Jamieson and Secretary, Department of Social Services
[2014] AATA 211
•10 April 2014
[2014] AATA 211
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3142
Re
Shay Jamieson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 10 April 2014 Place Perth The Tribunal determines that the decision be set aside and the matter remitted to the Secretary for further consideration in accordance with the findings of the Tribunal with the direction that the Secretary obtain a valuation from the AVO in relation to the historical values of the Innisfail investment unit.
...(Sgd) A Cunningham....................
Ms A F Cunningham (Senior Member)
SOCIAL SECURITY – disability support pension – assets test – meaning of principal home – duplex units – assets limit exceeded – overpayment – waiver considered – decision remitted to Secretary for recalculation of debt
Social Security Act 1991, ss 4(2), 4(3), 11A(1)(a), 11A(9), 117, 1064, 1118(b), 1118(1), 1237A, 1237AAD
Guide to Social Security Law
Pala and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1070
Re Matula and Secretary Department of Families Housing Community Services and Indigenous Affairs (2009) AATA 993
Re Samek and Department of Social Security (1988) 16 ALD 295
Re Secretary, Department of Family and Community Services and Kulshrestha (2003) 73 ALD 438
Secretary, Department of Family and Community Services and Leung [2003] AATA 796
Venettacci
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 157
Lymberopoulos and Secretary, Department of Family and Community Services [2004] AATA 891 Demovich and Secretary, Department of Family and Community Services [2004] AATA 647Re Bowden and Repatriation Commission [1992] AATA 78
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
10 April 2014
The applicant, Shay Jamieson seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) made on 29 May 2013, which affirmed a decision of a Centrelink Authorised Review Officer (ARO) that Mr Jamieson had been overpaid disability support pension (DSP) for the period 19 April 2004 to 28 May 2010. The decision of the ARO made on 5 May 2011 affirmed an earlier decision of a Centrelink officer to raise and recover a debt in the sum of $34,812.66 as a result of the incorrect value of assets being taken into account when Centrelink calculated the rate of Mr Jamieson’s DSP. The amount of the debt was adjusted to $38,766.65 by Centrelink prior to the decision of the SSAT on the basis that Mr Jamieson’s ex-partner’s assets had not been correctly taken into account.
The hearing was conducted by way of video link between the Hobart Registry and the Perth Registry in Western Australia. Mr Jamieson appeared on his own behalf and the Secretary was represented by Allison Ladhams. Mr Jamieson gave oral evidence and was cross-examined by Ms Ladhams. The evidence submitted on behalf of the Secretary comprised the T Documents which were tendered pursuant to section 35 of the Administrative Appeals Tribunal Act 1975.
Mr Jamieson has received Centrelink payments since 26 July 1999 which included DSP from 19 April 2004. At the time of applying for DSP Mr Jamieson was the registered owner of two properties. He owned a property at Busselton Western Australia (Busselton property) and at Innisfail, Queensland (Innisfail property) Mr Jamieson contended that Centrelink had incorrectly decided that his principal residence was the Innisfail property and not the Busselton property. Mr Jamieson further maintained that he was not living in a marriage like relationship with Mrs Finna during the relevant period and that the value of her assets should not have been included in the calculation of his rate of DSP.
ISSUES
The issues to be determined in this application are:
1. Whether Mr Jamieson was a member of a couple with Ms Finna for all or part of the relevant period;
2. Which property was Mr Jamieson’s principal home during the relevant period;
3. Whether Mr Jamieson has been overpaid DSP;
4. If Mr Jamieson was overpaid DSP, whether the overpayment is a debt due to the Commonwealth; and
5. If the overpayment is a debt due to the Commonwealth, whether the debt should be waived or written off for a period.
LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (SS Act). There was no dispute that Mr Jamieson meets the qualification provisions for DSP as contained in Division 1 of Part 2.3 of the SS Act. Section 117 in Division 5 contains the provisions relevant to the calculation of a person’s DSP rate and refers to the Pension Rate Calculator A at the end of section 1064 in Part 3.2.
Module G at Section 1064-G1 sets out a six step process to work out the effect of a person’s assets on the maximum rate of payment. Section 1064-G2 states that the value of the assets of a member of a couple is to be taken to be 50% of the value of the person’s assets and the value of the person’s partners assets.
The term “member of a couple” is defined in subsection 4(2) of the SS Act and relevantly provides that a person is a member of a couple if:
1. The person has a relationship with another person (the partner):
2. The person is not legally married to the partner;
3. The relationship between the person and the partner is a de facto relationship;
4. Both the person and the partner are over the age of consent applicable to the state in which they live; and
5. The person and the partner are not within a prohibited relationship.
The criteria for forming an opinion about the nature of a couple’s relationship are contained in subsection 4(3) which provides:
1. The financial aspects of the relationship;
2. The nature of the household;
3. The social aspects of the relationship;
4. Any sexual relationship between them; and
5. The nature of their commitment to each other.
MEMBER OF A COUPLE
It is the contention of the Secretary that Mr Jamieson was in a de facto relationship with Ms Finna between 26 March 2005 to 15 September 2005 and between 13 January 2006 to 25 January 2011. Mr Jamieson maintains that whilst he did live with Ms Finna during these periods, he did not agree that that their relationship was “marriage-like”.
In order to determine the nature of the relationship between Mr Jamieson and Ms Finna during the relevant periods each of the criteria referred to in subsection 4(3) will be considered under the following headings.
Financial aspects
It was Mr Jamieson’s evidence that he owned both the Busselton property and the Innisfail property prior to meeting Ms Finna who was still married at the time. Ms Finna then jointly owned a property at Cowley with her husband. He said that they operated separate bank accounts and had their own sources of income both being in receipt of Centrelink benefits. Mr Jamieson maintained that Ms Finna spent her money on the poker machines and contributed little if anything towards household expenses. They generally ate out at Mr Jamieson’s expense. Mr Jamieson maintained that he had also paid for Mr Finna to accompany him on a number of trips and on one occasion paid her expenses to visit her dying brother in Romania. He said that on occasions Ms Finna’s grandchildren would accompany them on these trips. It was Mr Jamieson’s evidence that he also paid for Ms Finna to accompany him to Busselton in Western Australia where they sometimes stayed for several months.
There was evidence that Mr Jamieson paid Ms Finna the sum of $30,000.00 by way of a property settlement following their separation. Mr Jamieson explained that he was advised to reach a settlement rather than proceed to a court hearing after Ms Finna had lodged a caveat on the title to his property. He said that he borrowed the money for the property settlement from the bank.
It was Mr Jamieson’s evidence that he received the approximate some of $200.00 per week from renting the other unit on the Innisfail property.
The nature of the household
Mr Jamieson and Ms Finna did not have children together but Ms Finna’s grandchildren often spent time with them including during trips away.
It was Mr Jamieson’s evidence that when Ms Finna first moved into his home at the Innisfail property, they shared a bedroom together and had a sexual relationship. He said that their sexual relationship ceased after a month or so when Ms Finna moved into a separate bedroom but she still kept some clothing and articles in his bedroom. They generally ate their meals together but mostly ate out which Mr Jamieson said was just as cheap as eating at home.
Mr Jamieson described how Ms Finna had helped him when his back condition was particularly bad by making him cups of coffee, undertaking some of the house work and hanging out the clothes. Whilst Mr Jamieson generally did most of the house work, Ms Finna undertook the washing of their clothes.
Social aspects of the relationship
It was Mr Jamieson’s evidence that they ate out together on a regular basis at pubs and cafes and that he often “shouted her” nights out at the pub. They also went on numerous holidays together, including the trip to Romania which is Ms Finna’s country of birth. Mr Jamieson agreed that people in Innisfail probably viewed them as a couple.
Sexual relationship
Mr Jamieson maintained that his sexual relationship ceased approximately a month after they commenced living together because of their arguments and his feelings for Ms Finna had changed. In its decision, the SSAT recorded that their sexual relationship had ended after three months due to Mr Jamieson’s back injury.
Nature of commitment to one another
Mr Jamieson maintained that his relationship with Ms Finna could not be described as “marriage-like” and that whilst he cared for her, he did not love her. He claimed that there was a period when she looked after him and acted as his carer. On 16 January 2006 Ms Finna lodged a claim for carer allowance and/or carer payment. In the claim form she described her relationship with her partner, Shea Jamieson as “de facto”. Mr Jamieson’s home address was stated as Innisfail. Mr Jamieson stated in his evidence to the Tribunal that Ms Finna applied for carer allowance because she needed the money. In answer to question number 11- “Do you receive free accommodation?” - Ms Finna stated “yes”.
In a “Partner Details” form completed by Ms Finna on 16 January 2006 she named Mr Jamieson as her partner and stated that they had commenced living together on the 13 January 2006.
Ms Ladhams advised that Centrelink’s enquiries were initiated following a “tipoff” received by telephone on 14 March 2005 in which the informant maintained that Mr Jamieson was living with a partner who has her furniture at Mr Jamieson’s Innisfail address. At T68 page 529 there is a note of a telephone call dated 5 April 2005 between a Centrelink officer and Mr Jamieson confirming “that alleged partner does live with him and that they were going to go into the CSC to see if alleged partner could become his carer.…”. In his evidence to the Tribunal Mr Jamieson advised that Ms Finna ceased living with him around the time of Cyclone Yasi which was confirmed as having occurred on 31 January 2011.
Consideration Member of a Couple
Subsection 4(3) directs that regard be had to all of the circumstances of a relationship. It is clear from the wording of the subsection that this list of circumstances is not exhaustive and that the existence or absence of any one factor is not conclusive.
In Pala and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1070, the Tribunal considered the nature of the commitment of two people and said at paragraph 44:
“A global assessment of the evidence undoubtedly reveals that, since marrying on 15 April 2002, Mr Pala and Kikuko have derived, and continue to derive, substantial personal benefits from their marriage. Although their relationship, may from an outsider’s perspective, not be seen as standard or conventional (for example, because they sleep in separate rooms of the house they share and share no sexual relations), it is plainly mutually beneficial to them: Staunton-Smith. That is, Mr Pala has provided and continues to provide Kikuko with accommodation and security as well as financial and moral support (for example, by encouraging and helping her to further her education). On the other hand, Kikuko provides Mr Pala with companionship, assistance around the household and with his dogs and supportive care. They may be “separated” in the sense that they sleep in separate rooms of the house but that does not equate to them living “separately and apart” from each other “on a permanent or indefinite basis” or amount to a destruction of the consortium vitae: Lenard and Staunton-Smith. The comfort and support they each derive from their relationship is based in a combination of domestic, interpersonal and financial co-operation. In Mr Pala and Kikuko continues to demonstrate a substantial commitment to their marital relationship”.
There are a number of similarities between the relationship described in the Pala decision and that which existed between Mr Jamieson and Ms Finna. Mr Jamieson provided Ms Finna with accommodation and security as well as a financial support, in his words, he “paid for everything”. Mr Jamieson described how Ms Finna helped care for him and assisted with some household tasks including the washing. They enjoyed social companionship and regularly ate out together. Mr Jamieson agreed that they would have been regarded as a couple by people in Innisfail. Mr Jamieson and Ms Finna also enjoyed a number of holidays together including trips to Busselton in Western Australia where they stayed at Mr Jamieson’s property and an overseas trip to Romania which was funded by Mr Jamieson. In documentation to Centrelink, both Mr Jamieson and Ms Finna stated that they were in a de facto relationship. It is also notable that Mr Jamieson negotiated and paid a lump sum of $30,000 to Ms Finna by way of a property settlement following their separation.
As in the Pala case, it appears that the relationship between Mr Jamieson and Ms Finna was “mutually beneficial” to both of them. The Tribunal concludes that the evidence regarding the nature of their interpersonal relationship and the nature of the commitment between Mr Jamieson and Ms Finna suggests that they were in a marriage like relationship.
PRINCIPAL HOME
Part 3.12 of the Social Security Act 1991 (the Act) contains the general provisions relating to the assets test. Subsection 1118(b) provides:
“If the person is a member of a couple—the value of any right or interest of the person in one residence that is the principal home of the person, of the person’s partner or of both of them that is a right or interest that gives the person or the person’s partner reasonable security of tenure in the home;”
“Principal home” is defined in section 11A. Subsection 11A(1)(a) states that the land adjacent to the dwelling house is included in the definition to the extent that the land is held under the same title document as the land on which the dwelling house is located.
Subsection 11A(9) provides that a residence of the person is taken to continue to be the person’s principal home during any period not exceeding 12 months during which the person is temporarily absent from the residence.
There is nothing however in the definition section of “principal home” that specifies which of two properties owned and occupied by a person should be considered the person’s principal home. The term has however been considered in a number of cases before the Tribunal. The Tribunal in ReMatula and Secretary Department of FamiliesHousing Community Services and Indigenous Affairs (2009) AATA 993 said at paragraph 35 that:
“..The words “principal” and “home” are ordinary English words and should be given the ordinary meaning in the context in which they appear.”
In Re Samek and Department of Social Security (1988) 16 ALD 295 the Tribunal held that where a person had two or more properties in which they had a proprietary interest, the “principal home” should generally be the one where they spent most of their time.
At paragraph 43 in Re Matula and Secretary, Department of Families Housing Community Services and Indigenous Affairs (supra), the Tribunal concluded:
“I agree with the argument put for the respondent Secretary that as a general rule, where a person has more than one home, the place where they spend most of their time should be regarded as their “principal home”. Nonetheless, in my view time spent in a place will not necessarily trump all other considerations. The weight to be given to this factor will depend on the circumstances of the individual case.”
It is the contention of the Secretary that throughout the entirety of the relevant period being 19 April 2004 to 28 May 2010, Mr Jamieson’s principal home was the Innisfail property. During this entire period Mr Jamieson had recorded his home address as being Innisfail. Mr Jamieson on the other hand, maintains that the Busselton property was his principal home throughout the relevant period and that he spent between four and five months a year at that property and the balance of his time at Innisfail. It was Mr Jamieson’s evidence that he returned to the Innisfail property because the warmer weather suited his back condition whereas it was “freezing cold in Busselton during winter”.
Mr Jamieson said that he would either sleep in the caravan or in the shed on the Busselton property as there was no constructed residence.
In cross-examination Ms Ladhams asked Mr Jamieson about his bank statement transactions between April 2004 and March 2009. Mr Jamieson agreed that the recorded dates for the transactions in Busselton would suggest his presence in the area at that time. The recorded transactions in Busselton were between 30 January 2006 to 27 March 2006; 11 December 2006 to 15th February 2007; 4 November 2007 to 26 February 2008; and 5 January 2009 to 9 March 2009, a total period of nine months. It was also apparent that on most occasions Mr Jamieson had travelled between Busselton and Innisfail by car which had taken up to 2 weeks.
Mr Jamieson had nominated the Innisfail property as his postal address for Centrelink correspondence and arranged for all mail from Busselton to be redirected to this address.
The Tribunal was referred to Centrelink records of a number of telephone conversations with Mr Jamieson as well as various documentation submitted by him. It was Mr Jamieson’s evidence that the documentation had been completed by him in the presence of a Centrelink officer. In the Real Estate Declaration Form completed by Mr Jamieson on 12 February 2009 , Mr Jamieson described the Busselton property as a two acre vacant block with an unlined tin shed comprising just one room. He estimated the current market value of the property including land and buildings at $300,000 and stated that the property was owned jointly with his partner in equal shares. An RP data search conducted on 6 June 2010 revealed that the Busselton property was purchased by Mr Jamieson on 1 July 1993.
On 1 April 2009 and 1 May 2009 Mr Jamieson advised Centrelink that a friend was staying at the Busselton property to keep an eye on it for him. It is Mr Jamieson’s evidence that this person was a former partner of his who owed him an amount of money and that she was repaying him periodically. He subsequently forgave the loan when the woman became pregnant and left the property.
In his claim for DSP dated 19 April 2004, Mr Jamieson nominated Innisfail as his permanent home address. Mr Jamieson failed to answer question for question 14 which asked “do you own your own home but live somewhere else?” It was Mr Jamieson’s evidence to the tribunal that he understood the reference to real estate included a built residence and not a vacant block of land.
Although Mr Jamieson maintains that the Busselton property was his principal residence there is little evidence to support such a finding. Mr Jamieson contends that he spent between four and five months at this property in each year but he was unable to nominate his dates of arrival and departure or refer to any supporting evidence. The only evidence that the Tribunal has before it are details of the bank transactions that occurred in the Busselton area. They suggest that for five years during the relevant period Mr Jamieson spent a total of nine months in the Busselton area.
On the other hand Mr Jamieson agrees that he spent the remainder of the year at the Innisfail property in one of the two units constructed by him. This property was nominated as his home and postal address during the relevant period. The Innisfail property is also nominated by Ms Finna as her home address in the documentation provided to Centrelink.
In line with the authorities referred to above, the Tribunal is satisfied on the evidence presented that Mr Jamieson’s main place of residence and principal home during the relevant property period was the Innisfail property. Accordingly the Busselton property cannot be disregarded as an asset under subsection 1118(1) of the SS Act.
Value of Principal Home
As the Tribunal has determined that Mr Jamieson’s principal home is the Innisfail property, the next issue to be determined is the value of this property for the purposes of the asset test in calculating Mr Jamieson’s rate of DSP payment. The Innisfail property consists of two units, one of which is occupied by Mr Jamieson and the other by a tenant from whom Mr Jamieson receives periodic rental.
At the conclusion of the hearing the Tribunal afforded the respondent an opportunity to provide further written submissions in relation to two issues:
1. Whether both the value of the applicant’s investment unit at Innisfail and rent from the property were taken into account when calculating the rate of DSP payment to the applicant; and
2. The appropriateness of the method of attributing a value to the investment unit of the Innisfail property.
The written submissions received advised that in accordance with the Pension Rate Calculator A at the end of section 1064, where a person owns an investment property, the value of the property can be assessed under the assets test or rent received from the property can be assessed under the income test. The property cannot however be assessed under both the assets and income tests. Both the value attributed to the investment property and the amount recorded for income which may include rent, are recorded in the Department’s computer system. A periodic calculation is undertaken to determine which of the income and asset tests generates the lower amount of DSP payable which is the one that is applied. The Secretary confirmed that the rate of payment of DSP for each fortnight did not include both the value of the investment property and the rent received from the investment property.
With respect to the value of Mr Jamieson’s Innisfail property, the Secretary considered that the questions raised are firstly, whether it is appropriate to treat only one of the two units as Mr Jamieson’s principal home; and secondly, if so, whether it is appropriate to simply halve the ATO value of the Innisfail property to ascertain the value of the investment unit. Reference was made to Part 4.6.3.30 of the Guide to Social Security Law on the treatment of self-contained living areas within a person’s principal home as well as a number of authorities in which the Tribunal had found that only part of a property on a single title should be considered as a person’s principal home.
In Re Secretary, Department of Family and Community Services and Kulshrestha (2003) 73 ALD 438 the Tribunal found that as the respondent did not reside in the whole building at the relevant times, the whole of the property could not be considered as his principal home and said at paragraph 27:
“… We are satisfied on the basis of the [respondent’s] evidence and of the plans that the building is capable of being divided into two residences but may also be used as one. ON the basis of the tenancy agreeme4tn, we are satisfied that it has been divided into two and that his tenants have exclusive possession of 47A Braeside Avenue. Dr Kulshrestha is not entitled to enter that part of the building at will. He may only enter in accordance with the terms of the lease and in so far as the law permits him to do so. He may not carry out the activities of daily living in 47A Braeside Ave or, indeed, any of them. In relation to 47A Braeside Ave, Dr Kulshrestha is a landlord and his tenants, rather than Dr Kulshrestha, are the people for whom it is home. It is not Dr Kulshrestha’s home and, therefore, we are satisfied that it is not part of his principal home. We find that his principal home is limited to 47 Braeside Ave and does not encompass the whole of the building”.
In Secretary, Department of Family and Community Services and Leung [2003] AATA 796, the Tribunal found that the respondent’s principal home comprised his three bedroom house but not a self-contained flat on the same title that was the subject of a commercial rent with a tenant in place.
Other decisions referred to included Venettacci and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 157 where the Tribunal found that the applicant’s home comprised only one of three units on the same title. In Lymberopoulos and Secretary, Department of Family and Community Services [2004] AATA 891 the property consisted of four units and the Tribunal held that the two units lived in by the applicants comprised the principal home. In Demovich and Secretary, Department of Family and Community Services [2004] AATA 647 the Tribunal found that the part of the house used by a tenant and separated from the applicant’s part of the house by a lockable hallway door did not form part of the applicant’s principal home.
In line with the above authorities the Tribunal considers that it is appropriate to treat only one of the units at the Innisfail property being the one occupied by Mr Jamieson, as his principal home for the purposes of the assets test.
The next question arising is what value should be ascribed to the rental unit of the Innisfail property. The respondent Secretary referred the Tribunal to the Leung case where it was argued by the respondent that no value could be ascribed to the asset because the leased flat was on the same title as the principal home and could not be separately sold, therefore its value could not be realised. In that case the Tribunal referred to a decision of Senior Member Blow, as he then was, in Re Bowden and Repatriation Commission [1992] AATA 78 in which he said:
“These provisions add weight to the interpretation that I have placed on the definition of "principal home". In the light of those provisions it seems clear Parliament intended not only that a principal home could constitute only a part of an unsubdivided property but also that any separately let part of a property would not constitute part of a dwelling house. These provisions were enacted against a background of many cases in which it had been held that part of a residential building can constitute an entire dwelling or dwelling house.
…
The fact that the leased flat was and is an unrealisable asset may only be taken into account pursuant to the hardship provisions of the Act -
…-
In view of the provisions in the Act that I have referred to above I must conclude that the leased flat does not constitute part of the applicant's principal home, and that it was properly taken into account in applying the asset test provisions of the Act”.
The respondent accordingly submitted that in cases where there is a single title issued, but only part of the property constitutes a person’s principal home, it is appropriate to ascribe the value to the portion of the property which does not form part of the person’s principal home, even though that asset may not be able to be separately realised.
In the current case the value ascribed to Mr Jamieson’s principal home, being one half of the duplex property, was one half of the AVO valuation. The AVO valuation obtained was a curbside valuation. On the basis that Mr Jamieson had suggested in his evidence that both duplex units are the same, the Secretary contends that it is appropriate for the Tribunal to accept the value of the investment unit of the Innisfail property as being one half of the value of the total property.
In each of the authorities referred to by the Secretary, separate valuations had been ascribed by the AVO for that part of the dwelling not occupied by the pension applicant or self-contained flat or unit on the same title. The historical AVO valuations for Mr Jamieson’s Innisfail property were with respect to the entire property. Mr Jamieson informed the Tribunal that he did not accept the valuations for any of his properties. Whilst it was contended that it was Mr Jamieson’s evidence that the Innisfail units are similar in nature, Mr Jamieson was not legally represented and the Tribunal considers that in the circumstances it is appropriate to direct that the Secretary obtain a valuation from the AVO in relation to the historical value of the Innisfail investment unit.
OVERPAYMENT OF DSP
The remaining issues are whether Mr Jamieson has been overpaid DSP and if so whether the debt that arises should be waived or written off for a period. Details of the Centrelink Debt Calculator were included in the T Documents at T39 and were not challenged by Mr Jamieson. On the basis that the values ascribed to Mr Jamieson’s assets excluding his principal home, are in excess of the allowable asset limit, the Tribunal is satisfied that Mr Jamieson has been overpaid DSP for the relevant period.
Section 1223 of the SS Act provides that if a social security payment is made and the person who obtains the benefit of the payment was not entitled for any reason to obtain the benefit, the amount of the payment is a debt due to the Commonwealth.
WHETHER THE DEBT COULD BE WAIVED OR WRITTEN OFF
Section 1237A provides for the waiver of the debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received the payment that gave rise to the debt in good faith. It was submitted by Ms Ladhams on behalf of the Secretary that this provision has no application in the current case because the debt cannot be said to be attributable solely to an error of the Commonwealth.
The Tribunal accepts Ms Ladhams’ submission for it is clear that a key contributor to the debt was Mr Jamieson’s failure to advise Centrelink of his assets in a timely manner. Mr Jamieson did not dispute having received documentation from Centrelink advising him that he was required to inform Centrelink of any change of circumstances. The evidence was that Centrelink first became aware of the circumstances giving rise to the debt, namely Mr Jamieson’s cohabitation with Ms Finna and his living arrangements following a “tipoff”. As a result Mr Jamieson attended Centrelink offices and completed relevant documentation concerning the nature of his relationship and details of his income and assets.
Section 1237AAD affords a discretion to waive the right to recover all or part of a debt if the Secretary is satisfied that the debt did not arise wholly or partly from Mr Jamieson knowingly making a false statement or representation or failing to comply with a provision of the SS Act or Administration Act and there are special circumstances that apply (other than financial hardship alone) that make it more appropriate to waive than to write off the debt.
As has been noted earlier in this decision, in his claim for DSP Mr Jamieson failed to disclose that he owned any real estate. He simply did not answer the question whether he owned his own home but lived somewhere else. Mr Jamieson said that he did not appreciate that the term real estate referred to a vacant block of land. This however does not explain his failure to advise Centrelink of his ownership of the Innisfail property that has been found to be Mr Jamieson’s principal home. At the time of his claim for DSP Mr Jamieson owned both the Innisfail and the Busselton properties and did not inform Centrelink of their ownership until he was asked to complete relevant documentation following the “tipoff” from an informer.
Mr Jamieson claims to have difficulty with reading and writing however he said that he completed his documentation in the presence of a Centrelink officer. A copy of his claim for DSP is included at T3 and is dated 29 July 1999. Mr Jamieson states his home address as Woy Woy and in response to question 26 in the Income and Assets section “Do you own (or partly own) real estate other than the home in which you live” - Mr Jamieson answered - “No”.
The evidence was that both properties were owned by Mr Jamieson at the time of his DSP claim. In failing to disclose the ownership of his two properties, Mr Jamieson made a false statement. The provisions of section 1237AAD are accordingly not satisfied. The Tribunal is satisfied that the debt arose either wholly or in part as a result of Mr Jamieson’s failure to disclose his asset position. Nor is the Tribunal satisfied that there are special circumstances that make it desirable to waive the debt.
Nor does the Tribunal consider that it is appropriate to write off the debt pursuant to section 1236 as none of the relevant factors apply. The debt is not irrecoverable at law. Mr Jamiesons’s whereabouts are known and he has capacity to repay the debt either through continuing to make payments from deductions of his ongoing DSP payments or through ownership of two properties which appear to be unencumbered. It is cost effective for the Commonwealth to recover the debt.
For all of the above reasons the Tribunal determines that the decision be set aside and the matter remitted to the Secretary for further consideration in accordance with the findings of the Tribunal with the direction that the Secretary obtain a valuation from the AVO in relation to the historical values of the Innisfail investment unit.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) …(Sgd) T Freeman………..
Administrative AssistantDated : 10 April 2014
Date(s) of hearing 21 March 2014 Date final submissions received
Solicitors for the Applicant
11 April 2014
Applicant on own behalf
Solicitors for the Respondent
Ms Ladhams, Australian Government Solicitor
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