King and Secretary to the Department of Family and Community Services - [2002] AATA 1155

DECISION AND REASONS FOR DECISION [2002] AATA 1155

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/974
GENERAL ADMINISTRATIVE DIVISION
  Re:         KERRY KING
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             8 November 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

SOCIAL SECURITY - overpayment of disability support pension - recovery of debt - write off of debt - debt raised within 6 weeks - waiver - whether special circumstances exist
Social Security Act 1991 ss1223(1), 1223(1AB), 1236(1), 1236(1A), 1237A(1),
1237A(1A), 1237AAD
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

8 November 2002 G.D. Friedman, Member

This is an application by Kerry King (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 4 September 2002. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 30 July 2002 that there is a recoverable debt of $389.10 for overpayment of disability support pension (DSP).
At the hearing of this matter on 6 November 2002 the applicant represented himself and Mr M. Todd, an advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T20).
BACKGROUND
The applicant was in receipt of DSP. On 19 April 2002 he requested that payment of DSP be cancelled. On 23 April 2002 the applicant advised Centrelink that his bank account with the National Australia Bank (NAB) had been closed on his instructions. On 24 April 2002 a regular payment of DSP in the amount of $389.10 for the fortnight 9 April 2002 to 22 April 2002 was made to that account. On the same day Centrelink decided to reissue payment to a new account opened by NAB for the applicant, after Centrelink received advice from the NAB that the account had been closed and that the original payment would be returned to Centrelink. The NAB did not return the original payment to Centrelink, but on 24 April 2002 transferred the amount to the new account. On 29 April 2002 Centrelink reissued payment of DSP to the new account.
On 6 May 2002 the applicant advised Centrelink that he had received two payments of DSP. On 1 June 2002 Centrelink decided to raise and recover an overpayment of DSP of $389.10 for the period 9 April 2002 to 22 April 2002, and notified the applicant on 3 June 2002. On 30 July 2002 an authorised review officer affirmed the decision. On 6 August 2002 the applicant sought review by the SSAT, and on 12 September 2002 the applicant lodged an application with the Tribunal for review of the decision by the SSAT.
EVIDENCE
The applicant gave evidence to the Tribunal by telephone. He said that it was he who notified Centrelink that he had been paid twice for the same period. He told the Tribunal that he had decided to keep the second payment because of his financial circumstances. He stated that as Centrelink and the NAB made the mistake it would be unfair to require him to repay the amount of the overpayment.
The applicant stated that at the time of the overpayment he was homeless and that his financial and other circumstances remain difficult. He said that his day-to-day expenses would not permit repayment of the debt, even by instalments.
CONSIDERATION OF THE ISSUES
The Social Security Act 1991 (the Act) provides in relation to a debt to the Commonwealth:
1223.(1) Subject to this section, if:
(a)a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
…
1223.(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
(a)the payment was made to the person by mistake as a result of a computer error or an administrative error;
(b)the person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c)the payment was not payable;
…
The Act provides in relation to the writing off of a debt:
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)it is not cost effective for the Commonwealth to take action to recover the debt.
The Act provides in relation to the waiver of a 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.3
1237A.(1A) Subsection (1) only applies if:
(a)the 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.
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 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.
Mr Todd submitted that as the applicant received a payment to which he was not entitled there was an overpayment under the Act, and the debt was raised within six weeks. He said that there was no administrative error attributable to the Commonwealth, no special circumstances to justify waiver of the debt and no grounds to write off the debt.
In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing. On the material presented, the Tribunal finds that, as a result of receipt of the second payment made by Centrelink, the applicant received a payment to which he was not entitled. The overpayment is a debt to the Commonwealth in the amount of $389.10 under s1223 of the Act.
The Tribunal accepts the submission by Mr Todd that there are no grounds to write off the debt under s1236(1A). The debt is recoverable at law. The applicant is in receipt of DSP and has the capacity to repay the debt. It is cost effective for the Commonwealth to take action to recover the debt. The debt was raised within a period of 6 weeks from the payment that caused the debt (s1237A(1A)(a)). The debt did not arise from compliance with a notification obligation (s1237A(1A)(b)). As a result, the Tribunal finds that s1237A(1) does not apply, and the debt must not be waived under that section of the Act. Therefore, there is no necessity for the Tribunal to consider whether the debt was attributable solely to an administrative error by the Commonwealth or whether the applicant received the payment in good faith (s1237A(1)).
With respect to waiver of all or part of the debt the applicant must satisfy s1237AAD(a), (b) and (c). In relation to s1237AAD(b) concerning special circumstances, the Tribunal held in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 that special circumstances must be unusual, uncommon or exceptional, and there must be something to distinguish the case from others. The Tribunal accepts the evidence from the applicant that he has financial difficulties. However, on the available material, the Tribunal is not satisfied that the financial and other circumstances of the applicant constitute special circumstances (other than financial hardship alone) which make it desirable to waive the debt. Therefore, the Tribunal finds that the applicant does not satisfy s1237AAD(b) of the Act. As a result of this finding there is no necessity for the Tribunal to make findings on whether the debt resulted from the applicant knowingly making a false statement or failing to comply with the Act (s1237AAD(a)), or whether it is more appropriate to waive than to write off the debt in whole or in part (s1237AAD(c)).
The Tribunal finds that the applicant is unable to satisfy s1237AAD, so the respondent's right to recover all or part of the debt may not be waived. Recovery of the debt should be at the rate of no more than $20.00 per fortnight.
DECISION
The Tribunal affirms the decision under review.
I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  6 November 2002
Date of decision:  8 November 2002
Advocate for applicant:               Self-represented
Advocate for respondent:            Mr M. Todd, Advocate with Centrelink