recover the original debt of $5442.68

ISSUES BEFORE THE TRIBUNAL

7. The issues before the Tribunal were:

(a)is age pension payable to Mr David whilst he was absent from Australia?

(b)if not, was Mr David overpaid age pension by Centrelink which gave rise to a debt owed to the Commonwealth;

(c)if so, was the Commonwealth entitled to recover all or part of such debt as a debt due to it.

APPEARANCES

8.At Mr David’s request, no hearing was held before the Tribunal as he is presently unable to return to Australia. With Centrelink’s consent, the matter was therefore decided on the papers in accordance with s34B of the Administrative Appeals Tribunal Act 1975.

DOCUMENTARY EVIDENCE

9. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.  Other documents were provided by the parties and these have been attached to the Tribunal’s file.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

10.In coming to the correct and preferable decision, I took into account all the evidence, written submissions, case law and relevant legislation.

11. I turn to consider the identified issues:
(a) Is age pension payable to Mr David whilst he was absent from Australia?

Section 1220(1) of the Act provides relevantly as follows:

“If:

(a)       a person is an Australian resident; and

(b)       the person ceases to be an Australian resident; and

(c)       the person again becomes an Australian resident; and

(d)       within the period of 2 years after the person again becomes an Australian resident, the person is granted, …

(i)        an age pension; …

… and

(e)       after the pension …. is granted…but before the end of that period of 2 years, the person leaves Australia; (my emphasis)

a pension … based on that claim is not payable to the person during any period during which the person is outside Australia.”

12. The facts show that that this precisely describes Mr David’s circumstances in that he was a resident of Australia (s1220(1)(a)) before he left for Germany on 1 February 1972 (s1220(1)(b)).  He returned to Australia to live on 14 November 2001 (s1220(1)(c)) and was granted age pension on 15 November 2001 (s1220(1)(d)).  He left Australia again on 13 March 2002 (s1220(1)(e)).

13. Centrelink’s submission was that the general intention of section 1220 is to prevent people, who formerly resided in Australia, from making short return visits in order to qualify for a grant of pension, and then depart again for overseas.

14. It should be noted that section 1220(1)(e) does not refer to the person no longer being an Australian resident, but only merely leaving Australia.  Had it been otherwise, Mr David’s ties with adult children here, his accommodation with his elder daughter (T3/22), his Australian driver’s licence (letter to Tribunal dated 5 June 2003), the reason for his sudden departure (T2/5) and the reason for his continued absence (T2/5) may all be relevant.  Unfortunately for Mr David, the section is quite clear: once the recipient of a benefit to whom the section applies leaves Australia he or she ceases to be entitled to the relevant pension while absent from Australia.

15. It was not until 1 January 2003 that the Agreement came into force and, so, any benefits accruing to Mr David under that Act were not in force at the time of cancellation of Mr David’s pension.

16. (b) Was Mr David overpaid age pension by Centrelink which gave rise to a debt owed to the Commonwealth?

Mr David conceded that he had left Australia without informing Centrelink that he was doing so.  His pension continued to be paid and Mr David was overpaid in the sum of $5442.68.

Section 1223(1) of the Act provides:

“Subject to this section, if:

(a) a social security payment is made; and

(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.”

Applying the above, I find there to be a debt due to the Commonwealth in the amount of $5442.68.

17. (c) Was the Commonwealth entitled to recover all or part of such debt as a debt due to it?
I turn now to consider if Mr David should be required to pay back the debt.

18. Writing off

Section 1236 of the Act provides:

“(1) Subject to subsection (lA), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

(lA) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made  to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt.

…”

19. On 13 February 2003 Centrelink wrote off the debt under s1236(1) & (1A), as, at that time, it would not have been cost effective for Centrelink to pursue the debt through the German justice system.

20. However when Mr David applied for and was granted a pension under the Agreement, Centrelink relied on the following provision to recover the debt by withholdings:

“1236(3) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.”

Centrelink’s capacity to write off a debt is limited. Essentially, there must be no point in attempting to recover the debt. That is no longer the situation since the introduction of the Agreement. In any event Mr David has stated his intention to return to Australia when the custody dispute is resolved. Mr David’s circumstances do not, therefore come within the writing off provisions.

21. Waiver of the debt: administrative error

S1237A(1) of the Act provides that a debt must be waived if it is attributable solely to an administrative error made by the Commonwealth, which the debtor received in good faith.  There was no contention that the overpayment was solely due to Centrelink’s error.

22. Waiver of the debt in special circumstances

Mr David’s argument was that it was ‘inhuman’ that he was not entitled to Age Pension.

Section 1237AAD of the Act provides:

“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 a 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.”

23. At the time Mr David was granted Age Pension he was informed, by letter dated 16 November 2001 (T5/30), that he must tell Centrelink if his circumstances changed.  Two further letters in the following weeks (T6/32, T7/34) repeated these obligations.  Specifically, he was advised that he must inform Centrelink if he planned to leave Australia..  He did not do so.  While he may well have had ‘no other choice’ (T19) than to go the Germany to defend the charges against him, he still had an obligation to inform Centrelink of his change of circumstances.  Furthermore, while absent, on 28 August 2002 he advised Centrelink of a change of address (within Australia) and that he was living in shared accommodation (T8/36).

24. That he had left Australia only became apparent to Centrelink through data-matching with immigration authorities some months later.  He explained in his letter to Centrelink dated 20 January 2003 (T19/70) that his German pension was very low and that he could ‘hardly exist’ without his Australian pension.

25. I accept that Mr David was embroiled in a tragic family situation, which saw him falsely accused of molesting his child, and then a bitter custody battle.  His departure for Germany was wholly understandable.  However I find he knowingly failed to inform Centrelink of his departure, as was his obligation.  In coming to his view I took into account the evidence that he had been advised on 3 occasions of his obligation to inform Centrelink if he was going overseas, that he had advised Centrelink of his change of particulars within Australia, and that he conceded he was struggling financially and relied on the Australian pension. 

26. Having come to that view, no issue of special circumstances arises.

DECISION

27. The decision of the Social Security Appeals Tribunal is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Guy Moloney
  Associate

Date of Decision   24 February 2004