Hazim v Secretary, Department of Family and Community Services
[2002] FCA 242
•14 MARCH 2002
FEDERAL COURT OF AUSTRALIA
Hazim v Secretary, Department of Family and Community Services [2002] FCA 242
SOCIAL SECURITY – receipt of payments – whether amounts received a debt due to the Commonwealth – appeal from Administrative Appeals Tribunal – whether variance between tribunal’s findings and its decision an error of law – whether curable under slip rule – whether tribunal correctly identified decision under review – tribunal determined whether marriage-like relationship existed – did not determine whether any false statement or representation or any failure or omission to comply with a provision – whether tribunal should have applied presumption as to marriage-like relationship – whether tribunal dealt correctly with issues of waiver
Social Security Act 1947 (Cth) s 181(1)
Social Security Act 1991 (Cth) ss 4(1), 4(2), 4(2)(b)(i), 4(2)(b)(iii), 4(3), 4(4), 4(4)(a), 4(4)(b), 23(1), 24(2), 43AA, 44(5), 249, 249(1)(a)(i), 282(1), 282, 283, 283A, 283B, 284, 285, 287, 287A, 288, 289, 290, 295, 295A, 295AA, 296, 858, 859, 862, 872, 873, 874, 875, 876, 880, 1066(1), 1066-G3, 1066-H2, 1069, 1069-D9(b), 1069-H1, 1069-H2, 1069-H22, 1224, 1224(1), 1237AAD, 1243, 1247, 1301, Pts 2.17, 6.2, Ch 5
Social Security (Non-Budget Measures) Legislation Amendment Act 1995 (Cth) s 14(c)
Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 3(3)(e), 3(3)(g), 23(1), 25, 43(1), 43AA, 44Commissioner of Taxation v Cooper (1991) 29 FCR 177 referred to
Secretary, Department of Social Security v Salvona (1989) 18 ALD 289 referred to
McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284 referred to
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 referred toTRACEY HAZIM v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
V 263 of 2001GRAY J
14 MARCH 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 263 of 2001
BETWEEN:
TRACEY HAZIM
APPLICANTAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
RESPONDENTJUDGE:
GRAY J
DATE OF ORDER:
14 MARCH 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal, made on 16 March 2001, be set
aside.
2. The case be remitted to the Administrative Appeals Tribunal, differently
constituted, to be heard and decided again in accordance with law.
3. The respondent pay the applicant’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 263 of 2001
BETWEEN:
TRACEY HAZIM
APPLICANTAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
RESPONDENT
JUDGE:
GRAY J
DATE:
14 MARCH 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The questions of law raised by this proceeding relate to an attempt by Centrelink to recover an amount of money alleged to constitute overpayments of social security. The proceeding is by way of appeal on a question of law from the Administrative Appeals Tribunal (“the Tribunal”), pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act”). The respondent is the Secretary of the Department of Family and Community Services (“the Secretary” and “the Department” or “Centrelink” respectively). The relevant legislation is the Social Security Act 1991 (Cth) (“the Act”), as amended from time to time.
History
At some time prior to 24 April 1993, the applicant began receiving payments of a form of social security pension then known as sole parent pension. By that date, she had three children. Between 24 April 1993 and 20 March 1998, she continued to receive regular payments of sole parent pension. She gave birth to two further children on 29 September 1994 and 19 April 1996. The father of these two children is Abdul Karim (sometimes known as Karim Abdul, and referred to as “Mr Abdul” by the Tribunal), who is also the father of another child of the applicant, born on 8 March 1999. On 20 March 1998, as a result of legislative amendment, sole parent pension became known as parenting payment. The applicant received payments of a pension described as parenting payment single from 2 April 1998 to 12 November 1998.
In addition, prior to 2 April 1998, the applicant received payments of a benefit then called family payment. Thereafter, this benefit was called family allowance and the applicant continued to receive it until 19 November 1998.
On 31 March 1998, a Centrelink delegate decided that the applicant had been living in a marriage-like relationship with Abdul Karim since 24 April 1993. This delegate decided that the applicant was indebted to the extent of $41,008.30 in respect of sole parent pension, to which she was not entitled, and which she received between 24 April 1993 and 19 March 1998. Subsequently, two further amounts were claimed, namely $5,069.50 representing alleged overpayments of parenting payment single between 20 March 1998 and 19 November 1998 and $28,600.05 representing alleged overpayments of family payment and family allowance from 6 January 1994 to 19 November 1998.
The applicant sought review of these decisions by a review officer, authorised by the Secretary pursuant to s 1301 of the Act. That officer gave a written decision by letter dated 1 March 1999. That letter contained the following passage:
“I decided that you were living in a marriage like relationship and therefore you were not entitled to all of the PPS paid to you during the period 20-3-98 to 12-11-98 or any of the SPP paid to you during the period 24-4-93 to 19-3-98. You were not entitled to all of the FA paid during the period.
I decided that the reason you were paid in excess of your entitlement is because you did not comply with your recipient obligations and provided misleading statements/representations.
I decided you are required to repay the debt. I have amended the period and amount of the debt as follows:
SPP from 24-4-93 to 19-3-98 $41,008.30
PPS from 20-3-98 to 12-11-98 $5,069.50
FA from 6-1-94 to 19-11-98 $28,600.05
Total debts $74,677.85There are provisions in the Act which allow Centrelink to waive recovery of debts in limited circumstances. However based on the information you have provided your circumstances would not allow waiver of the recovery of your overpayment.
I have decided the debts are to be recovered from you.”
The applicant sought review of this decision by the Social Security Appeals Tribunal (“the SSAT”). On 20 July 1999, the SSAT forwarded its decision and reasons. It expressed its decision in the following terms:
“On 7 July 1999 the tribunal decided to set aside the decision under review and send the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the following:
1 that a marriage like relationship existed from 12 January 1994
2 the amount of the debts be recalculated in accordance with this finding
3 that the debts be recovered.
This means the appeal is partially successful.”
As is apparent from the terms of its decision, the SSAT found in its reasons for decision that the applicant and Abdul Karim had lived together from 12 January 1994 and at all relevant times thereafter.
The applicant then applied to the Tribunal for review of the decision of the SSAT. On 16 March 2001, the Tribunal published its decision and reasons for decision. It reached the conclusion that the period during which the applicant and Abdul Karim had lived as a couple should be further reduced. It found that they so lived between January or February 1994 and September 1996 and between 13 October 1997 and 16 February 1998. The Tribunal expressed its decision in the following terms:
“The Tribunal varies the decision under review to provide that Ms Hazim was a member of a couple and therefore was not qualified to receive payment of sole parent pension or parenting payment between
(i) 12 January 1994 and 4 September 1996 and
(ii) 13 October 1997 and 16 February 1998.”
It is from this decision that the applicant has brought this appeal.
The statutory scheme
At the time when the applicant began receiving sole parent pension, the qualifications for that pension were found in s 249(1) of the Act. For present purposes, the relevant qualification was:
“(a) the person:
(i) is not a member of a couple”.
In order to ascertain the meaning of this qualification, it was necessary to go to s 4. In s 4(1), was the following definition:
“‘member of a couple’ has the meaning given by subsections (2), (3) and (6)”.
For present purposes, subs (6) may be disregarded. Subsections (2) and (3) provided as follows:
“(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the
Secretary’s opinion (formed as mentioned in subsection (3)), living
separately and apart from the other person on a permanent basis; or(b) all of the following conditions are met:
(i) the person is living with a person of the opposite sex (in this
paragraph called the “partner”);(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the
Secretary’s opinion (formed as mentioned in subsection (3)), a
marriage-like relationship;(iv) both the person and the partner are over the age of consent
applicable in the State or Territory in which they live;(v) the person and the partner are not within a prohibited
relationship for the purposes of section 23B of the Marriage
Act 1961.(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and
any joint liabilities; and(ii) any significant pooling of financial resources especially in
relation to major financial commitments; and(iii) any legal obligations owed by one person in respect of the
other person; and(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of
children; and(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each
other; and(ii) the assessment of friends and regular associates of the people
about the nature of their relationship; and(iii) the basis on which the people make plans for, or engage in,
joint social activities;(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that
the people provide to each other; and(iii) whether the people consider that the relationship is likely to
continue indefinitely; and(iv) whether the people see their relationship as a marriage-like
relationship.”Reference should also be made to s 4(4), which was in the following terms:
“(4) If:
(a) a person claims, or is receiving, sole parent pension; and
(b) a particular residence has been, for a period of at least 8 weeks,
the principal home of both the claimant or recipient and a person of
the opposite sex; and(c) the claimant or recipient is not legally married to the other person;
and(d) at least one of the following subparagraphs is satisfied:
(i) a child of both the people also lives in the residence;
(ii) the people have joint ownership of the residence;
(iii) the people are joint lessees of the residence and the original
duration of the lease was at least 10 years;(iv) the people have joint assets with a total value of more than
$4,000;(v) the people have joint liabilities totalling more than $1,000;
(vi) the people have at any time been members of the same
couple;(vii) the people have at any time shared another residence with each
other;the Secretary must not form the opinion that the claimant or recipient is not living with the other person in a marriage-like relationship unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is not living in a marriage-like relationship with the other person.”
One amendment to these provisions of s 4 during the period when the applicant was receiving sole parent pension should be noted. By s 14(c) of the Social Security (Non-Budget Measures) Legislation Amendment Act 1995 (Cth), the words “has a relationship” were substituted for the words “is living” in s 4(2)(b)(i) of the Act. The amendment came into operation on 29 September 1995.
By s 1066(1) of the Act, the rates of various pensions, including sole parent pension, were required to be calculated in accordance with the rate calculator at the end of s 1066. Module G of the rate calculator dealt with the assets test. Reference to the table in item 1066-G3 discloses that the asset value limit was higher for a person not a member of a couple than for a person who was partnered and whose partner received neither pension nor benefit, or a person who was partnered and whose partner received pension or benefit. Similarly, under item 1066-H2 in the rate calculator, the rate of remote area allowance varied according to whether the person concerned was not a member of a couple, was partnered, or was partnered to a partner in gaol. Thus, the status of a person as a member of a couple was relevant to the rate of sole parent pension, as well as to entitlement to receive it.
Also applicable during the time when the applicant was receiving sole parent pension was s 287, which provided:
“(1) A determination that:
(a)a person’s claim for a sole parent pension is granted; or
(b)a sole parent pension is payable to a person;
continues in effect until:
(c)
the pension ceases to be payable under section 287A, 288, 289
or 290; or
(d)
a further determination in relation to the pension under section 295,
295A, 295AA or 296 has taken effect.
(2)
A determination of the rate of a sole parent pension continues in effect
until:
(a)
the pension becomes payable at a lower rate under section 290A, 291
or 292; or
(b)
a further determination in relation to the pension under section 293
or 294 has taken effect.”
Section 287A provided for the cessation of sole parent pension upon the commencement of another social security pension or a social security benefit, youth training allowance or service pension. Sections 288, 289 and 290 provided for the giving of notices to a recipient of a sole parent pension, requiring information of the occurrence of an event or change in circumstances or the giving of a statement. It might be considered that these sections imposed an obligation on the recipient to provide the information, or to make the statement, required by their terms. Section 295 required the Secretary to determine that a sole parent pension was to be cancelled or suspended if the Secretary were satisfied that the pension was being, or had been, paid to a person to whom it was not, or had not been, payable under the Act. Sections 295A, 295AA and 296 related to cancellation or suspension of sole parent pension after the giving of various forms of notice and failure to comply with them.
The Act also contained provisions designed to allow the Secretary to obtain information about the circumstances of the recipient of sole parent pension, and particularly about changes in those circumstances. The purpose of these provisions was no doubt to provide grounds for the exercise of the powers to cancel or suspend payments, or to adjust the rate of payments, if circumstances changed. Thus, if circumstances specified in s 282(1) existed, the Secretary was empowered to give the recipient a notice requiring the recipient to give specified information about the recipient’s relationship with a person with whom the recipient was cohabiting, and any other information that might have been relevant to the question whether the person was the recipient’s partner. By s 283, information received in response to such a notice was required to be used to form an opinion whether the recipient was living with the other person in a marriage-like relationship. Sections 283A and 283B empowered the Secretary to request the recipient of a sole parent pension to provide the recipient’s tax file number and the tax file number of the recipient’s partner. Section 284 empowered the Secretary to give notice to a person receiving sole parent pension requiring the person to inform the Department if a specified event or change of circumstances occurred, or the person became aware that a specified event or change of circumstances was likely to occur. Section 285 empowered the Secretary to give to a person receiving sole parent pension a notice requiring the person to give the Department a statement about a matter that might affect the payment of the pension to the person.
Part 2.17 of the Act provided for family payment, in respect of the dependent children of a person. Section 858 provided for the Secretary to determine to grant a claim if the Secretary were satisfied that the person concerned was qualified for family payment and the payment was payable. Section 859 made provision for the date on which a determination was to take effect. Section 862 provided that family payment became payable to a recipient on the first day on which the recipient was qualified for the payment and no provision of the Act made family payment not payable to the recipient. Section 874 contained provisions, similar in effect to those of s 287, for the continuance in effect of a determination until the payment ceased to be payable or a further determination took effect, or until the family payment became payable at a lower rate or a further determination was made. Similar notice provisions were also found in ss 875 and 876. Section 880 provided for the Secretary to determine that family payment was to be cancelled or suspended, if satisfied that it was being, or had been, paid to a recipient to whom it was not, or had not been, payable under the Act. In relation to family payment, there was also a rate calculator in s 1069 of the Act. Various provisions of the rate calculator took into account whether the recipient of family payment had a partner, eg. 1069-D9(b), 1069-H1, 1069-H2 and 1069-H22.
As was the case with respect to sole parent pension, the provisions of the Act relating to family payment included provisions enabling the giving of notice to a recipient requiring the provision of information that might be relevant to the continuation of the payments of family allowance, or to the rate of those payments. Section 872 provided for a notice requiring the recipient to inform the Department if a specified event or change of circumstances occurred, or was likely to occur. Section 873 related to a notice requiring a statement about a matter that might affect the payment of family payment to the recipient.
At the heart of this case is s 1224(1) of the Act. That subsection currently provides:
“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.”
What is now Ch 6 of the Act contains provisions for review of decisions. Section 1243 provides for review by an authorised review officer. The powers of such an officer are to affirm the decision, to vary the decision, or to set the decision aside and substitute a new decision. Part 6.2 provides for review by the SSAT of a decision that has been reviewed by an authorised review officer under s 1243 and has been affirmed, varied or set aside. The powers of the SSAT are to affirm the decision, vary the decision, or set the decision aside and either substitute a new decision or send the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT.
Another relevant provision is s 24(2) of the Act, which provides:
“Where:
(a)a person has a relationship with a person of the opposite sex (the partner); and
(b)the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a marriage-like relationship; and
(d)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 this Act.”
Section 1237AAD of the Act currently provides:
“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.”
Variance between the Tribunal’s findings and its decision
It is difficult to reconcile some findings of the Tribunal expressed in its reasons for decision with the terms of its decision. In one respect, it is difficult to determine exactly what those findings were. In par [69], the Tribunal expressed a finding that Abdul Karim lived with the applicant at 13 Birch Place, Macquarie Fields as his principal home from 7 February 1994 until about 4 September 1996, when the applicant moved to Melbourne. At par [110], the Tribunal began to consider what it described as the time after 12 September 1996, when the applicant lived in Victoria. After considering the evidence in respect of that period, at par [116], the Tribunal made an express finding that between 4 September 1996 and 7 February 1997 the applicant was not a member of a couple. At par [118], the Tribunal said that it did not find that the applicant was living as a member of a couple from 7 February 1997 to 18 April 1997.
Paragraphs [119] and [120] express a similar finding in respect of the period from 18 April 1997 to 13 October 1997. Paragraphs [137] and [138] express a finding that the applicant was living with Abdul Karim in a marriage-like relationship in the period from 13 October 1997 to 16 February 1998. In par [139], the Tribunal indicated its intention to vary the decision of the SSAT to provide that the applicant was living as a member of a couple from 12 January 1994 to 12 September 1996 and from 13 October 1997 to 16 February 1998. Despite its finding in par [69] (repeated in par [70]), fixing the start of the relevant period as 7 February 1994, the Tribunal stated its intention in par [139] of varying the decision of the SSAT in respect of a period beginning on 12 January 1994. It carried this intention into effect. Again, despite its finding in par [69] that that period ended about 4 September 1996, the Tribunal rendered this date as 12 September 1996 in par [139], but reverted to 4 September 1996 in its formal decision.
Counsel for the applicant contended that the variance between the Tribunal’s decision and its findings amounted to an error of law, justifying an appeal to this Court on a question of law pursuant to s 44 of the AAT Act. He called in aid the proposition that a question of law will be involved in any case where the facts are not in dispute and the only question is whether the case necessarily falls within or outside a statute. See Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 194 per Hill J and the cases there cited. This proposition, in its terms, is inapplicable to the present case. This case does not involve undisputed facts. One of the functions exercised by the Tribunal was to find the facts. The discrepancies between its expressions of its findings within its reasons for decision, and between some of those expressions and its decision, are indicative of errors of fact. Although the Tribunal was engaged in the task of determining whether, and to what extent, particular facts fell within statutory provisions, its error arose from its failure to express consistent findings, and not from any issue of the extent to which the facts found fell within those provisions. In the circumstances, the error did not amount to an error of law of the kind referred to in Cooper.
Section 43AA of the AAT Act provides as follows:
“(1) If, after the making of a decision by the Tribunal, the Tribunal is
satisfied that there is an obvious error in the text of the decision or in
a written statement of reasons for the decision, the Tribunal may direct
the Registrar to alter the text of the decision or statement in
accordance with the directions of the Tribunal.(2) If the text of a decision or statement is so altered, the altered text is
taken to be the decision of the Tribunal or the reasons for the decision,
as the case may be.(3) Examples of obvious errors in the text of a decision or statement of
reasons are where:(a) there is an obvious clerical or typographical error in the text
of the decision or statement of reasons; or(b) there is an inconsistency between the decision and the
statement of reasons.(4) The powers of the Tribunal under this section may be exercised by the
President or by the member who presided at the proceeding to which
the decision relates.”This provision, in the nature of a slip rule, offers the perfect remedy in the circumstances of the present case. The applicant need only point out to the Tribunal the discrepancies and the Tribunal will be able to correct them, so as to give effect to its intention both as to findings of fact and as to its decision. Counsel for the applicant contended that the failure of the Tribunal to apply s 43AA of its own motion was itself an error of law. There might be something to be said for this contention if the Tribunal’s attention had been drawn to the discrepancies and it had failed or refused to remedy them. There was nothing to show that any attempt had been made to have either the reasons, or the decision, or both, corrected.
Even if the variance between the Tribunal’s findings and its decision amounted to an error of law, if this were the only ground on which an appeal was brought to this Court, it would be an appropriate exercise of the Court’s discretion with respect to remedies to decline to make an order returning the matter to the Tribunal. This would be especially appropriate if no attempt had been made to persuade the Tribunal to exercise its power pursuant to s 43AA.
The decision under review
At the outset of its reasons for decision, the Tribunal expressed some uncertainty as to the decision it was reviewing. It said:
“The SSAT did not identify the decision it was reviewing save to say that it was a decision by a delegate of the Secretary, Department of Family and Community Services, affirmed on 1 March 1999, to raise and recover ‘various debts’ as a result of deciding that Ms Hazim and Mr Abdul were living in a marriage like relationship from 24 April 1993.”
After referring to the form of the SSAT decision and to the appearances and evidence before the Tribunal, the Tribunal returned to this subject:
“The vague manner in which the SSAT referred to the original decision is explained by the material before the Tribunal. T111 p411 is a letter from Centrelink to Ms Hazim dated 11 May 1999. It starts with the sentence:
On 31 March 1998 you were advised in writing of a debt of sole
parent pension and asked to repay $41,008.30.However the documents before the Tribunal do not include a copy of any letter or advice dated 31 March 1998. T92 pp332-333 appears to be a printout from a computer screen relating to the calculation of overpayments. It contains a sentence which could have been included in a letter of advice but there is no advice of debt or request to repay in the material before the Tribunal. More significantly there is no decision to raise a debt included in the T documents.
The making of a decision on 31 March 1998 seems to have been inferred from the screen print outs at T92 pp332-333. The reason stated in the print out for raising an overpayment is as follows:
For the period 1/1/94 to 16/2/98 you received Sole Parent Pension
which you were not entitled to as you were a member of a couple,
as advised by you in your statement dated 13/3/98.I have commented on the lack of an identifiable original decision in my last three Social Security decisions, Re Newton and Secretary, Department of Family and Community Services [2000] AATA 349 at paragraphs 36–41, Re Secker and Secretary, Department of Family and Community Services [2000] AATA 290 at paragraphs 1–18 and Re Secretary, Department of Family and Community Services and Wilson [2000] AATA 1077 at paragraphs 2–3. Senior Member Hallowes raised the same issue in Re Leslie and Department of Family and Community Services [2000] AATA 857 at paragraphs 1–2. We are increasingly seeing administrative action being taken to reduce a rate of payment or to raise and recover an alleged overpayment when the T documents do not include a copy of a decision that there has been an overpayment. Similarly material before the Tribunal does not include a copy of any letter notifying the person affected of the making of a decision and telling the person affected the effect of such a decision. This may have repercussions for Social Security recipients who do not know the basis or effect of a decision and therefore do not apply within three months to review that decision (see Re Butt and Department of Family Services [2000] AATA 623).
The issue of identification of the decision under review was not raised at the hearing. Ms Hazim clearly wants a review of the SSAT decision which affirmed the raising of an overpayment. Therefore the Tribunal will proceed to review that decision. I do however suggest that there is a real need for a return to procedures which pay more attention to the process of decision-making and notification. Accurate and efficient administrative review does call for careful identification of the original decision sought to be reviewed. It is a necessary step in ascertaining that the Tribunal does have jurisdiction.
The substantial issue is whether Ms Hazim was living with Mr Abdul as a ‘member of a couple’ during all or any part of the relevant period.”
The manner in which the Tribunal thus interpreted the issue before it appears to have given rise to the form in which it gave its decision, which I have quoted earlier. It is not easy to see precisely what modification or modifications the Tribunal desired to make to the decision expressed by the SSAT. It is probable that the intention was to vary only that part of the SSAT decision that expressed the conclusion that a marriage-like relationship existed from 12 January 1994, by substituting therefor the words of the Tribunal decision. This would leave intact so much of the decision of the SSAT as set aside the decision under review and sent the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the recommendation that the amount of the debts be recalculated in accordance with the SSAT’s finding and that the debts be recovered. In this way, some sense can be made of the formal decision of the Tribunal.
An understanding of the nature of the decision under review must be derived from the terms of the statutory provision pursuant to which the decision is made. In the present case, the source of the power to make the decision was s 1224 of the Act. Counsel who appeared for the Secretary before the Court conceded that no attempt had been made to invoke any other provision of what is now Ch 5 of the Act so as to render the applicant liable to make any repayment.
Section 1224 does not, in its terms, empower any person to make a decision. If the facts referred to in the section have occurred, the section operates to create a debt due to the Commonwealth. The first of those facts is that an amount has been paid to a recipient by way of social security payment. If that fact has occurred, the amount only becomes a debt due by the recipient to the Commonwealth if the recipient, or another person, has done any of the following:
·made a false statement;
·made a false representation;
·failed to comply with a provision of the Act;
·omitted to comply with a provision of the Act;
·failed to comply with a provision of earlier legislation; or
·omitted to comply with a provision of that earlier legislation.
As Lee J said of s 181(1) of the Social Security Act 1947 (Cth) (the earlier equivalent of s 1224) in Secretary, Department of Social Security v Salvona (1989) 18 ALD 289 at 296:
“The sub-section does not provide a right to recover payments made under a mistake however caused. The right to recover overpayments as a debt due to the Commonwealth is limited to payments of allowances, benefits and pensions made in consequence of specified acts on the part of the recipient. Where the right of recovery relies upon a false statement or representation, it will be a threshold requirement to identify the statement or representation before the falsity of that statement or representation can be demonstrated.”
If a proceeding were taken by the Commonwealth to recover a debt, and the relevant court were to find proved the necessary facts, that court would give judgment for the Commonwealth against the recipient for the amount concerned. It would not be necessary for the Commonwealth to prove that any of its officers had made a decision under s 1224 with respect to any of the facts. For practical purposes, however, no such proceeding would take place unless some officer decided to institute it. For that to occur, the officer would have to ascertain that an amount had been paid to a recipient by way of social security payment and that at least one of the other relevant facts had occurred, namely that there was the required false statement or representation, or the required failure or omission to comply with a provision. It would follow from this that the officer would conclude that there was a debt due to the Commonwealth in the appropriate amount. This process is what is often described as raising a debt. Once a debt is raised, ordinarily a demand for payment of it will be made. The question is whether the raising of the debt, or the making of a demand, constitutes a reviewable decision.
In this context, it is relevant to note the provisions to which I have referred concerning review. Both s 1243 (relating to review by an authorised review officer) and s 1247 (relating to review by the SSAT) refer to review of a “decision”. The term “decision” is defined in s 23(1) of the Act in the following terms:
“decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.”
Section 3(3) of the AAT Act provides:
“A reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or
determination;(b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;(c) issuing, suspending, revoking or refusing to issue a licence, authority
or other instrument;(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.”
This definition seems apt to cover at least the making of a demand on the assumption that there is a debt, for the purposes of s 1224 of the Act, if not the process of raising a debt itself. Paragraph (e) appears to comprehend making a demand on the assumption that money is owing. Even without entering upon any consideration as to what limitations might apply to paragraph (g) by reason of the context in which it appears, a decision was made in the present case, so that the processes of review were put in train properly.
It is clear that, in order for a debt to come into existence under s 1224, there must have been a causal relationship between the false statement or representation, or the failure or omission, on the part of the recipient or other person and the payment of an amount to that recipient by way of social security payment. The scheme in respect of each type of pension or benefit received by the applicant requires that a claim be made for such pension or benefit. If the making of the claim involves a false statement or representation, or a failure or omission, of the kind referred to in s 1224, it is relatively easy to understand that a debt has been created. If a determination of the claim has been made on the basis of information supplied in the false statement or representation, or the absence of information that would have been supplied had there been no failure or omission, then the causal relationship will have been established. The test for causation is not intended to be a difficult one. If the information provided in the false statement or representation is a contributing factor in the favourable determination, the relationship will be established. Similarly, if the absence of the information that should have been provided, but was not as a result of the failure or omission, contributed to the favourable determination, the causal relationship will exist. In either case, amounts paid to the recipient as a result of the determination of the claim will be paid “because” of the false statement or representation or the failure or omission. See McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284 at 295 and on appeal McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 618 – 619.
If the original claim did not involve a false statement or representation, or a failure or omission, the question of causation becomes more complex. The scheme of the Act in relation to each of the pensions and allowances received by the applicant is that an entitlement to the payment continues until a decision is made to terminate it. The primary cause of the making of continued payments is therefore the original determination of the claim. This is not to say that there may not be other causes for the continuation of payments. If it can be shown that events have occurred that would have justified a decision that payments should cease, the question must be asked whether the recipient has made a false statement or representation about those events, resulting in the absence of a decision to terminate payments. Alternatively, it must appear that the recipient or another person was obliged by a provision of the Act, or the corresponding earlier legislation, to divulge information about those events but has failed or omitted to do so, and that such failure or omission has resulted in there being no decision to discontinue payments. Again, it may be accepted that the test of causation is an easy one. The false statement or representation, or the failure or omission, must have been a contributing factor to the absence of a decision to terminate payments.
The application of the test, however, will be more difficult in practice. Before the continuing payments can be understood as having been “because” of the false statement or representation, or the failure or omission, it must be supposed that, without the false statement or representation, or if the obligation that gave rise to the failure or omission had been fulfilled, a decision would have been made to discontinue payments. It cannot be supposed, therefore, that s 1224 operates to create a debt in respect of payments occurring immediately after a change in the circumstances of a recipient. For instance, it may be that, on a particular date, a recipient of the sole parent pension commences living in a marriage-like relationship. This event will disqualify the recipient from further payments of that pension. The payments will not cease, however, without a determination that they should cease, in the exercise of the relevant statutory power. It does not follow, however, that a debt will exist pursuant to s 1224 in respect of all amounts paid between the date of the occurrence of the event and the determination that payments should cease. A debt will exist pursuant to s 1224 only if there has been a false statement or representation, or a failure or omission of the kind referred to in the section.
For a decision to be made to raise a debt under the section, there must be a finding as to the date at which a decision to discontinue payments would have been made if the false statement or representation had not been made, or the obligation which the recipient or another person has failed or omitted to comply with had been complied with. In the absence of such a finding, it cannot be said that any particular payment has been caused by the false statement or representation, or the failure or omission.
With the proper construction of s 1224 in mind, in the context of a discussion about the nature of the decision the Tribunal was reviewing, it is instructive to look at the way in which the matter had been treated by the earlier decision-makers. In the decision of the authorised review officer, dated 1 March 1999, the officer expressed a number of findings. These included findings as to statements made by the applicant as follows:
“• in 1993 you stated that the Karim recorded with the Real Estate Agent was your two year old son;
•on 29 December 1994 you stated you were not living in a marriage like relationship and that Abdul visited every weekend and sometimes slept at your home;
•on 17 June 1996 you stated that you were not living in a marriage like relationship and that Abdul visited every weekend and sometimes slept at your home;
•on each of the Sole Parent review forms (SA138) you completed you advised that no other person of then opposite sex, other than your children, lived with you;
•on 16 February 1998 you acknowledged that you had lived with Abdul Karim without notifying DSS/Centrelink;
•on 13 March 1998 you acknowledged living with Abdul Karim since the beginning of 1994;
•on 19 October 1998 you stated that you commenced living in a de facto relationship with Abdul Karim on 23 October 1998”.
The officer also set out the evidence on which the findings were based, including:
“• statements you made on 5-7-93, 16-2-98 and 13-3-98;
• the form “Becoming Partnered” you signed on 19 October 1998;
• the forms (BC37) you signed on 29-12-94 and 17-6-96;
• the forms (SA138) you signed on 20-1-93, 7-2-94, 2-5-94 and 25-7-94;
• records of SPP/PPS and FA payments made to you since 1993;
• the written record of our interview on 18 December 1998.”I have quoted the terms of the officer’s decision earlier in these reasons for judgment. Other than the general accusation that “the reason you were paid in excess of your entitlement is because you did not comply with your recipient obligations”, the officer did not refer to any failure or omission to comply with a provision of the Act or the earlier legislation. The officer’s decision with respect to statements or representations was expressed in terms that they were “misleading”, rather than that they were false.
Assuming that the review officer’s findings about statements were intended to be exhaustive, the earliest of them appears to have been made “in 1993”. This may have been made either in a form signed on 20 January 1993, or in a statement made on 5 July 1993. In either case, it is unclear how the falsity of such a statement was related to the continuation of payments on and from 24 April 1993. The review officer’s mind does not appear to have been directed to the necessity for a causal relationship between the false statement or representation and the continuance of payments. The written decision contains no reference to the possibility of any decision to terminate payments.
The position is similar when the SSAT decision is examined. In its reasons for decision, the SSAT expressed these findings:
“It appears from Centrelink’s file that in 1993 some enquiries were made regarding Ms Hazim’s living arrangements. At that stage Ms Hazim lived at 12/18 Campbell St, Punchbowl and was known by the name of Tracy Dremel. On the [sic] 5 July 1993 Ms Hazim stated that she had rented the property in the ‘name of Karim and Tracy Abdul as the agent would not let me rent it as I am a sole parent. I used the name Karim Addul [sic] as that is my son’s name and I also have a friend with that name. My friend signed the lease but does not live with me...’
In addition to the regular review forms that Ms Hazim completed, on 29 December 1994 Ms Hazim made a statement to a departmental officer to the effect that she was not living in a marriage like relationship with Mr Karim and that he only visits on weekends. She also stated that she had applied for maintenance. By this stage Ms Hazim had moved to housing commission accommodation at 13 Birch Place, Macquarie Fields.
On the [sic] 17 June 1996 Ms Hazim made a further statement that she was not living in a marriage like relationship with Mr Karim and ‘I have asked Abdul to reconcile but he said he was not ready for a relationship just yet. Abdul comes over every weekend to see his children and sometimes he may sleep the night.’”
There are subsequent references in the reasons for decision of the SSAT to statements made by Ms Hazim on 16 February 1998 and 13 March 1998. In these statements, she allegedly confessed to a prior relationship with Abdul Karim.
The reasoning of the SSAT was expressed as follows:
“Ms Hazim’s appeal involve [sic] a number of debts. In each case the debt was raised because Centrelink decided that Ms Hazim and Mr Karim had been living in a marriage like relationship from April 1993. The qualification for sole parent pension (which became parenting payment single) included the requirement that the person was ‘not a member of a couple’ (see section 249(1) of the Social Security Act 1991). Payment of additional family payment was automatic if the recipient was on a pension otherwise its payment was dependent on the income earned by the person and their partner (see section 1069 of the Act as it was until December 1995). Centrelink raised this debt because Ms Hazim was in receipt of the sole parent pension for the period in question and it was therefore found that she made false statements regarding her marital status. From the beginning of 1996, payments relating to children were simplified and additional family payment was replaced with family payment at the maximum rate. Like the debt in respect of additional family payment, the debt for family payment was raised because Ms Hazim had not declared that she was in a marriage like relationship and therefore her partner’s income was not taken into account in calculating the rate of payments made. The amount of the debt was calculated to take into account income received by Mr Karim during the period.”
It can be seen that the SSAT did not address the question of a causal link between any false statement or representation and the continuance of payments. It referred to “false statements regarding her marital status”, but did not attempt to relate them to the continuance of payments. It referred to the fact that the applicant had not declared that she was in a marriage-like relationship, without specifying any provision that would have obliged her to make such a declaration, with which it could be said she had failed or omitted to comply. The SSAT seems to have assumed that it was only necessary for it to make a finding as to the period during which the applicant and Abdul Karim lived in a marriage-like relationship for a debt to arise under s 1224. The omission from the reasoning is significant, because the SSAT’s decision involved the fixing of a date of the commencement of the relationship later than that fixed by the review officer. The date fixed by the SSAT was 12 January 1994. It follows that no statement made during 1993 to the effect that the applicant and Abdul Karim were not living in a marriage-like relationship could have been considered to be false. It was
necessary for the SSAT to identify a false statement or representation, or a failure or omission, occurring on or after 12 January 1994, giving rise to a situation in which a decision that would otherwise have been made to cease payments was not made.
In a statement of facts and contentions placed before the Tribunal on behalf of the Secretary, reference was made to statements and representations as follows:
“During the relevant period until 19 October 1998, the applicant regularly submitted Sole Parent Review forms to Centrelink stating that she was not living with any people of the opposite sex other than her children and close relatives. Furthermore:
(a) On 5 July 1993 the applicant made a statement that she has a friend
named ‘Karim Abdul but he does not live with me.’(b)On 29 December 1994, following the birth of her child Donna Karim,
the applicant made a statement that she was not living in a marriage-
like relationship and resides only with her children.
(c)On 17 June 1996, following the birth of her child Nazeerah Karim, the
applicant made a statement that she was not living in a marriage-like
relationship ‘with Abdul Karim or any other male.’”
The Tribunal did not make any finding with respect to this paragraph in the statement of facts and contentions. It did not make any finding as to the dates on which the applicant submitted sole parent review forms to Centrelink containing statements that she was not living with any people of the opposite sex other than her children and close relatives. There is no specific finding of the falsity of any statement in a regular sole parent review. The Tribunal made no findings in respect of the three specific statements referred to in the statement of facts and contentions. The first statement, alleged to have been made on 5 July 1993, could not have been false on the view taken by the Tribunal as to when the marriage-like relationship began. As to the statements of 29 December 1994 and 17 June 1996, which did fall within periods when the Tribunal found that there was a marriage-like relationship, the Tribunal made no specific finding as to the falsity of those statements or their effect on the continuance of payments to the applicant. Apart from a finding that “she did not disclose her full circumstances in her review forms”, to which I refer below, there is not, in the Tribunal’s reasons for decision, any reference to any failure or omission on the part of the applicant or any other person to comply with any relevant provision. The Tribunal did not refer to any provision with which the applicant would have had to comply by way of providing information about her relationship with Abdul Karim. No reference was made to the giving of any notice under any of the provisions designed to create obligations to provide information.
After a thorough examination of the evidence and an expression of its reasons for applying s 4(4) (which I discuss later in these reasons for judgment), the Tribunal expressed its conclusion as follows:
“The decision of the SSAT will be varied to provide that Ms Hazim was living as a member of a couple from 12 January 1994 to 12 September 1996 and from 13 October 1997 to 16 February 1998 and that accordingly she was not qualified to receive sole parent pension or parenting payment during those periods. Thus all payments received by her during those periods are overpayments.”
Only when it proceeded to deal with the question of waiver of debt, did the Tribunal say anything that could be considered relevant to the question of causation that arises under s 1224. In the second last paragraph of its reasons for decision, dealing with the question of waiver of the debt, the Tribunal said:
“Although I accept Ms Leonard’s evidence and find that Ms Hazim has some intellectual disability I do not consider it to be of such severity as to be unusual or to constitute a special circumstance. She has a licence and drives a car and she seems to be a competent mother. I find that she knew that if she was living with Mr Abdul she was not qualified for sole parent pension and that is the reason why she did not disclose her full circumstances in her review forms.”
This seems to be a reference not to any false statement or representation, but to a failure or omission. There is no accompanying reference to any provision of the Act obliging the applicant to make any disclosure of her full circumstances. Quite apart from the fact that the Tribunal was then dealing with the question of waiver, the Tribunal’s express finding does not constitute a finding with respect to one or more of the essential elements of s 1224.
Like the SSAT, the Tribunal seems to have assumed that it was only necessary for it to decide that a marriage-like relationship existed between the applicant and Abdul Karim during any particular period, in order for there to be a debt created by s 1224. The identification by the Tribunal of what it called the “substantial issue” as whether the applicant was living with Abdul Karim as a “member of a couple” during all or any part of the relevant period, read with its conclusion that all payments received by the applicant during the periods it identified were overpayments, indicates that the Tribunal made this assumption. As I have said, the section does not operate in that manner. The Tribunal appears to have been led into error by the failure of the representative of the Secretary who appeared before it to identify correctly the decision under review and to direct the Tribunal to the necessary issues. As I have said, the Tribunal complained of this failure. As I have also said, the failure to advert to the terms of s 1224 goes back through the chain of review decisions in this case, at least as far as the decision of the review officer.
A decision to treat a recipient of social security payments as being indebted pursuant to s 1224 in respect of those payments cannot be made without regard to the terms of the section. Given that the Tribunal had before it material specifying statements alleged to have been made by the applicant, it was incumbent upon the Tribunal to consider those statements and, in particular, to consider whether any of them was false. If it found that the applicant had made a false statement or false statements, the Tribunal was obliged to consider whether those statements had led to the continuance of payments, in the sense that had those statements not been made, a decision would have been made to discontinue payments. The decision the Tribunal was required to review was not merely a decision as to the period, if any, during which the applicant and Abdul Karim lived in a marriage-like relationship. It was a decision as to whether the circumstances necessary for the creation of a debt by the operation of s 1224 of the Act existed. The Tribunal should have identified the decision in this way, and should have proceeded to make findings about the elements of s 1224. Even if there had been no dispute about some of those elements, it would have been necessary for the Tribunal to state its findings in respect of them. This was especially the case when the Tribunal was making findings as to the existence of a marriage-like relationship during two parts only of the period in respect of which the SSAT had made similar findings.
In failing to identify the decision under review correctly, and in failing to deal with the requirements of s 1224 of the Act for the creation of a debt, the Tribunal erred in law. It failed to perform its function under s 25 and s 43(1) of the AAT Act of reviewing the decision under review. The inadequacy of the approach taken by the SSAT and the review officer, as well as the failure of the advocate who appeared for the Secretary before the Tribunal to identify the decision properly, may have contributed to this error. Nonetheless, there was error on the part of the Tribunal.
The application of section 4(4)
In reaching its conclusion as to the periods during which the applicant and Abdul Karim lived in a marriage-like relationship, the Tribunal applied s 4(4) of the Act. Its reasoning in this respect was as follows:
“[Counsel who appeared before the Tribunal for the applicant] submitted that s 4(4) had no application when the issue was one of recovery of an overpayment. He submitted that it was only relevant to deciding issues as to qualification for payment. As the overpayment in this matter arises because it is alleged Ms Hazim received payments for which she was not qualified as she was a ‘member of a couple’, I consider that s 4(4) is applicable. The Tribunal is considering whether Ms Hazim was qualified to receive the payments of sole parent pension which she was receiving. If she was not so qualified those amounts will be an overpayment.”
The effect of s 4(4) is in the nature of a statutory presumption. If the specified circumstances exist, the Secretary is obliged not to decide that there is not a marriage-like relationship unless the weight of the evidence is to the contrary. Of course, it may be possible to reach a positive conclusion on the evidence that there is a marriage-like relationship, in which case the occasion for applying s 4(4) will not arise. In general, the effect of s 4(4) will be to resolve a state of uncertainty in the mind of the decision-maker as to what the evidence shows. If the effect of the evidence were to leave a state of uncertainty as to whether two people were living in a marriage-like relationship, and if there were no subs (4), the result would be that the decision-maker would be bound to decide that no such relationship existed. If the decision-maker had regard to all of the matters referred to in s 4(3) and found the evidence to be inconclusive, a finding that there was no marriage-like relationship would follow. Section 4(4) reverses this position.
Section 4(4) sets out clearly the circumstances in which it applies. The first of these is found in par (a). The subsection applies if a person claims, or is receiving, sole parent pension. This provision, and the context of s 4(4), suggest strongly that the presumption created is relevant only to a determination of a claim for sole parent pension, a determination of the correct rate of that pension, or a decision that the person is no longer qualified to receive sole parent pension and that payment should therefore be discontinued. Section 4(2) and (3) apply whenever, for the purposes of the Act, the question arises whether a person is a member of a couple. Subsection (4) does not apply in every situation in which such a question arises. It applies only where a person claims, or is receiving, sole parent pension. A question whether a person is a member of a couple in other circumstances must be dealt with by reference to s 4(2) and (3) without the application of the presumption.
In terms of s 4(4), the presumption is applicable only when the Secretary is considering whether to form the opinion that the claimant or recipient is not living with another person in a marriage-like relationship. Such an opinion is an essential element of the determination whether a person is a member of a couple for the purposes of the Act. Such a determination was relevant to the qualification of a person for sole parent pension pursuant to s 249 of the Act (as it stood at the relevant time), to the questions of the appropriate rate of such a pension (to which I have referred above) and to a determination under s 295 (as it then was) that the pension was to be cancelled or suspended.
It should also be noted that s 4(4) is written largely in the present tense. The only reference to any past event is the requirement in par (b) that a particular residence has been, for a period of at least eight weeks, the principal home of both the claimant or recipient and a person of the opposite sex. Otherwise, the requirement is that the Secretary form an opinion by reference to the presumption as to matters that are then current. There must be a person who claims, or is receiving, sole parent pension. That person must then not be legally married to the other person. All of the elements in par (d) are stated in the present tense. The opinion which the Secretary must form under s 4(2)(b)(iii) is an opinion that the relationship is a marriage-like relationship.
Section 1224 of the Act is not predicated upon the present existence of a marriage-like relationship, much less upon the Secretary’s opinion as to whether such a relationship currently exists. It does not bear upon the determination of a claim for any form of payment, or on the current receipt of any form of payment. Section 1224 looks to past events. It is predicated upon the fact that an amount has been paid by way of social security payment. The social security payment in question can be one of any kind under the Act. The section is not restricted to payments of social security entitlement to which depended upon whether a person was a member of a couple. A debt exists for the purposes of the section if the payments have been “because” of a false statement or representation, or a failure or omission to comply with a relevant provision.
In my view, the falsity of a statement or representation, or the existence of a failure or omission to comply with a relevant provision, must be determined without regard to the presumption in s 4(4) of the Act. In relation to a failure or omission, the proposition may be tested in this way. It may be supposed that a recipient of sole parent pension was given a notice pursuant to s 282 of the Act, requiring specified information about the recipient’s relationship with another person or information that might be relevant to the question whether the other person is the recipient’s partner. If, in response to such a notice, the recipient failed to give some piece of information, there would be an issue as to whether such failure constituted a failure or omission to comply with the obligation under s 282. The answer to this question would not depend directly upon the formation of an opinion that a marriage-like relationship existed. It would depend only upon whether there existed some specific information, requested by the notice, but not supplied. Indeed, s 283 required the formation of the necessary opinion about whether a relationship was a marriage-like relationship upon receipt of the information given in response to the notice. Similarly, a request pursuant to s 283B of the Act for a statement of the tax file number of the recipient’s partner could not result in a failure or omission to comply if there were, in fact, no partner. The formation of an opinion by the Secretary about the nature of the recipient’s relationship with any person would not be relevant to the question of failure or omission to comply with such a request. The situation is similar with respect to a false statement or false representation. If the application of the presumption in s 4(4) resulted in the formation of an opinion that a relationship was a marriage-like relationship, when in fact it was not, the formation of the opinion could not make false a statement or representation to the effect that the relationship was not a marriage-like relationship. Still less could the formation of such an opinion on the application of the presumption result in an otherwise true statement or representation about some more specific matter becoming false.
For the purposes of s 1224, the falsity of a statement or representation, or the existence of a failure or omission to comply with a relevant provision, must be determined without reference to the formation of any opinion about the nature of a relationship, as distinct from the ascertainment of facts that may be relevant to the truth or falsity of the statement or representation. Only when it has been decided that there has been a false statement or representation, or a failure or omission to comply with a relevant provision, can the question arise whether an opinion that a marriage-like relationship existed would have been formed. That question can only arise in the context of the application of the causation test under s 1224. Only if such an opinion would have been formed, if the truth had been known, can it be concluded that the payments made were made because of the false statement or representation, or the failure or omission.
For the Tribunal to apply the presumption in s 4(4) of the Act, as it did in the present case, was an error of law. The presumption is not applicable in the formation of a present opinion about past facts, for the purposes of the application of s 1224. It was because it did not see itself as determining any question under s 1224 that the Tribunal fell into this error. It saw itself as determining whether the applicant lived in a marriage-like relationship for the purpose of deciding whether she remained qualified to receive the payments she received.
The Tribunal made it clear that the presumption was crucial to its decision that the payments received by her during the periods it specified were overpayments. After dealing with the evidence bearing upon each of the elements referred to in s 4(3) of the Act, the Tribunal said:
“The evidence before the Tribunal as to the circumstances to which the Tribunal must have regard, as set out in s 4(3) of the Act, is not satisfactory and makes it difficult for the Tribunal to make findings as to a number of those circumstances. However bearing in mind the requirements of s 4(4) I cannot find that the weight of the evidence supports the formation of an opinion that Ms Hazim was not living in a marriage-like relationship with Mr Abdul during the time that I have found that they lived together at 13 Birch Place Macquarie Fields. Thus I find that from 7 February 1994 to 4 September 1996 Ms Hazim was ‘a member of a couple’ and accordingly not entitled to the payments of sole parent pension she received.”
This passage suggests that, if it had not applied s 4(4), the Tribunal would not have reached the conclusion that the applicant and Abdul Karim lived in a marriage-like relationship, at least at certain times. It follows that the Tribunal found the evidence to be in a state of uncertainty on that issue, and saw itself as constrained by the presumption created by s 4(4) to reach a particular conclusion. If it had directed its attention to the question whether particular statements or representations were false, and had not applied the presumption, the Tribunal would plainly have been unable to find that those statements and representations were false. It would have been forced to reach the conclusion that s 1224 did not operate in relation to some of the payments to the applicant, as those payments were not made because of false statements or representations.
In applying s 4(4), therefore, the Tribunal erred in law. It failed to appreciate that its function was not to form an opinion as to whether, during some particular period or periods, the relationship between the applicant and Abdul Karim had been a marriage-like relationship. Rather, its function was to determine whether there had been any false statement or representation, or any failure or omission, of the kind contemplated by s 1224 and to decide whether a causal relationship existed between any such statement, representation, failure or omission and the making of any payment received by the applicant. Section 4(4) could have been relevant only to the question of causation, and only on the basis that it may have been necessary to determine whether a notional decision-maker would have applied the presumption and would have made a decision to cancel or suspend payments.
Two other questions were raised by the applicant’s notice of appeal to this Court about the application of s 4(4). One was whether, in the light of s 4(4)(b), the presumption could only apply at a time when a period of eight weeks had elapsed during which a particular residence had been the principal home of both the applicant and Abdul Karim. It is plain that the existence of a past period of eight weeks during which a particular residence has been the principal home of the relevant persons is a prerequisite to the operation of the presumption. Only if the Tribunal had come to the conclusion that there had been a false statement or representation, or a failure or omission of the kind referred to in s 1224, and only if the Tribunal had been unable to reach a conclusion that, had a hypothetical decision-maker been aware of the truth, that decision-maker would have been unable to decide whether to cancel or suspend the payments, would the Tribunal have had to consider the question of the eight week period. In those circumstances, the Tribunal would have had to recognise that a decision on the application of the presumption could not have been made until after an eight-week period in respect of a particular residence elapsed. As there were several residences in issue in the present case, the result may have been a substantial reduction in the number of payments that could have been said to have been made because of any false statement or representation, or any failure or omission.
It was also suggested that the presumption in s 4(4) had no application to the consideration of family allowance and family payment. The mere fact that s 4(4)(a) requires a claim or receipt of sole parent pension before it operates does not mean that its application is limited to the determination of qualifications for sole parent pension. To the extent to which the question whether a person is a member of a couple is relevant to the qualification for, or the rate of, family allowance, then if the claimant or recipient concerned happens to be claiming or receiving sole parent pension, there is no reason why s 4(4) should not be applicable to a determination of that question.
The question of waiver
Under the heading “waiver of debt” in its reasons for decision, the Tribunal dealt with s 24(2) of the Act. It described the issue with which it was dealing as “the possibility of a waiver for special circumstances”. It considered whether “special circumstances” could be found on the evidence that Abdul Karim was not supporting the applicant financially, the applicant suffered from intellectual disability and she has six children. It declined to find that special circumstances existed.
Before the Court, the applicant contended that the Tribunal erred in law in applying s 24(2) in this way. The section does not mention “special circumstances”. It provides that, if certain circumstances exist (including a marriage-like relationship) and the Secretary is satisfied that a person should, “for a special reason in the particular case” not be treated as a member of a couple, the Secretary may determine that the person is not to be treated as a member of a couple for the purposes of the Act.
For the same reason that s 4(4) was not directly relevant to the task of the Tribunal, s 24(2) was not directly relevant to that task. Like s 4(4), s 24(2) is directed towards a present state of affairs. Its purpose is to enable a decision to be made that, despite the existence of a marriage-like relationship, a person should be treated as if no such relationship existed, and should receive social security payments calculated without regard to the existence of such a relationship. The only relevance of s 24(2) in the present case could be that it would have to be taken into account on the question of causation under s 1224. If the Tribunal had found that there had been a false statement or representation, or a failure or omission of the kind referred to in s 1224, and had gone on to consider whether payments were made because of that statement, representation, failure or omission, it would have had to consider whether a decision would have been made to continue payments, if the truth had been known. In taking this step, the Tribunal would have been required to consider not only whether the Secretary would have formed the opinion that a marriage-like relationship existed, but also whether the power under s 24(2) would have been exercised, to allow continuing payments to the applicant despite the existence of such a relationship. In considering s 24(2) of the Act in the way it did, the Tribunal was not only misconstruing the subsection, but was under a misapprehension as to the nature of its function.
Counsel for the applicant before the Court also contended that the Tribunal had failed to consider s 1237AAD of the Act. Plainly, a proper consideration of the question of waiver would require that the issues raised by s 1237AAD be dealt with. It is perhaps not surprising that the Tribunal did not consider the section, when it did not consider whether the applicant had made a false statement or representation, or whether there had been a failure or omission on her part to comply with a provision of the Act. If it had made findings on those issues, the Tribunal would have been in a position to make findings as to whether the applicant knowingly made a false statement or representation, or knowingly failed or omitted to comply with a provision of the Act. Only then could the Tribunal have gone on to consider whether special circumstances existed and whether it was more appropriate to waive than to write off the debt. Because the Tribunal did not appreciate the nature of its function under s 1224, it did not embark on the requisite process of reasoning. It thereby erred in law in relation to the issue of waiver.
Conclusion
In summary, the view I have formed is that the Tribunal was obliged to take the following steps in order to fulfil its function of reviewing the decision of the SSAT. First, it was obliged to determine whether the applicant, or any other person, had made any statement or representation which was false. It was obliged to deal with this issue without regard to the presumption in s 4(4) of the Act. Alternatively, it was required to determine whether there was any provision of the Act, or of the earlier legislation if relevant, that obliged the applicant or any other person to do something, and there had been a failure or omission to comply with this provision. If any of those issues were determined adversely to the applicant, the Tribunal was then obliged to determine whether the false statement or representation, or the failure or omission to comply with a provision, caused (in the sense of being a contributing factor to) the fact that no decision had been made to cancel or suspend payments of any pension or other benefit. In dealing with the issue of causation, the Tribunal would have been obliged to consider the time at which such a decision would have been made. Its consideration of the question whether a decision to cancel or suspend would have been made may have included the question whether the decision-maker would have been bound by s 4(4) of the Act to refrain from concluding that a marriage-like relationship did not exist at a particular time. It would also have had to include the question whether the decision-maker would have decided to apply s 24(2) of the Act, to treat the applicant as if she were not a party to a marriage-like relationship. If it reached the conclusion that a decision would have been made to cancel or suspend, the Tribunal would then have been obliged to calculate the amounts of the payments following the notional time of operation of such decision, to determine the amount of the debt that was created by s 1224 of the Act.
The next step would have been to determine whether the false statement or representation, or the failure or omission, occurred knowingly. If it found in favour of the applicant on that issue, the Tribunal would have had to consider whether there existed special circumstances (other than financial hardship alone) that made it desirable to waive the debt. If so, the question would be whether it was more appropriate to waive than to write off the debt or part of the debt. If so, it would be necessary to exercise the discretion given by s 1237AAD of the Act. Only if the result of this process was that there was a debt that was not waived would the applicant be liable to repay pursuant to s 1224 any payments made to her under the Act. The Tribunal did not proceed in this fashion, and thereby made errors of law. The errors of law made by the Tribunal clearly affected its decision.
By her notice of appeal, the applicant sought that the decision of the Tribunal be set aside. In view of my conclusions as to the errors of law, such an order is inescapable. The applicant sought to have the Court substitute for the Tribunal’s decision determinations that the applicant was not a member of a couple at any relevant time and that there are no debts under the Act in respect of any relevant payments. As the Court is considering only questions of law, it cannot embark on the fact-finding task that would be necessary to justify such a course. The proper approach is to exercise the specific power referred to in s 44(5) of the AAT Act, and to remit the case to be heard and decided again by the Tribunal in accordance with law.
No submissions were directed to the question whether I should order that the Tribunal be reconstituted. Whilst I have no doubts that the learned senior member who constituted the Tribunal for the purpose of making the decision from which this appeal is brought would approach the matter dispassionately, there may be a perception that the Tribunal would strive to reach the same conclusion if it were not reconstituted. For this reason, and for the reason that the case will no doubt be conducted again before the Tribunal, with evidence and submissions concentrating on the real issues, it is appropriate to order that the Tribunal be constituted differently.
The principle that costs should follow the event is applicable. The Secretary will therefore be ordered to pay the applicant’s costs of the proceeding.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 14 March 2002
Counsel for the Applicant: P Bingham Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Karen Streckfuss Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 31 October 2001
8 November 2001Date of Judgment: 14 March 2002
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