Fugler and Secretary, Department of Family and Community Services - [2006] AATA 161

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 161
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/395

GENERAL ADMINISTRATIVE DIVISION )

Re ROY FUGLER

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr KS Levy, Member
Date24 February 2006
PlaceBrisbane

Decision
The Tribunal varies the decision under review and decides that:

(a)       The amount of debt 1 for the period 9 July 1998 to 20 August 1998 is affirmed;

(b)       The part of debt 1 from 3 September 1998 to 31 December 2002 is affirmed;

(c)       That the amount of debt 2 which pertained to the period 1 January 2003 to 23 March 2004 is waived; and

(d)       The determination in (c) above be referred to Centrelink for recalculation and adjustment of the total amount of debt 2. The amount which should be regarded as outstanding as a debt due to the Commonwealth should take account of the recalculation as determined above together with payments already made to date to distinguish debt 2.

..….[Sgd]…..
  KS Levy
  Member

CATCHWORDS
SOCIAL SECURITY – age pension payments – over payment – waiver of debt under special circumstances – debt not solely due to administrative error - – decision varied.
Social Security Act 1991 s1223, 1237
Sekhon v Secretary, Department Family and Community Services [2003] FCAFC 190; (2003) 76 ALD 105
Cymerman and Secretary, Department of Family and Community Service [2003] AATA 1354,
Secretary, Department of Education, Employment, Training and Youth Affairs v Barry Prince (1997) 50 ALD 186
Jazazievska v Secretary, Department of Family and Community Service [2000] FCA 1484
Re Beadle and Direction-General of Social Security (1984) 6 ALD 1
Daly and Secretary, Department of Family and Community Services [2005] AATA 740
Dranichnikov v Centrelink (2003) 75 ALD 134
Groth v Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION

24 February 2006 Dr KS Levy, Member

Introduction
2. By application dated 23 June 2005, the applicant sought a review under section 29(1) of the Administrative Appeals Tribunal Act 1975, from a decision of the Social Security Appeals Tribunal (the “SSAT”) of 30 May 2005. That decision affirmed previous decisions made and reviewed by Centrelink dated 21 August 1998 and 8 September 2004 in respect of two debts of the applicant, the SSAT making a slight modification to one of the debts (debt 2).
3. The decisions of the SSAT dated 30 May 2005 were as follows:
(a)In respect of debt 1, to raise and recover a debt in the amount of $994.80 in respect of overpayment of age pension for the period 9 July 1998 to 20 August 1998; and
(b)In respect of debt 2, to raise and recover a debt in the amount of $7,888.86 in respect of age pension payments made for the period 3 September 1998 to 23 March 2004.

4. The first debt has been fully repaid. The second debt has been partially paid off (approximately $1,500) and is being extinguished by way of regular deductions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fugler and Secretary, Department of Family and Community Ser...

Details

AGLC: Fugler and Secretary, Department of Family and Community Services [2006] AATA 161
Case: [2006] AATA 161
Decision Date: 24 February 2006

CaseChat Overview and Summary

Fugler was in receipt of an age pension from the Department of Family and Community Services. Following an audit, it was determined that Fugler had received overpayments, and the Department sought to recover the amount. Fugler applied to the Administrative Appeals Tribunal for a review of the decision. The Tribunal had to decide whether the Department could recover the overpaid amounts under the Social Security Act 1991. The key issue was whether the overpayment was solely due to an administrative error or if there were other contributing factors, such as Fugler's own actions or omissions. The Tribunal examined the relevant sections of the Act and the applicable case law to determine if the debt could be waived under special circumstances.

The Tribunal found that while some of the overpayment was due to administrative error, other factors, including Fugler's actions, also contributed to the overpayment. The Tribunal concluded that the debt was not solely due to administrative error and that the special circumstances exception did not apply. However, the Tribunal varied the decision to waive part of the debt pertaining to the period from 1 January 2003 to 23 March 2004, as it found that the overpayment in this period was solely due to administrative error. The Tribunal referred the matter back to Centrelink for recalculation and adjustment of the total amount of debt 2, taking into account the recalculation and payments already made.

The Tribunal varied the decision under review, affirming the amount of debt 1 for the periods 9 July 1998 to 20 August 1998 and 3 September 1998 to 31 December 2002. The Tribunal waived the part of debt 2 from 1 January 2003 to 23 March 2004, and referred the matter to Centrelink for recalculation and adjustment of the total amount of debt 2. The Tribunal's decision was based on the findings that the overpayment was not solely due to administrative error, except for the period from 1 January 2003 to 23 March 2004. The Tribunal's decision provides guidance on the application of the special circumstances exception in cases of overpayment of social security benefits.

Orders

Orders of the court

The Tribunal varies the decision under review and decides that:

(a) The amount of debt 1 for the period 9 July 1998 to 20 August 1998 is affirmed;

(b) The part of debt 1 from 3 September 1998 to 31 December 2002 is affirmed;

(d) The determination in (c) above be referred to Centrelink for recalculation and adjustment of the total amount of debt 2. The amount which should be regarded as outstanding as a debt due to the Commonwealth should take account of the recalculation as determined above together with payments already made to date to distinguish debt 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.