Graves and Secretary, Department of Family and Community Services
[2000] AATA 933
•26 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 933
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/424
GENERAL ADMINISTRATIVE DIVISION )
Re ALAN GRAVES
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date26 October 2000
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant owes a debt of $3,130.20 to the Commonwealth, and this debt is written off with date of effect being the date on which the debt was raised.
[Sgd] J D Campbell
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - marriage - delay in notification of marriage - level of income of wife - cancellation of disability support pension - overpayment - debt - member of a couple - waiver - special circumstances - write off
Social Security Act 1991, sections 24, 132, 146, 1064, 1223, 1224, 1236, 1237
Secretary, Department of Social Security v Porter (1997) 48 ALD 343
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Secretary, Department of Social Security v Hales (1998) 51 ALD 695
Re Beadle and Director General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
Dr J D Campbell, Member
Mr Alan Graves ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 2 December 1998 which affirmed the decision dated 14 May 1998 made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") to raise and recover a debt for overpayment of disability support pension to the Applicant during the period 21 November to 19 March 1998. This decision had been reviewed and affirmed by an authorised review officer in a decision dated 23 July 1998.
A hearing was held before the Tribunal on 30 June 2000, at which the self represented Applicant, assisted by his wife, presented oral evidence by telephone. The Respondent was represented by Ms Alex and Ms Antcliffe, advocates from the Administrative Law section of Centrelink.
The following documents were placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. T1-T19 pp 1-74
Applicant's submission dated 14 February 2000 Exhibit A1
Medical report of Dr Davies dated 28 March 2000 Exhibit A2
Respondent's statement of facts and contentions dated 24 March 2000 Exhibit R1
issues
The relevant issues before the Tribunal in this matter are:
1.whether there is a debt of disability support pension of $3,130.20 for the period 21 November 1997 to 19 March 1998; and
2.whether the Applicant should be treated as not being a member of a couple for purposes of the Social Security Act 1991 and if so, for what period; and
3.whether the "special circumstances" waiver provision should be applied in this case:
in particular:
(a)did the Applicant knowingly fail to comply with a provision of the Act; and
(b)are there special circumstances which made it desirable to waive the debt; and
(c)is it more appropriate to waive than to write off all, or part, of the debt.
legislation
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 24, 132, 146, 1064, 1223, 1224, 1236 and 1237.
backgroundThe Applicant has been in receipt of a disability support pension since 23 January 1986. He left Australia for the United Kingdom on 5 May 1997 (T15), and was married in the United Kingdom on 21 November 1997 (T6). On 5 May 1997 the Respondent forwarded a letter to the Applicant advising him of his loss of rent assistance and hence a decrease in his disability support pension payment rate. The letter also stated, amongst other things, that the Applicant must inform the Respondent if he married or started living with someone as if he was married (T3). On 2 January 1998, the Respondent wrote to the Applicant stating that his disability support pension had been suspended as he had not sent back the "overseas review form" (T4). The Applicant had advised by letter dated 19 December 1997 of his extended stay in the United Kingdom (T5) and in response to the letter of 2 January 1998 the Applicant advised of no change in his circumstances (T5). On 4 March 1998 the Applicant returned his completed entitlement review form, and in this he indicated that he had been married on 21 November 1997, and that his wife was earning £310 per week gross (T7).
The Respondent had restored the Applicant's disability support pension on 6 February 1998, with effect 8 January 1998. In the letter of 10 February 1998 the Respondent advised the Applicant of this action, and the Applicant was again advised pursuant to subsection 132 and 133 of the Act that he must notify the Respondent if he were to marry (T8). In response to the receipt of the entitlements review form, the Respondent suspended the Applicant's disability support pension pending full details of his wife's income (T9). The Applicant's wife submitted details of her weekly earnings to £323 gross per week in a letter accompanying completed asset and income details dated 27 April 1998 (T10,T11).
As a consequence of receiving the Applicant's wife's income and assets statement, the Respondent cancelled the disability support pension and concluded that there was a debt of $3,130.20 arising from overpayment of disability support pension during the period 21 November 1997 to 19 March 1998. The Applicant was advised of the cancellation of the disability support pension in a letter dated 14 May 1998 (T16). This decision was in turn reviewed and affirmed by an authorised review officer on 23 July 1998 (T18) and the SSAT on 2 December 1998 (T2).
applicant's evidenceThe Applicant told the Tribunal that he was born on 21 November 1947 in the United Kingdom and has permanent residency status in Australia. The Applicant stated that he had left Taree to travel to the United Kingdom on 8 April 1997 and that he married his wife on 21 November 1997. He further stated that they are currently residing in a house owned by his wife, who has two children who are both studying at university. The Applicant stated that his wife is a qualified accountant, confirmed that her income was £323 gross per week and that they intended to return to live in Australia in August 2000.
The Applicant stated that he was unaware that his disability support pension was an income related pension and that his actions to notify the Applicant were taken in good faith, although delayed by personal illness during the first few months of 1998.
The Applicant stated that, with the cancellation of the disability support pension, he has no form of income and no savings to fall back on. He stated that he was experiencing difficulty meeting medical expenses, particularly for medication. He stated that he uses Ventolin on a constant basis and nicotine patches to assist with overcoming his smoking habit, which has returned as a consequence of his worry over the debt and pension situation. The Applicant stated that he was granted disability support pension in 1983 because of his chronic bronchitis and emphysema. Apart from these ailments he also suffers from "a little" arthritis, dental problems and depression (worry about overpayment). He stated that his wife and children were physically well, and that throughout this episode he had experienced difficulty because of a lack of local and readily available advice.
mrs graves' evidenceMrs Graves, the Applicant's partner, explained to the Tribunal the financial circumstances that were existing, namely:
(a)she did own a house, valued at approximately £65,000, against which she had a mortgage of £40,000; she also had a loan against a life assurance policy of £1,000; she does not own any shares;
(b)weekly income was £323 gross or approximately £900-£1,000 per month of which £340 met mortgage payments, the remainder being for household expenses, water, electricity and council charges and expenses associated with the two children at university; and
(c)it is her intention to partly lease the house when they come to Australia, with one of the children remaining in the house and the lease money received meeting mortgage and associated house expenses.
submissions
The Applicant relied in part on the submissions prepared on his behalf by the Welfare Rights Centre (Exhibit A1) in relation to the existence of a special reason as to why he should not be treated as a member of a couple. Further the Applicant contended that any debt existing should be waived because of special circumstances. He nominated his health conditions, his lack of any form of income, the worry associated with his situation, and his intentions throughout being those of compliance, and not realising in turn that his disability support pension was income related. Further the Applicant nominated the particular circumstances of his wife and her two children at university as being added issues, where it is evident that his financial circumstances are difficult.
The Respondent submitted that that there were no circumstances nominated which would allow the Secretary to exercise a discretion that the Applicant was not a member of a couple and that section 24 of the Act could not be satisfied in the circumstances of this matter.
The Respondent further contended that everything that has occurred in this matter has been the direct result of an action or an omission to act by the Applicant. In so stating, the Respondent contended that the Applicant, being well versed in arrangements surrounding disability support pension payments, failed to notify of his marriage when clearly instructed to do so. It is this failure which has caused the overpayment and debt, and the on going difficulties. There has been no error by the Respondent in their submission, and while appreciating his current lack of personal income, this again is a consequence of his own doing. The Respondent recognises that the Applicant has current financial difficulties in repaying any or all of his debt, in the light of an absence of any income support payments, and is of a view that a write off of the debt may assist until an arrangement can be made for debt repayment on his return to Australia and at which time he is in receipt of some income support payment. The Respondent contends that the Applicant's circumstances are not special and hence waiver is not an option in their submission.
consideration and findingsThe Tribunal, having considered the evidence, makes the following findings of fact:
(a)the Applicant has been a long time recipient of disability support pension on account of his chronic bronchitis and emphysema when he travelled to the United Kingdom in the first half of 1997;
(b) the Applicant did marry his wife on 21 November 1997;
(c)the Applicant did not notify the Respondent of this marriage until his letter of 4 March 1998 was received on 10 March 1998;
(d)the Applicant had been informed on 5 May 1997 and 10 February that he must advise the Respondent within 28 days if he were to marry;
(e)the Applicant does suffer from chronic bronchitis and emphysema;
(f)the Applicant is not residing separately and apart from his wife;
(g)the income of the Applicant's wife is £323 gross per week and that this level of income is sufficient to preclude payment of disability support pension to the Applicant;
(h)the Applicant is without any form of income support payment; and
(i)the Applicant's wife's income is subject to tax, and the after tax income is used to support the children at university, pay for household and mortgage expenses and for her husband's medication.
The Tribunal, in considering submissions relating to whether the Applicant should, for a special reason, not be treated as a member of a couple for the purposes of this Act, notes the particular legislation, which provides:
"24.(1) Where:
(a) a person is legally married to another person; and(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of the Act.
…
1064-A2. Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis (see points 1064-E2. 1064-F2 and 1064-G2 below). They will also be treated as sharing expenses (eg for rent) on a 50/50 basis (see points 1064-D7 and 1064-D8 below).
…
1064-E2. If a person is a member of a couple, add the couple's ordinary incomes (on a yearly basis) and divide by 2 to work out the amount of the person's ordinary income for the purposes of this Module."
In support of the Applicant's contention, the Tribunal's attention was drawn to the case of Secretary, Department of Social Security v Porter (1997) 48 ALD 343, where it was stated:
"Section 24(1) of the Act, however, confers a discretionary power on the applicant – which is exercisable by this Tribunal on review – in effect to waive the application of the above mentioned general rule in a particular case if satisfied that, for a "special reason" in that case, such waiver would be appropriate. That discretionary power must, however, be exercised for the purpose for which it was conferred and having regard to the scope and object of the Act as a whole. The Act is welfare legislation whose general object is to make provision, by way of social security payments, for those who are in genuine need thereof. The purpose of s.24(1) of the Act is to preclude the application of the above mentioned general rule in a particular case if, for a "special reason" in that case, such application would not promote, but would instead impair, the welfare of the relevant "member of a couple" in receipt of social security and, therefore, would not accord with the general object of the Act."
The Tribunal also noted the matter of Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277 where French J at page 282 stated:
"Section 24 requires the decision maker to focus on the position of one person not the couple and to assess whether that person should for a special reason not be treated as a member of a couple. It is possible that in the case of two married persons in receipt of different benefits, each paid at a married rate, one person might not be treated as member of the couple, while the other might continue to be so treated."
In considering the Applicant's circumstances, it is clear to the Tribunal that the Act envisages consideration of the combined income of the Applicant and his partner in determining the rate of disability support pension payable (sections 1064-H2, 1064-E2). Therefore in preliminary comment, any special reason found to exist by the Tribunal, must be based on circumstances that would impair the welfare of the relevant member of a couple, while not destroying the clear intent and integrity of the Act, which is to provide social security payments for those in genuine need thereof.
In further considering this issue, the Tribunal notes that the Applicant has prima facie been deprived of his disability support pension payments because of the income situation of his wife. This absence of any income support payments make him dependent for his existence on his wife's income and accommodation provided by her. However it is the clear intent of the Act, in the Tribunal's view, that this should be the case, and while there is obvious impairment in the loss of income support payment by the Applicant, a benefit by virtue of his wife's income and accommodation does accrue to the Applicant. In real terms the Applicant has received an exchange of benefits, and certainly it would be difficult for him to argue, in all the circumstances that he is in a worse position. It is, in the Tribunal's opinion, a situation where no evidence has been led indicating an inability to pool resources between the Applicant and his wife (with indeed the evidence being to the contrary) and as a consequence the Tribunal finds that in this matter there are no special reasons which would allow the Tribunal to conclude that the Applicant was not a member of a couple. In further commentary the Tribunal also is mindful that the Applicant voluntarily created the situation in which he now finds himself, and that while unaware as to the effect of income on disability support pension, a particular enquiry would have outlined probable scenarios. The Tribunal would further comment that an innocent misunderstanding of what effect a wife's income would have on income support payments is not a sufficient "special reason" for the Applicant to be deemed not a member of a couple.
The Tribunal, in moving to a consideration of the overpayment, notes that the overpayment arose as a result of the level of the Applicant's wife's income pursuant to section 1072 of the Act ("a qualification issue") and a failure of the Applicant to notify the Respondent of his marriage that occurred on 21 November 1997 until 10 March 1998, a time frame much outside the 28 days nominated. The Tribunal notes that the qualification and notification issue have the same date of commencement (namely 21 November 1997) and that the overpayment continued until ceased on 19 March 1998. It is the Tribunal's finding that a debt of $3,130.20 exists for this period pursuant to subsections 1223(1) and (5) (qualification) and section 1224(1) (notifiable events) of the Act.
In considering the issue of special circumstances, the Tribunal notes the particular section which provides:
"1237AAD. 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 false representation; or
(ii)failing or omitting to comply with a provision of this 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."
The Tribunal has already found that the Applicant failed to notify the Respondent of his marriage, and this does indeed constitute in the Tribunal's view a "failing or omitting to comply with a provision of the Act". The Applicant was obliged to notify the Respondent of his marriage pursuant to sections 132 and 133 of the Act and this he did not do. It is the Tribunal's finding that the Applicant did not comply with a provision of the Act. Further the Tribunal finds that the Applicant knowingly failed to do so, because he was provided with instructions that he should and that opportunity arose earlier in communication with the Respondent to notify of his marriage (T5). The Tribunal is not satisfied that the Applicant has met the requirements of section 1237AAD(a) of the Act.
In relation to the issue of special circumstances the Tribunal's attention was directed by the Applicant to nominated circumstances, including his chronic obstructive airways disease and emphysema (arising from his chronic bronchitis) and the medical report from Dr Davies of 28 March 2000, which highlights the effect that this disease has on the Applicant's well-being and sleeping. The Tribunal also notes from this report that the Applicant is on no regular medication. The Tribunal further acknowledges that the Applicant is having difficulty with the overpayment issue, and together with the loss of his income support payments, he finds himself in a position of personal financial difficulty, being dependent on his wife. That this has caused him some personal angst and depression, is stated by the Applicant together with the circumstances outlined and other medical issues of arthritis and dental problems to constitute special circumstances.
The Tribunal, in assessing these issues, had its attention drawn to the matter of Secretary, Department of Social Security v Hales (1998) 51 ALD 695, in which it was stated:
"The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express conclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion."
The Tribunal, in considering all the circumstances, finds that it is not unusual, uncommon or exceptional for an individual who has been in receipt of long term disability support pension to have nominated medical problems and that these often require continuing medication. In examining the financial circumstances of the Applicant and his family, the Tribunal concludes that while these are tightened, they are nothing more than that, in that there exists an asset (albeit mortgaged) and that income and expenditure levels have not been demonstrated to the Tribunal to be incongruent, so much so to create a significant imbalance. Further, while the Tribunal notes that the Applicant has stated that the debt and the absence of income support payments have caused him stress, the Tribunal is of the view that such an effect is not uncommon or unusual. The Tribunal, in considering the statements made as to what constitutes special circumstances by Toohey J in Re Beadle and Director of Social Security (1984) 6 ALD 1, finds that the circumstances are not uncommon, unusual or exceptional and that when considered either alone or together do not constitute special circumstances. As a consequence waiver of the debt is not available to the Applicant pursuant to section 1237AAD of the Act.
In relation to the issue of write off, the Tribunal notes the following provision of the Act which provides:
"1236.(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is recoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt."
The Tribunal acknowledges that the Applicant owes the debt and is not in receipt of any income support payments. It is the Tribunal's finding that the Applicant has no capacity to repay the debt, and further that no evidence has been led that the Applicant has any assets upon which a loan could be raised.
Accordingly it is the Tribunal's finding that the debt be written off pursuant to section 1236(1) of the Act, with the date of such incapacity to repay being the date on which the debt was raised.
determinationThe Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant owes a debt of $3,130.20 to the Commonwealth, and this debt is written off with date of effect being the date on which the debt was raised.
I certify that the preceding 30 paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed: .....................................................................................
AssociateDate of Hearing 30 June 2000
Date of Decision 26 October 2000
Representative for the Applicant Self RepresentedAdvocate for the Respondent Ms A Alex, Ms S Antcliffe
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