De Santis and Department of Family and Community Services - [2001] AATA 192

DECISION AND REASONS FOR DECISION [2001] AATA 192

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D2000/12

GENERAL ADMINISTRATIVE DIVISION       )
           Re      VINCE DE SANTIS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date15 March 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  .     (Sgd) K L Beddoe
  Senior Member

Decision No: 192/2001
CATCHWORDS : Social Security - Benefits – Whether overpayments made due to false representations regarding marital status – Effect of change in legislation over relevant period – Whether failure to recognise inconsistencies in representations by applicant during relevant period relevant to amount of overpayment

Social Security Act 1991 s 4(2), (3), 1223(5), (6), 1224(1), subs 1223(5), (6)

REASONS FOR DECISION

Mr K L Beddoe (Senior Member)

The respondent decided to raise and recover an overpayment of benefits amounting to $27,629.20. The overpayment of benefits is said to have occurred from 19 May 1994 to 18 March 1999. That decision was subsequently affirmed by the Social Security Appeals Tribunal.
The basis for the claimed overpayment is that the applicant claimed and was paid benefits as a single person when according to the respondent, he should have been paid as a member of a couple and taking into account his wife's income.
At the hearing the applicant conducted his own case and Mr Walsh represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act1975 were placed before the Tribunal as the T documents. Oral evidence was given by the applicant. No evidence was given on behalf of the respondent.
Document T5 is a copy of a Special Benefit Claim made by the applicant and apparently lodged with the Department of Social Security on 19 February 1992. The applicant disclosed that he was born on 19 December 1931, that his marital status was separated and that separation occurred on 6 June 1991. He said he lived at Nguiu, Bathurst Island and that he had been living there for eight months. He did not disclose any details as to his wife. He disclosed that he had been employed as a gardener at the Nguiu Club on Bathurst Island.
On 24 February 1992 the applicant lodged a claim for sickness allowance with the Department of Social Security. He again gave his marital status as separated but did not nominate the date of separation. In other aspects he repeated the information previously supplied but also noted that he ceased work at the Nguiu club on 17 January 1992. He denied having made a previous claim for Social Security benefit. On the previous claim he said he was paying $100 per week rent/board to James De Santis whereas the later claim said the amount was $150 [T5].
On 1 September 1993 the applicant lodged a Newstart Allowance Claim with the Darwin Job Centre [T6]. The applicant said he was born on 19 December 1931 but did not answer questions as to his marital status. He said he lived at Milikapiti on Melville Island.
On 28 September 1993 the applicant's spouse lodged a pension claim at the Casuarina Office of the Department of Social Security. She gave her marital status as separated "4 years" – a response inconsistent with earlier advice from the applicant. The address of the claimant is shown as Anula (a suburb of Darwin). However the claim form is endorsed, by an unknown person "Picked up claim form at Snake Bay. I have given her "A" "S" & "M". Will bring in POID". I understand Snake Bay to refer to Snake Bay on Melville Island. It seems reasonable to infer that the claim was lodged at the Casuarina office by a person acting on behalf of the Department of Social Security [T7].
Document T8 is a copy of a Form S lodged at the Casuarina office on 30 September 1993. It discloses separation from the applicant whose residential address is shown as Snake Bay, Melville Island. It also shows that the applicant and his wife lived at the Anula address prior to separation in 1989. The separation was described as "permanent" rather than "temporary" or "don't know".
Document T10 is a copy of a "Sole Parent Review" form in the wife's name and lodged at the Casuarina Office on 7 February 1994 in which the applicant's wife described her marital status as separated and denied, in effect, that the applicant regularly stayed at her address.
I have made the above detailed findings because of Document T11. That is a copy of a pension claim admittedly made by the applicant in April 1994. I am satisfied that the applicant did not complete the form but he did sign it. I am satisfied that the form was completed by an officer of the Department of Social Security who, on the applicant's evidence, completed the questions on the basis of responses given by the applicant. Mr Walsh told me he was unable to identify the officer who had completed the form.
The claim form disclosed that the applicant was "single (never married)", that he lived at Milikapiti on Melville Island (Milikapiti is located nearSnake Bay), that he paid rent of $80 per week to Snake Bay Housing, that he failed to answer questions about cash, banks, he denied an interest in real estate and claimed he was unemployed. He did, however, disclose a credit union account for pension to be paid into. The account was said to be in the applicant's name.
By letter dated 27 April 1994 the Department of Social Security wrote to the applicant advising the payment of mature age allowance at $409.20 per fortnight effective from pension payday 7 April 1994. The letter also included the usual "what you must tell us" requisition for information. It is clear from reading the requirements that they are addressed to a single person and not a member of a couple. They included "if you marry or start living with someone as if you are married".
The respondent relies in part on this requirement. I have difficulty in understanding that it applies to the applicant's circumstances although it clearly applies to the circumstances asserted by the applicant in the claim ie he was a single person (never married).
On 22 August 1994 the applicant lodged a statutory declaration with the Department of Social Security to the effect that he was paying $40 per week to Nguiu Housing. Nguiu is on Bathurst Island.
Document T15 is a Department of Social Security record of the applicant's wife advising by telephone that she had commenced working at Bathurst Island Restaurant on weekly income of $437 from 25 June 1994.
By letter dated 21 December 1996 the applicant was advised by the respondent that he would be paid age pension of $375.80 per fortnight starting from 9 January 1997 (the applicant turned 65 years of age on 19 December 1996)[T16]. It is usual with such letters the respondent included a list of "what you must tell us" including if you marry or start living with someone as if you are married" [T16].
In or about August 1998 the respondent received a public denunciation to the effect that the applicant was living with his wife [T18]. That is not information to which I can give any weight but I note it in passing to explain the events that follow.
The respondent instituted enquiries. In the course of those enquiries the respondent obtained information from various sources. Information from the Australian Taxation Office showed that the applicant's wife had a regular income from employment for the years of income ended 30 June 1993 to 1997.
Enquiry of the Nguiu Ullintjinni Association elicited the following information set out in the Association's letter of 10 September 1998 [T25]:

(a)The applicant's wife commenced working for the Association on 25 June 1994;
(b)The applicant and his wife were living with their son at "Forestry", Nguiu until May/June 1997 when they moved to the old police station where (at 10 September 1998) they continued to reside;
(c)The applicant is shown as emergency contact on his wife's employment record;
(d)Wages were paid to the applicant's wife on a weekly basis; and
(e)Compensation papers indicate that the wife's weekly wage was variable but averaged $446 to $478 per week in 1996 and 1997 (other information suggests those figures may be inflated).

In a response dated 13 October 1998 to a requisition for information by Centrelink the applicant said that he paid $40 per fortnight rent to the Nguiu Housing Association [T27].
The Association also responded to a requisition for information by Centrelink providing the following information[T29]:

(a)The applicant and his wife applied for a house on 10 May 1994;
(b)At 29 October 1998 they continued to reside there;
(c)They were said to have resided there for six years but the apparent discrepancy as to time is not clarified; and
(d)They present themselves as a married couple.

Inconsistent advice was received from the Bathurst Island Housing Association dated 29 October 1998 indicating that the applicant and his wife had occupied a new house on Bathurst Island from 13 October 1998 [T30].
In a written statement dated 16 February 1999 and signed by the applicant and his wife they stated that they had been living as husband and wife for three years. They also acknowledged that they jointly owned the house at Anula [T35].
Document T36 is a Centrelink questionnaire entitled "review of Living Arrangements" and was signed by the applicant on 11 February 1999. In response to questions he indicated that he had been living with his wife at Nguiu on 13 November 1989 and that they had shared accommodation continuously since that date. He said they sleep separately, have a joint credit union account, denied that his wife was employed, agreed relatives, friends or regular associates consider his relationship with his wife as similar to that of a married couple but denied they were invited out as a couple. He gave a positive response to the question "Are you and Martha de Santis engaged to marry each other?" He denied an ongoing sexual relationship, denied claiming they are a married couple for any purpose and denied they use the same family name.
In so far as the applicant denied his wife was in employment (at 11 February 1999) that answer was consistent with information in the T documents that the applicant's wife ceased employment on 13 January 1999.
On 18 February 1999 the applicant made a statutory declaration to the effect that he and his wife had been living apart until 13 October 1998 [T42].
Document T44 is a response to a Centrelink requisition for information by Maurice Rioli MP who disclosed that the applicant's wife is his aunt. He said he was aware that the applicant and his aunt had not been living together "6-7 years ago". The statement is undated but was probably made in April 1999. In a further explanation he said that they had been living together at Nguiu for the last two years and were now living on Bathurst Island [T45].
Document T46 is a response to a Centrelink requisition for information addressed to the applicant's wife. She apparently gave an oral response to an officer of Centrelink. In the circumstances I doubt that I should give any weight to this document but I note that the applicant's wife is recorded as saying that as at May 1999 they had been separated approximately 4-5 years. She also is said to have disputed that they had lived together at "Forestry". Clearly those responses needed to be put to the applicant's wife but she did not attend the hearing.
In an undated statement addressed to Senator Crossin and received in the "DSS Area Office" on 7 February 2000, the applicant stated:
"I Vince De Santis do solemnly declare to the best of my knowledge that during 1993 – early August 1997 I was residing with my Daughter Teresa Van Rangelrooy, then with my Daughter Lynette De Santis, then with my Son James De Santis on Bathurst Island. In late August 1997 – January 1998 I was residing with my Daughter Mary Oatway and her Family in Adelaide, after then I went to Alice Springs to my Daughter Rosanna Breed with I stayed there for two months.
I then returned to Bathurst Island to live with my son James. Martha was also residing in the same house but is separate (sic) bedrooms. We were not living as Husband and Wife due to a relationship breakdown. We were forced to live in the same house because there was no other accommodation available. I went to Bathurst Island to support my son with his young family. Martha was on Bathurst Island seeking employment.
When we received accommodation we moved into a house together on 13 October 1998, we still had separate bedrooms and did not have a sexual relationship.
If required I am able to supply a list of people willing to support this.
I thank you for your assistance in this matter an (sic) hope that you are able to help me."

By letter dated 20 December 1999 the Bathurst Island Housing Association demanded payment of substantial arrears of rent owing severally by the applicant and his wife. The applicant was said to be in arrears of 35 weeks and his wife was said to be in arrears for 56 weeks [T54].
Document T55 is an undated letter (February 2000?) addressed to Centrelink. It is signed by the applicant, the President of the Nguiu Community Government Council and a Justice of the Peace. The letter includes the following paragraph:
"I have been living here at Nguiu since 1993 with my wife and stayed here ever since, and moved to our new location in (sic) 13 October 1998."

The letter goes on to assert in effect that the President of the Council corroborates that statement. In his oral evidence the applicant said that letter was wrong as to its content.
The applicant's oral evidence was confused. Whether he was being deliberately evasive or whether he was confused as to the facts I formed the opinion that he was an unreliable witness and that I should not accept his evidence unless it is corroborated by other material.
In fact his evidence to the effect that he was separated and living apart from his wife was contradicted by the other material as I have set out above. Even his own written statements contradict his oral evidence and his assertions to the respondent and its predecessor on claim forms.
I have come to the conclusion that I should decide this matter on the basis of the documentary evidence where this is different to the confused oral evidence of the applicant.
In particular I have taken into account the material from the Nguiu Community Government Council. In that regard I have taken into account the applicant's own evidence that because he was not of Tiwi heritage eligibility for the Nguiu house depended entirely on his wife being Tiwi. That his wife was employed by Nguiu Ullintjinni Association Incorporated also satisfies me that the applicant's wife was in fact living at Nguiu.
As became clear during the hearing the issue came down to whether there was a separation because the applicant and his wife slept in separate rooms and did not have a sexual relationship.
The question is whether the applicant and his wife, being married, were living separately and apart from each other on a permanent or indefinite basis (S 4(2)).
Section 4(3) requires the following criteria to be taken into account when considering whether a married couple are living separately and apart:-
"Member of a couple - criteria for forming opinion about relationship
          4 (3)     In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or subparagraph (2) (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
          (a)       the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)      the basis of any sharing of day-to-day household expenses;
(b)       the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed;
(c)       the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d)       any sexual relationship between the people;
          (e)       the nature of the people's commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship."

I make the following findings in response to the criteria set out in S 4(3).
(a)(I)       the applicant and his wife own a residential property at Anula which is presently occupied by the applicant's daughter on a rent free basis:
(ii)while there is some suggestion of a joint bank account it appears that there is no significant pooling of financial resources;
(iii)joint legal obligations seem to be confined to their joint tenancy of houses at Nguiu and Bathurst Island and their joint ownership of the Anula property;
(iv)there seems to be a sharing of household and property expenses eg the applicant had paid the insurance of the Anula property while his wife paid the rates but more recently she has paid both.
(b)(I)       there is no joint responsibility for providing care or support for children on the basis that the applicant and his wife did not have dependant children at the relevant time;
(ii)the living arrangements were that they lived in the same house but used separate bedrooms;
(ii)the responsibility for housework is not clear but seems to have been on a limited share basis.
(c)(I)       they hold themselves out as a married couple;
(ii)while not clear they seem to be recognised by others as a married couple;
(iii)again it is not clear but there seems to be limited joint social activites;
(d)I accept the applicant's evidence that there is no current sexual relationship;
(e)There is nothing to suggest that the applicant and his wife are in anything other than a long term relationship as a married couple, with its high and low points, but shown to be an enduring relationship by the fact that it continues. As to whether they see it as a marriage like relationship I am left to speculate and will not do so.

For these reasons I am satisfied that the applicant and his wife were a legally married couple at all relevant times and I am not satisfied that they were living separately and apart on a permanent or indefinite basis. I am satisfied that the applicant falsely represented his marital status to the respondent consistently from 1994 to early 1999.
Following the hearing in Darwin the respondent made further submissions at the resumed hearing on 6 December 2000. Those submissions explained the operation of the Social Security Act 1991 ("the Act") in different terms to what had been put in Darwin. The applicant was given leave to make written submissions in reply but no such submission has been received by the Tribunal.
The claimed overpayment of $27,629.20 relates to the period 19 May 1994 to 18 March 1999. The quantum of the overpayments is not in dispute.

Changes have occurred in the relevant statutory provisions during this period.
As at May 1994, until it was omitted effective from 29 September 1995, sub-section 1223(6) of the Act reads as follows:
"1223(6) If:

(a)An amount (the "received amount") has been paid to a person by way of social security payment; and
(b)The received amount is more than the amount (the "correct amount") of the social security payment that is payable to the person; and
(c)The received amount was calculated using a maximum payment rate that was greater than the maximum payment rate that was used to calculate the correct amount;
The difference between the received amount and the correct amount is a debt due to the Commonwealth"
Note: A person's maximum payment rate (except for family payment) is worked out by following the Steps set out in the Method statement in Module A of each relevant Rate Calculator.

Act No 105 of 1995 inserted a new sub-section 1223(6) with effect from 29 September 1995 which reads as follows:

"1223(6) If:
(a)An amount (the "received amount") has been paid to a person by way of social security payment: and
(b)The received amount was calculated by using a maximum payment rate that was not the maximum payment rate (the "correct maximum payment rate") that should have been used in working out the rate of the person's social security payment; and
(c)The received amount is greater than the amount (the "correct amount") of social security payment that would have been paid to the person under this Act if the amount had been calculated by using the correct maximum payment rate;
The difference between the received amount and the correct amount is a debt due to the Commonwealth.
Note: A person's maximum payment rate (except for family payment) is worked out by following the steps set out in the Method statement of Module A of each relevant Rate Calculator.

While the sub-section has been redrafted, in the circumstances of this case, the effect of the new provision is the same as its predecessor.
Sub-section 1223(6) was repealed by Act No 84 of 1996 effective from 1 October 1997 and was replaced by sub-section 1223(5) which reads as follows:
"1223(5) If:

(a)An amount (the received amount) has been paid to a person by way of social security payment on or after 1 October 1997; and
(b)Because the received amount had not been correctly calculated using the relevant rate calculator, or for any other reason, the received amount is greater than the amount (the correct amount) of social security payment that should have been paid to the person under this Act;
The difference between the received amount and the correct amount is a debt due to the Commonwealth"

Clearly the Parliament has changed the law so that section 1223(5) will operate to determine a debt due to the Commonwealth without regard to the concept of maximum payment rate as a necessary part of a finding of a debt due to the Commonwealth.
Section 1224(1) of the Act provides that if an amount has been paid to a recipient by way of a social security payment and the amount was paid because the recipient or another person made a false statement or false representation then the amount so paid is a debt due by the recipient to the Commonwealth.
For reasons set out above I am satisfied that the applicant misrepresented his domestic circumstances to the respondent during the relevant period. It may be thought to be surprising that inconsistencies in these representations did not alert the respondent to the misrepresentations. This is not the test. It is sufficient that the amount paid, which I understand to be the total amount, was paid because of a false statement or false representation. In my view it matters not that some lesser amount would have been paid if the applicant had made a correct statement as to his circumstances.
There is nothing in the material before me which would justify waiver of part or the whole of the debt.
I am satisfied that the decision under review was correct and should be affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  31 October 2000, 6 December 2000
Date of Decision  15 March 2001
Applicant  In person
Solicitor for the Respondent    Mr J Walsh