Evans and Secretary, Department of Social Services
[2013] AATA 944
•23 December 2013
[2013] AATA 944
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3625 and 2012/3603
Re
Greg Evans
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 23 December 2013 Place Sydney The decision of the Authorised Review Officer made on 11 February 2002 (as affirmed by the Social Security Appeals Tribunal on 13 August 2012) and the decision of the Authorised Review Officer made on 21 November 1995 (as affirmed by the Social Security Appeals Tribunal on 18 May 2012), are set aside and remitted to the respondent to recalculate the debt owed by Mr Evans in accordance with the Tribunal’s Reasons for Decision.
The decisions of the Authorised Review Officer made on 11 February 2002 (as affirmed by the Social Security Appeals Tribunal on 13 August 2012) and the decision of the Authorised Review Officer made on 21 November 1995 (as affirmed by the SSAT on 18 May 2012) not to waive or write-off the debt, are affirmed.
.....................[SGD]...................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY — Debt — Reparation order — Whether Tribunal has power to waive or write off debt
LEGISLATION
Crimes Act 1914 (Cth) – ss 21B; 29D
Criminal Code Act 1995 (Cth) – s 135.1(5)
Social Security Act 1991 (Cth) – ss 94; 1236; 1237A; 1237AAD
Social Security Act 1947 (Cth) – ss 23; 24; 27
Social Security (Disability and Sickness Support) Amendment Act 1991(Cth) – s 10
Social Security Legislation Amendment Act (No 1) 1995(Cth) – Schedule 4CASES
Annas v Director-General of Social Security [1985] 8 FCA588
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Evans v Regina [2006] NSWCCA 349
Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 441
Groth v Secretary, Department of Social Security [1995] FCA 989
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Re Callaghan and Secretary, Department of Social Security [1996] AATA 413
Regina v Gregorious Evangelatos (Unreported, District Court of New South Wales, Woods J, 20 September 2004)
Re Goonewaradana and Secretary, Department of Social Services [2013] AATA 795
Re Panke and Director-General Social Services (1981) 4 ALD 179
Re Secretary, Department of Social Security and Pomersbach [1991] AATA 325
Secretary Department of Social Security v Hodgson [1992] FCA 510
Secretary, Department of Social Security v Pusnjak [1999] FCA 994REASONS FOR DECISION
Senior Member A K Britton
23 December 2013
Mr Greg Evans seeks review of the decision, made by a Centrelink Authorised Review Officer (ARO) and affirmed by the Social Security Appeals Tribunal (SSAT), to raise and recover a debt of about $280,000 and not to exercise the power to waive or write-off that debt. Mr Evans is currently paying off the debt at the rate of $20 per fortnight.
The debt is alleged to have arisen as a result of Mr Evans:
Receiving social security payments between January1985 and October2001, at the same time as he was receiving payment in the name of Gregory Evangelatos (the first debt)
Receiving various social security payments between February1982 and February2001 in the name of Gregory Evangelatos, which he was not entitled to receive (the second debt)
Receiving in the name of Greg Evans, partner allowance and special benefits, for which he did not satisfy the eligibility criteria (the third debt)
A breakdown of these debts is set out in Annexure A to these reasons.
In relation to the first debt, Mr Evans was convicted of defrauding the Commonwealth by obtaining benefits to which he was not entitled in contravention of s 29D of the Crimes Act 1914 (Cth) (the Crimes Act) and dishonestly causing a loss to a Commonwealth entity in contravention of s 135.1(5) of the Criminal Code Act 1995 (Cth). In September 2004 he was sentenced by the District Court of NSW to a term of imprisonment of 28 months, to be released after 12 months on entering into a good behaviour bond. In addition he was ordered to make reparation to the Commonwealth in the amount of $164,132.67 under s 21B of the Crimes Act (the reparation order). An appeal brought by Mr Evans was dismissed by the NSW Court of Criminal Appeal (Evans v Regina [2006] NSWCCA 349).
The ARO and the SSAT calculated the amount of the first debt as $183,475.83. Due to the practical difficulties of identifying the reason for the discrepancy between that figure and the amount of the reparation order, in these proceedings the Secretary consented to the amount of the first debt being taken to be $164,132.67 as at the date of sentence (20 September 2004). For similar reasons the Secretary consented to that figure being taken to include the third debt, which the ARO and the SSAT found to be $383.88.
The primary issues that remain to be decided are:
First debt
Whether the Tribunal has power to waive or write off that part of the debt that is subject to a reparation order made by the District Court, and
If so, whether that power should be exercised.
Second debt
Whether Mr Evans met the eligibility requirements of each of the social security payments made to Gregory Evangelatos between February1982 and February 2001 (the second debt period), and
If not, whether the debt has been correctly calculated
Whether the discretionary power conferred by the Social Security Act 1991 (Cth) (the Act) to waive or write off all or part of the debt, can and should be exercised.
THE FIRST DEBT
Does the reparation order prevent the Tribunal from waiving or writing off the debt?
Mr Evans accepts that the Tribunal has no power to revoke or amend the reparation order made by the District Court.
In Re Goonewaradana and Secretary, Department of Social Services [2013] AATA 795 Deputy President Bean concluded at [23] that a reparation order made under the Crimes Act did not prevent or curtail the exercise of the power to waive a debt under s 1237AAD of the Act. The Deputy President noted that a reparation order, having been made by a court, stands with “full force” citing Re Secretary, Department of Social Security and Pomersbach [1991] AATA 325; (1991) 25 ALD 86.
I have some misgivings about whether the power conferred by s 1237AAD and the other provisions of the Act, which give the Tribunal power to waive or write-off a debt, can be exercised when, as in this case, the amount of the reparation order is equivalent to the amount of the debt. This issue was not the subject of submissions. For present purposes, however, I will adopt DP Bean’s analysis.
Can the debt be waived under s 1237AAD?
Mr Evans was convicted on the criminal standard of defrauding the Commonwealth by obtaining benefits that he was not entitled to receive in contravention of s 29D of the Crimes Act. The elements of that offence are:
1.A person defrauds [that is acts dishonestly to deprive another entity to which he/she/it would be entitled but for the perpetration of the fraud]
2.That entity is the Commonwealth or a public authority under the Commonwealth.
Mr Evans was also convicted on the criminal standard of dishonestly causing a loss to a Commonwealth entity in contravention of s 135.1(5) of the Criminal Code Act 1995 (Cth).
(a)
In these proceedings and before the District Court Mr Evans testified that he had participated in a venture designed to return children who had been unlawfully removed from their parents, to Australia. He claims that he was acting on instructions from the AFP, various politicians and the authorities.
In sentencing Mr Evans, Woods J stated that he had “no doubt” that in the early 1990s Mr Evans, as claimed, had participated in a child rescue venture (Regina v Gregorious Evangelatos (Unreported, District Court of New South Wales, Woods J, 20 September 2004) at p 14)). His Honour commented that although in light of the findings made by the Wood Royal Commission, allegations of police impropriety could not be lightly disregarded, in this case the allegations were “so fanciful” that he had no difficulty in agreeing with the jury that they should be rejected (Regina v Gregorious Evangelatos (Unreported, District Court of New South Wales, Woods J, 20 September 2004 at p 5).
There is a strong prima facie presumption that the facts found by the court in convicting and sentencing Mr Evans were found correctly. While the Tribunal may, if appropriate, “go behind” those facts, any conviction places a “heavy onus” on a party seeking to persuade the Tribunal to accept facts other than those found by the sentencing court: per Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 at [43]. Mr Evans has not discharged that onus.
Mr Evans concedes that throughout the first debt period social security payments were made to him in the name of Greg Evangelatos at the same time as he was receiving social security payments in the name of Greg Evans. As I understand it, he claims that he was pressured by members of the Australian Federal Police (AFP) into using both names and applying for two sets of social security benefits. He further alleges that social security payments made to Greg Evans were stolen by members of the AFP, who had access to his bank account.
The power to waive all or part of a debt under s 1237AAD can only be exercised where the decision-maker is satisfied that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or misrepresentation, or knowingly failing or omitting to comply with a provision of the social security legislation. It is not enough that Mr Evans had constructive knowledge, he must have actual knowledge that the statements made to Centrelink were false (Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996) 45 ALD 435). The alleged false statement and false representation made by Mr Evans is the representation made to Centrelink throughout the debt period that he was in receipt of only one set of social security benefits. In finding Mr Evans guilty for the offences of defrauding the Commonwealth and causing a loss to a Commonwealth entity, the jury were satisfied to the criminal standard that he had acted dishonestly.
Psychiatrist, Dr Rosalie Wilcox, assessed Mr Evans in October 2002 and concluded that he was suffering from a paranoid psychotic illness, which had probably been present for over 25 years. In her opinion he was unfit to stand trial. Nine months later Dr Wilcox concluded that Mr Evans’ condition had improved after receiving treatment and he was fit to stand trial. The jury had before it information about Mr Evans’ psychiatric state. He was nonetheless found guilty of the offences.
Notwithstanding the evidence about Mr Evans’ psychiatric state, I am satisfied that Mr Evans had actual knowledge that the representations he made to Centrelink throughout the debt period were false. The debt arose, at least in part, because of those representations. It follows that the power to waive the debt under s 1237AAD cannot be exercised.
In case I am wrong I will proceed to consider whether there are special circumstances within the meaning of s 1237AAD.
Special circumstances
The power to waive the debt under s 1237AAD may be exercised if there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt. The term “special circumstances” as used in the Act has been the subject of exhaustive consideration by the Administrative Appeals Tribunal and the Federal Court. The Federal Court has consistently declined to adopt a prescriptive formula (see for example French J in Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at 535). Nonetheless, the Court has emphasised that the term denotes a requirement that there be “something to distinguish [the claimant’s] case from others, to take it out of the usual or ordinary case”: per Kiefel J in Groth v Secretary, Department of Social Security [1995] FCA 989; (1995) 40 ALD 541 at 545. This however is not to be interpreted as a requirement that the claimant’s circumstances be “extremely unusual, uncommon or exceptional”: per Hill J in Secretary Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32 at 42. Nor is there a requirement that the circumstances be unique to the individual: per Katzmann J in Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 441; (2010) 185 FCR 52 at 65.
Mr Evans is currently in receipt of the Age pension. Centrelink withholds $20 per fortnight from that pension as part payment for the reparation order. Apart from that order he has no significant debts or liabilities. He has no dependents and resides with his wife in accommodation leased from NSW Housing. His wife also receives the Age pension.
Mr Evans appeared to invite me to conclude that his circumstances were special because of what he perceives to be the injustice he was subjected to by the AFP and Director of Public Prosecutions, which led to his conviction and custodial sentence.
On the available evidence I am unable to agree with Mr Evans’ opinion that he had been subjected to a great injustice and was wrongly convicted. I accept, however, that he is now in very poor health. I also accept that serving a custodial sentence probably took a toll on Mr Evans’ mental health. While no doubt like other persons dependent on social security benefits Mr Evans finds it difficult to make ends meet, his current financial circumstances could not be described as straitened. There is no evidence to suggest that he cannot obtain proper treatment for his medical problems on account of his financial position.
I am not satisfied that Mr Evans’ circumstances are sufficiently unusual, uncommon or involve sufficient hardship or unfairness such that they amount to “special circumstances” within the meaning of s 1237AAD.
Can the debt be written off?
Section 1236 of the Act gives the decision maker the power to write off a debt in certain circumstances:
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
…
If, as in this case, a debt is recoverable by means of deductions from the debtor’s social security payments, the debtor is taken to have a capacity to repay the debt for the purpose of paragraph (1A)(b) unless recovery by those means would result in the debtor being in severe financial hardship (s 1236(1C). I am not satisfied that recovery of the debt is, or is likely to, result in Mr Evans being in severe financial hardship.
The criteria in pars (a), (c) or (d) of s 1236(1A) are not satisfied. It follows that the power to write off the debt cannot be exercised.
Can the debt be waived on account of administrative error?
Section 1237A of the Act allows for a debt that is solely attributable to an administrative error made by the Commonwealth to be waived.
As I understand it, Mr Evans appears to argue that the debt was attributable to Centrelink error because the staff of Centrelink was aware that he was in receipt of two sets of social security benefits. In addition he claims that officers of Centrelink knew that AFP officers had access to his account and withdrew one set of payments without his permission. These allegations are unsupported and implausible and cannot be accepted.
I am not satisfied that any part of the debt was attributable to an administrative error made by Centrelink. Accordingly, the power to waive the debt under s 1237A cannot be exercised.
Summary
For the reasons given the first debt cannot be waived or written-off under the Act.
THE SECOND DEBT
The second debt relates to the payment of invalid, disability support, widow and supporting parents pensions made to Mr Evans in the name of Gregory Evangelatos, between February1982 and February 2001 (the second debt period). The Secretary contends that Mr Evans was not qualified to receive any of those payments because he did not meet the eligibility requirements for each relevant pension.
Payment of invalid and disability support pension throughout the second debt period
Mr Evans received the invalid or disability support pension for all but a small part of the second debt period (August 1991 to March 1994). To qualify for invalid pension a person was required to demonstrate, that he or she was “permanently incapacitated for work”. To qualify for disability support pension, which replaced the invalid pension in November 1991, a person was required to demonstrate a “continuing inability to work”. I will return to consider the amendments to these requirements introduced in the course of the second debt period.
Background to second debt
In February 2002 a Centrelink ARO affirmed the decision to raise and recover from Mr Evans a debt in relation to payment of invalid, disability support, widow and supporting parents’ pension, made to Mr Evans in the name of Gregory Evangelatos throughout the second debt period. That debt has not been the subject of criminal prosecution. The ARO concluded that Mr Evans was not incapacitated for work throughout that period. The ARO also found that for part of the second debt period, Mr Evans received significant overseas income putting him above the income cut-off figure for eligibility for invalid pension. Subsequently a decision was made to cancel Mr Evans’ disability support pension from 10 October 2001.
Mr Evans applied to the SSAT for review of both decisions, but five days into the hearing withdrew his application for review of the decision to raise and recover the second debt (but not the cancellation decision). On 25 October 2002 the SSAT affirmed the decision to cancel Mr Evans’s disability support pension. Mr Evans applied to the AAT for review of that decision. Prior to hearing, settlement was reached and Mr Evans’s disability support pension reinstated, with the Secretary agreeing that Mr Evans satisfied the criteria for disability support pension.
In October 2011 Mr Evans made a fresh application to the SSAT for review of the decision of the ARO on 11 February 2002 to raise and recover the second debt. He was unsuccessful. Apparently the trigger for that application was Mr Evans’ belief that he was being “hung twice” and should not be required to pay more than the amount specified in the reparation order ($164,000). That decision is the subject of Mr Evans’ current application for review to the Administrative Appeals Tribunal.
The 2002 SSAT decision
In its reasons for decision the SSAT examined in detail the medical evidence spanning the second debt period. The SSAT decided to refer Mr Evans for assessment to occupational physician, Dr Arthur Wong, and later to psychiatrist, Dr Lisa Brown, because of what the Tribunal considered to be significant discrepancies in the medical assessments.
The SSAT concluded (at [41], [42]):
As far as Mr Evans’ capacity to work is concerned, the objective evidence is slim and substantially affected by Mr Evans’ lack of credibility. It is apparent to the tribunal that Mr Evans has carried out work type activities, although mostly on a part time basis, at the same time as he has had the chronic pain of which he complains. As far back as 1984 Mr Evans, despite his impairments, was able to convince the authorities of the Bendigo College of Advanced [E]ducation that he could supervise the building of and subsequently manage a residence for students. As recently as 1995 Mr Evans was regularly travelling overseas at the same time as he convinced an occupational therapist that he could not perform even sedentary work.
Mr Evans has described himself to the tribunal as a kind of middleman, making connections and doing deals. From the tribunal’s overview of his life, this seems an apt description, even if he has been unsuccessful at his chosen profession. It seems that Mr Evans has always been able to perform the types of activities associated with this kind of work, even if the desired outcomes eluded him. However, in spite of this dissembling, in spite of the fraud and false documents and inconsistent evidence, what emerges is the picture of a sick, prematurely old man with failed dreams. This is his current persona.
Mr Evans’ activities during the debt period
In October 2001 following the execution of a search warrant, the AFP seized a large number of documents from Mr Evans’ home. Some are relevant to the issue of Mr Evans’ capacity for work.
Mr Evans claims that the officers of the AFP and Centrelink involved in the search stole a large number of documents from his home. As I understand it, he contends that some of those documents support his claim of being incapacitated for work during the debt period. Over the past decade Mr Evans has made a number of requests to the Secretary for the alleged stolen documents under the Freedom of Information Act 1982 (Cth). He claims that despite these requests the Secretary has refused to provide him with copies of the “missing medical reports”.
The first ARO decision examined in some detail the contemporaneous documents seized from Mr Evans’ home in 2001. They suggest that Mr Evans was engaged in a range of activities throughout the debt period (see decision of ARO of 11 February 2002, T 5, pp 85- 87). Some of the activities are outlined below.
1984-1985: Negotiations with Bendigo College of Advanced Education
In late 1984 the Bendigo College of Advanced Education agreed in principle to a proposal put by Mr Evans and his wife, to build on-campus accommodation for Muslim students. Apparently at the time there was a shortage of student rental accommodation in Bendigo and Muslim students found it especially difficult to find suitable accommodation. The documents reveal that between late 1984 and mid-1985, Mr Evans was involved in negotiating with the College, liaising with suppliers and contractors and obtaining building approvals, costings and finance for the project. In mid-1985 he withdrew from the project apparently because of difficulties raising finance.
In these proceedings Mr Evans admitted that he took an active part in developing and advancing the accommodation proposal. He claims, however, that at all times he was acting on behalf of “overseas interests”. This is not apparent from the available documents.
The documents also reveal that during this period Mr Evans and his wife also operated Abatac Trading, which marketed organic fertilisers.
Involvement with Rinpark Pty Ltd
In 1988 Mr Evans was appointed a director of Rinpark Pty Ltd (Rinpark). The company’s Articles of Association state its objects include the import and export of livestock. Rinpark had a number of subsidiary companies, including Rinpark Singapore. Mr Evans also had an interest in these companies.
The available documents indicate that Mr Evans played an active role in the affairs of Rinpark and its subsidiaries, arranging finance, appointing and supervising staff, entering into agreements to purchase equipment and so on. In 1989 Mr Evans was granted a meat and livestock export licence by the Australian Meat and Live–Stock Corporation.
Mr Evans admitted in these proceedings that he set up and played an active role in Rinpark and its subsidiaries. He stated that the company fell over after about 12 months because his Singaporean partners were unable to obtain export licences from the Commonwealth Government.
Involvement with Watergate Pty Ltd
The documents reveal that between January 1990 and August 1991, Mr Evans was the owner and operator of Watergate Pty Ltd, trading as Adams Auto and Browns Plain Service Station. Included in the documents are:
Loan applications made to financial institutions completed by Mr Evans acting in his capacity as a representative of Watergate
A form nominating Mr Evans as the person authorised to sign certificates of roadworthiness on behalf of Watergate
A memorandum of costs issued by an accountant to Mr Evans for the provision of various services including advice in relation to financing and leasing arrangements and attending meetings with Mr Evans.
In 1990 Mr Evans made several workers’ compensation claims on Watergate’s insurer alleging that he suffered injuries at work. Apparently he initially told the insurer that he was employed as a mechanic but later claimed that he was employed as the manager of the business. Mr Evans received compensation for at least one of those claims.
Involvement with Premier Poultry
The documents reveal that between 1994 and 2000 Mr Evans had an association with Ronald Bailey and Premier Poultry. In April 1998 solicitors acting on behalf of Mr Evans commenced an action in the District Court of Queensland against Ronald Bailey for recovery of $170,000. Documents filed in the Court on behalf of Mr Evans claim that:
Between March and October 1994 Mr Evans was employed as an overseas marketing manager at a salary of $6000 per month plus commission by Ronald Bailey. In that role he travelled to 14 countries mainly in the Middle East.
Mr Evans subsequently entered into an agreement with Mr Bailey to establish a joint venture in Malaysia and became shareholder and director of ARA Impex Trading (Malaysia).
In January 1996, acting on behalf of Mr Bailey, Mr Evans took steps to obtain custom releases for, among other things, motor vehicles that had been shipped to Australia.
In these proceedings Mr Evans confirmed the truth of those claims.
Involvement with Pam Blomeley
In 1999 following a complaint made by Mrs Pam Blomeley, Mr Evans provided a statement to police in which he alleged:
In 1994 pursuant to an agreement with Mrs Blomeley, he transported by truck bananas from Murwillumbah to Sydney on ten occasions. Mrs Blomeley failed to honour her promise to pay him for this work.
Between 1995 and 1998 he assisted Mrs Blomeley with various matters including negotiating the lease for a farm, providing her with advice about various overseas business ventures and assisting her in negotiations for the purchase and finance of a motor vehicle.
At Mrs Blomeley’s request he travelled to Singapore to accompany her daughter travelling from Singapore to Sydney.
As a result of these dealings Mrs Blomeley owed him $40,000.
In these proceedings Mr Evans confirmed the truth of these claims.
Overseas travel
A report prepared by an officer of the Department of Immigration reveals that between 1981 and 2002 Mr Evans travelled overseas on a regular basis. In 1981 for example, he made three overseas trips, in 1984 he made eight overseas trips and between 1994 and 1996, he made at least two overseas trips each year.
Statutory framework
Throughout the second debt period a number of amendments were made to the eligibility requirements for invalid and disability support pension.
At the beginning of the period, a person qualified for the invalid pension, if among other things, they were “permanently incapacitated for work” (s 27 of the Social Security Act 1947 (Cth) (the 1947 Act)). A person was deemed to be permanently incapacitated for work if the degree of their permanent incapacity for work is not less than 85 per cent (s 27(a) of the 1947 Act).
The meaning of the phrase “permanently incapacitated for work” was considered in Re Panke and Director-General Social Services (1981) 4 ALD 179. Davies J, President of the Tribunal, said (at 180-181):
[T]he term “incapacitated for work” … denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning … [A]n ability to engage in remunerative employment involves an ability to attract an employer who is prepared to engage and to remunerate the disabled person.
In Panke the joint majority (Senior Member A N Hall and Member M Glick) after reviewing the authorities stated (at 196):
It is only after a fair assessment of the extent of the person’s physical or mental impairment and the impact which that impairment is likely to have upon his capacity to undertake suitable paid work that, in our view, a proper assessment of the degree of incapacity can be made.
The majority further observed (at 196):
The assessment of what work is suitable to be undertaken by a person would appear to require consideration of matters such as the nature and extent to his disabilities, his capacity to sustain his work effort throughout a normal working day or week, his age, his previous work experience and the types of paid work available in the community which a person which those characteristics may reasonably be expected to be able to perform … The degree of incapacity will then depend upon an assessment, in each individual case, of the extent of the residual capacity for suitable work against the capacity for work which the person, absent his physical or mental impairment, might have expected to enjoy.
In July 1987 the 1947 Act was amended and a requirement introduced that at least 50 per cent of the person’s permanent incapacity be “directly caused by a permanent physical or mental impairment of the person” to qualify for invalid pension (s 27(b) of the 1947 Act).
In April 1991, when the 1947 Act was repealed and replaced with the Social Security Act 1991 (Cth), the test for invalid pension remained, in substance, the same. In November of that year the invalid pension was replaced by the disability support pension. In addition, amendments were made to the eligibly requirements for disability support pension (see s 10 of the Social Security (Disability and Sickness Support) Amendment Act 1991 (Cth)). Those amendments included the requirement that the person have a “continuing inability to work”. The phrase “continuing inability” was defined to mean:
Meaning of continuing inability
(2) A person has a continuing inability to work if the Secretary is satisfied that:
(a) the person’s impairment is of itself sufficient to prevent the person from doing:
(i) the person’s usual work; and
(ii) work for which the person is currently skilled;
for at least 2 years; and
(b) either:
(i) the person’s impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or
(ii) the person’s impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled.
Note: for “work” see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work under subsection (2), the Secretary is not to have regard to:
(a) the availability to the person of work in the person’s locally accessible labour market (unless subsection (4) applies to the person); or
(b) the availability to the person of educational or vocational training.
(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to equip the person to do work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.
“Work” was defined by s 94(5) of the Act to mean work:
(a) that is for at least 30 hours per week at award wages or above; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
The amendments also required that a person have an impairment of 20 per cent or more under the Impairment Tables. The Impairment Tables were inserted as a schedule to the 1991 Act.
The Act was further amended in 1995 by the Social Security Legislation Amendment Act (No 1) 1995 (Cth) and the notion of “any work” introduced:
94 Qualification for disability support pension
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training — such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
The definition of “work” remained unchanged.
In Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444 Drummond J considered the operation of the 1995 amendments and in particular the meaning of the words “any work”. His Honour concluded (at [32]) that in considering whether a person’s impairment was sufficient to prevent the person from doing “any work”, pursuant to s 94(2)(a), regard should be had only to work “... which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining ...”.
No further amendments were made to the criteria for disability support pension before the end of the second debt period, being 9 October 2001.
Was Mr Evans incapacitated for work throughout the second debt period?
Before considering the primary issue in dispute, namely whether Mr Evans had a relevant incapacity, it is necessary to first consider whether during the early part of the second debt period the value of his assets and/or income made him ineligible to receive the invalid pension.
In a statement of assets and liabilities provided to Centrelink dated 13 May 1985, Mr Evans recorded that he held surplus assets of $478,000. As the ARO noted in her decision of 11 February 2002, this put Mr Evans above the applicable asset cut-off figure making him ineligible for invalid pension between 1 January 1984 and 30 June 1985. The ARO also found that Mr Evans was ineligible to receive the invalid between 1 July 1985 and 30 June 1988 because throughout this period he received significant foreign income putting him above the applicable income cut-off figure.
Mr Evans provided no evidence to refute these findings. I am satisfied for the reasons set out in the ARO’s decision that Mr Evans was ineligible for invalid pension between 1 January 1984 and 30 June 1988. Accordingly it is not necessary to consider whether Mr Evans had a relevant incapacity for work during this period.
In deciding whether Mr Evans was “permanently incapacitated for work” or had a “continuing inability to work” I will confine my consideration to those periods Mr Evans was receiving invalid or disability support pension and was not otherwise ineligible to receive invalid pension on account of the value of his assets or income received, namely:
(i) 1 July 1988 to 22 August 1991
(ii) 25 March 1994 to 1 January 2000
(iii) 20 December 2000 to 1 February 2001
The Secretary contends that throughout the second debt period Mr Evans was not qualified to receive either the invalid or disability support pension because he was neither “permanently incapacitated for work”, nor had a “continuing inability to work”. In support the Secretary points to the evidence which suggests that for much of that period Mr Evans was self-employed and/or involved in activities inconsistent with his claim of having a significant disability. Mr Evans on the other hand contends that throughout the second debt period he met the criteria for the invalid and later disability support pension. He claims that he has not worked since 1979 because of multiple health problems and argues that this claim is consistent with the contemporaneous medical evidence.
Identifying where the truth lies in this matter is a difficult task. As admitted by Mr Evans, during the debt period he did not disclose to Centrelink or the doctors who assessed him his business activities nor overseas travel. As I understand it, he argues that as he was neither employed nor in recipt of payment for these activities, he was under no obligation to do so. He also asserts that that the AFP instructed him not to disclose that information.
Mr Evans also argues that the contemporaneous documents produced in these proceedings, apparently largely obtained in 2002 during the search of his home under warrant, are not a reliable indicator of his functional capacity. While he accepts that many of the documents reveal that he had an interest and involvement in a large number of companies, he claims that in the main they were two dollar companies used as a front for his participation in the alleged child rescue mission.
Mr Evans’ claim of being incapacitated for work and severely disabled throughout the debt period is inconsistent with much of the evidence he gave in these proceedings. For example, he admitted that:
•in the mid-1980’s he played an active role in developing the Bendigo College accommodation proposal
•for a large part of the 1990’s he performed work for Mr Bailey and Mrs Blomeley
•throughout the second debt period he was active in setting up companies both in Australia and overseas and arranging finance, negotiating contracts with suppliers and buyers and the like
•he was running a vehicle repair business when he injured his back in 1990
•throughout the debt period he travelled extensively. Indeed he claimed that the Department of Immigration records are incomplete and record only some of the travel he undertook.
As the SSAT observed in its decision of 25 October 2002, there was a range of opinion among the medical experts who assessed Mr Evans during the second debt period about the extent of his impairment and incapacity for work. Dr Fraser, for example, who conducted an assessment in 1997, considered the severity of Mr Evans’ reported lower back symptoms to be inconsistent with the objective radiological evidence. He observed inconsistencies on physical examination. Similarly, the Commonwealth Medical Officer who conducted an examination in 1987, considered Mr Evans to be “clearly capable of work” and to have exaggerated his symptoms. On the other hand, Drs Dhillon and Clarke who examined Mr Evans in 1983 and 1995 respectively, were both of the opinion that Mr Evans was incapacitated for work on account of his back. Neither reported any inconsistencies on presentation.
While there was a range of opinion among the medical practitioners who assessed Mr Evans during the debt period, the weight of opinion was that he was unfit for work, especially after the alleged back injury in May 1990. As the Secretary points out, the value of those opinions is diminished because none of the experts who had assessed Mr Evans were given an accurate history. This is apparent from the reports themselves: none make mention of Mr Evans being involved in any business activity or overseas travel. Dr B Clarke, for example, in a report completed in November 1995 under the heading “medical and work history”, wrote that apart from a six week trial as a salesman Mr Evans had not worked since his accident in 1990. Orthopaedic surgeon, Dr J Fraser, in in a report dated 3 October 1997, recorded a similar history. In a note dated February 1987, a delegate of Centrelink recorded that Mr Evans had not worked since 1979 and was described by his GP as a “psycho-social cripple”.
Dr Wong assessed Mr Evans at the request of the SSAT in 2002. In his opinion Mr Evans’ presentation during examination was not a true representation of either his physical capacity or his medical complaints. He wrote “Mr Evans either represents a person with a significant psychiatric disorder or there is significant overstating of his medical complaints”.
(i) 1 July 1988 to 22 August 1991
To qualify for invalid pension during this period Mr Evans was required to demonstrate that he had a degree of incapacity of 85 per cent and, in addition, at least 50 per cent of that permanent incapacity was directly caused by a permanent physical or mental impairment. This requires a two-part assessment. First, an evaluation of Mr Evans’ physical or mental impairment and, second, an assessment of the extent to which that impairment affected his ability to engage in paid work for which he is suited having regard to the nature and extent of his disabilities, his capacity to sustain his work effort throughout a normal working day or week, his age, his previous work experience and the types of paid work available in the community which a person with those characteristics may reasonably be expected to be able to perform (Panke at [66], [70]).
The main medical problem reported by Mr Evans during this period was lower back problems. A number of practitioners who saw him around this time concluded that he was unfit for work on account of lower back problems (see for example the report of Dr Dhillon of 13 May 1993 , Dr Yue of 17 February 1987; cf report of Commonwealth Medical Officer of 12 February 1987). Those practitioners who held the opinion that Mr Evans was unfit for work largely attributed this to his reported back problems. None made reference to Mr Evans suffering from a psychiatric condition, although some thought that he suffered bouts of depression and/or anxiety.
The evidence makes plain that throughout this period Mr Evans played an active role in the Watergate and Rinpark groups of companies, among others. On the available evidence it is not possible to say whether his involvement with Watergate was in a management role, as a motor mechanic, or both. With respect to Rinpark the available documents reveal that Mr Evans’ involvement was far greater than that to which he admitted in these proceedings — setting up and registering the company — and extended to negotiating with financial institutions in Australia and overseas, appointing and supervising staff, entering into sales agreements and agreements to purchase equipment and so on.
The available material does not reveal what, if any, payment Mr Evans received from, or the amount of time he spent on, the Watergate and Rinpark groups of companies. They reveal, however, that his involvement was significant and sustained.
I accept that Mr Evans probably suffered lower back problems and other health problems during this period. However, it does not necessarily follow that as a result he was incapacitated for employment. Little weight can be given to the medical opinion that Mr Evans was unfit for work because it was based on an inaccurate and incomplete history. Those doctors who concluded that Mr Evans was unfit for work apparently accepted his self-report that he was severely disabled and unable to undertake any form of sustained activity. Additionally, all appeared to accept that the only type of work for which he was suited was heavy manual work. None proffered an opinion about whether he was fit to undertake work of the type he was actually undertaking.
I understand Mr Evans to argue that it is relevant that there is no evidence of him being in paid employment during this period. The focus of s 27 of the 1947 Act is on a person’s “capacity” for work and not whether they were actually employed, although the latter may be relevant to an assessment of capacity. As the Full Court of the Federal Court made clear in Annas v Director-General of Social Security (1985) 8 FCR 49; 8 ALD 520 (at 524) the assessment of person’s capacity “for work” should not be restricted to paid employment and any capacity which the person may have to work in his or her own business should not be ignored.
Nor is it relevant as Mr Evans contends that there is no evidence that he filed a tax return in this period. That evidence neither proves nor disproves his claim of not receiving any payment for his involvement with Watergate and Rinpark. Even if, as Mr Evans contends, the Rinpark group of companies was simply a front for the child rescue mission, his involvement in that mission indicates that he was able to undertake a range of tasks thata person who is self-employed might be expected to undertake — for example, negotiate agreements with banks, third parties and government bodies.
The passage of time presents a number of evidentiary problems in this matter. The practitioners who assessed or treated Mr Evans throughout the debt period are probably no longer available to give evidence. In addition, while I do not accept Mr Evans’ unsubstantiated claim that the Secretary withheld relevant medical reports and other material favourable to him, as properly conceded by the Secretary, the section 37 documents lodged with the Tribunal are incomplete and do not contain all of the medical reports created during that period.
Recognising the need to take a cautious approach to the assessment of the evidence, I am nonetheless comfortably satisfied that Mr Evans did not have a permanent incapacity for work within the meaning of s 27 of the 1947 Act during this period. His account of being significantly disabled was internally inconsistent, largely unsupported and contradicted by the weight of contemporaneous evidence. By his own admission Mr Evans failed to inform the many doctors who examined him of the range of business activities in which he was involved and his extensive overseas travel. The voluminous contemporaneous documents reveal that the class of work for which Mr Evans was suited was not confined to manual work. On the available material it is now not possible to reliably determine the extent to which Mr Evans was troubled by his back and other health problems. A finding, however, can safely be made that Mr Evans’s health problems did not prevent him from energetically pursuing business interests and various pursuits in Australia and overseas over an extended period.
I am not satisfied that Mr Evans had a permanent incapacity of not less than 85 per cent for paid work for which he was suited during this period.
(ii) 25 March 1994 to 1 January 2000 and 20 December 2000 to February 2001
To qualify for invalid pension during these periods Mr Evans was required to demonstrate that (i) he had a permanent impairment of at least 20 points as measured under the Tables and (ii) the impairment of itself was sufficient to prevent him from doing at least 30 hours per week of his usual work, or work for which he was suited being work for which he was already fitted without the need for retraining that existed anywhere in Australia, in a normal or open workplace and independently of a program of support. The 1995 amendments to the Act made no material change to that requirement (see Pusnjak at [32].)
In an application made in October 1995 for disability support pension, Mr Evans listed his medical conditions as: lower chronic back pain, heart, high cholesterol, blood pressure, hernia operated on left hip. He wrote that these conditions stopped him from “using public transport and driving because of drugs and medication I am taking plus I cannot sit for more than 10 mins”.
The available documents reveal that throughout this period Mr Evans had a significant involvement with a number of companies both in Australia and overseas and travelled extensively. Despite testifying that he had no paid employment in this period, he admitted to having commenced proceedings to recover unpaid fees for work undertaken on behalf of Mr Bailey during this period.
There is conflicting medical evidence about the severity of Mr Evans’ back problems following an injury in 1990. Dr Fraser for example considered the injury to be “trivial” and the degenerative changes to Mr Evans lumbar spine revealed on X-ray, to be “minor”. Mr Evans failed to provide a satisfactory explanation for the discrepancy between his claim of being significantly disabled after that injury and the documentary evidence showing that he continued to pursue a number of business ventures.
As was the case for the entirety of the second debt period the evidence reveals that Mr Evans provided the doctors who assessed him during this period with an incomplete history.
For largely the same reasons as set out above I am comfortably satisfied that Mr Evans did not have a “continuing inability to work” within the meaning of s 94 of the Act during these periods.
THE THIRD DEBT
Was Mr Evans eligible to receive supporting parent’s benefit between 2 July 1982 and 19 October 1983?
Mr Evans was paid supporting parent’s benefit in the name Gregory Evangelatos between 10 November 1980 and 19 October 1983. To qualify for supporting parent’s benefit under the 1947 Act the recipient was required to be a “supporting parent” namely an unmarried person who has a dependent child under 16 years of age (ss 53, 59 and 60 of the 1947 Act). Throughout this period Mr Evans was married, having married his second wife on 9 February 1982. It follows that he had no entitlement to supporting parent’s benefit during the period 2 July 1982 to 19 October 1983.
Was Mr Evans eligible to receive the widow’s pension between 9 February 1982 and 1 July 1982?
Mr Evans was paid widow’s pension in the name Gregory Evangelatos from 1980 until 1 July 1982. One of the requirements to qualify for the widow’s pension under the 1947 Act was that the person be unmarried. It follows that on his marriage on 9 February 1982 Mr Evans was no longer eligible to receive the widow’s pension. It follows that the payments of widow’s pension made to Mr Evans during the period, 9 February 1982 to 1 July 1982 constitutes a debt to the Commonwealth.
Summary
I am satisfied that Mr Evans was not qualified to receive:
·invalid or disability support pension during the periods, 1 January 1984 to 22 August 1991, 25 March 1994 to 1 January 2000 and 20 December 2000 to 1 February 2001
·supporting parent’s benefit between 2 July 1982 and 19 October 1983
·widow’s pension between 9 February 1982 and 1 July 1982.
It follows that the pension payments made to Mr Evans throughout the periods set out above, constitute a debt payable to the Commonwealth.
Was the amount of the debt correctly calculated?
Having reviewed the calculations set out in the Secretary’s Statement of Facts and Contentions, filed 27 August 2013 I am satisfied the SSAT has correctly calculated the amount of the debt in respect of payment of invalid and disability support pension, $45,002.20 and $42512.59, respectively. I am not satisfied however that the SSAT correctly calculated the amount in relation to payments made to Mr Evans for widow’s and supporting parent’s pension. I am of the opinion that the figures contained in the Secretary’s Statement of Facts and Contentions are correct, that is, $1,803 (widow pension) and $6,626.79.
Can the second debt be waived under s 1237AAD?
For the reasons given above I am not satisfied that Mr Evans’ circumstances are sufficiently unusual, uncommon or involve sufficient hardship or unfairness such that they amount to “special circumstances” within the meaning of s 1237AAD. Accordingly, the power to waive the debt under that provision cannot be exercised.
Can the debt be written off?
For the reasons discussed above the pre-conditions to the exercise of the power under s 1236 to write off the debt are not satisfied. Therefore the debt cannot be written off under this provision.
Can the debt be waived on account of administrative error?
There is no evidence to suggest that the debt arose in whole or part on account of an administrative error made by the Commonwealth. Therefore the power to waive the debt under s 1237A cannot be exercised.
Documents and submissions provided by Mr Evans after the hearing
At the end of the hearing, at his request, Mr Evans was granted leave to provide the Tribunal any additional documents relevant to his case, providing they were filed and served within seven days. I decided to grant Mr Evans that indulgence because of his apparent difficulties in organising his paperwork. Mr Evans filed hundreds of pages of documents. Most were filed out of time. Most were contained in the documents lodged by the Secretary under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) or had already been tendered by Mr Evans. The relevance of those that had not previously been provided was neither apparent nor explained.
Many of the documents related to the proceedings before the NSW District Court and the unsuccessful appeal to the Supreme Court of NSW.
A large number of the filed documents consisted of medical records and reports apparently provided to Mr Evans in answer to his FOI request. All were included in the documents lodged by the Secretary
The balance was either irrelevant or bolstered the existing evidence that indicated that throughout the 1990s Mr Evans was involved in activities inconsistent with his claim of being incapacitated for employment. For example, some record Mr Evans as being one of Mrs Blomeley’s creditors in bankruptcy proceedings in the sum of about $28,000. This is consistent with his claim that in the 1990’s, he performed work on behalf of Mrs Blomeley’s for which he was not paid.
Summary
I have decided that: (i) the first, second and third debts should be recalculated in accordance with these reasons; (ii) the power under the Act to waive or write-off the resultant debt should not be exercised.
I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .....................[SGD]...................................................
Associate
Dated 23 December 2013
Date(s) of hearing 13 and 22 November 2013 Date final submissions received 29 November 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch ANNEXURE A
The First Debt Sickness allowance 20 June 1984 to 30 August 1991 $84,505.46 Job search allowance 2 September 1991 to 2 September 1992 $19,354.20 Newstart allowance 3 September 1992 to 10 November 1993 $19,018.40 Partner allowance 15 September 1994 to 22 June 1995 $5,257.26 Parenting allowance 23 June 1995 to 7 July 1995 $544.00 Special benefit 16 October 1995 to 10 November 1995 $364.26 Disability support pension 30 June 1995 to 9 October 2001 $54,432.26 The Second Debt Invalid pension 1 January 1984 to 22 August 1991 $45,002.20 Disability support pension 25 March 1994 to 1 January 2000 $42,219.59 Disability support pension 20 December 2000 to 1 February 2001 $293.00 The Third Debt Widow pension 9 February 1982 to 1 July 1982 $1,770.30 Supporting parents benefit 2 July 1982 to 19 October 1983 $6,687.88
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