Doukolianos and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1412

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1412

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600679

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEFANOS DOUKOLIANOS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal G.D. Friedman, Senior Member

Date7 June 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) G. D. Friedman

Senior Member

SOCIAL SECURITY - disability support pension - driving taxis - whether a continuing inability to work - whether a debt to the Commonwealth - waiver

Social Security Act 1991 ss 94(1), 94(5), 1223(1), 1223(5), 1237A, 1237AAD

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

REASONS FOR DECISION

7 June 2007  G.D. Friedman, Senior Member

1.        Stefanos Doukolianos received disability support pension (DSP) from 19 September 1996 and was sent notices informing him that he was required to notify Centrelink if he re-commenced work.  Centrelink received information that he had worked as a taxi driver from 1994 to 2002 and decided that he was not eligible for DSP during this period.  The Social Security Appeals Tribunal found that he did not have a continuing inability to work from 18 January 1999 to 17 February 2002, and that  DSP payments received during this period are a recoverable debt. 

ISSUES

2.        The issues before the Tribunal are whether Mr Doukolianos had a continuing inability to work from 18 January 1999 to 17 February 2002, and if not, whether payments received are a recoverable debt.

DID MR DOUKOLIANIS HAVE A CONTINUING INABILITY TO WORK?

3. Section 94 of the Social Security Act 1991(the Act) provides:

94(1)    A person is qualified for disability support pension if:

…

(c)       one of the following applies:

(i)        the person has a continuing inability to work;

…

94(5)       In this section:…

work means work:

(a)       that is for at least 30 hours per week at award wages or above;

4.        Mr Doukolianos told the Tribunal that during the relevant period he had a continuing inability to work.  He said that he had permanent back problems since 1994 but that he was trying to rehabilitate himself by driving taxis.  He explained that his ultimate aim was to lease a taxi and hire a driver.  He agreed that he entered into arrangements with several taxi companies and drove on many occasions, but disputed the records prepared by the companies showing the days on which he worked.  He said that because of his physical limitations taxi-driving was not viable financially.

5.        Mr Doukolianos told the Tribunal that he was assisted by a case officer from Centrelink and expected that the person would keep Centrelink informed of his activities.  He was unable to explain why Centrelink had no record of his taxi-driving at the time.  Mr Doukolianos stated that he is living in Greece and is in financial difficulty, but is unable to return to Australia at present because the treatment for his medical conditions is not available in Australia.

6.        In records provided to the Social Security Appeals Tribunal (T71), Woodflow Pty Ltd stated that Mr Doukolianos leased a taxi from 18 January 1999 to 7 November 1999, when the company terminated the lease for failure to keep up with weekly payments.  He worked intermittently for Bayside Taxis, although the records are unclear.  SE Taxis Pty Ltd provided records (T46) detailing frequent day and night shifts worked by Mr Doukolianos from 5 April 2000 to 30 June 2000 and from 6 September 2000 to 29 November 2001, and showing that his gross takings were more than $37,000.  Eastmoor Taxis Pty Ltd stated (T37) that Mr Doukolianos worked 25 days from 8 January 2002 to 17 February 2002 and that his gross takings were more than $4,000.      

7.        The Tribunal has no way of knowing whether every entry in the records provided by the taxi companies is accurate, but accepts that in general terms the records provide a consistent description of Mr Doukolianos’ remunerative work as a taxi driver.  The Tribunal does not accept that he was driving taxis purely as part of a rehabilitation program.  On balance, the Tribunal finds that during the relevant period Mr Doukolianos was driving taxis for more than 30 hours per week when he was in receipt of DSP, and that Centrelink was not informed at the time.  

8. For these reasons the Tribunal finds that Mr Doukolianos has not demonstrated a continuing inability to work and does not satisfy s 94 of the Act. Consequently from 18 January 1999 to 17 February 2002 Mr Doukolianos did not qualify for DSP.

IS THERE A DEBT TO THE COMMONWEALTH?

9. Under s 1223(5) of the Act (as at 1999/2000) and s 1223(1) of the Act (after 1 July 2001) the Tribunal finds that DSP payments made to Mr Doukolianos from 18 January 1999 to 17 February 2002 to which he was not entitled are a debt to the Commonwealth.

SHOULD THE DEBT BE WAIVED?

10. Section 1237A of the Act provides for waiver of a debt to the Commonwealth arising from sole administrative error by the Commonwealth, if the payment was received by the debtor in good faith. The Tribunal finds that the debt was not attributable solely to administrative error by the Commonwealth, so the debt cannot be waived on this ground.

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

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.

12.      In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 Besanko J stated, in respect of special circumstances (at paragraph 33):

… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances… It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case…there must be something that distinguishes the case from the ordinary or usual case ….

13.      The Tribunal accepts that Mr Doukolianos suffers from a number of medical conditions for which he is receiving treatment in Greece, and that he does not believe a return to Australia in the near future is possible.  He is in financial difficulty.  However, these are not matters that make his situation out of the ordinary or unusual.  The Tribunal is not satisfied that his circumstances constitute special circumstances. Therefore, the waiver provisions of s 1237AAD of the Act do not apply.

DECISION

14.      The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  29 May 2007

Date of decision:  7 June 2007
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Mr M. Pike, Centrelink Legal Services Branch