Dudenhoeffer and Secretary, Department of Employment and Workplace Relations
[2006] AATA 850
•5 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 850
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/143
GENERAL ADMINISTRATIVE DIVISION ) Re WILLIAM DUDENHOEFFER Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member M D Allen Date5 October 2006
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr M D Allen Senior Member
CATCHWORDS
Overpayment of Disability Support Pension – Overpayment considered a debt to the Commonwealth - Combined income includes income of recipients’ partner – Waiver of debt if solely an administrative error and received in good faith – Waiver of debt if special circumstances exist.
Social Security Act 1991: S1064 -E2, S12 23, S1237A, S1237AAD
Secretary Department of Social Security v Ellis 24 AAR 535 at 539
Beadle v Director General of Social Security (1985) 60 ALR 225
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
5 October 2006 Senior Member Allen
1. By Application made the 7th of February 2006 the Applicant sought review of a decision of a Social Security Appeals Tribunal that on 20 January 2006 affirmed a prior determination that the applicant had been overpaid Disability Support Pension in the sum of $3066.82 and that the said amount should be recovered.
2. Section 1064-E of The Social Security Act 1991 (‘the Act’) provides that if a recipient of Disability Support Pension is a member of a couple, the combined income of the couple is treated as assessable income to determine the rate of pension payable.
3. Section 1223(1) of the Act provides inter alia that if a person has been overpaid a social security benefit then that overpayment is a debt due to the Commonwealth. In this matter it is alleged that a debt was incurred as Centrelink made payments of Disability Support Pension to the Applicant in the period 24 May 2004 to 11 January 2005, on the presumption that the income received by the Applicant’s wife was less than it in fact was.
4. A debt incurred by a Social Security recipient can be waived if it is attributable solely to administrative error and the recipient received it in good faith (S 1237A of the Act).
5. A further ground for waiver of a debt is provided by S1237AAD of the Act. That section states inter alia that a debt may be waived if special circumstances, other than financial hardship alone, exist and the debt was not incurred due to knowingly providing false information or knowingly failing to comply with a provision of the Act.
6. In this matter having heard both the applicant and his wife, Ms Tzschaschel give evidence I am satisfied that they are truthful witnesses. I therefore accept that Ms Tzschaschel’s recent employment was discussed by them when interviewed by Mr Chew at Ryde Centrelink offices on 7 June 2004.
7. I am further satisfied that Ms Tzschaschel faxed copies of her pay slips to Ryde Centrelink office on 1 July 2004. I note that the original decision maker at Centrelink accepted that these documents had been received and the Applicant's records updated. More importantly I am satisfied that Ms Tzschaschel faxed to Centrelink Ryde on 14 July 2004 the advice that she would be on a salary of $46,000 per annum as from 16 July 2004.
8. As pointed out by Mr Chew in his evidence, it is possible that an incoming fax could be lost. More importantly it was conceded by Ms Slater that even if the Ryde office had received the pay slips they would not necessarily have been brought to the attention of the compliance section. That section acts apparently on data matching from employer's returns and then requires the welfare recipient to provide further and better details.
9. This is in fact what occurred in this matter. Advice was received from Ms Tzschaschel's employer of her employment. On 11 June 2004 the compliance section of Centrelink wrote to the Applicant asking him to provide details of his partner’s income (see document T10 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975).
10. The Applicant did not immediately respond to the letter of 11 June 2004, however Centrelink records reveal that by 21 July 2004 the information required had been received from the applicant. Centrelink records also show that on 21 July 2006 the Applicant telephoned Centrelink and asked for details of all income and assets held on record to be sent to him. This was done by letter dated 21 July 2004.
11. The letter from Centrelink to the Applicant which showed the details of assets and income as held by Centrelink does not record any amount against the headings "earnings" and "other income".
12. By letter also dated 22 July 2004 Centrelink advised the Applicant that he would be paid Disability Support Pension at the rate of $315.14 per fortnight. The letter stated that in calculating that rate the Applicants combined (i.e. his and his partners) regular fortnightly earnings were $821. 61.
13. A notice accompanying that letter informed the applicant that he was required to inform Centrelink if the combined income increased.
14. Document T20 is a notification by Ms Tzschaschel to Centrelink, undated, but which I accept was sent on the 14th of July 2004 notifying Centrelink of her employment at the rate of the $46,000 per annum. A perusal of the letter of 22 July 2004 should have made it clear to the Applicant that the amount of combined income being used by Centrelink for the assessment of the rate of Disability Support Pension was no longer correct, $46,000 giving a fortnightly payment of $1,769. 23 before tax.
15. Ms Tzschaschel received an increase in salary in October 2004 and this was not notified to Centrelink.
16. I agree with the Social Security Appeals Tribunal that what has occurred is that there has been an administrative error at Centrelink in not recording the notification by Ms Tzschaschel of her commencing to earn $46,000 per annum but that administrative error was not the sole cause of the overpayment.
17. Contributing to the overpayment was the fact that the Applicant did not respond to the letter of 22 July 2004 when it should have been obvious that the sum of $821.61 per fortnight recorded as combined income was not correct. The debt was compounded by the failure of the applicant in October 2004 to notify Centrelink that his wife’s income had increased above $46,000 per annum.
18. There are therefore no grounds upon which to waive the debt pursuant to S1237A of the Act. Likewise as the Applicant is still in receipt of a Social Security benefit, a write-off pursuant to S1236 of the Act cannot be contemplated (see S 1236 (1C)).
19. Essential to any waiver pursuant to S1237AAD of the Act is that there exists "special circumstances". The term "special circumstances" was explained by Carr J. in Secretary Department of Social Security v Ellis 24 AAR 535 at 539 viz
" in Beadle v Director General of Social Security a Full Court of this Court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s 102 (1)(a) of the Act which provided for an extension of time in which to claim a family allowance "… in special circumstances …"at 673 -674 the Full Court said:
‘Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate... It would depend upon the circumstances of the particulate case whether these constituted special circumstances. We do not think it possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.’ "
His Honour went on to quote from Groth v Secretary, Department of Social Security where Kiefel J said:
“... for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual ordinary case. That was, I consider, the only inquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The inquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied."
20. Carr J. went on to point out that in Groth supra Kiefel J had expressly approved the reasoning of the Administrative Appeals Tribunal where it held that the appellant's circumstances were not out of the ordinary as the legislation had the same effect on him as it did on other persons qualified to receive a Disability Support Pension. Her Honour stated “It [the Tribunal] went on to find that his circumstances and those of his family although difficult, did not constitute hardship as they could not be said to be different from other pension recipients."
21. In this matter there was no material placed before me to suggest that special circumstances exist in the Applicant’s case and I therefore decline to exercise any discretion pursuant to S1237 AAD of the Act to waive the debt.
22. The decision under review is affirmed.
I certify that this and the preceding pages are true copies of the decision and reasons for the decision herein of:
Senior Member M. D. Allen
Signed: ………………………………………………………
Associate
Dates of Hearing 6 & 27 September 2006
Date of Decision 5 October 2006
Applicant Mr. William Dudenhoeffer
Advocate for Respondent Mr. John Kenny, Centrelink Legal Services
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