Harvey and Secretary, Department of Family and Community Services

[2004] AATA 308

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 308

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2003/789

GENERAL ADMINSTRATIVE DIVISION		)
Re		CHRISTINE HARVEY

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Deputy President, Don Muller

Date               10 March 2004

Place Brisbane

Decision The Tribunal sets aside the decision under review to raise and recover a debt of $13,216.42. and in substitution determines that recovery of the debt be waived pursuant to section 1237 A (1) of the Social Security Act 1991.

..............................................

DEPUTY PRESIDENT

CATCHWORDS

Social Security-  overpayment- attributable solely to administrative error made by the Commonwealth- payments received in good faith- right to recover waived- decision set aside

Social Security Act 1991 s 1237 A(1)

REASONS FOR DECISION

1.      This is an application to review a decision to raise and recover an overpayment of Disability Support Pension (DSP) to Christine Harvey in the sum of  $13,216.42.  The said overpayment, was made during the period 8 September 2000 to 24 July 2002.

2.      Ms Harvey was in receipt of the DSP from 1994 at the single rate.  She suffers from a mental illness.

3.      In approximately August 2000, Ms Harvey began living in a defacto relationship with her partner. Her partner had a job, which returned to him an annual salary of about $40,000.00.  The fact that Ms Harvey’s partner was earning a significant salary meant that Ms Harvey’s DSP would be reduced pursuant to those provisions of the Social Security Act 1991 which relate to rates of payment.

4.      Ms Harvey gave extensive evidence about her negotiations with Centrelink over the two years or so from August 2000 onwards.  I say that without hesitation I accept her as an honest and truthful person who gave honest and truthful evidence.

5.      I find that:

(a)      As was required by the Act, Ms Harvey notified Centrelink of 25 August 2000 that she was living with a partner.

(b)      In response to that notification Centrelink sent Ms Harvey and her partner a Module P form.

(c)       Ms Harvey told a Centrelink Officer that her partner’s income fluctuated from time to time.  Ms Harvey was told to work out her partner’s average income at the time.

(d)      Ms Harvey returned the Module P form to the office of Centrelink on 12 September 2000.  She or her partner indicated on the form that Ms Harvey’s partner was earning in the vicinity of $39,000.00 per year.

(e)      Records produced by Centrelink (dated 6 April 2001) indicate that Centrelink had noted that Ms Harvey’s partner’s annual income was predicted to be $39,288.00 for the 2000/2001 financial year.

(f)       On the 21 September 2000 Ms Harvey received a letter from Centrelink telling her that her pension was to be reduced to $ 331.70 per fortnight, which was a reduction of about $60.00 per fortnight. There was no part of that letter which indicated how the pension had been calculated or on what basis it had been reduced.

(g)      Ms Harvey rang Centrelink on 29 September 2000.  She wanted to check to see if the reduction in her pension was due to her partner’s wage.

(h)      Centrelink records show that their computer records were accessed twice between 1 and 2 o’clock, on 29 September 2000.

(i)        Ms Harvey was told by the Centrelink officer on 29 September 2000, that her DSP payments had been updated in accordance with her partner’s wage.

(j)        On the 11 October 2000 Ms Harvey received another letter from Centrelink.  This letter said that the pension would be the same as had been notified to her on 21 September 2000, $331.70 per fortnight. The letter contained a line that said:

“combined annual income amount equals $105.72  (Pay CALLN)”.

(k)       The figure $105.72 meant nothing to Ms Harvey.

(l)        On 18 October 2000 she rang Centrelink and asked what the $105.72 was all about.  An officer of Centrelink asked her if she had any bank accounts and then told her that the $105.72 was a figure which was automatically assessed as income by way of interest deemed to have accrued on her bank accounts.  It was not a figure Ms Harvey had provided to Centrelink.

(m)     Ms Harvey had already confirmed that Centrelink had updated her pension payments based on her partner’s income.  She was unaware that although Centrelink had recorded her partner’s annual income as $39,288.00, the office thereafter, for some unknown reason, calculated her DSP on the basis that her partner had a nil income.

(n)      Ms Harvey continued to receive the DSP at the same rate for the rest of 2000, and into early 2001.

(o)      On 15 March 2001, Centrelink wrote to Ms Harvey to tell her that her pension had increased to $355.65 per fortnight due to rent assistance, because her Family Tax Benefit (FTB) had been cancelled.  This made no sense to Ms Harvey because she was not at that stage renting and she believed that she was entitled to Family Tax Benefits.

(p)      She rang Centrelink on the 22 March 2001 to inquire about this rent assistance and the FTB.  She was told that if she was paying a mortgage while she was on the DSP she was entitled to rent assistance. She was then put through to the Families Department who told her that there was no record of the FTB ever having been cancelled.

(q)      Rent assistance continued to be paid.

(r)       On 6 April 2001, Ms Harvey received a letter from Centrelink informing her that their records indicated that her partner’s income was $39,288.00 per annum (which was in line with her partner’s actual earnings.)

(s)       Ms Harvey still continued to receive the payments of DSP, rent assistance and FTB.

(t)        In July 2002 a cross check by Centrelink with the Australian Taxation Office revealed that Ms Harvey’s partner’s actual income was $38,603.00 per annum.

(u)      In July 2002,Ms Harvey received a letter from Gay Oliver, an officer of Centrelink, saying that Ms Harvey’s partner ‘s income was $38,603.00 but that the Centrelink records showed his income to be $0.

(v)       This was the first hint that Ms Harvey had that she was not entitled to the payments she had been receiving.

(w)      Ms Harvey contacted Ms Oliver and again provided all the details of her partner’s income to Centrelink.  She was told that a debt would have to be raised.

6.      I find that:

(a)Ms Harvey did all that could possibly be expected of her. She told Centrelink that she was in a partnership and that her partner was earning money.  She made a prediction of her partner’s anticipated annual income, which prediction was remarkably accurate.

(b)She checked to make sure that her DSP was calculated on the basis of the new information.  When she inquired about the figure of $105.72 which appeared on her statement, Centrelink reassured her that this sum was calculated as income from interest on the basis of her credit in her bank account.

(c)She thought that she was entitled to rent assistance after checking with Centrelink.  An officer told her that she was entitled to it.

(d)The overpayment was attributable solely to administrative error made by the Commonwealth.

(e)She received in good faith the payments that gave rise to the debt.

7. Under the circumstances, I am required by section 1237A (1) of the Act to waive the right to recover the debt.

8.      The decision under review is set aside.

I certify that the  8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Muller

Signed:         .....................................................................................
  C. O’Donovan Associate

Date/s of Hearing  10 March 2004
Date of Decision   10 March 2004

Representative for the Applicant         Self represented    

Advocate for the Respondent        Ms. Helen Wallis-Dunn