Gibbons and Department of Family and Community Services

[2000] AATA 464

DECISION AND REASONS FOR DECISION [2000] AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  S1999/390

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MARGARET GIBBONS   
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE    

Date9 June 2000

PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside that part of the decision under review concerning the debt for the period 3 July 1997 to 18 December 1997 and in substitution therefor, decides that that part of the debt be waived.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Family Allowance – overpayment – failure to advise – special circumstances – disabled children – best interests of the child in administrative decision making considered
Social Security Act 1991 ss.885, 1223, 1237AAD, Module H
Social Security (Administration) Act 1999 s.126
Secretary, Department of Social Security v Hales (1998) 153 ALR 259
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Re Ward and Secretary, Department of Social Security (1985) 7 ALN N66
Director-General of Social Services v Hales (1983) 47 ALR 281
Re Secretary, Department of Social Security and Hanna (AAT 12,514, 22 December 1997)
Minister for Immigration and Ethnic Affairs v Teoh(1995) 128 ALR 353

REASONS FOR DECISION

9 June 2000    Senior Member J.A. Kiosoglous MBE                   

1. This is an application by Mrs Margaret Gibbons (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 6 September 1999 (T2) affirming the decision of an authorised review officer (ARO) dated 9 July 1999 (T20) affirming the delegate's decision of 1 June 1999 (T14) to raise and recover a debt of Family Allowance in the amount of $3,554.30 representing the period 3 July 1997 to 4 November 1998.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T20), together with three exhibits, one lodged by the applicant (Exhibit A1) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant's husband, Mr I. Gibbons, who appeared on his wife's behalf. The respondent was represented by Mr A. Goldie, a departmental advocate.

3. As the Department set aside the decision in relation to that part of the debt relating to the 1998 calendar year, pursuant to section 126 of the Social Security (Administration) Act 1999 (the SSA Act), the issues for the Tribunal are whether or not there is a debt for the period 3 July 1997 to 18 December 1997 in the amount of $1,316.90; and if so, whether part or all of that debt should be waived.
   history of the application

4. The applicant received Family Allowance from the start of 1997 based upon an actual combined income of her and her husband for 1995/96 of $63,893.  On 24 June 1997 the applicant provided an estimate of income for 1997/98 in the amount of $60,000 (T5).  The applicant received Family Allowance between 3 July 1997 and 18 December 1997 on the basis of the estimate provided.  The actual combined income for 1997/98 was more than 110% of the estimate and, the actual entitlement being nil, a debt was raised accordingly on 1 June 1999 (T14).

5. In respect of the period 3 July 1997 to 18 December 1997 this decision was affirmed upon review by an ARO and the SSAT, and not changed by the delegate in the subsequent reassessment pursuant to section 126 of the SSA Act.
   evidence and submissions on behalf of the applicant

6. The applicant's husband, Mr Ian Gibbons, gave evidence and made submissions on behalf of the applicant.  He stated that the debt arose through no fault of his wife or himself and that given the vagaries of his police work and her nursing, it was difficult to estimate income accurately.  He stated that he rang Centrelink to ask for assistance in completing the relevant forms in 1997 and received incorrect advice that the estimate only needed to be within 25%.  On this basis he submitted that the debt resulted from departmental error.

7. In respect of waiver, Mr Gibbons told the Tribunal about the difficulties the family has had and is having, in particular, the failure of a business and subsequent bankruptcy in 1996, leading to the loss of a house and car. 

8. He also told the Tribunal about the problems with two of his four children (aged 16, 13, 12 and 6 years).  Luke, their 13 year old, has been diagnosed with attention deficit disorder for the past seven years, takes daily dexamphetamine, and has paediatric and psychological expenses associated with the condition.

9. Joshua, their 6 year old, has cerebral palsy and micro cephalic epilepsy.  He has a life expectancy of five to ten years and requires an enormous amount of care and attention, including one and a half hours of physical therapy daily from the parents, physiotherapy, paediatric and other medical care requiring at least three trips to the city or Strathalbyn per week.

10. Expenses associated with Joshua have included a walker (purchased in 1998 and which necessitated a trip to Sydney) costing $8,000 total, communications equipment $1,500, computer equipment $4,000, wheelchair $1,500 (in need of a new one), kitchen chair with moulding $1,100, wheelchair adapted van (with fitout) $33,000, medical expenses $30/week, food $20/week plus specially prepared separate food, a mobile toilet costing several hundred dollars, standing frame $920, foam therapy device $500, AFO inserts $850/year, access cabs (four per fortnight), petrol $600/month back and forth to Adelaide.  He stated that the family also took Joshua to the Gold Coast in September 1998 to try to show him more of the world given his shortened life span.  He stated that he and his wife have loans totalling $45,000 most of which relates to Joshua.

11. He told the Tribunal that he is a police officer in Murray Bridge, a reasonably small town, some 75 kilometres from Adelaide.  He and his wife have chosen for their children to attend high school in Adelaide (the elder two currently do, with the younger children attending primary school in Murray Bridge), in order that they can receive a Catholic education.  He is also concerned for their safety if they attend the local high school because of his role in the community and the possibility that could be arresting fellow students and their parents regularly.  He told the Tribunal that his children and his wife have been threatened in the past, (his wife on three occasions) because of his occupation.  The last threat to his wife resulted in an injury requiring surgery and from which work difficulties have now arisen.  It costs $135 per month per child in bus passes to get from Murray Bridge to the city and back.

12. He told the Tribunal about the difficulties he would have in the future with his rent, in that although subsidised, the differential between what he pays and market rate will now appear as income on his group certificate, which will reduce his benefit eligibility.

13. He submitted that the family's circumstances and the care, expense and time required by Joshua made the family's circumstances exceptional.  The Tribunal notes the following from his written statement (Exhibit A1):

    "…
    … As a father and a mother to see their child who has been given a life expectancy of between 5 and 10 years suffer is special and exceptional.  Not to be given the joy of hearing your son talk or even say daddy or mummy is exceptional not merely strained.  Not to see your son walk or eat properly, to spend countless sleepless nights tending to your child who can't tell you what [is] wrong is exceptional.  To see your son covered from head to toe in plaster for three month is exceptional, to see your son have a gastroplasy inserted by mistake and then have another unwarranted surgery and scar to remove it is exceptional.  As a parent to see these things and to be told that our situation is merely strained is not only naive but offensive.
    We have 4 children, can't you see that because of Joshua's needs our other children go without our attention and suffer themselves to see there (sic) brother in these circumstances.  To be a child and to think that each year may be your brothers last is exceptional.
    How do we as parents possibly make up for this void that has been made to our other 3 children because of Joshua's condition.
    …"

respondent's submissions

1. Mr Goldie submitted, on behalf of the respondent, that a debt was correctly raised in that Module H, sections 885 and 1223 of the Social Security Act 1991 (the Act) had been correctly applied in this case.

2. He submitted that whilst the Department is sympathetic to the plight of the Gibbons family, there is a demonstrated capacity to repay the debt without compromising the parents' commitment to their children.  In his submission Mr and Mrs Gibbons' actions are choices they make.  He submitted that families should live within their means and that many families have disabled children and send their children to government schools.
   discussion and findings

3. Whilst Mr Gibbons sought to challenge the debt on the basis of alleged erroneous advice provided to him in telephone conversations, the Tribunal considers that even if such erroneous advice was given, it did not really have any ultimate effect upon the raising of a debt.  Whether or not it was 10 or 25 percent, Mr Gibbons tried to estimate as close to the actual mark as he could.  It is unlikely that such erroneous advice would have made a substantive difference to the provision of an estimate.  Furthermore, it is twice stated on the estimate form that recalculation may occur if the estimate is not within 10 percent (T5/28 and 31).

4. The Tribunal is satisfied, and so finds, that Module H and sections 885 and 1223 of the Act have been correctly applied in respect of the second half of the 1997 year, and that a debt for the period 3 July 1997 to 18 December 1997 has been correctly raised.

5. As there is clear capacity to recover the monies by way of deduction from future benefit entitlements, the Tribunal so finds the write off provisions of the Act to be inapplicable in this case.

6. There is no dispute that paragraph 1237AAD(a) of the Act is satisfied and the Tribunal further finds, on the basis of the above findings in paragraph 18, that 1237AAD(c) of the Act is similarly satisfied (following Secretary, Department of Social Security v Hales (1998) 153 ALR 259 at 268 where the relevant relationship between 1237AAD(c) and the write off provisions is canvassed).

7. "Special circumstances" is most often defined by reference to two Tribunal cases, Re Beadle and Director-General of Social Security (1984) 6 ALD 1 and Re Ivovic and Director-General of Social Services (1981) 3 ALN N95.  In Re Beadle the Tribunal stated (inter alia) at p3:

   "… The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. … This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
   …"

This definition was not interfered with by the Federal Court in the appeal in that case.

1. In Re Ivovic the Tribunal stated (inter alia) at pN97:

   "… special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate."

2. In Re Ward and Secretary, Department of Social Security (1985) 7 ALN N66 at pN69 Senior Member Dwyer discussed the ramifications of Director-General of Social Services v Hales (1983) 47 ALR 281 as it affected the then section 140 of the Act and noted the following matters as relevant considerations to the appropriateness of an exercise of the conferred discretion:

   "…

   (i)the fact that the applicant has received public moneys to which she was not entitled;

   (ii) the way in which the overpayment arose whether as a result of innocent mistake or fraud;

   (iii)       the financial circumstances of the prospective defendant;

   (iv)       the prospect of recovery;

   (v)      whether a compromise is offered;

   (vi) whether recovery should be delayed if there is a prospect that the proposed defendant's circumstances may improve or that the person may again become a beneficiary so that s 140(2) would become applicable;

   (vii) compassionate considerations and the fact that the Act is social welfare legislation and the Secretary should have regard, inter alia, to any financial hardship which may result from an action for recovery.

   …"

3. Such factors are also relevant to the subsequent legislative inclusion of "special circumstance" provisions.

4. In considering the circumstances of this case, the striking feature of Mr Gibbons' evidence was the enormity of the burden he and his wife bear.  They are obviously loving, devoted and caring parents, striving to do the best for all their children, and Joshua in particular, under trying conditions.  One feels immediate sympathy for the tragedy of their situation.  This Tribunal must be careful however, to distinguish sympathy from special circumstances.  There are many occasions where the Tribunal is sympathetic but cannot find special circumstances, which must, by virtue of the legislation and case law in respect of that term, involve circumstances with that exceptional, uncommon or unusual aspect to them.  Member Bullock succinctly states what is required of the Tribunal in such circumstances in Re Secretary, Department of Social Security and Hanna (AAT 12514, 22 December 1997) at paragraph 77 (inter alia):

   "… the combined circumstances of Mrs Hanna's health, social functioning, isolation, age and financial circumstances viewed as a whole are extremely sad.  Many cases coming before the Tribunal involves circumstances which are sad and indeed, tragic, but an application of the legislation and the case law to such individual circumstances may in some instances have not warranted the exercise of discretions arising out of the various legislative provisions dealing with special circumstances.  In Mrs Hanna's case, the Tribunal asks the question, are Mrs Hanna's extremely sad circumstances "special"? Are they unusual, exceptional and out of the ordinary when considering the impact of debt recovery proceedings on her?…"

5. The Tribunal is particularly mindful of paragraph (vii) in Re Ward, in considering the overall effect of the debt recovery as against the impact debt recovery might have on the Gibbons family.  In particular, the Tribunal is mindful that it should have regard for the best interests of the children in considering these potential effects and in administrative decision making in general.  This is a point well made by Gaudron J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 at p375 where, albeit obiter dictum in the context of legitimate expectation and  procedural fairness, the learned Judge commented (inter alia):

   "In my view it is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case. …
   …
   "

6. In this case, whilst the consequences are obviously not as drastic as those in Teoh (that case concerning deportation of a parental figure) it is appropriate to bear in mind the effect debt recovery would have upon the quality of life of the four children, and Joshua in particular, given his limited life expectancy and the compassionate social welfare considerations outlined in Re Ward.  It would surely not be in accordance with common law and legislative principles to prefer debt recovery to the enhanced quality of life that may be afforded young Joshua by exercising discretion in this case.  The public interest in ensuring Joshua has a quality life for the time he has remaining must surely be said to outweigh the public interest in recovering monies paid to the applicant to which she was not entitled.  Whilst recovery (and recoverability) of monies to which a person is not entitled must always be a paramount consideration, as noted in Re Ward, the Tribunal must also consider the best interests of the child in exercising its discretion (Teoh).

7. The ability to effect recovery of the monies is forefront in the Tribunal's mind but it is mindful of such prospects in the light of the best interests of the children and in the light of the financial burden faced by the Gibbons family over and above that faced by other families with four children, and indeed families with disabled children The expenses associated with Joshua's care appear to be unusual and exceptional, as compared to other disabled children, and appear to be expenses over and above those for which the provision of Child Disability Allowance and Family Allowance is intended.  Whilst some such expenditure may be said to be discretionary, it is only discretionary within the context of providing a quality of life against which it would be unreasonable to argue Whilst the Tribunal agrees with Mr Goldie that there is a demonstrable capacity to repay, it does not agree necessarily that such repayment can be affected without compromising the parents' commitment to their children.

8. In respect of the decision to send the children to non-government schools, the Tribunal notes Mr Goldie's submission that this is a matter of choice, but also considers that it is a choice which must be viewed in the light of the size and constitution of the Murray Bridge community and of Mr Gibbon's difficult role in policing the area.  The Tribunal accepts his evidence that there are real concerns for his children's safety in attending the local school in that environment.  Further, it is a fundamental tenement of our tolerant liberal democracy that people be free to choose to educate their children in an environment which includes religious instruction.  In this case, the Gibbons wish to educate their children in a Catholic environment, and this limits the choices of schooling in the Murray Bridge area.  Whilst this "choice" of education is not a special circumstance, it equally does not vitiate consideration of the other circumstances of this case which may warrant the exercise of special circumstances discretion. 

9. Accordingly, mindful of the whole of the circumstances of the case, including financial hardship, the burden of caring for two disabled children, the enormous additional burden Joshua places upon them, physically, emotionally and financially, and the public interest that may be served by ensuring Joshua's quality of life over and above the prospects of debt recovery, the Tribunal is satisfied, as a matter of fact, that the circumstances of this case are such that they are uncommon, unusual or otherwise exceptional so as to warrant the exercise of the discretion conferred on the Tribunal by section 1237AAD of the Act and the Tribunal so finds.
   decision

10. For the reasons given and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside that part of the decision under review concerning the debt for the period 3 July 1997 to 18 December 1997 and in substitution therefor, decides that that part of the debt be waived.

    I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  2 June 2000
    Date of Decision  9 June 2000
    Counsel for the Applicant        Mr I. Gibbons (husband)
    Solicitor for the Applicant         -
    Counsel for the Respondent    Mr A. Goldie
    Solicitor for the Respondent    Centrelink