Idlabi and Secretary, Department of Social Services (Social services second review)
[2016] AATA 20
•21 January 2016
Idlabi and Secretary, Department of Social Services (Social services second review) [2016] AATA 20 (21 January 2016)
Division
GENERAL DIVISION
File Number(s)
2014/5371-74
Re
Marnya Idlabi
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal N Isenberg, Senior Member
Date 21 January 2016 Place Sydney The decision under review is affirmed.
..........................[sgd]..............................................
N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY - Parenting Payment - Austudy payment - Newstart allowance - applicant paid at the single rate - whether applicant was a 'member of a couple' - whether existence of a marriage like relationship - shared access to applicant's home for caring for children - social aspects of relationship - whether any reason the applicant should not be treated as a 'member of a couple' – whether debt could be written off or waived - decision under review affirmed
LEGISLATION
Social Security Act 1991 ss 4, 24
Social Security (Administration) Act 1999 s 196
CASES
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Holt and Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143
Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084
Lambe v Director General of Social Services (1981) ALD 362
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92
Secretary, Department of Employment and Workplace Relations and Gilson [2007] AATA 1361
Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Secretary, Department of Family and Community Services & VBH and Anor [2006] AATA 1Staunton-Smith v Secretary, Department of Social Security [1991] FCA513; 32 FCR 164
SECONDARY MATERIALS
Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
Guide to Social Security Law
REASONS FOR DECISION
N Isenberg, Senior Member
21 January 2016
Decision under review
Centrelink decided that because the Applicant, Marnya Idlabi, was a member of a couple with Mr Abdalla Hammoud from 16 February 2004 to 28 February 2007 and from 8 February 2009 to 7 December 2012, and that during various periods during that time she had been paid Austudy, Newstart Allowance (‘NSA’) and Parenting Payment (‘PP’) (together, ‘pensions’) at the single, rather than partnered, rate, she had been overpaid. Further, because she did not declare her beneficial ownership of real estate properties at Bondi, Auburn and Burwood, she had received an amount of $40,077.05 for PP during 8 February 2009 to 7 December 2012, to which she was not entitled. A total debt of $69,018.48 was due and owing to the Commonwealth. That decision was varied slightly at internal review, and that decision was affirmed by the Social Security Appeals Tribunal (SSAT). The Applicant seeks review of the decision.
The Hearing
The matter was scheduled for a two-day hearing. A few days beforehand, when the Tribunal contacted the Applicant to confirm her attendance, she expressed some difficulty in attending. Also, she informed the Tribunal, Mr Hammoud and her sister, Sarab, two relevant witnesses to her case had declined to attend the scheduled hearing, or at all. As well as the Applicant, Mr Hammoud had given evidence before the SSAT. Her sister had provided a letter.
Included in the Tribunal’s documents (and those provided to the Applicant) was material which Centrelink had provided as a result of its extensive enquiries pursuant to its powers under s 196 Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’). Further, it had received information from Royal Prince Alfred Hospital, National Nurses Plus, the ANZ Bank, the Department of Transport, Roads & Maritime Services, Westmead Private Hospital, NIB Health Funds, the Department of Housing NSW, Laing & Simmons Auburn, Origin Energy, Catholic Health Care Ltd, and Uniting Care, which was also provided to the Applicant and to the Tribunal.
The Respondent also relied on information received following requests under s 192 of the Administration Act viz: Suncorp Bank, National Australia Bank (NAB), the Commonwealth Bank, and HSBC.
The Applicant said she had nothing further to add. The parties agreed that, in the circumstances, a hearing on the papers was appropriate. The Respondent subsequently provided a company search in respect of Oceanic Invest Pty Ltd and the Applicant was given the opportunity to file and serve additional material arising out of the company search. The Applicant sent the Tribunal an email, which is referred to below.
ISSUES
The issues to be decided are as follows:
(a)Whether the Applicant was a "member of a couple" with Mr Hammoud and, if so, for what period?
(b)If so, whether there is a special reason why the Applicant should not be treated as a "member of a couple"?
(c)If not, are the overpayments of the pensions legally recoverable debts and should be payable by the Applicant?
(d)Did the Applicant own property which was properly considered as part of her assets?
(e)Are there any reasons why all or part of the debts should not be recovered?
BACKGROUND
On 29 October 2012, the Applicant was selected for a review of her entitlement to PP at the single rate. Centrelink wrote to the Applicant, bringing to her attention that an Australian Taxation Office (‘ATO’) data-match revealed a difference in the income she reported to Centrelink and that reported to the ATO. At Centrelink’s request she provided copies of her payslips for the period 1 July 2010 to 2 November 2012. The Applicant then requested that Centrelink cancel her PP single.
The Applicant’s obligations to Centrelink
On several occasions eg 24 March 2004, 11 May 2004 6 May 2005 and 11 November 2005 the Applicant was informed of her obligations under social security law, such as that she must tell Centrelink if she started living with someone as their partner, if she had investments and if she had an interest in any property.
On 28 June 2006, Centrelink reminded the Applicant of her social security obligations, including reporting if she started living with someone as their partner, if she held any investments or any interest in property.
On 2 August 2006, Centrelink wrote to the Applicant, setting out her social security obligations, as did a letter rejecting her claim for an advance of payment on 4 December 2006.
On 17 December 2008, the Applicant was sent a reporting statement which also included her social security obligations. Similar notices were sent to her on 20 March 2009 and on 27 November 2009.
In April 2010, Centrelink sent the Applicant a notice rejecting her claim for an advance payment. The notice also included her social security obligations to report her income and assets.
In March 2011, October 2011 and August 2012 Centrelink reminded the Applicant of her social security obligations.
LEGAL FRAMEWORK
The relevant legislation is contained in:
(a)the Social Security Act 1991 ("the Act"), and
(b)the Administration Act.
Subsection 4(1) of the Social Security Act 1991 (SS Act) defines “partner” as follows:
partner, in relation to a person who is a member of a couple, means the other member of the couple.
As Ms Idlabi and Mr Hammoud were not married during the relevant period, they can only be considered a member of a couple if they fulfil all the criteria under s 4(2)(b) of the SS Act which relevantly provides:
…
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
…
Subsections 4(3) & 4(3A) of the Act outline when a person is considered to be a member of a couple for the purposes of s 4(2) of the SS Act:
Member of a couple—criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of … 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, or in a de facto relationship with, 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 or a de facto relationship.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
CONSIDERATION
Financial aspects of the relationship
Centrelink did not allege there was any evidence of joint financial arrangements between the Applicant and Mr Hammoud.
The Applicant told the SSAT that Mr Hammoud has never really provided financially for her or the children during the relationship. Although she had contacted the Child Support Agency a long time ago, she never pursued any claim for child support. Centrelink submitted that I should draw some adverse conclusion from this position. I do not find this submission helpful, as it is entirely reasonable that parties should address the financial support of their children without the intervention of the Child Support Registrar. I draw no conclusion from Centrelink’s observation.
The Applicant told the SSAT that Mr Hammound currently pays for private health insurance with NIB that covers the Applicant, himself and their children.
Mr Hammoud told the SSAT he was made bankrupt in about 2006 due to a failed business venture, accumulated debts and a gambling problem. Even though he has worked as a train guard for many years, he said he has not really been able to provide money for the children since the oldest was born or for Ms Idiabi generally during the relationship because of his difficult financial circumstances and the bankruptcy. Mr Hammoud is aware Ms Idiabi owns her house but she also has financial problems. They do not have any joint bank accounts together.
The SSAT referred to Mr Hammoud’s “precarious financial situation over the years since his bankruptcy in 2006”. I observe that his bankruptcy is now some years ago, and, in the ordinary course, would likely to have been long discharged.
In re Lambe v Director-General of Social Services (1981) 4 ALD 362, at 369, the Federal Court held that “financial support, [while] important, is not necessarily crucial, and is only one of a number of relevant matters which the Tribunal should take into account...”
I find that the lack of specific evidence in relation to the financial aspects of the relationship does not preclude the Applicant and Mr Hammoud from being members of a couple.
Nature of household
There was evidence that the Applicant and Mr Hammoud have shared premises, at least intermittently, from 2004.
The Applicant told the SSAT however that she and Mr Hammoud have not lived together in the way a committed couple would normally be perceived. Mr Hammoud lives with his mother a short distance the Applicant’s present home where she lives with their children. She said he has been actively involved with the children (particularly over the past year) and comes to the house every day to look after them while she is at work. He helps out as much as possible. It is reasonable to conclude, in my view, that he has free access to the Applicant’s house.
The objective evidence indicates that both the Applicant and Mr Hammoud have listed the same residential address. For example, between 27 March 2002 and 26 June 2004 and between 23 June 2004 and 11 September 2006, both used an address at Lidcombe as their residential address with NIB. Mr Hammoud was listed as the tenant for this property on the tenancy agreement with Laing & Simmons and the Applicant confirmed to the SSAT that she lived in the house leased by Mr Hammoud. The Applicant also used this address with NSW Roads and Maritime and Centrelink.
Between 12 September 2006 and 1 February 2011, both the Applicant and Mr Hammoud used a Burwood address with NIB and St George Bank. The Applicant also used this address with Catholic Health Care, Suncorp Bank, Centrelink and NSW Roads and Maritime. Mr Hammoud used this address also with Medicare.
On 2 November 2009, the Applicant completed an application for employment with National Nurses Plus. There she recorded that Mr Hammoud, her next of kin, as having a residential address was the same as hers.
RPA recorded, that on each of the Applicant’s five admissions in 2009 and 2010, Mr Hammoud’s address was recorded as being the same as the Applicant’s and their mobile phone numbers were the same. Similarly, on the Applicant’s admission to Westmead Hospital, their addresses were the same.
Between 15 June 2011 and 29 January 2015, both the Applicant and Mr Hammoud both used an Auburn address with Centrelink, NSW Roads and Maritime.
The Applicant explained to the SSAT that they have used the same address details for convenience in the past, such as her parents' address in Lidcombe. I do not accept this explanation. There was no evidence as to why this was necessary, and when this occurred. Further, there was no evidence as to why this arrangement was not consistent, even before the Applicant acquired her own home.
I therefore find that, on balance, the Applicant and Mr Hammoud have lived together for periods during the period under review. This weighs in favour of finding them to be a couple.
Social aspects of the relationship
On 17 May 2006, the Applicant, when applying for a passport, listed Mr Hammoud as her next of kin and the person to be contacted in an emergency. I observe that, in her evidence to the SSAT the Applicant had referred to using her parents’ address for mail. This suggests that at least one parent might have been available to be the contact person as next of kin. Alone, not a great deal turns on this particular nomination of Mr Hammoud as next of kin.
However, the Applicant has also regularly listed Mr Hammoud has her "next of kin" (in her job application to National Nurses Plus in 2009) or "person to contact" (Westmead Hospital in 2006 and RPA in 2009 and 2010 – 5 separate admissions), “spouse” (NIB policy from 2002 to at least 2007), “husband” (RPA 2009 and 2010 - 5 separate admissions) or "partner" (Westmead Hospital in 2006).
On the other hand, on 23 August 2010, that is, after these representations, in a Newborn Child - Claim for Family assistance and Medicare form the Applicant, in response to the question "Do you currently have a partner?" the Applicant ticked 'no'. In response to a question "Is the child from a previous relationship", the Applicant ticked 'yes'.
I find that between 2002 and 2010 the Applicant and Mr Hammoud represented themselves to a number of organisations during the relevant period as at least being in a de facto relationship.
On 2 December 2013, the Applicant contacted Centrelink and confirmed she had become partnered with Mr Hammoud on 30 November 2013.
There was no independent evidence as to how the relationship between the Applicant and Mr Hammoud is perceived by their families or associates. The objective evidence however, that they have consistently represented themselves as married (or in a de facto relationship) when their four children have been born, points towards the existence of a marriage-like relationship.
All the children bear Mr Hammoud’s surname and their evidence before the SSAT was of jointly attending to the care of the four children. All the documentary evidence points to the Applicant’s perception as to the nature of her relationship with Mr Hammoud, as being in a marriage-like relationship.
Sexual relationship
The Applicant has 4 children: born in July 2006, February 2009, August 2010, and October 2013. There is no dispute that Mr Hammoud is the father of these children.
I find there is evidence of a sexual relationship between Mr Hammoud and the Applicant from 2002, up until at least 2013, when their youngest child was born. This is consistent with her evidence.
Nature of commitment to each other
Ms Idlabi told the SSAT that her relationship with Mr Hammoud has been unusual because they have not really been committed to each other. She said they first met during 2002 after she witnessed the 'gangland-style' murder of his uncle at a car spare parts yard in Granville where she happened to be a customer at the time. They later entered a sexual relationship during the subsequent and lengthy criminal court proceedings. She said there have been various breaks in the relationship, but could not recall when or for how long. She said she has never been able to “detach” from Mr Hammoud and has tried to make their relationship work.
Mr Hammoud told the SSAT his relationship with Ms Idlabi has been "hot and cold" over the years since they met. They have been good friends and had an on-going sexual relationship from soon after meeting. They have four children together and are trying to work out the difficulties of the relationship now they are both getting older. Mr Hammoud wants stability for the children and a good home environment. The relationship has been much better over the past year.
In re Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92, the Full Federal Court commented on what regard the decision-maker should have to the nature of two person's commitment to each other for the purposes of determining whether or not the persons were members of a couple. The Court stated at [30]:
The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person.
The Applicant and Mr Hammoud have four children together for whom they apparently jointly care. The evidence from Ms Idlabi and Mr Hammoud is the children have been a focal point and bonding element for the relationship. To me this is a significant hallmark of an enduring relationship over many years.
It is clear that Mr Hammoud and the Applicant may not have always had a happy relationship. Nonetheless there is some evidence that both Mr Hammoud and the Applicant have, over the years, provided a supportive presence in each other's lives. Mr Hammoud gave evidence that their relationship is 'hot and cold', but despite this, the Applicant's evidence to the SSAT was that she could not detach herself from him.
As to Mr Hammoud's commitment to the Applicant, there is evidence of his paying private health insurance for a family, that is, not just for his children, but Ms Idlabi as well. He also cares for the children in order for the Applicant to continue her nursing career.
Conclusion as to ‘couple’
Although there are some subjective components in the s 4(3) criteria, in determining if a person is a member of a couple, the Tribunal must consider ail the circumstances of the case and make an objective assessment based on the evidence: Secretary, Department of Family and Community Services & VBH and Anor [2006] AATA 1 at [94], and re Staunton-Smith v Secretary, Department of Social Security [1991] FCA513; 32 FCR 164.
The SSAT found, and I agree, that the evidence of Ms Idlabi and Mr Hammoud’s relationship may not conform to any preconceived concept of what it means to be a 'member of a couple'. The Applicant has said as much herself.
In Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050, to which I was referred, at [70] I said:
....being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
(Emphasis added)
I was especially mindful in Sperring, as I am here, that not all relationships conveniently fit into what might be regarded as a traditional marriage-like relationship. To say ‘each matter is different’ is an understatement. Each relationship, whether one ultimately considered to be a de facto relationship or not, has its own features. Those features may not be readily understood by others.
All facets of the interpersonal relationship between two persons are to be considered. The parties' subjective perceptions of themselves and their relationship will not be a determining factor. In each case the actual objective circumstances are to be looked at: re Secretary, Department of Employment and Workplace Relations and Gilson [2007] AATA 1361.
On 10 December 2005 Ms Idlabi informed Centrelink that she had ceased being a member of a couple with Mr Hammoud. The SSAT found that, the fact Ms Idlabi would have become pregnant around that time tends to suggest the information about being separated was not correct, however that inference is by no means definitive.
As observed above, the legislation is constructed in such a manner to allow the Tribunal to make an assessment in each unique set of circumstances. I find that, on balance, there is evidence of a long-standing marriage-like relationship. The relationship has been essentially continuous, albeit possibly with some unspecified breaks throughout the period relevant to this application for review.
Is there a special reason why the Applicant should not be treated as a member
of a couple?Section 24(2) of the SS Act confers a discretion on the Secretary (and hence this Tribunal on review) to determine that a person who is in a de facto relationship with another person is not to be treated as a "member of a couple" for s 4(2) purposes, if satisfied that some "special reason" exists in that particular case. The effect is that the person is treated as single, so he or she can receive the higher single rate of a pension or benefit and is unaffected by the income or assets of the partner.
The expression "special reason" is not defined in the Act. However, the Federal Court of Australia observed in re Boscolo v Secretary, Department of Social Security [1999] FCA 106 that although the s 24 discretion is "not lightly to be enlivened" that "does not require that the case be extremely unusual, uncommon or exceptional". Instead, the test is whether the circumstances meet "the requirement….that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course". In other words, s 24 is intended as a provision of last resort and should only be applied when all other reasonable means of support have been exhausted.
The expression "special reason" must be interpreted in the context and consistent with the scope and purpose of the Act. That context and purpose was explained in the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth), which relevantly provided (at 17):
...there is justification in paying a higher rate to an unpartnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person.
In re Holt and Secretary, Department of Education, Employment & Workplace Relations [2010] AATA 143 at [29]-[30], the Tribunal found that caution should be exercised about reliance on cases which deal with the meaning of "special reason in the particular case ". Similarly, in re Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084 at [39]-[42] where, the Federal Court held that there is a particular focus under the Act "on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension". In this case, there is evidence that Mr Hammoud and the Applicant were not prevented from pooling their resources, although the evidence is scant as to the extent that they did so. For example, Mr Hammoud paid for family health insurance and the Applicant did not seek payment of child maintenance.
Reference 2.2.5.50 of the Guide to Social Security Law "Discretion to Treat a Person as Not Being a Member of a Couple for a Special Reason" provides the policy for applying the discretion in s 24. The Guide provides that:
Section 24 discretion exists to deal with unfair, inequitable and/or unjust anomalies.
Section 24 is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted.
In addition, "[t]he discretion ... should be exercised ONLY where a full consideration of all the circumstances relevant to the individual's case would make it unjust or unreasonable not to do so".
According to the Guide, three questions need to be considered as part of an assessment of the full circumstances of the case:
(a)is there a special reason to be considered in this couple's circumstances?;
(b)is there a lack of being able to pool resources as a result of the circumstances?, and
(c)is there financial difficulty as a result of the couple's circumstances?
Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
On the evidence before me I find there to be no special reason why the Applicant should not be treated as a member of a couple with Mr Hammoud. There is no evidence that she was unable to pool resources with Mr Hammoud during the relevant period or that she faced financial difficulty beyond that which is commonly experienced by many social security recipients who find themselves in straitened circumstances.
Does the Applicant owns assets (property)?
Auburn
In August 2011, the Applicant settled the purchase of property at Auburn for the purchase price of $481,000. This is where she currently resides.
Burwood
In September 2011, the Applicant settled the purchase of property at Burwood for the purchase price of $820,000, with a mortgage of $495,500. In her evidence to the SSAT Ms Idlabi claimed the property is however really owned by her sister, Sarab, who provided the funds.
Oceanic Invest Pty Ltd (‘Oceanic’)
Centrelink provided a company search in relation to Oceanic. The Applicant was recorded as the sole beneficial owner of all shares in the company as well as the sole director from October 2011 to June 2014. The registered office was, between November 2011 and 2014 at premises owned by the Applicant in Burwood. It was only in June 2014 that the shares were transferred to Sarab, the registered office changed, and Sarab became the sole director.
On 6 December 2013, Oceanic, purchased property at Bondi, for $1,750,000 with a mortgage of $300,000. Between January and July 2012, the Applicant signed a series of residential tenancy agreements on behalf of the landlord, Oceanic, in relation to the property in Bondi. The property was leased for about $950 per week.
The Applicant contended that the Burwood and Bondi properties are actually held on trust for her sister Sarab, and that she receives no financial benefit from the properties. In her email she wrote that her sister had asked her to ‘put the company in [the Applicant’s] name and had assured her she would not have to ‘do anything’. She agreed because her sister had been helpful to her, especially when she was under a lot of stress in her relationship. She wrote that she never received any financial benefit from Oceanic. In support of this contention she provided to the SSAT a typed letter of four paragraphs purportedly signed by 'Sarab Chami'. The document states Ms Idlabi was used as a “proxy” to facilitate debt refinancing arrangements and she did not ever derive any income benefit from the property ownership. The letter is undated; is on blank paper (as compared to company letterhead); does not give any company details for example, an ABN. This was the only evidence of the asserted trust. I agree with the SSAT that the letter does not support a finding that the properties are held in trust. Given the significant value of the (income producing) assets, and the potential amount of the return on investment those assets could reasonably be expected to produce it is improbable, in my view, that the arrangement was not formally documented. I do not accept the Applicant’s assertion of holding the property on trust for her sister.
Further, contrary to her assertion, and in addition to purporting to bind the company through her signature on the tenancy agreements, the Applicant has represented to third parties that she is the registered owner of the above properties. For example, on 26 November 2012, the Applicant signed an ANZ Mobile Lending Application in which she listed her "Property Assets" as her family home at Auburn ($600,000), property ‘at Bondi’ (sic) ($2,700,000) and other (unspecified) property ($1,200,000) totalling $4,500,000.
In summary, there was clear evidence that the Applicant is the registered proprietor of properties at Auburn and at Burwood. Oceanic, of which she was the sole shareholder and director, is the registered proprietor of property in Bondi. I therefore find that, the Applicant, is (and in respect of Oceanic was until 26 June 2014) the beneficial owner of the properties and that these assets are properly taken into account in determining the Applicant's entitlement to social security payments.
The debts
The pensions are affected by whether the recipient is single or partnered. The Applicant did not challenge the calculation of the debts. I accept that Centrelink has correctly calculated a debt of Austudy of $19,513.19 for the period 16 February 2004 to 28 February 2007 and Newstart allowance of $623.54 for the period 15 June 2006 to 5 July 2006, and PP totalling $48,881.75 for the periods 6 July 2006 to 28 February 2007 and 8 February 2009 to 7 December 2012 combined.
The calculation of the debts was accepted as correct by the SSAT, and there is no reason for me to find otherwise.
Accordingly, the overpayment of Austudy, Newstart and Parenting Payment paid to the Applicant in the period constitutes legally recoverable debts under s.1223(1) of the Act, totaling the amount of $69,018.48.
Are there circumstances by which Ms Idlabi should not have to repay the debts?
The Act provides that the debt may be written-off a debt if it is irrecoverable or the debtor has no capacity to repay the debt or the debtor is not receiving a social security payment under the Act, and it is not cost effective for the Commonwealth to take action to recover the debt. This cannot be applied because the Applicant works virtually full time as a Director of Nursing in an aged care facility. She claimed to be paying the debt back.
The Act provides that all or part of a debt may be waived in specified circumstances, namely that the debt has arisen solely because of an administrative error. Here there is no evidence that the debt arose solely because of an administrative error and therefore the debt cannot be waived on this basis.
The Act also provides that a debt may be waived where there are special circumstances other than financial hardship alone that makes it desirable to waive the debt.
I accept that she may be making a valuable contribution to the community through her work – for which she is remunerated – in aged care. I also accept that she is a caring mother and wishes to have her children grow up experiencing good mental and emotional health.
Overall though, there is no evidence before me that would persuade me that the Applicant’s circumstances are special and I am therefore not satisfied that Ms Idlabi’s circumstances overall are sufficient to be classified as “special” for the purposes of waiver.
CONCLUSION
I find that the Applicant was a “member of a couple” but was paid pensions at the single rate. Further, she had received “income” which was not taken into account when calculating her pensions. I therefore find that as a result of being overpaid pensions by Centrelink, the Applicant has debts as follows:
(a)Austudy - $19,513.19
(b)NSA - $623.54
(c)PP (from 6 July 2006 to 28 February 2007) - $8,779.50
(d)PP (from 8 February 2009 to 7 December 2012) - $40,102.25
For the reasons given above, I further conclude that the debts must be repaid in full.
DECISION
The decision under review is affirmed.
I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of N Isenberg, Senior Member .........................[sgd]...............................................
Associate
Dated 21 January 2016
Date(s) of hearing 14 December 2015 (Heard on the Papers) Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Contract Formation
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Implied Terms
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Unconscionable Conduct
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Fiduciary Duty
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