Hegedus and Secretary, Department of Family and Community Services - [2001] AATA 51

DECISION AND REASONS FOR DECISION [2001] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1450

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ALEXANDER HEGEDUS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date25 January 2001
PlaceMelbourne

Decision      The decision of the Social Security Appeals Tribunal made on 19 November 1999 is affirmed save that the amount overpaid is varied and is the sum of $4,195.02.
  ..............................................
  Senior Member
CATCHWORDS
Social Security – applicant in receipt of New Start Allowance – respondent forwarded letters notifying of reporting conditions – applicant resumed employment but did not notify respondent – respondent learnt of employment by ATO data match – whether applicant overpaid – whether overpayment a debt due to the Commonwealth – Decision varied.

REASONS FOR DECISION

25 January 2001 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 19 November 1999.
In that decision the SSAT decided to affirm a decision made by an Authorised Review Officer ("ARO") on 21 June 1999 to raise and recover an overpayment of New Start Allowance of $4,911.70 for the period 18 November 1998 to 23 April 1999. The decision of the ARO found at T-30 records the sum overpaid at $4,195.02. I can find nothing in the T-documents which refers to the sum of $4,911.70 as referred to by the SSAT. The ARO did raise an overpayment and I am satisfied for the purposes of this decision that that part of the decision was affirmed by the SSAT. The SSAT however could not affirm a decision made to raise an overpayment of $4,911.70 because that sum had never been raised by the respondent. The sum of $4,195.02 was raised. For the purposes of this decision therefore I shall treat the decision made by the respondent by its ARO to raise and recover a sum overpaid, being New Start Allowance, in the sum of $4,195.02 only.
This application was decided on the written submissions lodged by both parties who agreed to have the decision made on this basis following a Directions hearing on 16 November. The parties have lodged written submissions subsequent to that date.
The Directions were made following submissions heard from Mr Hegedus as to his inability and frustration in securing legal representation and being denied legal aid. He and his advocate, Mrs Benson, indicated that they felt ill equipped to cope with a hearing before the Tribunal. They were content to lodge written submissions. Mr Todd who appeared on behalf of the respondent agreed to this course.
The facts concerning this application may be briefly summarised as follows-
At all times material prior to 18 November 1998, Mr Hegedus was in receipt of New Start Allowance. He had initially claimed sickness allowance at the conclusion of workers compensation proceedings, which had been instituted against Comalco Ltd, (his former employer). The Respondent decided that New Start Allowance was the more appropriate benefit and commenced payment of it on 24 February 1997 (T-5).
On a number of occasions the respondent wrote to the applicant advising him of reporting conditions so as to continue to remain eligible to receive New Start Allowance. One of the conditions for which the applicant was notified he must advise the respondent was if he "start(s) paid work, or any form of profession trade business or self employment". A letter typically reciting the conditions for continuing eligibility for benefit and particularly the notification requirement of resumption of work is found at T-7 and is dated 19 October 1998.
On 7 December 1998 the respondent wrote to the applicant and suggested that the more appropriate benefit payable to him was disability support pension (T-9). On 18 December 1998 the applicant wrote to the respondent and advised that he preferred to stay on New Start Allowance (T-10). On 8 January 1999 the respondent agreed to continue to make payments to the applicant of New Start Allowance (T-11). On 15 February 1999 the respondent again wrote to the applicant reminding him of his notification requirements particularly with respect to resumption of employment.
On or about 22 February 1999 the respondent became aware as a result of a data matching search with the Australian Taxation Office that the applicant had commenced employment with Pressfast Industries Pty Ltd. The commencement date is not apparent by the written notification found at T-15 however in a questionnaire completed by a Director of Pressfast Industries on 19 April 1999 the respondent was advised the applicant commenced employment on 19 November 1998 as a full-time employee and at the date of notification the applicant remained employed.
On 24 March 1999 the respondent wrote to the applicant advising him that information received from the Australian Taxation Office indicated that an employment declaration form had been completed by him and he was asked to provide details (T-17).
On 9 April 1999 the respondent wrote to the applicant advising him that a further payment had been made and he was reminded of his reporting conditions. He was also asked to lodge another "application for payment" form which apparently was overdue. He was again reminded of his reporting conditions with respect to commencement of paid employment.
On 22 April 1999 an overpayment was raised against the applicant in a sum of $4,195.02 for the period 19 November 1998 to 23 April 1999.
Conclusion & Reasons For Decision
It is apparent from the T-documents, from the correspondence received from the applicant and from the communication between the applicant and the respondent's representative at the Directions Hearing on 16 November 2000 that the applicant has a poor opinion of the respondent's administration. This opinion has apparently been held for some time having regard to the contents of the prolific – and often prolix – letters that have been forwarded to the respondent and to the registrar of this Tribunal. In more recent times the applicant has supported his concerns against Centrelink management by attaching photocopies of newspaper articles concerning Centrelink employees having been convicted of fraud.
The applicant may well be unhappy with the processing of his entitlements to New Start Allowance. For example, after the respondent received notification from the Australian Tax Office of his employment (T-15) a further payment of New Start Allowance was made to him (T-18). The reasons for making this payment were not apparent from the T-documents.
Nonetheless the applicant had many opportunities to notify the respondent after 18 November 1998 that he had commenced employment, however there is nothing in the T-documents which would indicate that he provided such a notification. Indeed having been invited to make an application for Disability Support Pension on 7 December 1998 – approximately 3 weeks after employment commenced – the applicant wrote to the respondent on 18 December 1998 rejecting Disability Support Pension and requesting that he continue to be paid New Start Allowance. This was at a point in time after he had been provided with written notification to advise the respondent of any resumption of employment. The applicant said at the Directions Hearing and in his correspondence that he attempted to communicate with the respondent by telephone to request that payments not be made to him (payments were being paid into his bank account). He said that despite his requests, payments continued.
The fact remains however that beyond the date that the applicant commenced full-time paid employment, he either did not notify the respondent of that employment and he continued to receive New Start Allowance. Whilst he may have been frustrated by the respondent in it continuing to make payments to his bank account it was open to the applicant to either return the money in cash or by cheque. The contents of the letter at T-10 would indicate that he did not then disclose his employment. If he had, this dispute may not have arisen.
Section 1224(1) of the Social Security Act provides that if an amount has been paid to a recipient of a social security payment and the amount was paid because the recipient or another person made a false statement or representation or failed or omitted to comply with the provision of the Act that the amounts paid constitute a debt due to the Commonwealth.
The applicant did make a false representation at 18 December 1998 by requesting that he continue to receive New Start Allowance at a point in time when he was employed. He also failed to comply with a provision of the Act by not disclosing that he had commenced employment.
The applicant therefore received monies from the Commonwealth after 18 November 1998 for which he was not entitled. Those monies are a debt due to the Commonwealth.
Save for the qualification made in the opening paragraphs of this decision as to the amount overpaid, I am satisfied that that part of the decision of the SSAT concerning overpayment should be affirmed. The amount overpaid as recited by the SSAT should be varied and consistent with the documentation found within the T-documents, I am satisfied that the amount overpaid is the sum of $4,195.02.
At the Directions Hearing the applicant indicated that this sum was being repaid by a Garnishee over his salary and which was causing some tension between he and his paymaster. He also indicated that he found the process embarrassing. I would recommend that the parties consider some other form of repayment, which subject to the quality of communication on this issue, might also improve their continuing relationship.