Haddad and Secretary, Department of Family and Community Services

[2002] AATA 194

DECISION AND REASONS FOR DECISION [2002] AATA 194

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1754

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

DECISION

Tribunal       Ms J A Shead, Member    

Date22 March 2002

PlaceSydney

Decision      The Tribunal affirms the decision under review.          

..............................................
  Ms J A Shead
  Member
CATCHWORDS
Social Security - disability support pension - whether overpayment of disability support pension – applicant's wife's under declaration of income - whether overpayment was a debt due to the Commonwealth - waiver of debt
Social Security Act 1991 - sections 132, 133, 1224(1), 1237AAD

Secretary, Department of Social Security and Bliss (AAT 11473, 13 December 1996)

REASONS FOR DECISION

Ms J A Shead, Member                

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Yousef Haddad ("Mr Haddad") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 3 November 2000. That decision affirmed a decision made on 31 March 2000 by a Centrelink delegate of the Secretary to the Department of Family and Community Services ("the Department") to raise and recover an overpayment of disability support pension paid to Mr Haddad for the period 16 July 1999 to 10 September 1999(T8). The original decision was reviewed and affirmed by an authorised review officer on 13 June 2000.

1. A hearing was held before the Tribunal on 17 April 2001. Mr Haddad represented himself at the hearing and gave evidence with the assistance of an Arabic interpreter. Ms C Collis, an advocate from the Advocacy and Administrative Law Team at Centrelink represented the Respondent.  

1. Documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents", numbered T1 – T24) were taken into evidence. The following documents were also tendered to the Tribunal at the hearing:

Exhibit A1     Basis of Mr Haddad's Case.          
Exhibit R1     Respondent's Statement of Facts and Contentions dated 12 April 2001.     
Exhibit R2     Letter from Centrelink dated 15 December 1998 to Mr Haddad.        
Exhibit R3     Centrelink computer printout of Mrs Haddad's earned income.          

BACKGROUND

1. By way of background, the Tribunal extracts the history of the matter from the SSAT decision:

   "1.  Mr Haddad was receiving disability support pension. He received correspondence advising him of his obligation to notify Centrelink within 14 days if him or his partner starts of (sic) recommenced work. Mr Haddad's wife declared income on her forms lodged at Centrelink on 16 July 1999. On a data matching review with the Australian Tax Office it was found that Mrs Haddad's signed an employment declaration form. Centrelink received from Mrs Haddad's employer details of her income. Mrs Haddad's income affected the rate of Mr Haddad's disability support pension resulting in an overpayment. Mr Haddad was informed about the overpayment. On 7 April 2000 Mr Haddad asked for a reconsideration of the decision to raise and recover the overpayment. On 10 March a delegate of the Secretary of the Department of Family and Community Services confirmed the decision. Mr Haddad asked for the decision to be reviewed. After reviewing the decision an authorised review officer from Centrelink decided not to change the decision. In a letter to Mr Haddad dated 13 June 2000 the review officer affirmed the decision. Mr Haddad was not happy with this outcome and on 16 June 2000 he lodged a request for review by this tribunal." (T2)

2. The SSAT did not alter that decision, for the reason set out in paragraphs 23 of its decision:

   "23.  There is no suggestion that Mr Haddad knowingly made any false statement. It is accepted that Mrs Haddad did make a false statement when declaring her income. The tribunal accepts Mr Haddad's innocence. It also accepted by the tribunal that he made attempts to inform Centrelink of his wife (sic) earnings. The evidence in front of the tribunal points out that Mrs Haddad knowingly under declared her income. The tribunal arrived to this position after accepting Mr Haddad (sic) evidence during the hearing. The tribunal also accepts that Centrelink could not stop Mr Haddad's disability support pension payment. It appears to the tribunal that Centrelink took action as soon as possible and sought data matching review with the Australian Tax Office. It was then when it was confirmed that Mrs Haddad's income was higher than the one she declared on Centrelink forms. The tribunal noted that Mr Haddad  knowingly accepted the overpayment." (T2)

1. Mr Haddad's reasons for his Application to the Tribunal were:

   "I believe that I am a victim of law which I told the Centrelink about the flase (sic) income my ex-wife used to declare in her statements and they connited (sic) to pay me  disability pension and after so many months wants me to pay back money that I never received from my ex-wife and  because of her fault." (T1)

1. The Tribunal had to determine the application having regard to the written material, the evidence and the case law.

LEGISLATION

1. The Social Security Act 1991 ("the Act"), in so far as is relevant, provides as follows:

   "132(1) The Secretary may give a person to whom disability pension is being paid a notice that requires the person to inform the Department if:

   (a)a specified event or change or circumstances occurs; or

   (b)the person becomes aware that a specified event or change of circumstances is likely to occur.

   133(1) The Secretary may give a person to whom disability support pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of a pension to the person.

   Debts arising from recipient's contravention of Act

   1224(1) If:
   (a) an amount has been paid to a recipient by way of social security payment; and
   (b) the amount was paid because the recipient or another person:
   (i) made a false statement or a false representation; or
   (ii) failed or omitted to comply with a provision of this Act or the 1947 Act;
   the amount so paid is a debt due by the recipient to the Commonwealth.
   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 a 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."

ISSUES BEFORE THE TRIBUNAL

1. The issues before the Tribunal were:

   (a) whether Mr Haddad was overpaid disability support pension; and if so
   (b) whether the overpayment was a debt due to the Commonwealth ; and if so
   (c) whether special circumstances existed to waive that debt.

DISCUSSION OF THE EVIDENCE

1. Mr Haddad told the Tribunal that he recollected receiving a Centrelink letter dated 15 December 1998 (Exhibit R2) informing him that he had been granted a disability support pension.  That letter stated, amongst other things, that he must tell Centrelink if he and his wife's combined income increased and that he had to notify Centrelink within 14 days of any such increase.  He stated that he understood that requirement.

1. Mr Haddad also told the Tribunal that he attended Centrelink at Auburn on two to four occasions because he was concerned that his wife was earning more money than had been disclosed to Centrelink.  He stated that he saw the receptionist who looked at the computer and told him that his wife was submitting fortnightly forms as to the hours she worked and money she earned.  He stated that he had been told:  "Your pension not affected so far.  Go".

1. During cross-examination, Mr Haddad stated that he could not remember when he first became aware that his wife was incorrectly declaring her income.  He had suspicions because his wife would not tell him how much she was earning and he knew that she was away from the house for longer hours.  She had told him that she was working long hours, including working on Saturdays and Sundays, and that she was being paid cash in hand, without paying tax. Mr Haddad stated that he had attended at Centrelink in July and August 1998. 

1. Ms Collis for the Respondent, referred Mr Haddad to the document T4, a record made by Centrelink of various contacts that Mr Haddad had made with the Department.  It was put to Mr Haddad that the first recording on it was dated 23 August 1999 when Centrelink had a data match for Mrs Haddad working at Duncan Mann.  Mr Haddad stated that he had gone to Centrelink before that date.

1. Ms Collis then referred to T5, which was a Centrelink letter dated 24 August 1999 to Mrs Salwa Haddad requesting that she contact a "Melanie" on a certain telephone number of Centrelink to verify her employment details.  Mr Haddad stated that he never saw that letter until it was included in the T-documents.  Mr Haddad was then referred again to T4 and although he agreed it stated "Customers husband contacted on 01/09/99", he did not recollect contacting Melanie.  He re-asserted that he had attended Centrelink at Auburn and that he told the receptionist "I believe, I told him that my wife put not correct.  He said 'What, nothing to do with me.  She puts in the form, does not effect your pension.  You go,' and he laughed at me.  You know, laughed at me like he said you dob in your wife.  That is how he says to me.  He is laughing at me because I am coming and dobbing in my wife. That is it."

1. Cross examination continued as follows:
   .

   "Ms Collis:… I put to you, Mr Haddad, that if an officer had been told that your wife was incorrectly declaring the earning, they would not have stated there would be no effect on your pension without taking further details from yourself, would they ?

   Mr Haddad:     Could be.

   Ms Collis:       Do you agree with that?

   Mr Haddad:As what he said to me, as I told you, why it would not affect my pension because my wife put the form in. That is what he told me – that is, all round, what he told me."

2. The Tribunal discussed with Ms Collis several elements of the case.   Firstly, the evidence of Mr Haddad was that he attended Centrelink at Auburn to disclose that his wife was under declaring her income and that he had attended there before September.  He repeated a number of times that he was told that she had put in the required forms.  On the occasion of his last attendance, Mr Haddad was told the name of the factory where Mrs Haddad worked and that until that time he did not know where she had worked.  The Tribunal accepts that evidence and noted that Exhibit R3 in part supports it.

1. Secondly, Exhibit R3 is an extract of Mrs Haddad's fortnightly continuation forms dated 24 September 1999, 10 September 1999 and 16 July 1999.  The Tribunal noted Mrs Haddad's fortnightly continuation forms giving details of her work and income were not available to it.  Apparently those forms, which do not declare any income, are not recorded.  Ms Collis confirmed that if it was accepted that Mr Haddad did attend at Centrelink, then those dates would have represented the complete record that would have been available on the receptionist's computer screen.   Upon Mr Haddad's evidence there could have only been one form showing on the computer.

1. Thirdly, in relation to the Centrelink notation by an officer by the name of Melanie "Customer's husband contacted on' 01/09/1999" (T4), Mr Haddad had no recollection of contacting a "Melanie" at Centrelink.  In the absence of further evidence from the officer named "Melanie", the Tribunal considered that notation was ambiguous and was unwilling to give it much weight.

1. Like the SSAT, the Tribunal accepted that the ARO correctly extracted Mrs Haddad's income from the employer's records (T20).  Mr Haddad did not dispute that extract.

CONSIDERATION OF THE ISSUES

1. Upon the evidence, it is clear that Mr Haddad received $599.07 overpayment of disability support pension as a result of his then wife's under declaration of income. To be satisfied that Mr Haddad owes a recoverable debt under section 1224 of the Act, the Tribunal must be satisfied that:

   (a)Mr Haddad is a recipient within the meaning of section 1224 of the Act;

   (b) the amount paid to him was by way of a social security payment under the Act; and

   (c) the amount was paid to him because he or another person either:

   i)made a false statement or false representation; or

   ii)failed or omitted to comply with a provision of the Act.

1. The Tribunal is satisfied that Mr Haddad was a recipient within section 1224 of the Act. It was acknowledged by Mr Haddad that he received the Centrelink letter dated 15 December 1998 granting disability support pension (Exhibit R2). The Tribunal is satisfied that the disability support pension was a social security payment under the Act.

1. The letter dated 15 December required Mr Haddad to notify Centrelink within 14 days if his or his partner's combined income increased. It is noted that the Act contains sections that provide, in relation to particular types of income support payment, that a person may be given a notice which requires that person to give certain information which may affect the rate of their payment. In respect of disability support pension, the sections are sections 132 and 133 of the Act respectively. The Tribunal is satisfied that Mr Haddad was given what is commonly called a "recipient notification notice" pursuant to those sections.

1. Having so found, the Tribunal considered whether there are circumstances present which would allow the exercise of the discretion to waive the debt pursuant to section 1237AAD of the Act.

1. Section 1237AAD of the ACT can be briefly summarised as providing a discretion to waive all or part the debt if the Secretary is satisfied as to three things: that the debt did not result wholly or partly from the debtor or another person,

   (i)       knowingly making a false statement,  or a false representation; or

   (ii) failing or omitting to comply with certain provisions of the Act; and

   (iii) that there are special circumstances that make it desirable to waive the debt.

1. The Tribunal accepts that Mr Haddad had not knowingly made any false statement or omitted to comply with any provisions of the Act. Mr Haddad told the SSAT and the Tribunal that he noticed that his rate of pension did not decrease while his wife was working. The Department submitted that it would have been reasonable for him to know that he was overpaid and that Mr Haddad had knowingly accepted the overpayment. Having regard to the evidence, the Tribunal does not agree with that later submission. The debt however arose because Mrs Haddad had made a false statement or representation when declaring her income. That was the written evidence and the evidence of Mr Haddad during the hearing.

1. The Tribunal notes that in Secretary, Department of Social Security and Bliss (AAT 11473, 13 December 1996), Senior Member Allen considered that section 1237AAD cannot be utilised in situations where there have been false statements.

1. The Tribunal therefore, does not consider it appropriate that the discretion under section 1237AAD of the Act be exercised in this matter to waive the debt.
   CONCLUSION

2. The Tribunal affirms the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J A Shead, Member.

Signed:         .....................................................................................
  Associate

Date of Hearing  17 April 2001
Date of Decision  22 March 2002        

Representative for the Applicant             Self-represented     

Advocate for the Respondent                   Ms Collis