Jonathon Dean Cloros and Secretary, Department of Social Services
[2014] AATA 716
•2 October 2014
[2014] AATA 716
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1699
Re
Jonathon Dean Cloros
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 2 October 2014 Place Adelaide The Tribunal affirms the decision under review.
........... [Sgd] ..........................................................
Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY – overpayment of Newstart allowance – recovery – alleged administrative error giving rise to overpayment – applicant’s evidence of bona fide disclosure of earnings not accepted – no administrative error found – decision affirmed.
LEGISLATION
Social Security Act, 1991, s 1237A
Social Security (Administration Act) 1999, s 179(2)(d)
CASES
Cloros v Centrelink [2013] SASC 74
Re Cloros and Secretary, Department of Social Services [2014] AATA 300
REASONS FOR DECISION
Senior Member N A Manetta
2 October 2014
This is an application by Mr Jonathon Cloros for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 18 March 2013. I note that I have already delivered a decision and reasons on a preliminary question of jurisdiction.[1]
[1] Re Cloros and Secretary, Department of Social Services [2014] AATA 300
BACKGROUND FACTS
The respondent had sought recovery of more than $10,000 from Mr Cloros on account of what it alleged to be repeated failures by him to declare employment earnings between 9 July 2005 and 26 September 2007, a period during which he was receiving Newstart allowance under the Social Security Act, 1991 (the Act). Had those earnings been declared and noted by Centrelink, Mr Cloros’ allowance would have been reduced in this period. Mr Cloros disputes strongly that he failed to declare the earnings to the respondent. He claims that the respondent’s department failed through its own administrative error to take proper note of the amounts he duly declared in person across the counter at Centrelink’s Torrensville office.
Mr Cloros’ appeal to the SSAT was unsuccessful on this point. The SSAT accepted that he had either not declared income or underestimated it on a number of occasions, and specifically rejected his submission that the debt owed by him on account of the overpayments should be waived.[2]
[2] Exhibit R1, T2 at paragraph [63]ff
The SSAT did set aside, however, the decision to raise a debt of more than $10,000 against Mr Cloros because the respondent was unable to substantiate the level of debt to the SSAT’s satisfaction. The SSAT remitted the matter to the respondent for recalculation in accordance with a number of directions and one recommendation.[3]
[3] Exhibit R1, T2 at paragraph [78]
Mr Cloros’ application to this Tribunal challenges the SSAT’s directions and recommendation, which s 179(2)(d) of the Social Security (Administration Act) 1999 deems to be the reviewable decision. Mr Cloros argued that the SSAT erred in making any direction at all to have the debt recalculated.
In my earlier decision, I ruled that I had jurisdiction to consider setting aside the SSAT’s directions (and single recommendation). I also ruled that I had no jurisdiction in this hearing to hear any challenge to the new debt recalculated by the respondent.
CENTRAL ISSUE AND CRITICAL QUESTION OF FACT
If I am to set aside the SSAT’s directions and recommendation, I must be satisfied that the debt, whatever its exact level, should be waived because it arose solely from an administrative error made by the respondent: see s.1237A of the Act. Of course, if the error has been caused by Mr Cloros’ failure to declare his earnings, which is the respondent’s position, no administrative error has taken place. I should also add that I approach this case in light of the very fair concession made by the respondent at the earlier jurisdictional hearing that if Mr Cloros could persuade the Tribunal that he had declared his earnings honestly to Centrelink in some way, the respondent would accept there had been an administrative error and that a waiver of any consequential debt would be appropriate.
The critical question of fact, therefore, is whether Mr Cloros has declared all his earnings as he has asserted.
FINDINGS ON CRITICAL QUESTION OF FACT
On this critical question of fact, Mr Cloros’ oral evidence was that he attended the Torrensville branch of Centrelink on multiple occasions, and that on each occasion a different staff member took note of the earnings information he presented across the counter. His evidence was that the reporting was always verbal and face-to-face, although he may also have shown counter staff written documents in support of his verbal report. He received no written acknowledgment from staff on any of these occasions. Where there is no record of the earnings in the department’s files, Mr Cloros attributes responsibility to the staff members involved. Mr Cloros was quite clear that he had reported all his earnings verbally.
A table was prepared by Mr Cloros of some of the earnings he says he has declared (Exhibit A7). The respondent accepts that the record is partially accurate but disputes certain entries, and the respondent further maintains that not all earnings have been included in it. It is clear that Exhibit A7 could not contain all the instances when Mr Cloros asserts he made declarations of earnings, and I understand that he admitted as much in the course of his final submission to the Tribunal. I would reiterate, however, that he submitted to the Tribunal that all declarations of earnings, whether listed on Exhibit A7 or not, were made verbally at Torrensville Centrelink’s offices.
I am not persuaded that Mr Cloros declared verbally, or otherwise, any earnings that do not appear in Centrelink’s records.
In so finding, I make the following points. First, I received a copy of a conviction[4], and I explain below the use I have made of it in this matter. Mr Cloros was convicted in the Adelaide Magistrates Court of sixteen counts of making false written statements to the respondent in connection with his Newstart allowance during the period I am required to consider. These sixteen occasions are relevant to the overpayments of benefit said to have been made to Mr Cloros and are relevant to the debt raised against him. He was found guilty of providing fifteen income-declaration forms that falsely asserted that he did not earn any income at all during the period covered by the form and one form that understated his income. His appeal against conviction to his Honour Justice Gray of the Supreme Court of SA was dismissed.[5] His Honour’s decision contains a summary of the offending at paragraph [4]ff.
[4] Exhibit R5
[5] See Cloros v Centrelink [2013] SASC 74
Mr Cloros’ conviction leads me to discount his oral evidence substantially. I accept the Court’s finding that Mr Cloros made inaccurate written declarations of income on these sixteen occasions. If his oral evidence is accurate, Mr Cloros would have made an accurate verbal declaration of his earnings on each of these sixteen occasions even though the written form he submitted on each occasion was inaccurate. That is implausible. Moreover, as he maintains that he made a declaration to different staff members on different days, it must follow that multiple staff members failed to record important information. Again, that does not seem to me to be likely.
Secondly, in deciding the critical question of fact, I also take into account Mr Cloros’ lack of candour in the course of the proceedings before me. At one directions hearing at least, Mr Cloros submitted to me that his conviction for fraud in the Magistrates Court had been overturned by his Honour Justice Kourakis of the Supreme Court of South Australia (as he then was). Mr Cloros was directed to provide court documents in respect of that matter. He failed to do so despite a lengthy adjournment being granted to enable him to locate the documents at home or obtain further copies from the Court.
Registry staff, acting on their own initiative, obtained copies of the relevant records of conviction when nothing was filed by Mr Cloros. These were put to Mr Cloros at the hearing. They show that Mr Cloros is correct in his assertion that his first conviction was overturned by his Honour Justice Kourakis, but it is clear that a retrial was ordered. Mr Cloros was retried and reconvicted on the same charges, and, as I have noted, his subsequent appeal to his Honour Justice Gray was dismissed. The further conviction was not mentioned by Mr Cloros before I raised it with him at the hearing. He did not have a persuasive explanation for his failure to mention his conviction or to provide relevant documents in compliance with my order. I note that Mr Cloros’ reliability as a witness is obviously critical given the absence of any Centrelink documents in support of his contentions.
CONCLUSION
In summary, Mr Cloros has not satisfied me that he verbally declared any earnings that do not appear in Centrelink’s records. He has not satisfied me that this is a case of administrative error where an application for a waiver of the debt might properly be considered. Accordingly, I do not propose to set aside the SSAT’s directions and recommendation to the respondent to recalculate the level of debt. I have already indicated that any challenge to the level of the recalculated debt is not a matter for me to consider as part of these proceedings.
DECISION
I affirm the decision of the SSAT, which in this case comprises its directions and single recommendation.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta ........ [Sgd]..............................................
Administrative Assistant
Dated 2 October 2014
Dates of hearing 9 December 2013 and 4 August 2014 Applicant In person Advocate for the Respondent Mr A Parker Solicitors for the Respondent Program Litigation and Review Branch Department of Human Services
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