Hemmaty-Farahani and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 267
•4 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 267
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3578
GENERAL ADMINISTRATIVE DIVISION ) Re LADAN HEMMATY-FARAHANI Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr S E Frost, Member Date4 April 2008
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd]............................
Mr S E Frost, Member
CATCHWORDS – social security – overpayments and debt recovery - youth allowance - write off – waiver - decision under review is affirmed.
Social Security Administration Act 1999, section 68(2)
Social Security Act 1991, sections 1236, 1237A, 1237AAD
Re Beadle and Director General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
4 April 2008 Mr S E Frost, Member Introduction
1. Ladan Hemmaty-Farahani was receiving a youth allowance on the basis that she was a full-time student. She was also working. The information she had given Centrelink about the amount of money she was earning differed from the amount of income she declared to the Australian Taxation Office (ATO). Centrelink raised a debt on the basis that she had not declared to Centrelink her proper level of earnings.
2. She asked for that decision to be reviewed, but the Authorised Review Officer thought the original decision was correct. She applied to the Social Security Appeals Tribunal for a further review but again she was unsuccessful. She has now applied to this Tribunal for a review of the original decision.
The issues
3. The issues for me to consider are whether Miss Hemmaty-Farahani owes a debt of youth allowance and if so, whether there are any grounds for not recovering all or part of the debt.
The evidence
4. Miss Hemmaty-Farahani said that she had been receiving Centrelink payments since about 1997, when she first came to Australia.
5. She started receiving youth allowance in March 2000.
6. Some time in 2003 she started working at Ally Fashions. Before that she had worked at Go-Lo and at Crazy Prices. She said that she notified Centrelink in person that she was moving from Crazy Prices to Ally Fashions. She said she had always been employed on a casual basis. Normally she would work on Thursday nights and either Saturday or Sunday or both. She said that she would work anywhere between about 17 and 25 hours per week.
7. As is routinely the case with youth allowance recipients, Centrelink sent her a number of notices that set out her obligations to inform Centrelink if her income changed, or if she started or stopped working. According to the documents filed with the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (the section 37 documents), Centrelink sent her notices of this kind on 17 separate occasions, spanning the period 3 April 2002 to 21 June 2006. Despite the fact that her income was changing from one week to the next, she made little effort to notify Centrelink as to the information required by those notices.
8. She freely admitted in oral evidence that she did not read all the notices. Her attitude was that she “deserved” the youth allowance that she was receiving. She also said that she thought that, since her employer was taking tax out of her pay every pay day, the ATO, and presumably by extension Centrelink, should already have known what her income was.
9. She did have a number of dealings with Centrelink, both over the phone and in person, and these are also referred to in the section 37 documents. But they do not disclose that she kept Centrelink entirely up to date, or even reasonably up to date, as far as her earnings were concerned.
10. Indeed, there are very few references to her having provided any information at all to Centrelink about her earnings.
11. At one stage it was found that she had been overpaid the youth allowance, and on 9 January 2004 she sought to enter into an agreement to pay back the debt over a period of time. A Centrelink officer recorded that she said she was earning $150 per fortnight (T14/64), but that earnings figure is difficult to reconcile with the statement from her employer at T52/188 that in the month of December 2003 she worked 110 hours for a gross income of $1,389, and that in January 2004 she worked 88 hours and earned $1,110. In fact, the employer’s statement shows that she worked at least 80 hours in each of the months November 2003 to March 2004.
12. There is also a reference to her having contacted Centrelink on 13 February 2006 (the significance of this date, and this contact, will become clear a little later). The Centrelink officer reported (T14/52 of the section 37 documents) that:
cust[omer] declared earinings [sic] for ally fashions for the pay period 010206. cust stated that she had earnt 198.00 for that fortnight.
13. I pause here to note that Miss Hemmaty-Farahani was overseas from 23 November 2005 to 28 January 2006. The statement from her employer showed that she earned no income at all during December 2005 or January 2006. This income figure of $198 per fortnight, while possibly accurate, is certainly not representative of the income she was earning throughout her employment with Ally Fashions.
14. It has been her consistent claim that she regularly told Centrelink how much she was earning, whenever she lodged a claim for a low income health care card. Only one of her health care card application forms – the most recent one, completed on 31 January 2006 – was provided to the Tribunal. Apparently, claim forms of this type are usually sent for “batch storage” shortly after lodgement. The one claim form that was in evidence showed that she claimed to have earned no income at all during the eight weeks immediately prior to lodging the claim. That is apparently an accurate statement, but it was made in relation to a period when she was out of the country during the end-of-year university holidays.
15. She said that she cannot understand why her records do not show more examples of her having notified her income details to Centrelink. She said that there were occasions when she had gone into Centrelink offices and stood in a queue waiting to speak to one of the enquiry officers at the counter. This was apparently when she was lodging claims for renewal of her low income health care card, which she had to do every six months. She said that an officer would come along the queue and ask the customers, each of them in turn, why they were there. When she said that she was there to provide some details of her income, the officer would take her papers away, and return after a few minutes and tell her that everything was in order and she could go.
16. It remains a mystery where these papers, if they were ever handed over, might have gone.
17. Miss Hemmaty-Farahani has a twin sister who, of course, has the same date of birth. She also has a very similar given name. I wondered whether it was possible that Centrelink may have incorrectly filed these papers on the sister’s files. I therefore asked the Secretary’s representative to arrange for a search of the sister’s files to see whether some of Miss Hemmaty-Farahani’s papers had found their way there. The representative reported that no papers relating to this applicant had been located on the sister’s files.
18. The section 37 documents suggest (T67/247) that the first time Centrelink heard about her employment with Ally Fashions was in early 2006, when she made the statement just after her return from overseas that she was earning $198 per fortnight. In fact, for some time up to that point, Centrelink had been given to understand that she was not working at all. This is because she had notified Centrelink by phone on 5 August 2005, according to the Centrelink officer’s record (T14/57), that:
…she is no longer working and [she] assured me of that and that she is still a f/time student.
19. This telephone conversation took place just after Centrelink issued to Miss Hemmaty-Farahani, on 28 July 2005, a reporting statement requiring her to report her earnings during the specified periods. She was also advised in person that she had to declare earnings if working part time and to present pay slips.
20. As a result of what she told the officer in the conversation on 5 August 2005, Centrelink issued a letter advising her that she was no longer required to report each fortnight in order to be paid youth allowance.
21. The issue came to a head when a data-matching exercise between the ATO and Centrelink revealed a discrepancy between the income levels reported to the separate agencies. Her income tax return for 2003/04 declared employment income of $12289 although the income reported to Centrelink was said to be nil. She was notified of the discrepancy on 6 February 2006 – and it was a week later that she contacted Centrelink to provide the information referred to in paragraph [12] of these reasons.
22. The Centrelink officer who was investigating the discrepancy noted that:
File & computer checks of customer records don’t explain discrepancy.
23. He subsequently contacted Miss Hemmaty-Farahani and noted that she was “unable to supply the requested information”. The stated reason for her inability to supply the information was:
worked for Ally Fashion, no paperwork as customer stated has been declaring income when lodging applications for low income card, no income on earnings except for the 1/2/06 income of $198 advised. Will contact employer to obtain earnings then proceed with review.
24. The statement “no income on earnings except for the 1/2/06 income of $198 advised” is confusing. I think the word “income”, first occurring, must have been intended to be “information”, so that his note should read “no information on earnings except for the 1/2/06 income of $198 advised”. Without the shorthand that characterises file notes of this kind, I take the note to mean this – that the officer was unable to find on her file any information that she had provided in relation to her earnings from Ally Fashions except for the reference on 1 February 2006 to the fortnightly income of $198.
Consideration of the evidence
25. Even if I were to accept Miss Hemmaty-Farahani’s version of events – which is that she regularly notified Centrelink of her income when she sought renewal of her low income health care card – the fact is that she fell far short of the obligation to notify Centrelink of her income details as required by the various notices that she was sent. Those notices, each of them a notice under subsection 68(2) of the Social Security Administration Act 1999 (the Administration Act), required her to notify Centrelink if she “start[ed] or stop[ped] receiving income or [her] income change[d]”.
26. It is possible, of course, that she did give Centrelink her income details on any one of the occasions on which she applied for a low income health care card. It is possible that the information she provided was accurate. It is possible that Centrelink used that information to determine whether she was, or was not, entitled to the card, but did not cross-check the information with what, if anything, she had reported in relation to her youth allowance.
27. But all of that is conjecture. What is beyond argument is that she failed to inform Centrelink, in accordance with the various notices, what her income levels were – and given her evidence that her income from one week (or fortnight) to the next was virtually never the same, she should have been providing information to Centrelink almost every fortnight.
28. It was her failure to provide that information, rather than any failure on the part of Centrelink to act on what she might have been telling them on her health care card claim forms, that was the cause of her having been overpaid. For that reason it would have been pointless for me to require that a search be undertaken for those claim forms and whatever information might have been attached to them.
29. She has been overpaid youth allowance, and as a result she has a debt to the Commonwealth. The next question is whether the debt should be written off or waived.
Write off
30. The write off provisions, in section 1236 of the Social Security Act 1991 (the Act), are very narrow. The only circumstances in which a debt can be written off are that the debt is irrecoverable at law, or that the debtor has no capacity to repay it, or the debtor’s whereabouts are unknown, or that it is not cost effective for the Commonwealth to take action to recover the debt. None of those circumstances apply here.
Waiver
31. The waiver provisions are also very narrow. One of the waiver provisions is that the debt must be attributable “solely” to an administrative error made by the Commonwealth: section 1237A of the Act. That is not the case here.
32. An alternative provision is section 1237AAD of the Act, which requires, among other things, that “there are special circumstances (other than financial hardship alone) that make it desirable to waive” the debt. Given the strict approach that has been taken to the expression “special circumstances” – they must be unusual, exceptional or uncommon, so as to make the person’s circumstances markedly different from those of others in receipt of income support payments: Re Beadle and Director General of Social Security (1984) 6 ALD 1 – waiver on this ground is not available.
Decision
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member
Signed: ...........[sgd].................................................................
Associate
Date of Hearing 11 February 2008
Date of Decision 4 April 2008
Representative for the Applicant Self-represented
Solicitor for the Respondent Mr George Lozynsky, Centrelink
Legal Services Branch
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