George and Ors; Secretary, Department of Families, Community Services and Indigenous Affairs and Ors and
[2007] AATA 1456
•22 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1456
ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION
)
Re
No V2006/663
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Applicant
And
BRETT GEORGE
Respondent
Re
No V2006/664
BRETT GEORGE
Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
Re No V2006/665
BRETT GEORGE
Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
Re
No V2006/607
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Applicant
And
PANPAGA GEORGE
Respondent
Re No V2006/666
PANPAGA GEORGE
Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date22 June 2007
PlaceMelbourne
Decision 1. The Social Security Appeals Tribunal made a decision (the decision) on 15 June 2006 which is under review by these five applications.
2. The decision in so far as it concerned the period 17 November 2000 to 8 July 2001 and where it was found that Mr and Mrs George were:
(i) overpaid Newstart Allowance of $3072.60 and Parenting Payment of $346.15 respectively, is affirmed (V2006/665 and V2006/666).
(ii) The overpayments were a debt and
(iii) the debts should not be waived or written off.
3. The decision in so far as it relates to the period 25 August 2001 to 30 April 2004 and relates to:
(i) the payment to Mr George of Carer Payment is set aside and in substitution IT IS DECIDED the sum paid for which he was not entitled is $25,450.61. The remainder of the decision in so far as it found there was an overpayment, which was a debt and which should not be waived is affirmed (V2006/663 and V2006/664).
(ii) the payment to Mrs George of Parenting Payment is set aside and in substitution IT IS DECIDED that the sum paid of $17,582.51 should not be waived. The remainder of the decision in so far as it found there was an overpayment which was a debt is affirmed (V2006/607).
..............................................
John Handley
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. V2006/665 and V2006/666
GENERAL ADMINISTRATIVE DIVISION )
Re :BRETT GEORGE
Applicant
And :SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
Re :PANPAGA GEORGE
Applicant
And :SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
C O R R I G E N D U M
Tribunal :Mr John Handley, Senior Member
Date :22 June 2007
Place :Melbourne
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 and being satisfied there is an obvious typographical error in the text of the Decision made on 22 June 2007 I DIRECT that paragraph 2(i) be altered by deleting the figure $346.15 and inserting $3460.15.
........................
John Handley
Senior Member
SOCIAL SECURITY – applicants husband and wife – wife received parenting payment – husband claimed newstart allowance – he was then employed – later under declared income received‑ parenting payment to wife calculated by regard to his declared income – overpayments raised against wife and husband – wife diagnosed with schizophrenia – husband claimed and paid carer payment – did not declare employment income or work of more than 20 hours per week – failed to respond to recipient notices – husband did not ever have an entitlement to carer payment – overpayment raised against him and wife who continued to be paid parenting payment – husband and wife unable to satisfy s 1236(1A), s 1237A(1) or s 1237AAD – payments not made by sole administrative error of the Commonwealth – husband did knowingly make a false statement or representation and did fail to comply with a provision of the Act
Social Security Act 1991 (Cth) s 198AC(4) and s 1236(1A) and s 1237A(1) and s 1237AAD and s 1237AAD(a)(ii)
Social Security (Administration) Act 1999 (Cth) s 67(2)
Australian Trade Commission v Solarex (1998) 78 ALR 439
Groth v Secretary Department of Social Security (1995) 37 ALD 797
Re Callaghan and Secretary Department of Social Security (1996) 45 ALD 435
Re Morgan and Secretary Department of Family and Community Services [1999] AATA 350
REASONS FOR DECISION
22 June 2007 Mr John Handley, Senior Member 1. The circumstances giving rise to these five applications are very unfortunate. Mr and Mrs George have been exposed to repayments of considerable amounts of money by reason of it being alleged by Centrelink that there has been a failure to report income earned and by reason of failing to qualify for a benefit that was paid.
2. Throughout the period in issue in these proceedings, Mrs George has been in receipt of parenting payment. Initially Mr George was in receipt of newstart allowance and later he was in receipt of carer payment. The latter benefit was obtained after Centrelink became satisfied with medical opinion that it received that Mrs George suffered from schizophrenia from early 2001. As a consequence of that diagnosis, the claim for carer payment was made and Mr George was deemed to be the carer, thereby giving him an entitlement to that benefit. Mrs George continued to receive parenting payment (and Family Tax Benefit but that is not in issue in this review).
3. There would appear to be little doubt on the evidence heard in these proceedings that the schizophrenic illness suffered by Mrs George has caused a major disruption to the household. She did not give evidence in these proceedings. Her treating medical practitioner, Dr Sze Tho, in a report of 26 March 2007 advised that subjecting Mrs George to pressure and anxiety as will happen in such proceedings will necessarily run the risk of triggering another relapse of her previous schizophrenic episode.
4. The hearing of these proceedings occurred over two days on 1 March and 13 June 2007. It was learnt that Mrs George has not ever attended a Centrelink office nor has she ever completed a Centrelink claim form. Mr George advised that she would be unaware of these proceedings or the decisions that have been made to date. He said that all forms had been completed by him. She signed her name on some forms and on a number of other forms, he signed her signature.
5. The decisions under review in these proceedings all arise out of decisions made by the Social Security Appeals Tribunal (SSAT) on 15 June 2006.
6. The applications concerning Mr George are as follows:
· In application V2006/663 the applicant Secretary applies for review of that part of the SSAT decision which decided that the recoverable debt with respect to an overpayment of carer payment (CP) during the period 25 August 2001 to 30 April 2004 was $14,498.39. An authorised review officer of Centrelink had previously decided that the recoverable debt for that period was $25,450.61.
· In application V2006/664 Mr George has applied to review the decision made by the SSAT which found that he had incurred a recoverable debt in the sum of $14,498.39.
· In application V2006/665 Mr George applies to review the decision which found that there was a recoverable debt during the period 17 November 2000 to 8 July 2001 in the sum of $3072.00. During that period, Mr George was in receipt of newstart allowance (NSA).
7. The applications concerning Mrs George are as follows:
· In application V2006/607 the applicant Secretary applies to review the decision to waive recovery of a debt of an overpayment of $17,582.51 being parenting payment (PP) paid between 25 August 2001 and 30 April 2004.
· In application V2006/666 Mrs George is the applicant and she applies to review the decision which found that there was an overpayment of PP in the sum of $3460.15 during the period 10 November 2000 to 8 July 2001.
the t‑documents
8. The documents lodged by the Secretary in these applications provide a useful summary of the claims made by Mr and Mrs George and the investigation and decision‑making processes undertaken by Centrelink.
9. Prior to November 2000 Mrs George was in receipt of PP. On 10 November 2000 Mr George claimed NSA and on 20 November 2000 he completed a NSA declaration form (T3, p19). He then declared that he was unemployed (which for the purposes of the declaration was deemed by Centrelink to be not employed full time). He also declared that he would advise of the gross amount of any casual earnings and would agree to approach at least 10 employers per fortnight and record the details in a job seeker diary. Appended to the declaration form was a notice advising Mr George that he must advise of any changes in his circumstances. Significantly – for the purposes of these applications – he was obliged to notify if he starts paid work or any form of profession, trade, business or self-employment (pp19 – 20).
10. On 23 October 2000 – that is approximately two weeks before the above declaration was completed – Mr George commenced employment with ADECCO Industrial Pty Ltd (ADECCO). His employment was described as temping (T10). The employer provided Centrelink with wage records commencing on the week ending 29 October 2000 and concluding on the week ending 18 April 2004 (although it appears that Mr George remained in employment at least at June 2004 refer pp121 – 122).
11. In the T‑documents lodged in the applications concerning Mrs George, Mr George declared (T3, p17) on 10 November 2000 that he was employed by ADECCO, as a casual, that he last worked on 11 November 2000 and the amount of his usual wage before tax was $600.00 per week.
12. The claim for overpayment of NSA was put by Centrelink upon the basis that between the periods 17 November 2000 and 8 July 2001, Mr George earned $21,764.88 in wages from his employment. In the same period it was contended that he declared $5750.80 only as income received in wages. A summary of the amounts declared appears at page 139 of his T‑documents. Having regard to income threshold limits, Centrelink calculated that he had been overpaid NSA in the total sum of $3072.00.
13. The claim by Mr George for CP was made on 13 July 2001. At page 23 of T‑documents Mr George declared that he was not then currently employed. Subject to what he understood to be the nature of his employment (the employer described it as temping) the pay records indicate that Mr George was paid income for the week ending 8 July 2001 but did not receive another payment until the week ending 9 September 2001.
14. In a form addressed to Mrs George (found at T6 of her husband’s T‑documents), Centrelink sought an update of information concerning continuing entitlement. The form is dated 30 May 2003 and received at the Newport office of Centrelink on 10 June 2003. At question 8 (p44) the question is asked Are you (and/or your partner) currently employed as a wage or salary earner. The No box against Mrs George has been crossed. The No and Yes boxes referrable to Mr George have been left blank. When this form was completed on 30 May 2003, Mr George was working and earning wages. At page 83 the wage records indicate for the week ending 28 May 2003, $1551.00 was paid as gross salary.
15. In a further review of continuing entitlement to receive PP, Mrs George was sent another questionnaire by Centrelink which was signed by Mr George on 30 June 2003. In evidence he acknowledged that the signature purporting to be made by his wife was made by him. He also agreed that he completed the form. At question 31 (p68), Mrs George is asked Have you (and/or your partner) done any paid work while you have been in receipt of payment or in the last 12 months (whichever is the later)? The No box against Mrs George and Mr George have both been endorsed. At question 58 Mrs George is asked Do you (and/or your partner) receive a payment from any other government department other than Centrelink or get money from any other source. The No box is endorsed. The wage records indicate that Mr George had been consistently employed and had been paid wages or salary for the 12 months previous to 30 June 2003.
16. The claim by Centrelink for recovery of the overpayment of CP was put on the basis that between 25 August 2001 and 30 April 2004 Mr George did not declare any earnings from employment. In that period of time it was contended that (by reference to the wage records) the total sum of $88,823.03 was paid in salary or wages. Initially an officer of Centrelink – having regard to income threshold levels – calculated the overpayment at $14,498.39. On review by an authorised review officer it was decided that Mr George did not ever have an entitlement to CP, the income threshold levels were ignored, and the total sum paid for this period in CP for which Centrelink now seeks recovery (and challenges the decision of the SSAT) is the sum of $25,450.61.
17. The latter decision was substituted for the former because the authorised review officer had regard to s 198AC(4) of the Social Security Act 1991 (the Act) which permits a person qualified to receive CP as being temporarily entitled to cease provision of constant care in order to undertake (for the purposes of this application) paid employment but where the cessation does not exceed 20 hours per week. (Those provisions were amended by Act No 132 of 2004 effective from 1 April 2005 increasing the period of cessation of constant care to 25 hours per week. Those amendments have no application to these proceedings by reason of them having commenced operation after the conclusion of the period in issue in these proceedings). The authorised review officer contended that by regard to the wage records supplied by ADECCO, Mr George consistently worked more than 20 hours per week and in those circumstances he offended the provisions of s 198AC(4) of the Act and, by reason of him having been engaged in paid employment, he had not been personally providing constant care for a care receiver within the meaning of s 198AC(4)(a) of the Act.
18. The claims made against Mrs George for recovery of benefits overpaid are put entirely upon the basis of the failure on the part of Mr George to both declare income earned and by reason of the under declaration of income.
19. With respect to the claim for recovery of PP between 10 November 2000 and 8 July 2001 in the sum of $3460.15, Centrelink had regard to the income of Mr George of $21,764.88. However only $5750.80 was declared and by regard to income threshold levels an overpayment of PP was assessed at $3460.15.
20. The claim for recovery of PP for the period 25 August 2001 to 30 April 2004 was assessed having regard to the income received in that period by Mr George in the sum of $88,823.03 which Centrelink contended was not declared. Initially it was decided that there was an overpayment with respect to this period of $19,830.78 but on recalculation (T20, p96) recovery was sought in the sum of $17,582.52.
21. At the hearing of these proceedings it was learnt that Centrelink had been recovering monies from Mr and Mrs George by pension withholdings (Mrs George currently receives disability support pension (DSP) and Mr George receives NSA). The total sum of $5181.30 has to date been recovered. Those monies have been applied to repay the overpayment levied against Mrs George in the sum of $3460.15 and the balance has been applied to partially repay the overpayment of $17,582.51. On 5 September 2006 an Order was made by this Tribunal to Stay the operation of the decisions of the SSAT with respect to the repayment of monies until the final determination of the applications concerning Mrs George.
the evidence at the hearing
22. For the reasons given earlier, Mr George only gave evidence at the hearing. The evidence that he did give was consistent with notes of a conversation recorded by a Centrelink officer on 15 June 2004 (pp121 – 122) and with a letter that he wrote to Centrelink on 25 June 2004 (pp124 – 126).
23. The applicant did not dispute that at all relevant times he was employed and was earning income although he asserted that he was employed on a casual basis and his income varied from week to week.
24. During the period of time that he was in receipt of NSA, Mr George said that he did receive declaration forms which he completed and returned to Centrelink recording the income that he earned. He said he also provided payslips. Indeed he recalled an occasion where a comment was made by a Centrelink officer that few people declared their income with the degree of precision that he did because it was observed (on his evidence) that he declared dollars and cents. However, Mr George said that he did not ever receive recipient notices throughout the period that he was in receipt of NSA and CP. Additionally he said that he was under no obligation to advise of his income whilst in receipt of CP because he had never been notified that there was such a requirement.
25. Mr George did not dispute that he had been overpaid benefits but disputed his liability to make any repayment because –
· The overpayments were not his fault.
· CP was the wrong benefit and it should not have been paid to him.
· The overpayments were by the mistake of Centrelink and he was under no obligation to repay.
· Centrelink allowed payments to be made incorrectly for three and a half years when during that time he declared his income to the Australian Taxation Office. Centrelink should have checked their data with the ATO data and would have become obvious that he was earning income.
· There was no obligation to declare income during the period of payment of CP because he had never been informed of such a requirement and never received any documented advice of such a requirement.
26. Mr George was asked to explain why he ticked the No box (p68) in the application for PP forwarded to his wife completed by him on 30 June 2003 (refer earlier). This was the same form that Mr George agreed that he signed his wife’s signature. He said, at that time he was under stress and would have said hail Mary to Jack. Additionally he said I was having to keep me eye on me wife and me son. So if I made a mistake like I stated before I’m sorry (Trans. p73).
27. With respect to the extent of care provided by Mr George to his wife, he described it as constant and 15 or 16 hours per day except when he was working. On those occasions he said that his mother looked after his wife. He agreed that he did work more than an average of four hours per day for at least five days per week during the period that he was in receipt of CP except between the period July and September 2001 when his parents were away on holidays and in that time he did not work.
28. A constant and persisting theme of the evidence of Mr George was the absence of any responsibility on his part to make any repayment to Centrelink because overpayments were made by the mistake of Centrelink (refer above). He offered the example that if he had purchased two pieces of fish at a fish and chip shop but was given three pieces, he was under no obligation to return or give back the third piece because he received it by the mistake of the shopkeeper.
conclusion and reasons for decision
29. On the evidence heard and read I am satisfied that at all relevant times Mr George was employed and was earning income. I am also satisfied that during the period of time that he was in receipt of NSA there was only a partial declaration of the income earned. Consequently Mr George – and his wife – received benefits to which they were not entitled.
30. Mr George did admit that he had been employed. An examination of the T‑documents indicates that at the time he applied for NSA in November 2000 he was then employed by ADECCO. He completed a declaration on 20 October 2000 that he understood his obligation to declare casual earnings and that he would approach at least 10 employers per fortnight and record details in a job seeker diary. He also declared that he was then unemployed. He was also given a notice on the same date of his obligation to advise Centrelink if he started any paid work.
31. I am satisfied Mr George did understand his obligation to notify Centrelink of income earned because on seven occasions between 22 November 2000 and 23 March 2001, Mr George did advise of income earned when he completed application forms for continuity of NSA (T27, p139). The total sum of those payments was $5750.80 to which Centrelink had regard when calculating the rate of NSA paid to him and the rate of PP paid to Mrs George. For the reasons given earlier, the total sum of $21,764.88 was actually received in income from wages with ADECCO during the period of time that NSA was paid (refer Table later).
32. A recurring theme throughout the hearing was the protest of Mr George that Centrelink was unable to provide copies of the declaration forms completed by him upon which he said he declared his income. Ms King on behalf of the respondent submitted that those forms were no longer available and had been destroyed under the Centrelink archiving regime. Whilst the declaration forms could not be produced, Centrelink had other records of the income declared, I presume extracted from those forms. A comparison of the income declared (p139) with the income earned (p75) is demonstrated by the Table below. In compiling this data, I am satisfied that the data held by Centrelink is accurate and is a complete record of the income declared. I also accept the accuracy of the wage records.
Date Amount Declared
$Amount Earned
$Week Ending 19/11/00 805.40 22/11/00 360.00 Week Ending 26/11/00 753.78 Week Ending 3/12/00 609.48 6/12/00 1200.00 Week Ending 10/12/00 688.94 Week Ending 17/12/000 308.78 20/12/00 0.00 Week Ending 31/12/00 570.37 Week Ending 7/01/01 701.28 Week Ending 14/01/01 385.41 Week Ending 21/01/01 648.35 26/01/01 950.40 Week Ending 28/01/01 1040.79 Week Ending 04/02/01 788.20 09/02/01 1030.00 Week Ending 11/02/01 997.63 Week Ending 18/02/01 787.28 23/02/01 950.40 Week Ending 25/02/01 782.71 Week Ending 04/03/01 701.61 09/03/01 504.00 Week Ending 11/03/01 922.08 Week Ending 18/03/01 572.04 23/03/01 756.00 Week Ending 25/03/01 622.42 Week Ending 01/04/01 632.33 06/04/01 0.00 Week Ending 08/04/01 706.70 33. It was asserted that Mr George consistently received recipient notices advising him of his obligations but which he ignored. Mr George said that he did not ever receive such notices. Commencing at T34 are a number of duplicate recipient notices forwarded to Mr George. Each notice records the amount being paid as NSA with specific reference to the information used for calculating your regular payment. Immediately below that part is a reference to the total fortnightly income. It would appear that the recipient notices in so far as there was a recorded assessment of total fortnightly income did not have regard to the income that was from time to time being declared by Mr George. For example, on 6 December 2000 he declared income of $1200.00 (p139). A recipient notice at page 245 dated 28 December 2000 records the total fortnightly income of five cents. A similar notice dated 9 March 2000 (p260) also records total fortnightly income of five cents but on that day the sum of $504.00 was declared as income. It would surely have been obvious to Mr George that if Centrelink took account of what it understood to be total fortnightly income (as appearing in the recipient notices) that the information held was incorrect. It would have also been obvious that the quantum of payments made from time to time would have had regard to what Centrelink then understood to be the total fortnightly income.
34. The recipient notices are recorded under a heading within each notice of You must tell us if any of these things happen or is likely to happen. One of the criteria is Your partner’s income changes from the rate last notified or the income shown above is incorrect. It therefore follows that Mr George was obliged to notify Centrelink that the total fortnightly income appearing on these forms was incorrect. There is no evidence that he did so.
35. Curiously an examination of the recipient notices found within the T‑documents of Mrs George’s record her partner’s annual income and in most notices that sum is recorded as $1.30. Her annual other income is recorded in most notices as $1.30. Her fortnightly earned income is recorded as zero dollars. The latter figure would appear to be correct because at all relevant times Mrs George did not work and therefore did not earn income. The other entries are unexplained. On the recipient notices she was obliged to notify Centrelink if her partner’s income goes over zero dollars a fortnight. On the evidence it would appear that Mrs George was incapable of giving such notification. It was not submitted that Mr George on her behalf was obliged as a matter of law to notify Centrelink that his income was greater than zero dollars per fortnight in order that his wife’s recipient obligations were satisfied.
36. But what does emerge from the recipient notices sent to Mr and Mrs George is that they did receive benefits in a sum to which they were not entitled. Had the income of Mr George during the period of time that NSA was paid been declared, he would have qualified for NSA in the total sum of $293.11. But because all income was not declared, he was overpaid. He failed to comply with recipient obligations. That failure is in addition to the failure to declare the total earnings earned from work with ADECCO during the period that NSA was paid. As a fact I am satisfied and find that there was an understatement or an incomplete declaration of all income earned.
37. Despite the protests by Mr George during the hearing that recipient notices were not received, I am satisfied that they were. I am satisfied having regard to the forms that they were properly addressed and forwarded by ordinary post and were not returned to Centrelink. I am satisfied therefore that they did arrive at the addressed destination. In making these findings I apply the common law presumption of delivery by post (refer Australian Trade Commission v Solarex (1998) 78 ALR 439). There is no evidence that the notices were ever returned and in concluding this part it would appear that if unclaimed mail was returned to Centrelink payments being made may have stopped (refer advice within each recipient notice).
38. Carer payments commenced in July 2001 because Mr George made an application for them and Mrs George satisfied Centrelink medical requirements that she was in need of care.
39. Prior to the application for CP being made, Mrs George had become unwell and it was believed that her illness was associated with having lost family members in Thailand in the preceding five months. It appears from the Centrelink records that Mr and Mrs George travelled to Thailand on three occasions between December 2000 and May 2001 to attend family members who were unwell or who had died. Mr George said that when it became obvious that his wife’s illness was severe and he was unable to care for her whilst he was working he approached the Immigration Department to enquire about the issue of a visa for his wife’s sister who lived in Thailand to permit her to enter Australia to care for his wife. He was told that he would be required to lodge a bond of money which he was unable to do. He was then advised – on his evidence – to approach Centrelink and apply for CP which he did. He qualified for that payment and it was made to him until June 2004 when it was ceased at his request (refer pp122 – 123).
40. Mr George said that he was never notified that he was obliged to inform Centrelink of income received and he admitted that he did not do so. He also said that recipient notices were not ever received but for the reasons given above I am satisfied that such notices were forwarded and received. I am also satisfied that Mr George did not comply with his obligations under the notices.
41. There are a number of duplicate recipient notices attached to the T‑documents which consistently record the obligation to notify Centrelink if he was undertaking paid work for more than 20 hours per week and if he receives income from work. The first notice after commencement of payments of CP is at page 270 and is dated 27 July 2001. On that date Mr George was not working. He did not work between July and September 2001 when he cared for his wife on a full time basis by reason of his parents being away on holidays (his mother previously being the carer during the day when he was working). But that form records that the combined annual income as understood by Centrelink was $2.52 and within the recipient notice there is an obligation to notify Centrelink if your combined income has changed. Having regard to the income earned after November 2000 it would have been obvious to Mr George at July 2001 that the combined annual income of himself and his wife was greater than $2.52.
42. In another recipient notice (by way of example) dated 7 September 2003 (p288) the combined annual income is recorded as ten cents. There was a recipient obligation to notify Centrelink if he had been undertaking paid work for more than 20 hours per week, if he or Mrs George started to receive income from work and if the combined income has changed. An examination of the pay records indicates that for the week ending 7 September 2003 (p83) Mr George worked 24 hours and was paid $394.58 gross.
43. The failure to declare income, the declarations to Centrelink that he was not currently employed (at 10 June 2003, p44) and had not done any paid work in the last 12 months (at 1 July 2003, pp68 – 69) and the failure to comply with recipient notices by the failure to declare income have caused benefits to be paid to which either Mr and Mrs George were not entitled or were entitled in a lesser amount.
44. I therefore reject his assertion that he was not ever notified of his obligation to notify of income received and I equally dismiss his assertion that payments were made by the mistake of Centrelink. Additionally there was no mistake on the part of Centrelink in making payments of CP. He claimed it, and he qualified for it, (by reason of his wife’s illness only) and he continued to receive that benefit for approximately three years. There is additionally no merit in the assertion that Centrelink should have had regard to his income tax records and had that been done, the overpayment would not have occurred. It was he who failed to honour the recipient obligations and by reason of the representations that he made – and did not make – payments were made to him and his wife to which they were not entitled in whole or in part.
45. However it became obvious to the authorised review officer who examined the wage records that throughout the period of CP Mr George did not ever have an entitlement to it. The absence of entitlement is exclusive of any recipient notification obligations. As referred to earlier (paragraph 17), the legislation provides an ameliorating opportunity to engage in paid work yet be deemed as continuing to provide constant care so long as the cessation from care does not exceed 20 hours per week. The wage records demonstrate that Mr George consistently worked more than 20 hours per week. CP should never have been paid. The recipient notices required him to declare if he was undertaking paid work for more than 20 hours per week. He failed to make that declaration in each fortnight that he received a payment of CP.
46. I am therefore satisfied for all of the above reasons that Mr George was overpaid CP and Mrs George was overpaid PP. I am also satisfied that the overpayment of CP should be restored to the sum of $25,450.61 in lieu of the amount decided by the SSAT being $14,498.39. Centrelink was aware he did not work between July and September 2001 and took that into account in calculating the overpayment (refer p141).
write off/waiver
47. A debt may only be written off under s 1236(1A) of the Act if it is irrecoverable at law or the debtor has no capacity to repay or the debtor’s whereabouts are unknown or if it is not cost effective for the Commonwealth to recover it. The debts against the applicants are recoverable, their whereabouts are known and recovery by pension withholdings – if that decision is made by Centrelink – would not incur any cost to the Commonwealth. I readily acknowledge that Mr and Mrs George are in a perilous financial situation. Their current combined income from NSA, DSP and FTB is $990.00 per fortnight but they have a mortgage payment alone of approximately $800.00 per month. They have a dependent nine year old child who attends school, there are considerable expenses for the medical care of Mrs George – and Mr George who has a recurring right arm injury – but there would be a capacity to repay the debts at the present time, although in very modest amounts. Accordingly this section cannot be satisfied.
48. A debt may be waived in whole or part if it is attributable solely to an administrative error made by the Commonwealth if the payments were received in good faith under s 1237A(1) of the Act. This section does not apply. For the reasons given above the debts to which Mr and Mrs George are now exposed were not attributable solely to an administrative error made by the Commonwealth. Nor could it be found – again for the reasons given earlier – that payments were received in good faith.
49. Waiver of the debts is possible if there are special circumstances but only in the limited basis provided by s 1237AAD of the Act namely, the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation or failing to comply with a provision of the Act and there are special circumstances, other than financial hardship alone, that make it desirable to waive. Additionally there must be a finding that it is more appropriate to waive than to write off the debt.
50. The construction of this section must be examined. Firstly, I am satisfied that the debt to which Mrs George is exposed was not of her making and would appear entirely to have occurred by reason of the representations – and the failure to make proper representations and notifications – to Centrelink by her husband. Whilst it can be concluded that her debt did not result wholly or partly by her knowingly making a false statement or representation or failing to comply with the provision of the Act, the debt did occur by the actions of her husband, he being another person and who was the person who knowingly made false statements or false representations and failed or omitted to comply with the Act.
51. Mr George had actual knowledge of his reporting obligations. He did report some of his income when in receipt of NSA but then ceased. He did report to Centrelink when he travelled overseas. He knew he was obliged to report if he was working – he signed declarations to this effect and falsely answered questions asked of him about employment and income in claim forms. Knowingly is a derivation of to know, that is, to possess knowledge or information. Because he had knowledge of his obligations, he consciously failed, to honour his reporting obligations. He knowingly made statements or representations which were false (refer Re Morgan and Secretary Department of Family and Community Services [1999] AATA 350; Re Callaghan and Secretary Department of Social Security (1996) 45 ALD 435). In the alternative, he did fail or omitted to comply with the Act (for example, failing to comply with recipient notices, which I have found, were received – refer s 67(2) of the Social Security (Administration) Act 1999).
52. With respect to the issue of special circumstances, I would readily acknowledge – as I did at the outset – that the disruption to the George family has been acute by the severe illness suffered by Mrs George and her need for ongoing treatment. They are presently financially insecure but as may be seen by this section, financial hardship alone is not a special circumstance. It was also learnt that Mr George has suffered a severe right arm injury which has precluded him from being employed in recent years, that he has been engaged in proceedings in the Industrial Courts against his former employer and his future prospects of obtaining work appear to be bleak. I would also acknowledge that his concern for his wife in recent years has been profound and he has suffered stress and anxiety because of that concern.
53. But the word and appearing after s 1237AAD(a)(ii) indicates that special circumstances can only be considered if a debtor is able to satisfy the first sub‑section. For the reasons given above I am not satisfied that Mr or Mrs George satisfy that sub‑section. That is, the debts did result wholly by Mr George (the other person) making a false statement or false representation and having failed or omitted to comply with the Act.
54. But even if special circumstances were considered – especially because of the prohibition in consideration of financial hardship – I could not be satisfied as a matter of law that special circumstances do exist. As was decided in Groth v Secretary Department of Social Security (1995) 37 ALD 797 that an applicant’s case must be distinguished from the usual or ordinary case which was decided as being a case which was unfair, unintended or unjust and which possessed some features out of the ordinary. Illness is not a circumstance which is special. It is unfortunately common. In some circumstances illness can be severe and can cause considerable disruption and dislocation – no less in the present circumstances. But Mr and Mrs George presently do receive a combined fortnightly income from the Commonwealth of $990.00 in pension and benefits. They have received monies to which they were not entitled during a period of time when Mr George did earn considerable amounts of money which he did not declare.
55. I cannot in the circumstances find that the circumstances to which Mr and Mrs George are currently exposed are special within the meaning of Groth.
56. I am conscious that the Stay Order previously made by this Tribunal in the applications concerning Mrs George will lapse upon delivery of this decision. I would trust that Centrelink would sympathetically look at the present financial circumstances of Mr and Mrs George in assessing whether there will presently be any pension withholdings and I would trust that in the event that a decision is made to recover the debts by pension withholdings that any sum withheld would be modest and not expose them to any further hardship.
57. Accordingly the decisions of the SSAT concerning the overpayment to Mrs George in the sum of $3460.15 and to her husband in the sum of $3072.00 will be affirmed. The SSAT decision with respect to waiver of the debt to Mrs George in the sum of $17,582.51 will be set aside and in substitution IT IS DECIDED that sum was overpaid to Mrs George, it is a debt and is not waived. The decision of the SSAT which set aside the decision of the authorised review officer by substituting the debt to Mr George with respect to CP in the sum of $14,498.39 will be set aside and in substitution IT IS DECIDED that he has incurred a debt to Centrelink in the overpaid sum of $25,450.61, which is not waived.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDates of Hearing 1 March and 13 June 2007
Date of Decision 22 June 2007
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Miss E King
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