Kenny and Secretary, Department of Family and Community Services

[2003] AATA 516

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 516

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1653

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ERROL JOHN KENNY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date4 June 2003

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)     Mr S. Webb

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

Member           

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - advance payment - whether repayment made - whether a debt to the Commonwealth - advance payment debt not repaid - debt exists to the Commonwealth - decision affirmed.

LEGISLATION

Social Security Act 1991 - ss 1061A, 1061EL, 1206H, 1224E

REASONS FOR DECISION

4 June 2003 Mr S. Webb

1.      This application by Mr Errol Kenny (“the Applicant”) is for review of the decision of the Social Security Appeals Tribunal (“the SSAT”) on 8 October 2001 to affirm the decision of an authorised review officer (“ARO”).  On 13 July 2001, the ARO decided “In the absence of evidence to the contrary, I have to consider that the remainder of this Advance, $412.80, is still outstanding and therefore the decision to commence withholdings was correctly made”.

2.      A hearing before the Administrative Appeals Tribunal (“the Tribunal”) was held on 21 March 2003 in Sydney.  The self-represented Applicant gave oral evidence at the hearing.  The Secretary, Department of Family and Community Services (“the Respondent”) was represented by Ms Hannalore Schuster of Centrelink’s Advocacy and Administrative Law Team.

3.      The following materials were tendered in evidence:

EXHIBITDESCRIPTION

T1 - T25Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act1975.

R1Respondent’s Statement of Facts and Contentions, dated 27 August 2002.

background

4.      The following background is provided for information and is not in dispute between the parties:

(a)The Applicant received an advance payment of his Disability Support Pension (“DSP”) in the amount of $488.00 on 3 May 2000.

(b)Two repayments of the advance in the amounts of $37.60 each were recovered by deductions from the Applicant’s fortnightly payment of DSP on 9 and 23 May 2000.

(c)On 29 May 2000, the Applicant requested that deductions from his DSP for the purpose of repaying the advance cease temporarily and no further deductions were made.

(d)On 7 June 2001, a Centrelink officer sought to recommence recovery of the advance repayments.

(e)On 8 June 2001, the Applicant sought review of this decision and pursued his appeal rights thereafter.

issue for determination

5.      The sole issue before the Tribunal is whether the Applicant repaid the advance payment in full, as he claims, or whether there is an outstanding amount that the Respondent is entitled to recover.

legislation

6.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”), especially sections 23, 1061A, 1061EL, 1206H and 1224E.

7. The term ‘social security entitlement’ is defined to include DSP at subsection 23(1) of the Act. Section 1061A sets out the qualification requirements for advance payment:

“1061A          Qualification for advance payment

Qualifications

1061A(1) Subject to this section, a person is qualified for an advance payment of a social security entitlement only if:

(a)       the social security entitlement is payable to the person; and

(b)the person has been receiving an income support payment for a continuous period of 3 months immediately before the day on which the person's application for the advance payment is made; and

(d)the Secretary is satisfied that the person will not suffer financial hardship from reductions in instalments of the social security entitlement as a result of receiving the advance payment.”

8.      Section 1061EL sets out the methods for repayment of advance payments:

“1061EL        Repayment of advance payment

1061EL(1) If a person receives an advance payment or an instalment of an advance payment under this Part, the person must repay the advance payment or instalment to the Commonwealth by one or more of the following methods:

(a)deductions from the person's social security entitlement under Chapter 3 (General provisions relating to payability and rates);

(b)       a method provided for by Chapter 5 (Overpayments and debt recovery);

(c)a method (other than a method described in paragraph (a) or (b)) that is acceptable to both the person and the Secretary.

1061EL(2) Subsection (1) does not affect:

(a)the operation of subsection 1224E(1) (Debts arising from advance payments of social security entitlements); or

(b)the Secretary's powers and duties under Part 5.4 (Non-recovery of debts) if the amount of the advance payment or instalment that has not been repaid becomes a debt due to the Commonwealth.”

9.      Section 1206H requires that an advance payment deduction is to be made in certain cases:

“1206H          Advance payment deduction

1206H(1) Subject to subsection (2) and section 1206L, an advance payment deduction is to be made from the rate of a social security entitlement that is payable to a person if:

(a)the person has received an advance payment, or an instalment of an advance payment, of that social security entitlement or of another social security entitlement that was previously payable to the person; and

(b)the person has not yet repaid the whole of the advance payment or instalment; and

(c)the amount of the advance payment or instalment that has not been repaid is not a debt under subsection 1224E(1).”

10.     Section 1224E:

“1224EDebts arising from special employment advances of special employment advance qualifying entitlements

1224E(1) If:

(a)a person has received an advance payment of a social security entitlement (the first entitlement) or an instalment of such an advance payment; and

(b)       the first entitlement ceases to be payable to the person; and

(c)when the first entitlement ceases to be payable, the person has not repaid the whole of the advance payment or instalment; and

(d)the person does not receive another social security entitlement or benefit PP (partnered) immediately after the first entitlement ceases to be payable;

the amount that has not been repaid is a debt due to the Commonwealth.”

evidence of mr kenny

11.     Mr Kenny told the Tribunal he requested and received an advance payment from Centrelink on 3 May 2000 in the amount of $488 and two repayments of $37.60 were deducted from his next two payments of DSP on 9 and 23 May 2000.  He agreed that he had requested Centrelink to cease withholding repayments in June because he needed the money.

12.     Mr Kenny gave evidence that he was employed by the Illawarra Turf Club at the time in 2000 and was receiving income of $60 cash per fortnight.  He said he told Centrelink that he would repay the debt in three payments of $150, but was not able to do so because his car broke down in July 2000 and he had to replace the gearbox.  Mr Kenny told the Tribunal the gearbox cost $485 to replace, which he paid from his wages from the Illawarra Turf Club.  He stated that he rang Centrelink using a “13 number” in Sydney “sometime in October” to provide this information and to advise that he would repay the advance in “one lump sum payment in November or December”..  Mr Kenny said he was not provided with a receipt number at the time.

13.     Mr Kenny told the Tribunal he was working at the racecourse between 9.30am and 6:00pm on 7 November 2000, the day of the Melbourne Cup.  He said he placed a bet and “won a trifecta which paid $585 and a few cents”.  Mr Kenny gave evidence that he did not bank the money but kept it at home.

14.     Mr Kenny gave evidence under oath that he attended a Centrelink office on the following Friday, 10 November 2000, at approximately 11.40am in order to repay the advance from his winnings.  He said he knew it was Friday because he played bowls on Fridays and he went to the Centrelink office after playing bowls.  In his evidence in chief, he said there were three or four people in the office and no queue, he did not have to wait and approached a Centrelink officer at the counter.  He said he showed his pension card and paid the outstanding amount of $412.80 in cash.  Mr Kenny said he did not get a receipt for the payment and did not know whether the officer checked his record on the computer.  He said he trusted the Centrelink officer.

15.     In cross examination, Mr Kenny stated that he did not get a receipt because the officer was busy and there were other people behind him in the queue.  In response to further questioning on this point, Mr Kenny recalled that there was a queue when he entered the office and he had to wait while three or four people were served ahead of him. 

16.     Mr Kenny told the Tribunal he did not hear anything from Centrelink about repayment of the advance until July 2001, when he was told he still owed the outstanding balance of the advance, $412.80.

submissions and findings

17.     The Tribunal carefully considered all the evidence, the submissions of the parties, the relevant legislation and case law in arriving at the correct and preferable decision in this matter.

credit

18.     The Tribunal finds there are serious issues of credit concerning the Applicant’s evidence.  There were inconsistencies and anomalies in the evidence he gave this Tribunal.  His evidence was not consistent with the evidence he gave the SSAT.  In his evidence in chief, the Applicant told the Tribunal he did not have to wait when he attended the Corrimal Centrelink office with his alleged trifecta winnings on Friday, 10 November 2000, but he subsequently claimed he did not obtain a receipt because the officer was busy and there were people waiting in a queue.  On being questioned about this, the Applicant confirmed that he attended the Centrelink office on Friday, 10 November 2000, after playing bowls, but had to wait in a queue.  The SSAT records the Applicant’s evidence on this point in the following way (Exhibit T2 folio 5):

“He went to the Corrimal office on the Friday of that week [Melbourne Cup week] but “there was a queue a mile long” so he left.  He went in again to the Corrimal office on the following Tuesday.  He went to the counter and spoke with a Centrelink officer.  Mr Kenny told the officer he wanted to repay his loan.  The officer pulled up his name on the computer screen and told Mr Kenny the amount owing was $412.  Mr Kenny gave the officer $412 in cash and told the officer as the office was busy not to worry about a receipt.”

19.     The Tribunal notes the Applicant’s oral evidence was inconsistent with the documentary evidence before the Tribunal and, in essential part, was unsupported and without corroboration.  In his evidence in chief, the Applicant told the Tribunal his car had broken down in July 2000 and he expended $485 repairing the gearbox, about which he claimed he informed Centrelink in October by telephone.  The contemporaneous Centrelink records, however, contain no reference to the Applicant having gearbox problems, but refer to the Applicant requesting a further advance “to fix his head gasket on his car” on 11 October 2000 (Exhibit T8 folio 15).   The Applicant explained that he had a problem with his gearbox and then, later, had a problem with his head gasket for which he required an advance of only $75 as he repaired the problem himself.  It is curious to note that the Applicant had no apparent difficulty paying $485 to repair his gearbox but had difficulty paying $75 to repair his head gasket.

20.     When asked about these inconsistencies by the Tribunal, the Applicant acknowledged that he does not always tell the truth.

21.     The Tribunal will take these matters into consideration when weighing the uncorroborated evidence of the Applicant.

was the advance repaid?

22.      It was the Applicant’s contention that he had repaid the outstanding balance of the advance he had received on 3 May 2000, in cash, on Friday, 10 November 2000 at the Centrelink office in Corrimal, having won approximately $585 on a trifecta on the Melbourne Cup on 7 November 2000.

23.     Ms Schuster, for the Respondent, submitted that there was no evidence to support the Applicant’s contention.  In Ms Schuster’s submission, the Applicant’s evidence must be weighed against the evidence contained in his Centrelink records.  The Applicant’s Centrelink records reveal that his records were not accessed on 10 November 2000 and that no repayments were received from him in the period 9 June 2000 to 7 July 2001.

24.     Ms Schuster explained the Centrelink procedures for receiving cash payments and dealing with money found on Centrelink premises (Exhibit T19 folios 41 and 42). She noted that Centrelink officers are required to issue a receipt for any cash payments either using the “Infolink FI” system or manually.  Ms Schuster submitted that no such receipt was issued to the Applicant and there was no evidence of money being found in the Corrimal Centrelink office during the relevant period.  It was her contention that the money had not been paid in the way the Applicant claimed.  It is not in dispute and the Tribunal finds that no receipt was issued to the Applicant in relation to the alleged payment.

25.     It was Ms Schuster’s contention that the payment had not been made.  She submitted that searches of the Corrimal Centrelink office receipt system and the finance computer system showed no record of such a payment being received.  Ms Schuster pointed the Tribunal to the Customer Record Access Monitor (“CRAM”), in which all transactions concerning the Applicant’s records are recorded automatically (Exhibit T17).  She noted that the Applicant’s records had been accessed on 8 November 2000, but this entry related to a review in which his “outstanding activity list” had been accessed and a routine Newstart Allowance adjustment made.  The CRAM report indicates that the Applicant’s records were not accessed on either Friday 10 November 2000 or Tuesday 14 November 2000 and the Tribunal so finds. 

26.     The Tribunal finds there is no record of the Applicant making any payment in relation to the outstanding balance of the advance he received on 3 May 2000 after 23 May 2000. This being the case, the Tribunal is satisfied that the payment allegedly made by the Applicant was not received by Centrelink on either Friday, 10 November 2000 or Tuesday, 14 November 2000, or on any other day.

27.     The Applicant was asked whether he could provide the Tribunal with any evidence to support his claims, especially in relation to his attendance at the Corrimal Centrelink office on Friday, 10 November 2000, or his payment of $412.80 to a Centrelink officer.  He was also asked whether he could provide any evidence of his claims in relation to the trifecta bet he placed or the winnings he claimed to have received on 7 November 2000.  He could not.

28.     The Applicant claimed that Centrelink had made an error receiving the money for which he should not be held responsible.  Having found no evidence of such an error, the Tribunal does not agree.  After careful consideration of the evidence, however, the Tribunal finds Centrelink erroneously recorded a third repayment by deduction of $37.60 from the Applicant’s pension on 5 June 2000 (Exhibit T21 folio 51).  However, this deduction is not reflected in the amount paid to the Applicant on 8 June 2000 (Exhibit T10 folios 17 and 18) or the outstanding balance of the advance (Exhibit T21 folio 51).  The Tribunal is satisfied the deduction was not made on 5 June 2000 at the request of the Applicant (T4 folio 11) and nothing turns on the error.

29.     The Tribunal is mindful that the nine-month delay between October 2000 and June 2001 restarting the deductions from the Applicant’s DSP may constitute an administrative error.  Ms Schuster submitted that the procedure for restarting deductions after a stay is a manual process and conceded that the outstanding transaction record may have been inadvertently deleted through pressure of work.  She contended the delay in restarting deductions to recover the advance payment had no material effect on the amount to be repaid by the Applicant.  The Tribunal accepts these submissions and finds no error of consequence on the part of Centrelink or the Respondent in relation to the Applicant’s advance.

30.     Weighing up all the evidence and having carefully considered the submissions of the parties, the Tribunal is not persuaded by the Applicant’s submissions or his uncorroborated evidence.  There is no evidence to corroborate the Applicant’s claims that he picked a trifecta on 7 November 2000 and received a payment of $585, nor is there any evidence to corroborate his claim that he repaid the outstanding balance of the advance in cash three days later at the Corrimal Centrelink office.  The Applicant admitted that he does not always tell the truth, even though he claimed to be telling the truth on this occasion.  Were this to be the case, the Applicant’s claims would point to an act of dishonesty on the part of a Centrelink officer, where the cash payment allegedly made by the Applicant was not properly dealt with.  In the absence of evidence, the Tribunal has no basis to make such a finding.

31.     This being the case, the Tribunal finds, on the balance of probabilities, that the balance of the Applicant’s advance payment, an amount of $412.80, remains outstanding.  Accordingly, the decision of the SSAT must be affirmed.

decision

32.     The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:         (Sgd)  Kwai-Ling Wong                 .......................................................................................
  Associate

Dates of Hearing  21 March 2003
Date of Decision  4 June 2003

Representative for the Applicant               Self

Advocate for the Respondent                  Ms H. Schuster