Joyce and Secretary, Department of Family and Community Services

[2004] AATA 477

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 477

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/982

GENERAL ADMINISTRATIVE DIVISION		)
Re		FIONA JOYCE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date14 May 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

......(Sgd) R G Kenny.....

Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – sole parent pension and parenting payment – overpayment - failure to advise of changed income levels - whether payments correctly calculated - debts due to the Commonwealth - no basis for waiving debt

Social Security Act 1991 ss 284, 506D, 1223, 1237, 1237A, 1237AAD

Social Security (Administration) Act 1999 s 68

REASONS FOR DECISION

14 May 2004   Mr R G Kenny, Member

Background

1.      In 1997, 1998, 1999, 2000 and 2002, Fiona Joyce (the applicant) received various income support payments from Centrelink in the form of sole parent pension and parenting payment (single) which are payable in accordance with the terms of the Social Security Act 1991 (the Act).  Delegates of the Secretary, Department of Family and Community Services (the respondent) raised overpayments to the applicant in the period from 11 December 1997 until 19 March 1998 in the amount of $1,290.00; in the period from 14 March to 1998 until 20 May 2000 in the amount of $3,994.20; and in the period from 8 October 2002 until 18 November 2002 in the amount of $255.33.  The first of those decisions was affirmed by an Authorised Review Officer on 2 December 2002 and the other decisions were also affirmed by an Authorised Review Officer on 15 April 2003. 

2.      The applicant sought review of those decisions by the Social Security Appeals Tribunal (SSAT) and, by a decision dated 16 October 2003, the SSAT affirmed the existence of the three debts but varied the amounts to $1,123.45 for the first period, to $3,244.64 for the second period and to $249.03 in the third period. On 21 November 2003, the applicant sought review of those decisions by the Administrative Appeals Tribunal (the Tribunal). 

3.      The applicant attended the hearing but was not represented.  Ms J Dwyer appeared on behalf of the respondent. 

4.At the hearing the following were taken into evidence:

§Exhibit 1 the T documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T57);

§Exhibit 2      a letter, dated 10 March 1999 from Centrelink to the applicant;

§Exhibit 3      a letter, dated 19 March 1998 from Centrelink to the applicant;

§Exhibit 4     Centrelink documents relating to the calculation of the debt amount for the period 14 March to 1998 until 20 May 2000;

§Exhibit 5      further Centrelink document relating to the debt calculation for the period from 11 December 1997 until 19 March 1998; and

§Exhibit 6      further Centrelink documents relating to a debt calculation for the period from 8 October 2002 until 18 November 2002.

Issues and Legislation

5.      The respondent’s position in this matter is that the applicant failed to provide correct information concerning the levels of her income during the periods of the overpayment and that this led to her being paid amounts of parenting payment and sole parent pension, respectively, to which she was not entitled.  Centrelink further contends that these overpayments constitute debts owed by the applicant to the Commonwealth for which no relevant waiver provision is applicable under the Act.  The issues for the Tribunal to determine relate to whether those contentions of Centrelink are properly made.  Relevant to the determination of those issues are the following provisions of the Act and the Social Security (Administration) Act 1999 (the Administration Act):

The Act

“Secretary may require notice of the happening of an event or a change in circumstances

284(1)    The Secretary may give a person to whom a sole parent pension is being paid a notice that requires the person to inform the Department if:

(a)a specified event or change of circumstances occurs; or

(b)the person becomes aware that a specified event or change of circumstances is likely to occur.

284(2)    An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.

284(3)Subject to subsection (3A), a notice under subsection (1);

(a)must be in writing; and

(b)may be given personally or by post; and

(c)must specify how the person is to give the information to the department; and

(d)must specify the period within which the person is to give the information to the Department; and

(e)must specify that the notice is a recipient notification notice given under this Act.

284(3A) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph (3)(c) or (e).

284(4)    Subject to subsections (4A) and (4B), the period specified under paragraph (3)(d) must end at least 14 days after:

(a)the day on which the event or change of circumstances occurs; or

(b)the day on which the person becomes aware that the event or change of circumstances is likely to occur.

…

284(5)    A person must not, without reasonable excuse, refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.

...

284(7)    This section extends to:

(a)act, omissions, matters and things outside Australia whether or not in a foreign country; and

(b)all persons irrespective of their nationality or citizenship.

…

Secretary may require notice of the happening of an event or a change in circumstances

506D(1) The Secretary may give a person to whom parenting payment is being paid a notice that requires the person to inform the Department if:

(a)a specified event or change of circumstances occurs; or

(b)the person becomes aware that a specified event or change of circumstances is likely to occur.

506D(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances may affect the payment of parenting payment.

506D(3) Subject to subsection (4), a notice under subsection (1):

(a)must be in writing; and

(b)may be given personally or by post; and

(c)must specify how the person is to give the information to the Department; and

(d)must specify the period within which the person is to give the information to the Department; and

(e)must specify that the notice is a recipient notification notice given under this Act.

506D(4) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph 3(c) or (e).

506D(5) Subject to subsection (6) and (7), the period specified under paragraph (3)(d) must end at least 14 days after:

(a)the day on which the event or change of circumstances occurs; or

(b)the day on which the person becomes aware that the event or change of circumstances is likely to occur.

…

506D(8) A person must not, without reasonable excuse, refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.

506D(9) This section extends to:

(a)acts, omissions, matters and things outside Australia whether or not in a foreign country; and

(b)all persons irrespective of their nationality or citizenship.

…

Debts arising under this Act and the 1947 Act

1223(1)  Subject to subsections (1A) and (1B), if an amount has been paid to a person by way of social security payment on or after 1 October 1997 and:

(a)the recipient was not qualified for the social security payment when it was granted; or

(b)the amount was not payable to the recipient;

the amount so paid is a debt due to the Commonwealth.

…

Power to waive Commonwealth's right to recover debt

1237(1) On behalf of the Commonwealth, the Secretary may waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD.

…

Waiver of debt arising from error

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.

1237A(1A) Subsection (1) only applies if:

(a)a debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

1237A(2) If:

(a)a debt arose because the debtor or the debtor’s partner underestimated the value of particular property of the debtor or partner; and

(b)the estimate was made in good faith; and

(c)the value of the property was not able to be easily determined when the estimate was made;

the Secretary must waive the right to recover the proportion of the debt attributable to the underestimate.

1237A(3)  For the purposes of this section, a proportion of a debt may be 100% of the debt.

…

Waiver in special circumstances

1237AAD 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 Administration Act

“Person receiving social security payment or holding concession card

68(1)     Subsection (2) applies to a person to whom a social security payment is being paid.

68(2)     The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

(a)inform the Department if:

(i)a specified event or change of circumstances occurs; or

(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;

(b)give the Department a statement about a matter that might affect the payment to the person of the social security payment.

68(3)Subsection (4) applies to a person who is the holder of a concession card.

68(4)    The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

(a)inform the Department if:

(i)a specified event or change of circumstances occurs; or

(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;

(b)give the Department a statement about a matter that might affect the person’s qualification for the concession card.

68(5)    An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person’s qualification for the concession card, as the case requires.”

Applicant’s Case

6.      The applicant conceded that, in the periods noted above, she had received the income support payments from Centrelink and she also conceded that there may have been some overpayments made to her.  However, she said that she believed that she had complied with all of the requirements under the Act.  She said that she received notices throughout the periods and that she always read them.  She said that she had casual work with a Queensland Government Department and that, for some of the periods of the overpayments, she was on maternity leave and leave without pay.  She also said that, when she was working, she did so on a casual basis and received various kinds of allowances such as for meals and clothing and that, because of the nature of her work, her income would vary from fortnight to fortnight and she did not always receive the additional increments in the particular fortnight that she earned them.  She said that there was often a delay in the receipt of income from the previous fortnight and that this made it difficult for her to be able to provide accurate assessments of her income on a fortnightly basis and that, for this reason, she had reached an accommodation with Centrelink officers whereby she only had to notify them on a twelve weekly basis by providing her pay slips for that period.  She said that she did this although she conceded that not every payslip in all of the periods was provided.

7.      The applicant said that she had now repaid all of the debts and that, although she continued to have some outstanding debts in relation to other obligations, she was managing financially. A concern of the applicant was that Centrelink had waited for so long to raise the debts against her and she considered this could have been done at a much earlier time. 

Respondent’s Case

8.      Ms Dwyer conceded that the applicant was only required to provide her pay slips and income information on a twelve weekly basis but, nevertheless, referred to the fortnightly notices she received that required her to advise Centrelink if her income exceeded a certain level nominated in each notice.  She said that, during the periods in which the overpayments were made, the applicant consistently failed to respond to the requests in the notices to advise Centrelink of her income levels which, frequently, exceeded the levels stated in the respective notices.

9.      Ms Dwyer submitted that the calculations which gave rise to the debts were made on the basis of averaging the applicant’s income over a twelve week period rather than by taking the individual fortnightly income amounts.  She submitted that this was the fairest means of determining the applicant’s income because of the significant variations that occurred from fortnight to fortnight.  In that regard, she referred to an earlier decision of the SSAT involving the applicant, before September 2002, when the matter of calculation was remitted by the SSAT for calculations to be made on that basis.

10.     Ms Dwyer referred to Exhibits 4, 5, and 6 as documents that were prepared by Kate Robert who provided the calculations of the debts in this matter.  She submitted that these calculations yielded results which were the same as those achieved by the SSAT in the decision under review for the first and third periods of overpayment but that the overpayment for the second period was in the amount of $3,786.50 and, therefore, significantly higher than the amount calculated in the SSAT decision.  Despite that, Ms Dwyer submitted that the correct and preferable decision in this case was to affirm the decision of the SSAT in the amounts it determined as representing the overpayments in this case.

Consideration

11. The evidence in respect to the payments to the applicant in this case and the levels of her income in the periods under consideration are characterised by significant complexity. Nevertheless, in evidence, were copies of notices sent to the applicant on a fortnightly basis in the period 22 March 1998 until 7 January 2002 and, in each case, an annual income amount was nominated and a specific request was made of the applicant to advise Centrelink within 14 days if the rate of her income was such that it would exceed that nominated in the particular notice. I am satisfied that these documents comprise notices obliging the applicant to provide that information in accordance with section 284 of the Act and its successors sections, section 506D of the Act and section 68 of the Administration Act, during the respective periods of operation of those provisions.

12.     Kate Robert gave evidence of the manner in which she calculated the overpayments.  She is a Debt Prevention and Monitoring Officer with the Centrelink office in Ipswich and prepared Exhibits 4, 5 and 6 to reflect those calculations.  In Exhibit 5, she detailed the fortnightly payments which the applicant received after allowances were deducted; the average of those amounts in consecutive periods; the income cut off amounts beyond which payments could not be made to the applicant; the income thresholds which were applicable to the applicant; and the fortnightly rate which was payable to the applicant for the period 11 December 1997 until 19 March 1998.  In Exhibit 4, Ms Robert, did this for the period from 14 March 1998 until 20 May 2000 and, in Exhibit 6, she did so for the period from 8 October 2002 until 18 November 2002.  For those three periods, the calculation resulted in overpayments of $1,123.60 for the first period, $3,786.50 for the second period and $248.92 for the third period.  In her evidence, Ms Robert said that the first and third of these amounts were essentially the same as the amounts calculated by the SSAT except for a slight difference due to the way in which the “rounding off” rules had changed in the interim period. 

13.     Also in evidence were copies of payslips from the applicant’s employer and summaries of those pay slips for each of the three periods under consideration.  I am satisfied that these were the amounts relied upon by Ms Robert in making her calculations and I am also satisfied that the use of those income amounts, when averaged over twelve week periods, reflect the basis of the calculations used by Ms Robert as set out by her in Exhibits 4, 5 and 6.  I am also satisfied that it was appropriate to utilise an averaging approach and that, in all the circumstances, the time-frame of twelve weeks was reasonable in this case. 

14.     I accept the applicant’s evidence that she believed that her obligation was to provide her payslips to the respondent each twelve weeks. However, I am also satisfied that the fortnightly notices which were sent to her and which she read imposed a further obligation to advise the respondent when her income exceeded the amounts nominated therein. She did not do this and I am satisfied that, pursuant to subsection 1223(1) of the Act, the calculations made by Ms Robert reveal that the applicant was overpaid amounts of sole parent pension and parenting payment and that these are debts due by her to the Commonwealth. 

15.     I am mindful of the concession made by Ms Dwyer in relation to the amounts of the debts and am satisfied that the correct and preferable decision in this matter is that these amounts be no greater than the amounts determined by the SSAT, namely, $1,123.45 in the period from 11 December 1997 until 19 March 1998, in the amount of $3,244.64 in the period from then until 20 May 2000 and in the amount of $249.03 in the period from 8 October 2002 until 18 November 2002. 

16. Provision is made in the Act for debts to be waived in accordance with sections 1237, 1237A and 1237AAD of the Act which are set out above. One basis on which waiver may be determined is where a debt or a proportion of a debt is attributable solely to administrative error made by the Commonwealth and I am satisfied that no portions of the debts, in this case, arose on that basis. A debt may also be waived if there are special circumstances, other than financial hardship alone, that make it desirable to waive and if it is more appropriate to waive the debt than to write it off. As the debts, in this case, have been repaid, there is no prospect of writing off the debt and there is no evidence provided which would indicate that the applicant had special circumstances applicable to her which would justify waiver.

Decision

17.The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         Sarah Oliver

Associate

Date of Hearing  30 April 2004
Date of Decision  14 May 2004

The Applicant appeared in person  
For the Respondent                  Ms J Dwyer, Departmental Advocate