Executor for the Estate of the late Raymond Allen Smith; Secretary, Department of Social Services and (Social services second review)

Executor for the Estate of the late Raymond Allen Smith; Secretary, Department of Social Services and (Social services second review) [2020] AATA 806 (16 April 2020)
Division:GENERAL DIVISION
File Number: 2019/4097
Re:Secretary, Department of Social Services
APPLICANT

AndExecutor for the Estate of the late Raymond Allen Smith
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:16 April 2020
Place:Brisbane

The decision under review is set aside and substituted with a decision that the late Raymond Allen Smith was overpaid age pension in the sum of $23,305.66 and this is a debt due to the Commonwealth which is to be recovered.
....................................[SGD]....................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – age pension – disposal of asset by power of attorney – no consideration received by age pension recipient for sale of property – whether value of disposed asset should have been taken into account in calculation of age pension payments - whether overpayment – whether debt should be waived or written off - consideration of special circumstances and whether they exist – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
REASONS FOR DECISION
Member D K Grigg
16 April 2020
BACKGROUND

Mr Raymond Allen Smith (“Mr Smith”), now deceased, was a recipient of the age pension.[1]
[1] Exhibit 1, T Documents, T15, page 216, Centrelink record.
On 20 November 2009, Mr Smith appointed his son, Scott Allen Smith, as his enduring power of attorney.[2]
[2] Exhibit 1, T Documents, T4, pages 58-61, Certified copy of Enduring Power of Attorney dated 20 November 2009.
On 3 February 2015 Mr Smith informed Centrelink that his son was authorised to act as his correspondence nominee on his behalf in relation to his age pension.[3]
[3] Exhibit 1, T Documents, T5, pages 62-63, Authorising a person or organisation to enquire or act on your behalf form completed by Mr Smith dated 3 February 2015.
On 17 February 2015 Centrelink informed Mr Smith that it was calculating his age pension entitlements on the basis that his total asset value was $355,534.[4]
[4] Exhibit 1, T Documents, T6, pages 64 – 65, Centrelink notice dated 17 February 2015.
On 24 December 2015 Centrelink advised Mr Smith that his correspondence nominee arrangement with his son had now ended as per his request.[5]
[5] Exhibit 1, T Documents, T7, pages 66 – 67, Centrelink letter to Mr Smith dated 24 December 2015.
On 27 October 2016 Centrelink advised Mr Smith that there had been changes made to the pension assets test and that, among other things, his asset tested rate of pension would be increased or decreased depending on the value of his assets.[6]
[6] Exhibit 1, T Documents, T8, pages 68 – 70, Centrelink letter to Mr Smith dated 27 October 2016.
On 7 March 2018 Centrelink informed Mr Smith that it was now calculating his age pension payments on the basis that his total asset value was $525,534.[7]
[7] Exhibit 1, T Documents, T10, pages 74 – 75, Centrelink notice dated 7 March 2018.
On 10 April 2018 Mr Smith contacted Centrelink to clarify the value of his assets and the basis upon which Centrelink determined that his total asset value was $525,534. Centrelink informed Mr Smith that the total asset figure used in its calculations was based on the value of his property at 122 Browns Road (“the Property”) (valued at $507,400) and $18,000 worth of cash assets.[8]
[8] Exhibit 1, T Documents, T11, page 77, Letter from Legal Aid Tasmania to Centrelink, including attachments, dated 22 May 2018.
On 22 May 2018 the Legal Aid Commission of Tasmania wrote to Centrelink on Mr Smith’s behalf, advising that (“Legal Aid Letter”):[9]
(a)the Property was sold by Mr Smith’s son, in his capacity as power of attorney, on 29 May 2015 and that the proceeds of sale, in the sum of $483,924.72, were paid in accordance with his son’s instructions;
(b)the proceeds of sale were deposited into and then withdrawn from a Commonwealth bank account (“the Bank Account”) in which they had been deposited;
(c)the Bank Account was closed on 11 December 2015;
(d)Mr Smith had no knowledge of the Bank Account and has never had access to the Bank Account or to the proceeds of sale;
(e)Mr Smith has had no communications with his son since April 2015;
(f)Mr Smith revoked his son’s power of attorney by deed dated 8 November 2016; and
(g)on 17 April 2018 Mr Smith was assessed by a geriatrician as having financial and testamentary capacity.
[9] Exhibit 1, T Documents, T11, Letter from Legal Aid Tasmania to Centrelink including attachments, dated 22 May 2018.
The attachments enclosed in the Legal Aid Letter indicate that:[10]
(a)Murdoch Clark Lawyers were engaged by Mr Smith’s son in relation to the sale of the Property;
(b)settlement of the Property occurred on 29 May 2015 and the net proceeds of sale totalling $483,924.72 were deposited into the Bank Account in the name of Mr Smith, pursuant to his son’s instructions;
(c)on 11 December 2015, the Commonwealth Bank account was closed;
(d)following the sale of the Property, the proceeds of sale were transferred from the Bank Account to a NetBank account or withdrawn.
[10] Exhibit 1, T Documents, T11, Letter from Legal Aid Tasmania to Centrelink including attachments dated 22 May 2018.
Mr Smith requested that Centrelink please amend its records to reflect that he was no longer the owner of the Property and did not receive the sale proceeds.
On 21 June 2018 Centrelink advised Mr Smith that because he had a legal entitlement to the proceeds of the sale of the Property, the amount of $488,274 would remain as an asset recorded on his file as a loan to his son. Due to the circumstances advised by Mr Smith, that he was unable to recover the sale proceeds, Centrelink enclosed a claim for consideration hardship form for Mr Smith to complete and return.[11]
[11] Exhibit 1, T Documents, T 12, pages 88 – 89, Letter from Centrelink to Mr Smith dated 21 June 2018.
On 3 July 2018 Mr Smith made a claim for consideration under hardship on the basis that he had not received the benefit of the sale proceeds of the Property and that his son had sold the Property pursuant to the enduring power of attorney and had taken the money. Mr Smith advised that the value of his current available funds was $16,000. Mr Smith advised Centrelink that he had not had any contact with his son since 2014.[12] Mr Smith enclosed a copy of a letter from the Commonwealth Bank confirming that the proceeds of sale had been transferred from the Bank Account to his son’s bank account.
[12]Exhibit 1, T Documents, T 14, pages 92 – 95, Claim for consideration under hardship dated 3 July 2018.
On 30 August 2018 Centrelink confirmed that Mr Smith was eligible for the payment of the age pension under the asset hardship provisions from 13 January 2018 and that the sale proceeds from the property would be disregarded in the calculation of his age pension. As a result of this decision Mr Smith was eligible to be paid arrears of $9,758.09 back to 13 January 2018.[13]
[13]Exhibit 1, T Documents, T 16, pages 109 – 110, Letter from Centrelink to Mr Smith dated 30 August 2018.
In October 2018 Centrelink determined that Mr Smith had been overpaid his age pension between 29 May 2015 and 12 June 2018 in the sum of $21,504.19 because the value of the Property had increased from 29 May 2015.[14] As a result of this determination Centrelink sent Mr Smith a notice on 10 October 2018 informing him that it would be recovering the amount of overpaid age pension.[15]
[14]Exhibit 1, T Documents, T 17, pages 111 – 120, Debt information overview dated 10 October 2018.
[15]Exhibit 1, T Documents, T 18, pages 121 – 122, Centrelink notice dated 10 October 2018.
Although Centrelink had agreed to adjust the amount of age pension payable to Mr Smith from 13 January 2018, it determined that this meant that between 29 May 2015 (the date the Property was sold) and 12 January 2018, there had been an overpayment of age pension.
On 12 November 2018, Scott Smith informed Centrelink that Mr Smith had passed away.[16]
[16]Exhibit 1, T Documents, T29, page 215, Centrelink records.
Pursuant to Mr Smith’s Will, Scott Smith was appointed Executor of Mr Smith’s estate (“the Executor”).[17]
[17] Exhibit 4, Will of Mr Smith dated 20 November 2009.
On 8 January 2019 the Executor sold Mr Smith’s residential property at Glenorchy for $206,000.[18]
[18] Exhibit 1, T Documents, T19, pages 123 – 138, Sale contract for Glenorchy property dated 8 January 2019.
On 10 January 2019 Centrelink informed the Executor that there was a debt payable totalling $21,504.19.[19]
[19] Exhibit 1, T Documents, T21, pages 142 – 143, Letter from Centrelink to the Executor of Mr Smith's estate dated 10 January 2019.
As a result of Centrelink’s decision to pursue the Debt, the Executor sought a review by an Authorised Review Officer (“ARO”).[20]
[20] Exhibit 1, T Documents, T23, page 148, Letter from Centrelink to Mr Smith dated 13 February 2019.
On 26 March 2019 the ARO agreed with Centrelink’s decision that Mr Smith’s estate had a debt of $21,504.19 in relation to the overpayment of Mr Smith’s age pension between 29 May 2015 and 12 June 2018 (the “Debt Period”).[21]
[21] Exhibit 1, T Documents, T24, pages 149 – 155, Authorised Review Officer’s Decision and Notes dated 26 March 2019.

Claim History

The Executor for Mr Smith’s Estate lodged an Application for Review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 9 April 2019.[22] The SSCSD set aside the ARO’s decision and determined that there was no debt on 30 May 2019 on the basis that the disbursements of the proceeds of sale of the Property were loans.[23]
[22] Exhibit 1, T Documents, T25, pages 156 – 157, request for statement dated 9 April 2019.
[23] Exhibit 1, T Documents, T2, pages 10-18, SSCSD’s Decision and Reasons for Decision dated 30 May 2019.
Prior to the Hearing the Secretary, Department of Social Services (the “Secretary”) advised that the original debt calculation was incorrect and that the debt total should be $23,305.66 (“the Debt”).[24] Centrelink originally calculated the debt on the basis that the disbursements of the sale proceeds of the Property to the Executor and his siblings were loans, rather than gifts. The Secretary and the Executor[25] accepted this was incorrect.
[24] Exhibit 5, Revised Debt Calculations.
[25] Confirmed at the hearing on 30 March 2020, Transcript of Proceedings, pages 3 – 5.
The Secretary has sought a review of the SSCSD’s decision by this Tribunal on the ground that pursuant to section 1123 of the Social Security Act 1991 (Cth) (“the Act”) the SSCSD erred in failing to consider whether a debt arises due to a disposal of assets.[26]
[26] Exhibit 1, T Documents, T1, pages 1-9, Application for Review of a Decision dated 9 July 2019.
Mr Smith contends that the Debt should be waived or written off.

ISSUES FOR DETERMINATION

The Tribunal has to decide whether:
(a)Mr Smith was overpaid his Age Pension during the Debt Period; and, if yes,
(b)the Debt is recoverable; and, if yes,
(c)the Debt should be written off for a period or waived.

WAS MR SMITH OVERPAID AGE PENSION PAYMENTS?

The rates at which people are paid the Age Pension is determined using the Pension Rate Calculator A at the end of section 1064 of the Act.[27] The maximum basic rate payable varies depending upon a person’s family situation and the value of their assets.
[27] Social Security Act 1991 (Cth), s 55.
“Assets” is defined in the Act to include property.[28]
[28] Social Security Act 1991 (Cth), ss 11(1).
Section 1124(a) of the Act provides the amount of disposal or disposition of property is:
If a person disposes of assets, the amount of the disposal or disposition is:
(a) if the person receives no consideration for the destruction, disposal or diminution--an amount equal to:
(i) the value of the assets that are destroyed; or
(ii) the value of the assets that are disposed of; or
(iii) the amount of the diminution in the value of the assets whose value is diminished;
Pursuant to the Act:[29]
[29] Social Security Act 1991 (Cth), s1123, 1124
(a)Where, on or after 1 July 2002, a pensioner, who is not a member of a couple, disposes of an asset;
(b)in circumstances where they received no consideration for the disposal, the amount of the disposal is the value of the asset that was disposed of; and
(c)the amount of the disposal was greater than $10,000; then,
(d)pursuant to section1126AA(2):
(2) … the lesser of the the following amounts is to be included in the value of the person's assets for the period of 5 years starting on the day on which the relevant disposal took place:
(a)the amount of the relevant disposal;

(b)the amount by which the sum of the amount of the relevant disposal and the amounts (if any) of other disposals of assets previously made by the person during the income year in which the relevant disposal took place, exceeds $10,000.

If a person is not entitled to the social security benefit they have obtained, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment: section 1223(1) of the Act.
The Secretary submits that the distribution of the sale proceeds must be taken into account as deprived assets when calculating Mr Smith's assessable assets.
Mr Smith’s Property and the proceeds of sale were disposed of by the Executor. There is no dispute that Mr Smith never received any consideration in relation to that disposal.
At the Hearing before the SSCSD, the Executor said he was authorised to distribute the proceeds of sale in the way he did because it was done in accordance with what was set out in his father’s Will.
At this Hearing Mr Smith told the Tribunal:
·His father’s consent to the sale of the Property was “wavering”;
·He sought legal advice about whether he could sell the Property;
·He decided to distribute the proceeds in accordance with the Will;
·There “didn’t seem like” there were a lot of options.
Mr Smith, through Legal Aid, told Centrelink he had not known about the sale of the Property or the distribution of the proceeds.
Mr Smith decided to gift the proceeds to himself and his siblings in accordance with the Will’s terms. Mr Smith received a 40% share of the sale proceeds totalling approximately $193,000. Mr Smith said his dad knew he was “going through hurdles”. As a result of this action by the Executor, Mr Smith gained a benefit of $23,305.66 in overpayments of age pension.
Irrespective of the basis and circumstances in which the Property was disposed of and the proceeds distributed as gifts to the Executor and his siblings, the sale of the Property constituted a disposal of an asset for no consideration and is required to be taken into account pursuant to sections 1124 and 1126AA of the Act. It matters not that the proceeds were distributed in accordance with Mr Smith’s Will. Further, Mr Smith was still alive when the Property was sold and the Will enacted. The Tribunal is also not satisfied that the sale of the Property was with Mr Smith’s knowledge or consent.
The Tribunal finds therefore that Mr Smith’s estate owes the Debt to the Commonwealth. The disbursement of the proceeds of sale of the Property were disposals of an asset pursuant to section 1123 of the Act. Records show that the disbursements exceeded $10,000 and totalled $473,924.72. This amount should have been taken into account in calculating Mr Smith’s age pension.
At the Hearing the Executor did not dispute that the disposal of the Property and distribution of the proceeds should have been taken into account in calculating Mr Smith’s age pension.

IS THE DEBT RECOVERABLE?

The Executor submitted that the Debt should be waived or written off on the grounds that:
(a)the Estate never benefited from the sale of the Property;
(b)the Estate has been dissolved;
(c)a significant time has passed;
(d)he was not personally in a financial position to pay the Debt; and
(e)during the period the Property was sold it was a difficult time – his father was living in squalor and hoarding and his father was being very difficult.
Even if a debt is owed, the Secretary may write off a debt in certain circumstances set out in section 1236 of the Act which provides:
1236 Secretary may write off debt
(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)...; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
The Secretary must also waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt: section 1237A of the Act.
Further, the Secretary may exercise its discretion to waive the right to recover all or part of the debt if satisfied that:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)   the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)   there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)   it is more appropriate to waive than to write off the debt or part of the debt.
SHOULD THE DSP DEBT BE WRITTEN OFF? (S 1236)

Is the debt irrecoverable at law?

Section 1236(1B) sets out when a debt is taken to be irrecoverable at law:
(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
(emphasis added)
When Mr Smith passed away, his estate included his principal residence which was subsequently sold (by his son as Executor) for $206,000 on 8 January 2019.
There is no evidence before the Tribunal that Mr Smith died leaving insufficient assets in his estate to cover the Debt.
Centrelink informed Mr Scott Smith only two days after he had sold Mr Smith’s principal residence, that his father owed the Debt. The Executor acknowledged at the hearing that he had received this letter. He said after he received this letter, he contacted Centrelink to ask about the debt. Centrelink’s records indicate that he telephoned Centrelink on 25 January 2019 requesting an explanation of the decision to raise the Debt and that he was considering appealing the decision.[30]
[30] Exhibit 1, T Documents, T29, page 222, Centrelink record.
As Executor Scott Smith had legal duties and responsibilities to pay the debts of the estate.[31] Mr Smith’s Will specifically provided that debts were to be paid prior to any balance being distributed to beneficiaries.
[31] Succession Act 1981 (Qld).
There is no basis for the Debt to be written off on the ground that the Debt is irrecoverable at law.

Does the Estate or Scott Smith have capacity to repay the debt?

Scott Smith told the Tribunal the estate had been dissolved and that he was unable to pay the Debt himself.
The sale of Mr Smith’s residence did not settle until 15 February 2019. The Executor knew about the Debt before he received the proceeds from that sale. Despite this Mr Smith went ahead and distributed those proceeds. The Executor received approximately $80,000 from this sale.
The Executor says all of the debts of his father’s estate were paid except for the Centrelink Debt. He says he did not pay the Centrelink Debt because he decided to appeal the decision. He told the Tribunal that initially he put money aside but after succeeding before the SSCSD he decided to distribute the money. There is nothing to corroborate this evidence. The Executor has provided no bank statements of the estate nor has he provided any financial evidence concerning his own financial circumstances. Mr Scott Smith was fully aware that the Secretary was entitled to appeal that decision. He was also aware that the Secretary had 28 days to appeal. He should not have distributed the money until he knew what steps the Secretary would take. At the hearing the Executor said “with hindsight” he should not have distributed the money, he then said he had a pressing financial need. His personal needs do not outweigh the legal obligation of the Estate to pay its debts or his legal obligation to execute the will in accordance with the law.
There is no corroborating evidence before the Tribunal to indicate that the Debt cannot be paid by the Estate or by Scott Smith personally, as Executor. If the funds of the estate were dissipated by Scott Smith, this was done with knowledge that the Debt was owing and immediately payable. As Executor, Scott Smith failed to exercise his duty to pay the debts of his father’s estate before distributing the assets.

Is it cost-effective for the Commonwealth to recover the debt?

There is no indication from the Secretary that it is not cost-effective for it to recover the debt.

Conclusion

There is no basis for the debt to be written off under section 1236 of the Act.

DID MR SMITH RECEIVE THE OVERPAYMENT IN GOOD FAITH AND WAS THE DEBT, OR A PROPORTION OF THE DEBT, ATTRIBUTABLE SOLELY TO AN ADMINISTRATIVE ERROR? (S 1237A)
Was the debt attributable solely to an administrative error?

If administrative error was the sole cause for the debt arising, the Secretary must waive the right to recover the debt. The debt “must be "attributable solely" to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes”: Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76, per Wilcox J (at [41]) and on appeal to the Full Federal Court Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190.
There was no administrative error on the part of Centrelink. Centrelink did not become aware until March 2018 that the Property had been sold.[32] Scott Smith, as Mr Smith’s nominee, did not inform Centrelink of this sale or of the subsequent distribution of the proceeds.
[32] Exhibit 1, T Documents, T11, Letter from Legal Aid Tasmania to Centrelink including attachments dated 22 May 2018.
The Debt arose due to a failure to comply with the relevant notification requirements.
The Debt owed by Mr Smith was not ‘attributable solely to an administrative error made by the Commonwealth’ for the purposes of section 1237A(1) of the Act.[33]
[33] See Wecker v Secretary, Department of Education Science and Training[2008] FCAFC 108, at [102].
Even if Mr Smith was not aware of a need to notify Centrelink, “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”.[34]
[34] See Brian Murphy and Secretary, Department of Families, Housing, Community Services and

Should the Debt be waived under section 1237AAD?

There are a few elements to be satisfied under section 1237AAD of the Act before a debt may be waived. First, the debt must not have arisen from the debtor, that is Mr Smith must not have knowingly made a false statement or a false representation or knowingly failed or omitted to comply with a provision of the Act or the Administration Act. Second, there must be “special circumstances” (other than financial hardship alone) that make it desirable to waive. Third, it must be more appropriate to waive than to write off the debt or part of the debt.
Did Mr Smith or another person knowingly fail to advise the Department about the sale of property
Less than two weeks prior to the sale of the Property Scott Smith contacted Centrelink and spoke to a Centrelink financial information officer.[35] Centrelink records indicate that during that telephone conversation the Centrelink officer and Scott Smith discussed what would happen if the Property was sold and the impact it would have on his father’s pension.
[35] Exhibit 1, T Documents, T29, page 197, Centrelink record.
The Centrelink record reads:
Power of Attorney contacted DAPTO on 18 MAY 2015 regarding General Enquiry for Age Pension. Information was obtained via Phone Call. Document created by Y%M on 18 MAY 2015. sin's son is selling the investment property and looking at options of putting the money in the bank, gifting the money or combination of the 2. We looked at the impact of each of these options
(emphasis added)
The Executor says he notified Centrelink when his father died. When the Tribunal asked Mr Scott Smith why he had not told Centrelink that the Property had been sold and the proceeds distributed he said “I don’t know”. He said he had contacted the Australian Tax Office (“ATO”) as he wanted to check if there would be tax payable on the distribution and the ATO confirmed that it would be considered a gift.
Centrelink records indicate that 11 days prior to the settlement of the Property Mr Scott Smith spoke to Centrelink. He told the Tribunal he accepts the Centrelink record is correct, but he does not “recall” the conversation. He then said he thought it was prudent to contact Centrelink. He said he did not remember the resolution of his enquiries with Centrelink.
Regardless of whether the Executor remembers the advice given, it is clear from the record taken that he would have known how the asset was to be distributed, or at the very least may, have an impact on the amount of age pension his father received. At the hearing the Executor acknowledged that he understood his father’s welfare payments would be adjusted depending on how the sale proceeds were distributed.
The Executor said when he phoned Centrelink he was telling them of the sale. That is accepted but it is not the end of the matter. The critical feature to notify Centrelink about was the amount of proceeds received and how the proceeds were distributed. This much must have been known by Mr Smith given his conversation with the Centrelink officer. He also acknowledged that he knew this information was relevant to Centrelink’s calculation of his father’s age pension. Mr Smith said it was a difficult time. That may be true, but it did not hinder him contacting Centrelink in advance of the distribution or communicating with the ATO.
The Executor accepted that at the time he was authorised to act on his father’s behalf with Centrelink. It seems odd that he did not discuss with his father that by selling the Property and gifting the proceeds that his age pension would be reduced. The Executor provided no corroboration of the legal advice he says he received. It is also unclear, given the duties, owed by an attorney, how this could be seen in any way as acting in his father’s best interests.
Mr Scott Smith told the Tribunal he was “not sure” whether his father agreed to the sale. The Tribunal finds this difficult to accept. The Tribunal is not convinced that Mr Smith would have agreed to the sale of the Property and the distribution of the proceeds to his children in circumstances where he clearly needed financial assistance (if he did not he would have been on the age pension) and when the result would be to effectively reduce his age pension to nil.
Scott Smith was fully aware that the fact of sale and the distribution of the proceeds was relevant information to Centrelink and needed to be reported.
Scott Smith never reported the sale to Centrelink. Centrelink only became aware when it received the Legal Aid Letter.
The Tribunal finds that the only inference that can be drawn is that Scott Smith knowingly failed to inform Centrelink of the sale of the Property and therefore the Debt cannot be waived under section 1237AAD.

DECISION

The decision under review is set aside and substituted with a decision that Raymond Allen Smith was overpaid age pension in the sum of $23,305.66, and this is a debt due to the Commonwealth.

I certify that the preceding 75 (seventy -five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

...................................[SGD].....................................
Associate
Dated: 16 April 2020

Dates of hearing:

Advocate for the Applicant:

26 February 2020 and 30 March 2020

Mr McQuinlan, Principle Government Lawyer

Applicant: Services Australia

Respondent: By telephone

Indigenous Affairs [2010] AATA 115, at [17]; Ivor Biddlecombe and Secretary, Department of Families,
Housing, Community Services and Indigenous Affairs [2010] AATA 451; Barnard and Secretary, Department of Social Services [2016] AATA 436, at [47]; Scott v Secretary, Department of Social Security [1999] FCA 1774, and on appeal Scott and Another v Secretary, Department of Social Security [2000] FCA 1241

[2020] AATA 806

16 April 2020

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

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