Jervis and Department of Family and Community Services
[2001] AATA 288
•9 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 288
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1040
GENERAL ADMINISTRATIVE DIVISION )
Re LUCAS JERVIS
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R P Handley, Senior Member
Date9 April 2001
PlaceSydney
Decision The Tribunal affirms the decision under review.
[sgd] Mr R P Handley
Senior Member
CATCHWORDS
Social Security – newstart allowance – debt – prosecuted – failure to declare earnings whilst in receipt of newstart allowance – whether debt should be recovered, waived or written off – whether debt due to administrative error by the Commonwealth – knowingly making a false statement or representation – current withholdings –capacity to repay debt
Social Security Act 1991 – ss 1236, 1237A, 1237AAD
Crimes Act 1914 – s 21B
REASONS FOR DECISION
This is an application by Lucas Jervis ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT"), made on 2 August 2000, which affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") and an authorised review officer, to raise and recover a debt of $9,609.02 in respect of newstart allowance paid in the period 21 August 1997 to 4 October 1998.
At the hearing, the Applicant represented himself, and the Respondent was represented by Susan Fahey of Centrelink. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Act 1975 (the "T documents"), together with the documents tendered by Ms Fahey. The Applicant gave oral evidence at the hearing.
backgroundThe Applicant, who was born on 17 April 1975 and is now aged 25, was employed as a casual storesperson by Gem Fresh Pty Ltd from 12 August 1997 to 3 March 1999 (T20). During the period 21 August 1997 to 4 November 1998, the Applicant was also receiving newstart allowance, but did not notify the Respondent of his employment. On 30 October 1998, the Applicant made a statement that he had been employed by Gem Fresh Pty Ltd since August 1997, usually working 3 days a week and earning between $200 and $300 per week (T17).
On 21 August 1999, the Respondent decided to raise and recover a debt of $9,609.02 in respect of newstart allowance paid during the period 12 August 1997 and 4 November 1998 (T23). This decision was confirmed by the original decision-maker on 19 January 2000 (T40). The decision was also affirmed by an authorised review officer on 21 February 2000 (T44) and by the SSAT on 2 June 2000 (T2). On 6 July 2000, the Applicant lodged an application for a review by the Tribunal (T1).
On 28 August 2000, the Applicant was convicted of an offence under s 1347 of the Social Security Act 1991 ("the Act"), to which he pleaded guilty. The offence was that "between 21 August 1997 and 4 November 1998 [he] did knowingly obtain payment of Newstart Allowance, which was only payable in part because he was employed and in receipt of income" (Exhibit R1). He was released without passing sentence upon entering into a recognisance. He was also ordered to pay reparation pursuant to s 21B of the Crimes Act 1914, in the sum of $8,379.92, being the balance of the debt outstanding on 9 August 2000.
applicable legislationThe Applicant does not dispute the amount of the debt. However, he disputes that it should be recovered. There is provision under the Act for the write off or waiver of debts in certain circumstances. The relevant sections of the Act are as follows:
"1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise."
"1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.""1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt."
"1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt."
the applicant's case
The Applicant stated that he does not dispute the amount of the debt, but he does not think that he should have to repay it. There are two main reasons for this. Firstly, he believes that he was treated badly by Centrelink. He has complained to the Commonwealth Ombudsman about this, but has not been notified of the outcome of that investigation. The Applicant has had dealings with various Centrelink offices. He is now dealing with the Fairfield office with respect to the newstart allowance he is receiving, and his dealings with that office have been fine.
Secondly, the Applicant stated that he is unable to repay the debt. At the current rate of withholding of $20 per fortnight, the debt will not be recovered until he is aged 45. However, he acknowledged that he will be able to manage with such a withholding.
the respondent's caseMs Fahey, for the Respondent submitted that this is a legally recoverable debt. It cannot be written off under s 1236(1A) because the Applicant was receiving a social security payment. It cannot be waived under s 1237A(1) because the debt was not due to an administrative error by the Commonwealth. Finally, it cannot be waived under s 1237AAD because the debt arose as a result of the Applicant knowingly making a false statement or representation.
Moreover, Ms Fahey submitted that the Tribunal has no jurisdiction to change the reparation order made by the Local Court.
Thus, Ms Fahey contended that the Applicant must repay the debt, and also noted that he is currently managing financially with the withholdings of $20 per fortnight from his newstart allowance.
considerations of law and findingsThe issue for the Tribunal to determine is whether the debt should be recovered. The Applicant does not dispute the amount of the debt.
Since the SSAT decision made on 2 August 2000, which is the subject of this review, the Applicant has been convicted by Burwood Local Court of an offence under s 1347 of the Act on 28 August 2000. The offence, to which he pleaded guilty, was that:
"Between 21 August 1997 and 4 November 1998 [he] did knowingly obtain payment of Newstart Allowance which was only payable in part because he was employed and in receipt of income" (Exhibit R1).
The Applicant was released without passing sentence upon his entering into a recognisance. He was also ordered to pay reparation pursuant to s 21B of the Crimes Act 1914, in the sum of $8,379.92 (Exhibit R1). This was the balance of the debt outstanding on 9 August 2000 (Exhibit R3).
The Tribunal has no jurisdiction with regard to the decision of Burwood Local Court. Essentially, the SSAT decision has been superseded by the Court decision. However, in the Tribunal's opinion, the SSAT did make the correct decision. The Tribunal agrees with the Respondent that there is no power to write off recovery of the debt because, contrary to s 1236(1A), the Applicant is receiving a social security payment, namely newstart allowance. Withholdings are being made from his newstart allowance, currently at a rate of $20 per fortnight, a rate at which the Applicant agreed is manageable.
With regard to waiver, the Tribunal also agrees with the Respondent that the waiver under s 1237A(1) is not available because the debt is not attributable solely to an administrative error by the Commonwealth. Furthermore, waiver is not available under s 1237AAD because the debt arose as a result of the Applicant knowingly making a false statement or representation in that he failed to declare his earnings from Gem Fresh Pty Ltd when he was also receiving newstart allowance.
The Tribunal therefore affirms the SSAT decision. In doing so, the Tribunal notes that the Applicant does have a capacity to repay the debt, albeit a limited one. With regard to his complaint about his dealings with Centrelink, the appropriate officer to whom such a complaint should be addressed is the Commonwealth Ombudsman and the Applicant has stated that he has already lodged such a complaint.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 19 January 2001
Date of Decision 9 April 2001
Applicant Self-represented
Counsel for the Respondent Susan Fahey
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