Iredale and Secretary, Department of Employment of Workplace Relations

[2005] AATA 661

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 661

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/354

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JOHN IREDALE

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date11 July 2005

PlaceSydney

Decision The application for revocation of a partial stay imposed by this Tribunal is refused.

............................................

Ms N Bell   Senior Member

SOCIAL SECURITY – Request for Revocation of Partial Stay Imposed by Tribunal – Applicant Would not Suffer Financial Hardship – Reduced Likelihood of Recovery – Sufficient Merit to Substantive Application for Review – Request Refused

Social Security Act 1991

Social Security (Administration) Act 1999

Natale v DFACS [2003] AATA 717

REASONS FOR DECISION

11 July 2005 Ms N Bell, Senior Member

1.      In this application Mr Iredale requests a revocation of the partial stay imposed by the Tribunal on 28 April 2005. The background to Mr Iredale’s application is as follows.

2.      The Social Security Appeals Tribunal, on 16 February 2005, decided that recovery of Mr Iredale’s Newstart allowance debt of an overpayment of $19,024.83, should be waived due to administrative error.  The overpayment had arisen after Centrelink failed to take into account moneys received by Mr Iredale in payments from Comsuper.

3.      A partial stay was ordered by the Tribunal at the request of the Secretary, to permit Centrelink to retain the amount of the debt already recovered from Mr Iredale, that is, $885.40.  I understand that Centrelink had ceased recovery of the debt from 18 March 2005, upon Mr Iredale ceasing to claim Newstart allowance.

4.      Mr Iredale submitted that the Secretary does not have strong prospects of success in the substantive application.  In particular, he referred me to the decision of the Tribunal in Natale v DFACS [2003] AATA 717, in which it was held that, in the circumstances of that case, letters sent by Centrelink to Mrs Natale noting the amount of her and her husband’s income did not displace the sole administrative error of Centrelink and thereby did not remove the grounds for waiver of a debt of an overpayment.

5.      Mr Iredale also submitted that, if the $885.40 were not released to him in accordance with the Social Security Appeals Tribunal’s decision, his already difficult financial circumstances would be worsened.  In this respect he provided documentation, including a tax notice of assessment, indicating a taxable income for the 2003/2004 financial year of $21,161.00.  I note that the Comsuper proportion of this income was $11,724.00.

6.      Mr Iredale said he has resurrected his business of property valuation and is in need of “seed money”.  He did, however, cease to claim Newstart allowance in March 2005, notwithstanding that he was at that time eligible to receive approximately $70.00 per fortnight after his Comsuper payments were taken into account.  He said he has found the Secretary’s action in this matter unpleasant and proposes to try to make a success of his business and not rely on Centrelink payments while this case is on foot.

7.      When I asked Mr Iredale what he would do if he was unsuccessful in the substantive application and he had to repay the $19,024.83 (including the $885.40 he seeks to have released to him now), he said he would talk to the debt recovery section of Centrelink and attempt to negotiate a method of repayment with them.  He said if his business is not succeeding he would go on Newstart Allowance again and would repay the debt by withholdings from that allowance.  He also said that if he is unsuccessful in the substantive matter he would obtain legal advice and would appeal the decision to the Federal Court.

8.      Mr Iredale said he has “some thousands” in savings but would be no more specific than to say that the amount of his savings is less than $6,000.00.

9.      Mr Larcombe, for the Secretary, submitted that the substantive application has real prospects of success.  In this respect, he relied on some nine letters that were sent to Mr Iredale showing an amount of fortnightly income that was substantially less than Mr Ireldale’s income from Comsuper.  These letters also advised Mr Iredale of an obligation to notify Centrelink of changes in his income.  The Secretary’s argument will be that Mr Iredale contributed to the error which gave rise to the overpayment. 

10.     Mr Larcombe also submitted that, if the Secretary is successful in the substantive application, any monies now released to Mr Iredale will have to be recovered from him again.  Such recovery, he submitted, will create hardship at a later date for Mr Iredale and his current income of approximately $425.00 per fortnight from Comsuper means that he has sufficient current means of support.  Mr Larcombe noted that Mr Iredale has chosen to forgo Newstart allowance at present.

11.     I have had particular regard to the decision in Re Repatriation Commission and Delkau (1985) 8 ALD 454, in which three principal factors were said to be of importance in considering stay orders where an agency has been directed to make a payment to a person and is seeking a review of that decision. Those factors are:

·any hardship which may be suffered by a party;

·the likelihood of recovery by the Commonwealth of monies to be paid under the decision sought to be stayed; and

·the prospects of success of the application for review

12.     Although Mr Iredale claims that he will suffer hardship if the $885.40 is not paid to him now, he chooses at the same time not to claim Newstart allowance.  He also referred to his intended use of the money as “seed money” for his business.  His evidence was also that he has “some thousands” in savings.  He receives Comsuper payments of approximately $425.00 per fortnight.  I do not find hardship in Mr Iredale’s circumstances.

13.     As Mr Iredale is no longer in receipt of a Social Security payment, there is no scope for recovery by withholdings unless he chooses to claim a payment in the future.  Mr Iredale indicated that if he is unsuccessful in the substantive matter he will, subject to legal advice, appeal to the Federal Court.  These matters, at best, complicate the likelihood of recovery by the Commonwealth.

14.     As to the prospects of success of the substantive application, it is an application that will require careful consideration by the Tribunal.  The decision in Natale (supra) turned very much on the particular facts of that case and it may be that the facts in this application are amenable to similar analysis.  However the arguments intended to be put by the Secretary give pause for thought and I consider that they constitute an arguable case.

15.     In all of the circumstances I consider it is desirable that the partial stay remain in place.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ................[Linda Blue].........................
  Associate

Date of Hearing  4 July 2005
Date of Decision  11 July 2005
Respondent  Centrelink, Legal Services