Edwards and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 310

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 310

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5874

GENERAL ADIMISTRATIVE DIVISION		)
Re		GEORGE EDWARDS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date16 April 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.   

...............Signed..............

Deputy President

CATCHWORDS

SOCIAL SECURITY – overpayment of age pension – failure to declare a change in wife’s earnings – income of a spouse relevant to determine the entitlement to an age pension – motivation for raising a debt not relevant to merits review – no reason why the right to recover the debt ought to be waived – decision under review affirmed.

Social Security Act 1991 – ss 1237A, 1237AAD

REASONS FOR DECISION

16 April 2008 Deputy President P E Hack SC    

1.This is an application by Mr George Edwards by which he seeks a review of a decision made by Centrelink on 14 June 2007. That decision determined to raise and recover a debt of $161.34 arising, it is said by the respondent, the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs, from an overpayment of age pension to Mr Edwards in the period between 13 November 2006 and 4 March 2007.

2.The parties have agreed to the matter being determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth.) and I consider it appropriate to do so.

3.I do not understand Mr Edwards to take issue with the facts as they have been set out in the Secretary’s statement of facts and contentions lodged on the 18 February 2008. What follows is taken from that statement.

4.Mr Edwards is married and was in receipt of age pension during the relevant period. His wife was employed on a casual basis with Education Queensland and, as a consequence of that employment, received amounts of income in the period between 13 November 2006 and 4 March 2007.

5.The income of the spouse is relevant to determine the entitlement to an age pension and Mr Edwards ought to have declared the amounts of these earnings to Centrelink. He did not do so. In support of an earlier application to this Tribunal, Mr Edwards spoke of having made “a conscious decision to stop declaring my wife’s income after completion of tax returns for 03/04”[1].

[1]See George Edwards and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2007] AATA 51. Mr Edwards asked the Tribunal to rely on the same arguments he submitted in that application in considering the present matter.

6.Mr Edwards does not suggest that his wife did not earn the income which Education Queensland has reported to Centrelink, nor does he suggest that the calculations undertaken by Centrelink are in any way flawed. Mr Edwards’ initial request for a review of the decision made on 14 June 2007 to raise and recover the debt arising from the overpayment was prompted seemingly by his views about the rationale for the decision. As it seems to me, the rationale for a decision to raise and recover a debt is not relevant to the matters in issue before me, a fortiori Mr Edwards’ perception of the rationale. Questions about the motivation for raising a debt may be relevant if one is examining the process by which a statutory decision was made, however this Tribunal undertakes merits review and is not concerned about the process. Rather its concern is whether the decision reached was the correct or preferable decision on the material before the Tribunal. On that basis I am satisfied that there was a debt of $161.34 which arose because Mr Edwards failed to comply with an obligation to inform Centrelink of his wife’s earnings from employment.

7.Whilst Mr Edwards does not raise a claim that the Commonwealth’s right to recover the debt ought to be waived, I ought briefly discuss the provisions that enable that to be done. First it seems plain that there is no scope for waiver under s 1237A(1) of the Social Security Act 1991 as the debt did not arise solely due to administrative error and I would have thought that the receipt was not in good faith.

8.A debt may be waived pursuant to s 1237AAD of the same Act where the overpayment did not arise from a knowingly false statement or representation or failure to comply with a provision of the legislation, and there

are “special circumstances”. Where Mr Edwards consciously decided not to declare his wife’s earnings, it seems to me that he must have knowingly made a false representation. That is to say, by his silence in circumstances where he was under an enforceable duty to speak, he represented that she was not earning any income. Moreover, Mr Edwards’ circumstances fall well short of the description “special circumstances”. It is unnecessary for present purposes to seek to elucidate the meaning of that expression; it is enough to say that there is nothing unusual or exceptional about the circumstances of Mr Edwards.

9.I should finally deal with an argument raised by Mr Edwards in his correspondence to the Tribunal of 4 March 2008 in which he draws the Tribunal’s attention to a Centrelink requirement which imposes a 14 day maximum response period to letters from Centrelink requesting information. Seemingly Centrelink cancelled his age pension at some stage (he asserts “illegally”) for a failure to respond within that deadline. He then draws the Tribunal’s attention to a number of attempts where he has sought to obtain information from Centrelink about the debt in issue in the present case and refers to Centrelink’s “arrogant and contemptuous disregard for these requests.” Mr Edwards goes on to submit,

“that with Centrelink showing neither the will nor the wherewithal to address this matter, the Tribunal deal with it in the appropriate manner.”

10.I propose to do precisely that. As I have sought to explain the Tribunal undertakes merits review. We are not concerned to determine questions of the existence or otherwise of a debt on the basis of perceptions of whether Centrelink is or is not conducting its affairs efficiently. Let it be assumed, favourably to Mr Edwards, that Centrelink officers wilfully disregarded requests made by him for information – and I stress that I make no findings in that regard – that fact does not go to the correctness or otherwise of a decision made to raise and recover a debt. In some circumstances it might be regarded as supporting the proposition that special circumstances exist, however the present is not such a case.

11.There is no substance in Mr Edwards argument and I would affirm the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .......................Signed.............................................
  Jacqueline Woods, Associate

Date of Hearing  Heard on the papers
Date of Decision  16 April 2008
Applicant  Self represented
Solicitor for the Respondent      Departmental Advocate