Egan and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1116

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1116

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600192

GENERAL ADMINISTRATIVE DIVISION		)
Re		CINDY EGAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  Ms M J Carstairs, Senior Member

Date 9 March 2007

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..................[Sgd]............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension - overpayment due to partner’s income – failure to advise Centrelink of partner’s income –  debt unable to be written off as applicant capable of repayment – debt waiver – special circumstances -  debt unable to be waived as no administrative error and Tribunal not entitled to consider special circumstances – decision under review affirmed.

Social Security Act 1991 (Cth) s1236, s1237AAD.

REASONS FOR DECISION

9 March 2007   Ms M J Carstairs, Senior Member

1.      Cindy Egan was receiving disability support pension between 2001 and 2003. During this period Ms Egan failed to provide Centrelink with the details of her partner’s earnings. Centrelink has now decided that during that period her partner’s wages were at such a level that she should not have been paid at the rate she was paid.  The debt is a large one, well over $13,000.

2.      It is not the debt or its amount that is in issue here.  Ms Egan acknowledged that she was in this relationship; she acknowledged also that she should have told Centrelink about her partner's earnings and she did not.  She was quite unwell at the time and not in a fit state to carry out her obligations.  But she accepts that it was her obligation and she did not carry it out.

3.      Therefore, the sole issue before me is to consider whether this debt should be recovered.  In considering that question I now turn to what was the focus in this case, namely, the question of the discretion available under the legislation to waive the whole or part of a debt.  Ms Egan's case, as I see it, raises only the question of possible exercise of the discretion as to special circumstances.

ISSUES AND LEGISLATION

4.      The legislation provides that a debt may be waived if there are special circumstances, but only where the debt did not arise wholly or partly from the debtor or another person knowingly making a false statement or false representation, or by failing or omitting to comply with a provision of the Act (s 1237AAD).

EVIDENCE

5.      The evidence is comprehensively set out in the Social Security Appeals Tribunal decision and there is no need to set that out once again in detail.  Suffice to say that at the time when Ms Egan incurred this debt, she and her partner were attempting to rehabilitate from a drug habit.  He successfully obtained employment, but she did not - however she had enrolled at TAFE studying graphic design.   Ms Egan was struggling to deal with her health issues; trying to study; and remained in a relationship that had broken down in many respects, simply because she could not obtain alternative accommodation.  Ms Egan and her partner had settled in a part of central Queensland where rental accommodation was at a premium because of demand arising from the mining industry. She was on a waiting list for public housing, but there was little prospect in the short term of obtaining a residence.  So she stayed on with her partner, when she should not have, if the details of the relationship as presented in the submission of the Welfare Rights Centre to the Social Security Appeals Tribunal are correct.[1]

[1]  Document T45, folio 159.

6.      However that relationship is now behind her and she currently lives in her own accommodation.  Her health issues continue to be a problem, but she said that towards the end of last year her medical condition was better identified – it seems it was not correctly identified in the past.  She is feeling the benefit of the current medication which has been prescribed.  Unfortunately this did not come in time to be of assistance to her last year, when she was trying to complete her studies in graphic design, from which she had hoped to obtain employment.  When she attended the first day of the hearing, Ms Egan then merely sought to have the debt written off for a time, so that she might complete her studies with a view to gaining employment.

7.      On the evidence before me, I could not exercise the discretion for special circumstances.  Ms Egan knew her obligations and she hoped that her partner had told Centrelink about his earnings when he went to work as a truck driver.  However there was no indication from his records that he did so.  He simply seems to have let his newstart allowance lapse by not returning his payment form.  In the absence of other evidence, such as relevant medical evidence that might have affected Ms Egan’s state of mind at the time,  it seems to me that the Social Security Appeals Tribunal correctly concluded that the discretion was not open in Ms Egan’s circumstances. 

8. For these reasons the debt should be recovered. As Ms Egan is receiving payments from Centrelink I do not see that the debt can be written off: s1236(1B) Nor is there any real advantage in writing off this debt. Ms Egan said that she is able to repay at the rate that it is being recovered currently, that is $60 per fortnight.

9.      I note that Ms Egan has re-organised her life onto a better-directed, more positive path and she has overcome difficulties that few would face with the courage that she has.  It seems to me that the rate of recovery now in place, that of $60 per fortnight, needs to be maintained for the more immediate future.  I can do no more than make a recommendation to that effect.  I recommend that the present rate of recovery be maintained for the period of 12 months from the date of this decision, subject of course to Ms Egan obtaining such employment that might enable a higher rate of recovery.

Decision 

10.     The Tribunal affirms the decision under review.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Senior Member

Signed: …………………………………………
           M. Brazier, Associate

Date/s of Hearing  27 July 2006, 5 March 2007
Date of Decision  9 March 2007
The applicant was unrepresented
For the respondent  Mr M Belcher (1^st day); Ms J Forsyth (2^nd day)