FLORENCE MARGARET RACKLYEFT and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 111

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 111

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2015

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		FLORENCE MARGARET RACKLYEFT

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr BH Pascoe, Senior Member

Date18 February 2009

PlaceMelbourne

Decision

The Tribunal affirms the decision dated 31 August 2006 to raise and recover debts of $505.12 and $8,971.75 in relation to sickness allowance paid in the periods 15 November 1995 to 7 December 1995 and 18 September 1996 to 7 October 1997.

The Tribunal sets aside the decision dated 15 November 2006 to suspend payments of disability support pension and remits the matter to the respondent with a direction that pension entitlement should not be suspended solely on the grounds of proof of identity.

(sgd) BH Pascoe

Senior Member

social security – Sickness Allowance – assets test – whether legal and beneficial owner of residential units – disability support pension – doubt as to identity – whether had relation with similar name

Social Security Act 1991

REASONS FOR DECISION

18 February 2009 Mr BH Pascoe, Senior Member    

1.      This is an application to review two decision of the respondent.  The first decision dated 31 August 2006 was to raise and recover debts of $505.12 and $8,971.75 being sickness allowance paid in the periods 15 November 1995 to 7 December 1995 and 18 September 1996 to 7 October 1997.  The second decision dated 15 November 2006 was to suspend payment of disability support pension (DSP).  Both decisions were affirmed by the Social Security Appeals Tribunal (SSAT) on 6 February 2007.

2.      At the hearing, the applicant, Ms FM Racklyeft, was unrepresented.  The respondent was represented by Mr T Noonan, Principal Legal Services Officer with Centrelink.  Evidence was given by Ms Racklyeft.

3.      While the long history of this matter involves confusion and questions as to the actual identity, date of birth, parentage and family relation of Ms Racklyeft, the primary issue in the first decision is whether her assets are in excess of the allowable amount for entitlement to either sickness allowance or DSP.  The decisions under review are based on her alleged ownership of three rented units at 34 Remembrance Drive, Warwick Farm, New South Wales (NSW).

4.      In her evidence to this Tribunal, Ms Racklyeft said that she had been born on 1 April 1945.  Her father was Robert James Racklyeft who had died in 1978 approximately.  Her mother’s name was Dorothy Isabel and she believed that the maiden name was Kelly.  She said that her mother died in 1957 or 1958.  Ms Racklyeft said that her full name was Florence Margaret Racklyeft but generally known as Maggie.  She had thought originally the she had been born in New South Wales but now believed that she had been born in England and came to Australia at a very early age.  She has never possessed a birth certificate.  She said that after her mother died she moved to live with her mother’s sister Gwen but she could not recall Gwen’s surname.

5.      Ms Racklyeft said that she had purchased Unit 17 at 34 Remembrance Drive many years ago but having borrowed money to finance the purchase had moved out so as to earn rental income to offset the interest cost.  Some time after purchase she said that she discovered that Unit 1 was owned by Margaret Florence Racklyeft who was her cousin.  Ms Racklyeft said that it was not uncommon for families to name children similarly.  She said that her cousin was known as Frankie who had lived out of Australia for some time.  After meeting up with her cousin, she agreed to manage the unit for her.  Ms Racklyeft said that she did not know who owned Unit 16 but it may have been Frankie’s partner, Frank Bremer.  Ms Racklyeft maintained that Frankie had been born on 9 April 1951 and the daughter of Wynford Arthur Racklyeft and Dorothy Isobel (nee Bourne).

6.      The records of the New South Wales Titles Office and Liverpool City Council show that Unit 1 was purchased on 21 May 1986 , Unit 16 purchased on 25 July 1985 and sold on 26 July 2002 and Unit 17 purchased on 3 February 1983 all in the name of Florence Margaret Racklyeft.  All three units were recorded in the name of Margaret Racklyeft by the estate agents who managed the units.  Since January 2002 the rental from Unit 1 has been paid into an account in the name of Margaret F Racklyeft and Frank Rudolf Bremer.  In her evidence Ms Racklyeft said that she was a signatory on this account as part of her role in assisting an absentee owner friend.

7.      There are many instances in the documentary evidence provided which conflict with the evidence of Ms Racklyeft.  The first of these is that in various correspondence to Centrelink and in her evidence to the SSAT Ms Racklyeft described Margaret Florence Racklyeft as her half-sister not the cousin as in her evidence to this Tribunal.  The next is that, in her application for sickness allowance dated 8 November 1995, she stated that her mother was Dorothy (no sure of maiden name) and father was Wynford Racklyeft.  In the sickness allowance claim dated 25 August 1996, she stated that her parents were Dorothy Isobel (nee Bourne) and Wynford Arthur Racklyeft.  She stated her residence as 295 Bonds Road, Thirlmere described as my father’s place.  In a claim for rent assistance on 19 September 2000 this address was shown as being the property of the deceased estate of Wynford Arthur Racklyeft.  Documents from the NSW Registry of Birth, Deaths and Marriages show that Dorothy Isobel Racklyeft (nee Bourne) and Wynford Arthur Racklyeft had a daughter Margaret Florence on 9 April 1951.

8.      When the foregoing was put to Ms Racklyeft at the hearing she was unable to explain why she had stated that her mother’s maiden name was Bourne in her application in 1996.  She did say that she well remembered Pop whose name was Bourne who lived on the same property as she and her mother.  She was insistent that she was born in 1945 and, therefore, could not be the Margaret Florence Racklyeft born in 1951.  She maintained that she had been on the electoral role since 1967 and had a motor-cycle license since 1962.  Both of which could not be possible if born in 1951.

9.      In a loan application to Newcastle Permanent Building Society on 6 October 1994, Ms Racklyeft showed ownership of Units 1, 16 and 17 at 34 Remembrance Avenue, Warwick Farm.  Ms Racklyeft was unable to explain this other than to insist that it was not her writing on the application.

10.     At the end of the hearing, this Tribunal was left with a choice of believing that Ms Racklyeft has a vivid imagination to the event of being unable to distinguish between fact and fiction, she has continued to deliberately lie to Centrelink and the Tribunals or she is now telling the truth with numerous coincidences in her life.  These coincidences are that her mother and her aunt share the same given names of Dorothy Isobel.  Ms Racklyeft did believe that one was Isobel and the other Isabel but could not recall which.  In addition her cousin shared the same given names although in reverse order.  Further, this cousin, unbeknown to her, purchased one, possibly two, units in the same block in which she had purchased a unit some two years prior.  Finally, Ms Racklyeft memory is such that she has difficulty remembering such things as her mother’s maiden name, information given to a mortgage lender and statements made in past applications.

11.     In considering the credit of Ms Racklyeft it is relevant to note that, in her evidence to the SSAT, she said that she was married in 1958 at 16 and had a child, Jeffrey, born on 9 August 1959 who was adopted out.  She said that her husband, Warren Hill, had died of leukaemia whilst in Vietnam on National Service in 1960 or 1961.  At the hearing before this Tribunal, Ms Racklyeft said that this evidence to the SSAT had been a pack of lies which she had made up because she was offended by questions relating to her personal and sex life.  She denied having any child.  In relation to this, it is noted that, in her application her sickness allowance of 8 November 1995, she showed a date of marriage as 1968 and date of partner’s death as 1969.  In the application of 3 September 1996 she showed the date of partner’s death as 1 August 1961 in Vietnam.  It is noted, in relation to this, that the Vietnam was and involvement of national servicemen did not commence until at least 1965.  If there is any truth or partial truth in any of Ms Racklyeft’s conflicting answers it is possible that she was married at 16 but in 1968.

12. Ms Racklyeft has produced an Australian passport showing her date of birth as 1 April 1945. A letter from the Department of Immigration and Multicultural and Indigenous Affairs dated 11 October 2002 states that the records show a Florence Margaret Racklyeft with a date of birth as 1 April 1945 as having acquired citizenship on 26 January 1949 pursuant to s 25 of the Australian Citizenship Act 1948 and by a Declaratory issued on 28 February 1986.  It was noted that Australian citizenship did not exist before 1949 and the date of acquisition was the commencement date of the Act.  What information was provided in 1986 for the formal recording of citizenship is not known.

13.     The result of the foregoing is that it is not possible to be satisfied on the balance of probabilities that there are two cousins (or half-sisters) with similar names or that the applicant is not the Margaret Florence Racklyeft who was born on 9 April 1951.  However, it is unnecessary to make a firm finding in relation to this issue in relation to the first decision.  The primary issue for the purpose of reviewing that decision under review is whether the applicant was the owner of three units at 34 Remembrance Drive in 1995, 1996 and 1997 and the owner of two units in 2006.  Given the totality of the evidence in this matter, I am satisfied on the balance of probabilities that she was the legal and beneficial owner of these properties.  As a consequence, the value of her assets exceeded the allowable limit and the decision to raise and recover the debts for payment of sickness allowance should be affirmed.  I am unable to be satisfied that there are any grounds to waive recovery of any part of the debt. 

14.     The second decision was made and affirmed by the SSAT on the grounds that Ms Racklyeft had not provided proof of identity.  The SSAT decision stated:

25.Ms Racklyeft was paid disability support pension in the name Florence Margaret Racklyeft born 1 April 1945.  Payments ceased on 1 September 2006.  In order to c9ontinue to make an income support payment to a claimant, the Secretary must be satisfied that the person is qualified for the payment and that it is payable to them.  Section 80 of the Social Security (Administration) Act 1999 (“the Administration Act”) provides:

80.(1)     If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)        who is not, or was not, qualified for the payment; or

(b)        to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

26.The Tribunal found that the applicant is not Florence Margaret Racklyeft born 1 April 1945 and concluded that the Australian passport issued in that name is factually incorrect.  Ms Racklyeft has recently stated that she was not born in Australia which has cast some doubt on whether she is or has ever been residentially qualified for Centrelink payments.  As the applicant has not made a claim for payment in any other name then the decision to suspend disability support pension paid in the name of Florence Margaret Racklyeft was correct.

From the balance of the decision and reasons for decision it is clear that the SSAT was of the view that it was more likely than not that the applicant is the person born Margaret Florence Racklyeft on 9 April 1951.  It would appear that the Authorised Review Officer in his decision of 15 November 2006 was of the same view. If that view is correct, then the applicant was born in Australia and has been a resident of Australia all her life. As such and, subject to meeting the various qualifications from DSP, she is entitled to that pension.  If that view is not correct and the applicant is Florence Margaret Racklyeft, born on 1 April 1945, I am satisfied that she has been a resident for most, if not all, her life.  The better view and one which is appropriate for me to find is that the applicant is Margaret Florence Racklyeft, born on 9 April 1951.  The likely scenario is that she decided to create a new identity at some time more than 20 years ago.  In her evidence she said that she had nothing to do with the family for most of my life and made a somewhat oblique reference to criminal records.  Clearly there was a dispute with the family of the late Wynford Racklyeft in which Margaret Florence Racklyeft was the plaintiff in the Supreme Court of NSW in relation to a share of the estate of Wynford Racklyeft consisting of the land at Thirlmere where the applicant resided for some years.  Whether she now believes in this alternative identity is not a matter which this Tribunal is qualified to judge.

15. There is, at least, no doubt that the applicant is a real person who has resided in Australia for, most likely, the whole of her life. Notwithstanding the confusion and anomalies regarding her true identity, I am satisfied that, subject to meeting the specific qualifications for DSP, she is entitled to the benefit of the Social Security Legislation. While it would appear that she satisfies the requirements of s 94 of the Social Security Act 1991 this was not part of the decision under review.  Nor was any limitation on the basis of income or assets test.  The appropriate course is to remit the matter to the respondent with a direction that the decision under review should be set aside and pension entitlement should not be suspended solely on the grounds of proof of identity.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr BH Pascoe, Senior Member

Signed:         Dianne Eva
  Clerk

Date of Hearing  19 January 2009 
Date of Decision  18 February 2009
Self Represented Applicant     Ms Florence Margaret Racklyeft 

Advocate for the Respondent   Mr Tim Noonan,

Principal Legal Services Officer, Centrelink