Edwards and Secretary, Department of Employment and Workplace Relations - [2007] AATA 16

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 16
ADMINISTRATIVE APPEALS TRIBUNAL N°V2006/362

GENERAL ADMINISTRATIVE DIVISION

Re KAY (NGAWAIKAUKAU) EDWARDS AND IVAN EDWARDS

Applicants

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION
Tribunal:Ms Regina Perton, Member
Date:12 January 2007
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
. . . . . . . . . . . . . . . . . . . . . . .
Member

SOCIAL SECURITY – compensation affected payments – timing of backdated periodic payments – debt incurred by person in receipt of compensation and his partner paid by insurer direct to Centrelink at its request – whether payments can be attributed to the period when they should have been made rather than the actual date of payment – waiver of debt – whether special circumstances exist – decisions under review affirmed.
Social Security Act 1991 Part 3.14, ss 17, 1173, 1174, 1184, 1184A, 1237AAD
Beadle v Director-General of Social Security (1985) 7 ALD 670
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
REASONS FOR DECISION
12 January 2007  Ms Regina Perton, Member
1.      Ivan Edwards and his wife, Kay (Ngawaikaukau) Edwards, have been in dispute for some years with Centrelink over debts to Centrelink that arose primarily as a result of workers’ compensation payments made to Mr Edwards. Mr Edwards was injured in a workplace accident in 2001. In 2002, Mr Edwards was paid a total of $17,944.00 in arrears of weekly compensation payments in two lump sums for the period between 27 July 2001 and 1 February 2002 (the relevant period). Mr Edwards had been receiving sickness allowance during the relevant period. As a result, Centrelink required the insurer to reimburse it for sickness payments already made to Mr Edwards. An amount of $8.994.41 was deducted from the compensation award to repay Centrelink. Mr Edwards believes he and his wife have been disadvantaged by the timing of the compensation payment. It is his view that Centrelink should lessen the amount they were required to repay.
2.      Mrs Edwards has been receiving disability support pension (DSP) since July 1999. Centrelink determined that she had been overpaid DSP during the relevant period because of the amount her husband received in arrears of compensation. Centrelink later decided that she had been also been overpaid DSP during periods before and after the relevant period due to the level of her husband’s income. On 27 March 2006 the Social Security Appeals Tribunal (SSAT) waived part of Mrs Edwards’s debt accumulated before the relevant period. However, the SSAT determined that Centrelink was entitled to retain the moneys overpaid to Mrs Edwards during the relevant period. The SSAT also affirmed a delegate’s decision that Mrs Edwards owed money to Centrelink for a later overpayment period from 2 February 2002 to 11 March 2005 (the later period) during which her husband’s level of income was such that she was not entitled to the rate of DSP paid to her.
3.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards and Secretary, Department of Employment and Workplac...

Details

AGLC: Edwards and Secretary, Department of Employment and Workplace Relations [2007] AATA 16
Case: [2007] AATA 16
Decision Date: 12 January 2007

CaseChat Overview and Summary

In the case of Edwards and Secretary, Department of Employment and Workplace Relations, the applicants, Ivan Edwards and Kay Edwards, appealed against decisions made by the respondent, the Secretary of the Department of Employment and Workplace Relations. The applicants sought to challenge the raising and recovery of debts from overpayments of disability support pension (DSP) and Newstart Allowance (NSA) due to delayed workers' compensation payments. The dispute arose from complications in the payment of workers' compensation, which was further exacerbated by errors made by Centrelink and the insurer. The applicants argued that the debts should be adjusted to reflect the dates when the payments were due rather than when they were actually paid to them.

The primary legal issues in the case involved determining whether the debts were appropriately raised and whether the debts should be waived due to special circumstances. The Tribunal considered whether the debts were appropriately raised under sections 1173 and 1174 of the Social Security Act 1991, which provide for compensation recovery. The Tribunal also examined whether the debts should be waived due to special circumstances under section 1237AAD of the Act. The Tribunal found that the debts were appropriately raised, as the legislation allowed Centrelink to seek payment directly from the insurer for the overpayments made to both Mr and Mrs Edwards.

The Tribunal then assessed whether the debts should be waived due to special circumstances. The Tribunal acknowledged that Mr and Mrs Edwards met the requirements of section 1237AAD(a) of the Act, as the debts arose due to a dispute over workers' compensation payments and their late payment through no fault of Mr Edwards. However, the Tribunal was not satisfied that the circumstances in this case constituted special circumstances, as the applicants' situation was not vastly different from other social security recipients who had incurred debts due to late payments of workers' compensation payments. The Tribunal did not find the applicants' financial and health situation to be significantly different from others in similar circumstances.

The Tribunal affirmed the decisions under review, finding that the debts were appropriately raised and that the special circumstances did not warrant waiving the debts. As a result, Mr and Mrs Edwards were not required to make any further payment to Centrelink in relation to the debts being considered by the Tribunal.

Orders