Donnelly and Secretary, Department of Family and Community Services
[2000] AATA 918
•12 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 918
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/579
GENERAL ADMINISTRATIVE DIVISION )
Re NERIDA DONNELLY
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date12 October 2000
PlaceMurwillumbah
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the right of the Commonwealth to recover a debt arising out of an overpayment of parenting payment of $2,479.70 for the period 16 July 1998 to 9 December 1999 is waived.
..............(Signed)................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – Overpayment of parenting payment – administrative error – receipt in good faith – waiver
Social Security Act 1991: s.1237A
REASONS FOR DECISION
12 October 2000 Mr. D.W. Muller, Senior Member
This is an application by Nerida Donnelly to review a decision to refuse to waive the right of the Commonwealth to recover an overpayment of parenting payment in the sum of $2,479.70 for the period 16 July 1998 to 9 December 1999.
A brief history of the relevant events leading up to the overpayment period follows:
(a)In 1995, the applicant started work as a sales representative for a snack food company. She was to be paid a set rate per hour worked plus a travelling allowance of 40 cents per kilometre travelled in her car from the first shop she visited to the last shop each day. Other conditions (or non-conditions) of her employment were:
(i)No payment for travelling time.
(ii)She had to provide her own car.
(iii)No allowance for using her car to convey advertising materials and shelving to and from her home to the various shops which sold the product.
(iv)No holiday pay.
(v)No sick leave.
(vi)No long-service leave.
(b)Shortly after starting work in 1995, the applicant attended the Tweed Heads South office of the Department of Social Security (as it then was) and told a staff member about her new job. She also asked how her income would affect her parenting allowance, and whether her income would be calculated on the basis which allowed for the expenses she would incur in running her car. She was told that her income would affect the rate of payment of her benefit and that her income would be based on her net income after her expenses of running her car were deducted.
(c)It seems from the T documents, that her benefits have been calculated on the basis that her income for benefit purposes is her gross income with no deductions allowed. Whereas, her taxable income has been significantly lower than her gross income because of the allowance of deductions of the expenses which she incurs in earning her income. This has been a contentious matter between Mrs. Donnelly and the officers of Centrelink, but is not the subject of this review.
(d)According to the T documents, Mrs. Donnelly was sent letters from the Tweed Heads South office on a regular basis, to inform her of her rate of benefit. Some examples of some of the information conveyed by those letters follows:
28 June 1995:
"You have been transferred from Partner Allowance to Parenting Allowance and you will be paid $228.90 every second Thursday, starting on 6 July 1995.
Your Payment is worked out using both your and your partner's incomes. The incomes we have used to work out how much you are paid are shown on the back of this letter. You should tell us within 14 days if either your or your partner's income changes.
YOUR FORTNIGHTLY INCOME IS: $144.41
YOUR PARTNER'S FORTNIGHT INCOME IS: $4.61You must tell us if any of these things happen or is likely to happen:
. your total personal income goes over $144.41;
. your partner's total income goes over $4.61;"21 March 1998:
"I am writing to you about your Parenting Payment.
You will be paid $103.50 every second Thursday, starting on 26 March 1998.
From 20th March 1998, Parenting Allowance was replaced with a new payment called Parenting Payment. You will continue to be paid every fortnight, but you will be paid Parenting Payment: instead of Parenting Allowance.
Your entitlement has been worked out using your income of $349.46 per fortnight.
WHEN TO CONTACT US This is a recipient notification notice given under the Social Security Act 1991. You must tell us about events or changes in circumstances affecting your payment within the 14 day period which starts on the day after the day on which they happen or are likely to happen. If your partner has to give a form to Centrelink on a regular basis, you can tell us about any changes on that form. This means that you and your partner do not have to tell us more than once.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $349.46 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight."27 March 1998:
"I am writing to you about your Parenting Payment.
You will be paid $290.10 every second Thursday, starting on 9 April 1998.
Your entitlement has been worked out using your income of $3.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $60.00 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight."3 April 1998:
"I am writing to you about your Parenting Payment.
You will be paid $118.90 every second Thursday, starting on 9 April 1998.
Your entitlement has been worked out using your income of $327.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $327.46 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight."14 April 1998:
"I am writing to you about your Parenting Payment.
You will be paid $290.10 every second Thursday, starting on 23 April 1998.
Your entitlement has been worked out using your income of $3.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $60.00 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight."15 April 1998:
"I am writing to you about your Parenting Payment.
You will be paid $144.80 every second Thursday, starting on 23 April 1998.
Your entitlement has been worked out using your income of $290.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $290.46 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight;"24 April 1998:
"I am writing to you about your Parenting Payment.
You will be paid $290.10 every second Thursday, starting on 7 May 1998.
Your entitlement has been worked out using your income of $3.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $60.00 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight;"29 April 1998:
"I am writing to you about your Parenting Payment.
You will be paid $173.50 every second Thursday, starting on 7 May 1998.
Your entitlement has been worked out using your income of $249.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $249.46 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight;"30 April 1998:
"I am writing to you about your Parenting Payment.
We are not able to pay you Parenting Payment for the time being. This is because your income and your partner's circumstances mean you have no entitlement to payment at this time. Your incomes are shown on the back of this letter.
We will continue to check to see if we can pay you any Parenting Payment and write to you again about this.
The decision to suspend your Parenting Payment has been made under part 2.10 of the Social Security Act 1991.
Your entitlement has been worked out using your income of $249.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $249.46 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight;"8 May 1998:
"I am writing to you about your Parenting Payment.
You will be paid $290.10 every second Thursday, starting on 21 May 1998.
Your entitlement has been worked out using your income of $3.46 per fortnight.
You must tell us if any of these things happen or are likely to happen:
Your total personal income goes over $60.00 a fortnight;
Your partner's total personal income goes over $3.46 a fortnight;"
(e)Prior to May 1998, the applicant's husband had been unemployed and had been receiving newstart allowance. After early May 1998, Mr. Donnelly started work and has remained in employment since.
(f)The applicant, in fact, received the following amounts of parenting payment on the following dates:
26 March 1998 - $103.50
9 April 1998 - $118.90
23 April 1998 - $144.80
15 May 1998 - $ 65.10 (arrears)
21 May 1998 - $ 65.10
4 June 1998 - $ 65.10
(g)The applicant thereafter received $65.10 per fortnight, rising to $65.50 and then $66.00, until 13 December 1999.
The applicant gave evidence to the Tribunal that she did not receive the letters referred to in paragraph 2(d) above but that she did supply her payslips to Centrelink on a regular basis. She said that she would certainly have reacted to letters which said that her income, or that of her husband, was $3.46 per fortnight, and that she would have complained if she had been told that her benefit was to be $290.10 or $173.50, when she received only $65.10.
The Tribunal notes that the contents of the letters set out above, whether sent or not, indicate that Centrelink was receiving information from either the applicant or her husband about the applicant's income on a regular basis for the first six months of 1998. This was probably due to the fact that Mr. Donnelly was receiving newstart allowance. The Tribunal notes that the letter dated 3 April 1998 seems to correct the information contained in the letter of 27 March 1998, similarly the letter of 15 April 1998 seems to correct the letter of 14 April 1998 and the letter of 29 April 1998 corrects the letter of 24 April 1998. The letters dated 29 April and 30 April give two different outcomes from 7 May for an income of $249.66 per fortnight. The Tribunal accepts that the applicant supplied her payslips to Centrelink on a regular basis until at least early May 1998.
The applicant gave evidence that in July 1998 her accountant told her to check with Centrelink to see if she was entitled to receive any parenting payment. She said that she took her payslips in to Centrelink and was told by an officer of Centrelink that they would look after the matter (or words to that effect). The applicant said further that in December 1998, when she received a small rise in her hourly rate at work, she took in her payslips to Centrelink to advise of the change. She believed at all times that she was entitled to the $65.00 per fortnight that she was receiving. She had noted that when her husband started work, her parenting payment dropped markedly and she assumed that she was then entitled to a basic minimum rate.
There was no correspondence generated by Centrelink during the whole of the overpayment period.
The overpayment came to light as a result of a cross-matching of data with the Australian Taxation Office in December 1999. It was revealed to Centrelink by the Australian Taxation Office that for the tax year ending 30 June 1999, the applicant had a gross income of $20,621 and a taxable income of $12,579.
The Tribunal accepts the applicant as a truthful witness. The Tribunal accepts that the applicant did all things that were required of her under the Social Security Act 1991 and that she received the parenting payment from May 1998 to December 1999 in good faith.
The overpayment, the subject of this review, was attributable solely to administrative error made by the Commonwealth and the applicant received the payments in good faith. Consequently, the right of the Commonwealth to recover the debt must be waived pursuant to sub-section 1237A(1) of the Social Security Act 1991.
The decision under review is set aside.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 12 October 2000
Date of Decision 12 October 2000
Applicant Mrs. Donnelly, herself
Respondent Mr. P. Kanowski, Departmental Advocate
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