Hunter and Secretary, Department of Family and Community Services

[2003] AATA 1278

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1278

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/478

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER HUNTER

Applicant

And

SECRETARY, DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal The Hon CR Wright QC (Deputy President)

Date 16 December 2003

PlaceBrisbane

Decision The decision under review is affirmed.

.................(Sgd)..............................

The Hon CR Wright QC
  Deputy President

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements - overpayment of sole parent pension and parenting payment single - debt raised and recovery sought – debts not solely due to administrative error - debts resulted from applicant knowingly making false statement or representation or failing or omitting to comply with provisions of Social Security Act 1991 – no special circumstances – decision affirmed

Social Security Act 1991, ss 1223(1), 1224(1), 1237A(1), 1237AAD

Beadle v Director-General of Social Security (1985) 60 ALR 225

Re Callaghan and Secretary, Department of Social Security (AAT 11404, 18 November 1996)

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212

REASONS FOR DECISION

16 December 2003  The Hon CR Wright QC (Deputy President)      

1.      The applicant seeks to review a decision of the Social Security Appeals Tribunal (SSAT) made on 14 May 2003 whereby the SSAT affirmed a decision made by Centrelink on 27 January 2003 to:

(a)raise and recover a debt of $13,701.21 arising by way of overpayment of parenting payment single to the applicant for the period 20 March 1998 to 11 February 2003; and

(b)raise and recover a debt of $1,578.30 arising by way of overpayment of sole payment pension between 21 March 1997 to 19 March 1998.

2.      The application for review was heard at Coolangatta in Queensland on 21 November 2003.  The applicant was unrepresented.  The respondent was represented by Ms Helen Wallis-Dunn.  The applicant made it clear that she did not dispute the two sums claimed to have been overpaid to her and, further, that she did not claim that either overpayment was the result solely of administrative error by the Department.

3.      The applicant submitted that some or all of both debts should be waived due to special circumstances.  In support of this submission the applicant tendered in evidence a letter which she had written to the Administrative Appeals Tribunal on or about 2 October 2003.  This document and its 11 pages of annexures became Exhibit 1.  The applicant also gave sworn evidence that the statements made by her in the letter were true.

4.      The letter contained (inter alia) a chronology of unfortunate events and circumstances which had befallen her since her drug and gambling addicted husband had deserted her and her two young children in 1995.  The letter also contained details of health problems experienced by her, her parents and her sister.

5.      It also appears from the letter and her oral evidence that the applicant is currently aged 44 years and has been employed as a part-time service consultant with one of the major Australian banks on the Gold Coast for about 7 years.  Her son, now aged 18, no longer lives at the applicant’s home.  He is a student at TAFE and has part-time employment at Woolworths.  He is virtually self-supporting.  The applicant and her 15 year old daughter, in her final school year before seeking an apprenticeship when she turns 16 next March, live in rented premises costing $230 per week.

6.      The applicant also gave evidence that when dealing with Centrelink in respect of the benefits now under consideration she was led to believe that although she was required to lodge her payslips, Centrelink would assess her entitlement against the “year-to-date” payment total which was printed on each payslip.  Examples of these payslips were referred to in the section 37 (T) documents.

7.      The applicant maintained that other payslips in respect of overtime which she worked were posted to her but were often lost or mislaid.  These payslips were not supplied to Centrelink.  As I understand the applicant she says the progressive total of her standard pay plus overtime pay was reflected in the “year-to-date” payment total printed on the standard payslip.  She says that the Department should therefore have been aware of what she was earning and the overpayment should not have occurred.

8.      The respondent maintains that the applicant consistently failed to declare her income fully or accurately in her review forms. By reference to numerous illustrations of the applicant’s course of conduct in dealing with Centrelink in paragraph 17 to 24 of the Secretary’s Statement of Facts and Contentions, dated 6 November 2003, the respondent contends that the Tribunal should be satisfied that the applicant knowingly misrepresented her income during the relevant overpayment periods.

9.      Under cross-examination the applicant denied that she had selectively supplied information to Centrelink to disguise the fact that she was receiving overtime payments but she conceded that she failed to supply information on the review forms which included the overtime payments being received.

10.     Having considered the oral and written evidence of the applicant given at the hearing and the 319 pages of section 37 (T) documents, I find on the balance of probabilities that:

(a)from March 1997 to February 2003, the applicant incorrectly declared her income by failing to take account of her overtime payments from her bank employment;

(b)such incorrect declarations were made knowingly by the applicant;

(c)the relevant debts resulted wholly or partly from such incorrect declarations.

11.     The respondent does not invite me to find that the applicant’s failure to declare her overtime income was fraudulent.

12.     It is plain that the applicant is an intelligent person and it should be inferred from the demonstrated pattern of her behaviour, both in supplying and omitting that material which she did from the review forms, and her dealings and correspondence with Centrelink officers, that she was fully aware that she was providing incorrect and misleading information to the Department and that she knew that she had to provide the omitted information to comply with the requirements of the Act.

13.     These inferences are supported in my opinion by the concessions she made in cross-examination but such concessions are not essential to the inferences drawn.

Conclusion

14.     In my opinion no part of either debt is attributable solely to an administrative error made by the Commonwealth.  Thus, the obligatory waiver provided for in section 1237A of the Act does not apply in the present circumstances (see Beadle v Director-General of Social Security (1985) 60 ALR 225; Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212).

15.     As I have found that the relevant debts resulted wholly or partly from the applicant (the debtor) knowingly failing or omitting to comply with a provision of the Act, the jurisdictional basis for the discretionary waiver in special circumstances provided for in section 1237AAD of the Act does not exist.

16.     Accordingly, no grounds have been made out for the waiver of part or all of the relevant debts as requested by the applicant and the decision under review should be affirmed.  However, it is also appropriate that I should comment on the merits of the applicant’s claim to relief based on special circumstances.

17.     The phrase “special circumstances” is not defined in the Act but such circumstances cannot be founded on “financial hardship alone”.  Plainly, such hardship can be taken into account but there must be something more for special circumstances in the relevant sense to exist (see Beadle v Director-General of Social Security (supra); Groth v Secretary, Department of Social Security (1995) 40 ALD 541; Re Ward and Secretary, Department of Family and Community Services (supra)).

18.     I have some sympathy for the trials and tribulations which the applicant must have endured during her unsatisfactory and, no doubt, traumatic marriage.  I also recognise the chronic stress caused by her serious kidney disease and the other health concerns mentioned by her in Exhibit 1, as well as the circumstances of her late husband’s death.  However, taking a broad view of her present circumstances, I do not think they are sufficiently “unusual, uncommon or exceptional” to constitute “special circumstances” within the meaning of the Act.

19.     However, as already mentioned, section 1237AAD does not apply for the reasons mentioned in paragraph 15.  Therefore, the decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC (Deputy President)

Signed:         Sarah Oliver
  Associate

Date of Hearing  21 November 2003 at Coolangatta
Date of Decision  16 December 2003       

The Applicant appeared in person
For the Respondent                  Ms H Wallis-Dunn, Departmental Advocate