Harris and Secretary, Department of Family and Community Services
[2005] AATA 45
•19 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 45
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/36
GENERAL ADMINISTRATIVE DIVISION ) Re Mr John Harris Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Senior Member Joan Dwyer Date19 January 2005
PlaceMelbourne
Decision The decision under review is set aside. In substitution, the Tribunal decides that Mr Harris was not overpaid rent assistance in respect of the period 10 December 1999 to 14 January 2003.
[sgd] Joan Dwyer
Senior Member
SOCIAL SECURITY – whether overpayment of rent assistance – applicant shared house with adult son – finding that applicant paid rent and son made contributions for expenses – no overpayment of rent assistance – decision under review set aside.
Social Security (Administration) Act 1991, s 179.
Social Security Act 1991, s1064.
REASONS FOR DECISION
Senior Member Joan Dwyer 1. This is an application under s 179 of the Social Security (Administration) Act 1991 (“the Administration Act”), for review of a decision of the Social Security Appeals Tribunal (the "SSAT") made on 2 December 2003. The SSAT affirmed a decision made on 31 January 2003, to raise and recover a debt of $5588.08 from Mr Harris. That debt is in respect of the payment of rent assistance from 10 December 1999 to 14 January 2003.
2. Mr Harris appeared and gave evidence at the hearing. Ms Navarro, an advocate with the Centrelink Service Recovery Team appeared for the Secretary. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T‑documents”) and the exhibits tendered the hearing.
3. The issue in the matter concerns the payment of rent assistance to Mr Harris on the basis that he paid $100.00 per week rent in respect of the house he shares with his adult son, Mr Geoffrey Harris. Mr Geoffrey Harris was also paid rent assistance for the same period, calculated on the basis that he paid $50.00 per week rent. The total rent for the property was $100.00 per week. Mr Geoffrey Harris did not attend the hearing, although he had previously, in a telephone directions hearing on 6 July 2004, indicated that he would do so. His father said that Geoffrey had recently been in hospital and would not be able to attend the hearing or to give telephone evidence.
4. At the conclusion of the hearing at Sale on 6 August 2004, I indicated that on the evidence I had heard from Mr Harris, I may find that he had not been paid rent assistance to which he was not entitled, and that his rent was $100.00 per week. Such a finding would suggest that his son, with whom he shared the house, may not have been entitled to the lesser amount of rent assistance he had received.
5. There was discussion at the hearing as to whether the matter should be resolved on the basis that Mr Harris was not paid rent assistance to which he was not entitled, but that he would refund, on behalf of Mr Geoffrey Harris, the amount of rent assistance he had been paid. That amount would have been approximately $1500.00 (trans, p58).
6. At Ms Navarro’s suggestion, the Tribunal decided to send a copy of the transcript to Mr Geoffrey Harris and to the parties, and to invite Mr Geoffrey Harris to respond to the matters raised during the hearing, which indicated that Mr Harris may not have been overpaid rent assistance. Those matters were that the lease was at all relevant times in Mr Harris’ name alone, and that he gave evidence that he had always paid the rent and that, although Mr Geoffrey Harris had sometimes contributed to household expenses, he had not made regular payments specifically towards the rent.
7. On 24 August 2004 the Tribunal wrote to Mr Geoffrey Harris (copy to the parties) as follows:
…
The Tribunal heard Mr John Harris’ application for review on 6 August 2004, at Sale. His application is in relation to Centrelink’s decision to raise a debt against him for overpayment of rent assistance.
At the hearing, the Tribunal indicated that it would not make a final decision without first forwarding you a copy of the transcript of the hearing, and giving you an opportunity to comment. A copy of the transcript is enclosed. Please refer especially to pages 57 – 60 and 64 – 69 where the Tribunal indicated the decision it considered appropriate on the evidence it had heard.
After you have read the transcript, in particular the pages referred to, please advise me in writing, by Friday 10 September, whether you wish to give evidence or make any submission in relation to the matters raised. If so, you could give evidence by telephone at a resumed telephone hearing, or you could choose to make a written submission.
…
No response was received from Mr Geoffrey Harris, but on 9 September 2004, Mr Harris wrote to the Tribunal advising that his son Geoffrey “is unable to respond to any questions at this time as he is under a mental health order”.
8. On 7 October 2004 the Tribunal received written submissions from the respondent. Mr Harris did not make any response to those submissions.
BACKGROUND FACTS
9. At all relevant times, Mr Harris was in receipt of a disability support pension (“DSP”). The rate of DSP payable is calculated using the rate calculator in s 1064 of the Social Security Act 1991 (“the Act”). Module D includes a component of rent assistance where a person is paying rent.
10. It is not in dispute that Mr Harris has at all relevant times been eligible to receive rent assistance. The question is simply whether it should have been calculated on the basis that he was paying $100.00 a week rent, being the total rent paid for the house in which he and Mr Geoffrey Harris live, or on the basis that he paid half that amount and his son paid the other half.
WAS MR HARRIS OVERPAID RENT ASSISTANCE?
11. In December 1999 Mr Harris moved to Maffra. He rented a house which he has at all times shared with Mr Geoffrey Harris. The lease has at all times been in the name of Mr Harris alone. Mr Harris produced copies of leases as follows (A1):
DATE
TERM
WEEKLY RENT
NAME OF TENANT
6 December 1999
12 months
$100.00
John Harris
5 December 2000
12 months
$100.00
John Harris
5 December 2001
12 months
$100.00
John Harris
5 December 2002
12 months
$100.00 increasing to $110.00 from 22 March 2003
John Harris
12. The T documents do not include Mr Harris’s original notification of the rent he was paying. The respondent said it is no longer available (Respondent’s Statement of Facts and Contentions dated 26 July 2004). The respondent’s records indicate that on 14 December 1999 Mr Harris advised Centrelink the amount of his rent was $100.00 per week and that amount was verified (T18, pp107 and 108). The problem arose when, in a response he provided on or about 2 December 2002 (T6, p24) , Mr Harris advised that he paid $100.00 per week rent and that he shared the rent with his son Mr Geoffrey Harris who paid $50.00 per week.
13. On 10 February 2003, Centrelink received faxed advice from the estate agent from whom Mr Harris rented his property, that Mr Harris was renting the house and that his rent was $100.00 per week. Centrelink also obtained Mr Harris’s bank records (T11) from December 1999. They showed withdrawals of amounts of $100.00 and $200.00 approximately weekly or fortnightly from December 1999 to May 2000 and no deposits other than Centrelink payments. From May 2000, the withdrawal amounts increased to approximately $400.00 a fortnight and remained at that level until January 2003, the date of the original determination.
14. The index to the T documents states that on 3 January 2003 (T9, pp34‑36) a decision was made to raise and recover a debt from Mr Harris. There is no copy in the T documents of any letter sent to Mr Harris advising him of that decision but the text of the letter may be shown on the computer print out at T9, p34 which states:
…
WHY THIS AMOUNT IS PAYABLE (this heading appears in the advice)
On 10 DEC 1999 the amount you were paying for Private Rent decreased. Payment of rent assistance continued until 14 JAN 2003 at a higher rate than you were entitled to. You have, therefore, been overpaid $5588.08. We are required to recover this amount…
15. It appears that in spite of the information obtained from the estate agent and the information from the 47 pages of bank records provided to Centrelink, the decision was made without any further investigation, purely on the basis of Mr Harris’s response of 2 December 2002 to Centrelink’s request for information (T6, p24).
16. On 6 June 2003, a review officer, who seems also to have been the primary decision maker, wrote to Mr Harris stating that Mr Harris had asked him to “review my decision.” The review officer affirmed his original decision (T14, p101‑102). The note of the reconsideration states (T16, p104):
I have had a number of conversations with client concerning this matter. He has stated during each conversation that he advised Centrelink he was paying $100.00 each fortnight and has demanded to see the original documents he lodged. I have explained to him each time that the original documents are no longer available and that I am basing my decision on the fact he received money to which he wasn't entitled.
While I accept that client was sharing with his son, and that it is likely they had an arrangement to split the rent evenly, I can not accept clients version of events that he advised he was only paying $100.00 rent each fortnight as there is nothing to support this.
The evidence I have used to support my decision is the tenancy agreement dated 30/11/99 in the clients name which states that he was paying $100.00 rent per week and the recipient obligation notices sent to client during the debt period where it is stated that the amount we were maintaining on his record was $100.00 per week.
I do not believe that client deliberately provided incorrect information, and I accept he may not have been aware he was being overpaid, but its my view that he contributed to the debt and as such do not consider waiver action to appropriate in this matter.
17. On 7 August 2003 a Centrelink authorised review officer ("ARO") decided to affirm the decision (T19 p112). He noted (T19 p112):
Spoke to customer. He does not dispute his son was paying half the rent from the time they moved in.
In determining the date of effect of the reduction in the rate of Mr H's Disability Support Pension I was concerned that the letter of 8 November 2000 did not clearly require him to notify a change in the amount of rent he was paying, given that the Residential Tenancy Agreement shows him as the sole tenant liable to rent of $100.00 pw. However, the debt was raised following the provision of a rent certificate. Consequently the date of effect of the rate reduction is the date of the event whether it is determined under section 110 or subsection 118(5).
In his decision statement sent to Mr Harris, the ARO wrote (T19, p116):
Because the original Rent Certificate you provided has now been destroyed there is no solid evidence indicating whether or not the debt was caused by an administrative error. While I do not doubt that you believe that you provided the correct information, and you certainly provided accurate details when asked to complete another rent certificate, I must balance this against the fact that the original certificate was recorded by an experienced staff member. As a result I have decided that there is not enough evidence for me to be satisfied that any part of the debt was caused solely by an administrative error. There is no evidence to indicate that recovery of the debt should be waived under any other provision of the social security law.
18. Until the hearing of this matter, Mr Harris had not claimed that he paid the full amount of the rent for the house in which he and his son live. Accordingly, the ARO, the SSAT and Ms Navarro, in her Statement of Facts and Contentions of 26 July 2004, had accepted that Mr Harris had been overpaid rent assistance. They had considered whether the debt arising from that overpayment should be waived or written off.
19. At the hearing Mr Harris made it clear that he could not remember how he had filled in forms when he first attended Centrelink in Sale in December 1999, but he was emphatic that he and his son had attended the office together and provided the correct rental details. He knew that was necessary as his rent had decreased from the $150.00 per week he had been paying in Melbourne, to $100.00 per week in Maffra.
20. I pointed out to Mr Harris that the lease was in his name so he might well have filled in the form to show that he was paying in $100.00 a week. He replied (trans, p21):
Yes, originally, yes. But I can't prove that now, can I?
21. I then suggested to Mr Harris:
Maybe the problem is more on your son's side of things or maybe the problem is with you not declaring some income you were getting from your son.
He replied (trans, p23):
Well, half the time I didn't get any off him anyway.
…
I was keeping him.
22. I then summarised the position as I saw it:
Yes. Well, I mean he hasn't come today so it is a bit hard to know how to deal with his case. But it may be that that is the thing, that you were actually paying the rent.
He replied:
I was, yes. So I paid it in Melbourne and I paid it up here.
MRS DWYER: Yes. Maybe the situation changed in a sense because one doesn't have very complicated business arrangements in a family when you are living together, but from this date here, 25 January to December you regarded it as your son paying $50 and you paying $50, but perhaps you didn't regard it that way earlier.
MR HARRIS: Well, getting money out of him is like pulling a tooth anyway.
23. Mr Harris said that he paid the rent in cash every fortnight withdrawing it from the bank right across the road and taking it straight across to the estate agent. I explored that further with Mr Harris (trans, p25):
…I mean what happens about the rent or in this time we are looking at? What happened about the rent? What arrangement did you and your son have?
MR HARRIS: I know I just went down and paid the $200, that is all, as far as I know.
MRS DWYER: Well, you see, did your son pay you anything?
MR HARRIS: He used to put in for things, yes.
MRS DWYER: Do you mean for food things?
MR HARRIS: Yes.
MRS DWYER: Or do you mean for the rent?
MR HARRIS: Put in for food mainly. It wasn't really rent. Family members don't put in rent. They put in food money, don't they?
MRS DWYER: Yes, well, it depends the basis they have got the arrangements. Some family members put in just food money. Other family members might say we will split this rent between us.
MR HARRIS: Yes. Well, when he was a kid doing the paper round he used to put in $5 and I didn't have to declare that to Centrelink, did I?
MRS DWYER: No. But how old is he now?
MR HARRIS: He is 29 now.
24. Later on Mr Harris repeated that he was sure he had put the house in his name only. He commented (trans, p27):
Well, I wouldn't have been put him down as paying rent then, would I?
Mr Harris added:
He might have been putting in but he wasn't paying rent I don't think. They changes thing every day. I can't keep up with things the way they change it.
25. Ms Navarro asked Mr Harris further questions about his financial arrangement with his son (trans, p37):
…In relation [to] Mrs Dwyer's questions you raised the issue that your son may not have actually been paying rent, that you were paying the full rent for the premises. Can you remember like which particular fortnight that may have been or if you had any particular arrangements that he would pay for food and then you would take the money out for rent?
MR HARRIS: I don't know, we just work out the situations the way they go. If we need something I just say get a loaf of bread down the street or something, things like that, you know.
MS NAVARRO: Well, what arrangement did you have in the previous rental premises? Like before you moved to Maffra did you have a rental agreement between the two of you about how you would pay rent?
MR HARRIS: No, he just put in when he could. I was working in those days. I think he was working in Melbourne too for a while.
Mr Harris also said that he himself kept all the rent receipts and that they were all in his name (trans, p38).
26. Ms Navarro, in her submissions lodged on 7 October 2004, submitted that the Tribunal should attach little weight to Mr Harris' recollection of events in 1999, and should affirm the decision under review. She submitted further that Mr Harris's evidence that he paid the rent and his son did not contribute rent money should be rejected as it was inconsistent with what Mr Harris had told the SSAT. The SSAT reasons for decision state, in paragraphs 10 and 13:
…
10. In Melbourne he had been paying rent of $165.00 per week. In March 1998 he changed address and was paying $150.00 in rent. Then he moved to Maffra in December. He took the lease to Centrelink. His son was with him when he went to Centrelink. His son filled out a form and so did he. They each put that they were paying $50.00 per week.
11. He cannot remember getting letters from Centrelink. If he did, he would have followed it up.
12. It is up to Centrelink to adjust the rate of rent assistance. He didn't take much notice of what rent assistance was being paid to him.
13. His only income is the disability support pension and he is renting a house which he is sharing with his son. The rent is $110.00 per week and they each pay $55.00.
I note that in that passage, the SSAT does not note that Mr Harris and his son said that they actually each paid $50.00 per week, but just that they claimed they put that on their forms.
27. As I said at the hearing, I accept and find that, as Centrelink has always claimed, Mr Harris did advise Centrelink in December 1999 that his rent had reduced from $150.00 per week to $100.00 per week when he moved from Melbourne to Maffra. There was discussion at the hearing as to the way rent assistance had been adjusted following Mr Harris’ advice that his rent had reduced from $150.00 a week to $100.00 a week. I explained to Mr Harris (trans, p43):
[I]t was adjusted to the amount that is the correct amount if you were paying $100 and that is something that I am going to be thinking about, whether I think you were paying $100 or not. It was adjusted to the correct amount if you were paying $100, but if you were only paying $50 by way of rent it was the wrong amount. That is the question. Do you understand?
28. Ms Navarro submitted that the facts that all the leases are in Mr Harris' name did not “necessarily” mean that only he was paying the rent. She also submitted that I should not accept Mr Harris' evidence that all the rent receipts are in his name as that was not corroborated. I do accept Mr Harris' evidence on that issue as it is consistent with the fact that all the leases, copies of which I have seen, are in Mr Harris' name. The fact that the leases have always been in Mr Harris' name does show that he was the only person who had a legal obligation to the landlord to pay the rent. Mr Harris said that he paid that rent fortnightly. I accept that evidence.
29. If I were satisfied on the evidence that Mr Harris and his son Geoffrey had an agreement that Geoffrey would pay half the rent and that Geoffrey did, in fact, generally do so, that would establish, in spite of Mr Harris being the only person with a legal obligation to pay the rent, that his weekly rent was only $50. That would mean that there was an overpayment of rent allowance to Mr Harris. However, that is not the case. The evidence is not clear. The issue is complicated by the fact that it concerns a family arrangement. Some families may make firm agreements as to sharing expenses and keep to those agreements. Others have very informal arrangements which may or may not be kept.
30. In this matter, I find that the tenor of Mr Harris’ evidence is that as far as he can recollect from 1999 he paid the rent, as he had usually done in Melbourne, and his son sometimes paid something towards the rent but more often put in something for expenses. He said “Family members don’t put in rent. They put in food money don’t they?” (trans, p25). From his comment that it was difficult to get rent payments from his son, I find that Mr Harris accepted the primary responsibility for payment of the rent, but accepted some contributions from his son. That is consistent with the lease documents and with the evidence of fairly regular withdrawals from Mr Harris’ bank account of amounts which were approximately double the fortnightly rent. Mr Harris said they covered the rent and something for food. No doubt his son also made payments toward the household expenses.
31. Ms Navarro also submitted that I should not find from the ATM withdrawals in the bank statements that Mr Harris withdrew and paid the rent from his own bank account. She pointed to one answer that Mr Harris had given when I asked him who actually pays the rent. He replied (trans, p23):
No, whoever goes over to Sale now pays the rent. [emphasis added]
Mrs Dwyer – Whoever goes over?
Mr Harris – Yes, we have only just changed over to Ronchi Wheeler [a new firm of estate agents]
32. I find that answer related to the time since 2003, when Mr Harris and his son both agree that the rent is shared between them. It did not relate to the earlier period. When I clarified that with Mr Harris he replied (trans, p24):
Yes, I went down and paid it every day – every fortnight.
33. Ms Navarro also submitted that clearly some money must have been withdrawn for food and that therefore I should not rely on the withdrawals of $100 or $200 from Mr Harris’ account. When the payments are of $100 or $200, there are also other smaller withdrawals which may well be Mr Harris’ share of the food expenses. As I have already said, from about May 2000, the withdrawals are of approximately $400 a fortnight. They range from $300 - $480, leaving about $100 to $280 per fortnight for food, in addition to rental payments. I find it significant that those large withdrawals are very close to fortnightly (T11). The withdrawals for the year from May 2000, are summarised in the table below. They follow the same pattern throughout the relevant period.
Date withdrawn
Amount(s) withdrawn
Transaction Description
11 May 2000
370.00
Card Entry at Maffra Branch
25 May 2000
400.00
Card Entry at Maffra Branch
8 June 2000
400.00
Card Entry at Maffra Branch
22 June 2000
400.00
Card Entry at Maffra Branch
6 July 2000
380.00
Card Entry at Maffra Branch
20 July 2000
390.00
Card Entry at Maffra Branch
3 August 2000
380.00
Card Entry at Maffra Branch
17 August 2000
420.00
Card Entry at Maffra Branch
31 August 2000
380.00
Card Entry at Maffra Branch
14 September 2000
400.00
Card Entry at Maffra Branch
28 September 2000
400.00
Card Entry at Maffra Branch
12 October 2000
410.00
Card Entry at Maffra Branch
26 October 2000
400.00
Card Entry at Maffra Branch
9 November 2000
400.00
Card Entry at Maffra Branch
23 November 2000
400.00
Card Entry at Maffra Branch
1 December 2000
480.00
Card Entry at Maffra Branch
7 December 2000
400.00
Non-ANZ ATM
21 December 2000
350.00
Card Entry at Maffra Branch
4 January 2001
400.00
Card Entry at Maffra Branch
18 January 2001
170.00
Non-ANZ ATM
19 January 2001
200.00
Card Entry at Maffra Branch
1 February 2001
400.00
Card Entry at Maffra Branch
15 February 2001
400.00
Card Entry at Maffra Branch
1 March 2001
400.00
Card Entry at Maffra Branch
15 March 2001
320.00
Card Entry at Maffra Branch
29 March 2001
370.00
Card Entry at Maffra Branch
19 April 2001
100.00
200.00
ANZ ATM Clayton
ANZ ATM Clayton
26 April 2001
425.00
Card Entry at Maffra Branch
10 May 2001
350.00
Card Entry at Maffra Branch
24 May 2001
350.00
Card Entry at Maffra Branch
34. The submissions on behalf of the respondent rely on the fact that at times Mr Harris said he could not really remember what was happening about rent in the period December 1999 to January 2003. I do not find that surprising bearing in mind that it relates to informal family arrangements. Nor do I find that it provides any reason to doubt the tenor of Mr Harris’ evidence.
35. Ms Navarro also submitted that Mr Harris’ evidence should be rejected because it is inconsistent with earlier statements he had made to the effect that he and his son shared the rent payments, and because it was self-serving. She also suggested that Mr Harris’ evidence that he had not thought it necessary to advise Centrelink of an inheritance he received from his father in the 1990s suggested that he was an unreliable witness. I do not accept that the evidence as to the inheritance is relevant to the issues before me. There is no evidence as to the amount of the inheritance, or whether Mr Harris was in receipt of social security payments when he received it, and if so of the obligations on him at that time.
36. There are some difficulties with the evidence in this matter, particularly due to the inconsistency between Mr Harris having previously claimed that he and his son had advised Centrelink that they shared the rent from the time they moved to Maffra, and the evidence at the hearing. The other difficulty is due to the fact that Mr Geoffrey Harris did not give evidence or respond to the Tribunal’s letter of 24 August 2004.
37. I have however concluded, having had the advantage of seeing Mr Harris give evidence before me, that I accept his evidence that he paid the rent for the house in which he and his son lived, as he was at all times obliged to do under the lease, and that, while Geoffrey Harris did “put in for things” (trans, p25), he did not generally pay $50 per week for rent, in addition to contributions for things such as food.
38. The difference in final result for the family group comprising Mr Harris and his son is very significant. If rent was in fact shared equally Mr Harris has a large overpayment. If it was primarily his own obligation to pay the rent and he did so, then Mr Geoffrey Harris may have a much smaller overpayment. This is beneficial legislation. I would need to be satisfied on the balance of probabilities that the rent was in fact shared equally, in spite of Mr Harris being the only person with a legal obligation to pay it, before I would affirm the decision under review.
39. The evidence was rather of Mr Harris, as the parent, having the legal obligation to pay the rent. He accepted whatever contributions his son made towards household expenses, but he paid whatever had to be paid. The rent had to be paid fortnightly, he was the only person in the household who was under an obligation to pay the rent, and he paid the rent.
40. I found Mr Harris’ evidence credible. I consider that he was confused at earlier hearings and in his correspondence as to what he had told Centrelink in December 1999. I find that Mr Harris has at all times been responsible for and paid the rent on the premises in which he and his son live. I am not satisfied that Mr Geoffrey Harris has been sharing the rent with his father, by contributing half the rent each fortnight. Thus, I do not find that Mr Harris was overpaid rent assistance.
41. As was discussed at the hearing, the effect of this decision is that a smaller overpayment may be raised in respect of rent allowance paid to Geoffrey Harris. That is not strictly relevant to this review, although it did lead to discussion at the hearing as to whether it may be resolved by agreement between the parties, with Mr Harris paying his son’s overpayments, as he indicated he was willing to do. That discussion could not lead to a resolution in the matter, because Mr Geoffrey Harris was not present.
42. The decision under review will be set aside. In substitution, I will decide that Mr Harris was not overpaid rent assistance in respect of the period 10 December 1999 to 14 January 2003. As discussed at the hearing that means that any monies deducted from Mr Harris’ current payments in respect of the claimed overpayment of rent assistance will be refunded to him.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer
Signed: Josephine McKay
AssociateDate/s of Hearing 6 August 2004
Date of Decision 19 January 2005
Applicant’s Representative Self-represented
Respondent’s Representative Ms K Navarro
0
0