Kriesner and Secretary, Department of Family and Community Services

[2006] AATA 40

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 40

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/696

GENERAL ADMINISTRATIVE  DIVISION

Re:         ERNST FRIEDRICH KRIESNER

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             19 January 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) Regina Perton

Member

SOCIAL SECURITY – age pension – overpayment – member of a couple – failure to inform Centrelink of increases of  wife’s income – wife ineligible for support due to residency status - waiver of debt – write‑off of debt ‑ whether special circumstances exist – decision under review affirmed

Social Security Act 1991 ss 1223(1), 1223(1AB), 1237A(1), 1237AAA, 1237AAD

Social Security (Administration) Act 1999 s 192

REASONS FOR DECISION

19 January 2006  Regina Perton, Member

1.      Ernst Friedrich Kriesner, an Australian citizen who is now almost 77 years old, was born in the Free State of Danzig.  During World War II, the Germans invaded Danzig and Mr Kriesner, a young teenager, was conscripted into the German army.  Poland subsequently took over control of Free State of Danzig.  Mr Kriesner is active in working for the recognition of the independence of the Free State of Danzig.   He has also been trying, unsuccessfully, for many years to obtain a German pension to which he believes he is entitled.   He sought the assistance of Centrelink in challenging the German government’s refusal of the pension but is of the view that Centrelink has provided little assistance.  Centrelink’s limited ability to assist him in relation to the German pension along with other difficulties including issues concerning his wife’s migration status and qualification for income support, have resulted in a somewhat acrimonious relationship between Mr Kriesner and Centrelink.  It has also led to the application presently before the Tribunal.   

2.      Mr Kriesner sought and obtained the Australian age pension in 1998.  At that time, he had been married for three years to Merced Kriesner.   On 28 February 2000, Mrs Kriesner commenced working but her income was not taken into account by Centrelink in calculating the payments due to Mr Kriesner.    Following a match with taxation records, Centrelink determined that it had overpaid Mr Kriesner for the period from 1 March 2000 to 19 November 2002 (the relevant period).  On 21 January 2003, Centrelink informed Mr Kriesner that he had a recoverable debt to the Commonwealth of $6,314.22.  It is this debt that is the subject of this application for review to the Tribunal.

3.      Mr Kriesner notified Centrelink on 9 April 2003 that he and his wife had separated but were living under the one roof.  At the time of hearing, his age pension was being paid at the single rate.   A considerable portion of the debt has been repaid by way of deductions from his regular pension payments. 

4.      Mr Kriesner maintained written and telephone contact with Centrelink, parliamentarians and others during the next two years on a range of issues centering on his failed attempt to obtain a German pension.   A request for reconsideration of the debt by an authorised review officer (ARO) of Centrelink was lodged in early 2005.  On 12 April 2005, an ARO affirmed the decision to raise and recover the debt.  On 4 July 2005, the Social Security Appeals Tribunal (SSAT) also affirmed the decision.  Mr Kriesner applied to this Tribunal for review of the decision on 8  August 2005.

5.      The specific issues to be considered by the Tribunal are:

·Does Mr Kriesner owe a debt to the Commonwealth?

·Should the debt be written off or waived?

Is there a Debt to the Commonwealth?

6.      Centrelink records indicate that when Mr Kriesner applied for age pension in May 1998, he declared that he and his wife were living together as a couple.  As such, any income received by Mrs Kriesner as well as Mr Kriesner’s superannuation payments were taken into account in determining the amount of age pension payable to him. 

7.      Centrelink sent a number of letters to Mr Kriesner before and during the relevant period in which he was reminded of his obligation to inform Centrelink of any changes to the stipulated combined income of his wife and himself, is his wife started or recommenced work and if any other matters pertinent to the calculation of the amount of age pension payable arose.  Letters in which he was reminded of that obligation were sent on 16 February 2000, 19 April 2000, 11 August 2000, 8 September 2000, 20 December 2000, 26 June 2001 and 14 March 2002.  The combined income of Mr Kriesner and his wife specified in those letters ranged between $10,270.34 and $11,143.36.

8. On 8 July 2002, Centrelink wrote to Mr Kriesner advising him its records are matched with those of the Australian Tax Office (ATO) and that such a match had indicated that Mrs Kriesner had signed a Tax File Number Declaration Form. Centrelink asked Mr Kriesner to contact a specified officer to confirm his wife’s employment details to ensure that he was being paid the correct rate of age pension. Centrelink subsequently contacted Mrs Kriesner’s employer to obtain details of her wages. It is entitled to do so under Section 192 of the Social Security (Administration) Act 1999.  The employer, as it was obliged to do, informed Centrelink that Mrs Kriesner had commenced working on a part time basis on 28 February 2000 and provided details of her wages..

9. Section 1223(1) of the Social Security Act 1991 (the Act) allows the Commonwealth to raise a debt if a person is paid a social security payment to which he is not entitled. Section 1223(1AB) provides that a debt can be raised whether the payment was due to a computer or administrative error on the part of Centrelink or due to the actions of the recipient.

10.     Centrelink calculated the amount of the debt as $6314.22 and on 21 January 2003 informed Mr Kriesner of his obligation to repay it.   A detailed printout of the calculations was presented to the Tribunal and to Mr Kriesner.  He has not disputed the amount but indicated that he had not informed Centrelink of her income because Centrelink had failed to answer his questions about the German pension and had treated him inappropriately.    In the absence of any evidence indicating that the calculations by Centrelink are incorrect, the Tribunal finds that Mr Kriesner received an overpayment in his age pension and consequently has a debt of $6,314.22 to the Commonwealth.

Did the Overpayment Arise Solely because of a Commonwealth Administrative Error?

11. Section 1237A(1) of the Act provides for waiver of a debt arising from solely from administrative error:

1237A(1)…. 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.

12. In several letters sent to Mr Kriesner before and during the period in which the debt accumulated, Centrelink reminded him of his obligation to notify it if the combined income of his wife and himself exceeded a specified level. He was also informed that he must advise Centrelink if his wife started or recommenced employment. His wife started working but he did not tell Centrelink about it. Mr Kriesner wrote to Centrelink, Ministers and other parliamentarians about other issues pertinent to him during the relevant period. However, none of these contained any information about his and his wife’s combined income or that she was working. Mr Kriesner has expressed his frustration at the lack of, and/or the nature of Centrelink’s response to his grievances. Nevertheless, the fact remains that he failed to give certain information to Centrelink that he was required to provide. As a result, the Tribunal is not satisfied that the debt has arisen solely due to administrative error by Centrelink. Therefore, the debt cannot be waived pursuant to s 1237A(1) of the Act.

Should the Debt be Waived on Other Grounds?

13. Unless a debt arises solely out of an administrative error by the respondent resulting in an overpayment (s 1237A(1) above), or a debt is less than $200 and is not recoverable from social security benefits and the cost of retrieval outweighs the debt (s 1237AAA), or in certain other limited circumstances, none of which is applicable to Mr Kriesner, there is no discretion to waive a debt; unless s 1237AAD applies.

14. Section 1237AAD of the Act provides for waiver of the debt in certain other 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 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.

15.     Mr Kriesner acknowledged that he did not inform Centrelink that his wife had commenced work or of the subsequent resultant increase in their combined income.  He indicated that he did not do so due to Centrelink’s and the Minister’s failure to respond to his questions about the German pension and other matters.  He stated that he did not care about the Australian pension as he should be receiving a pension and compensation from Germany due to its treatment of the Free State of Danzig and of his family and himself both during and after the war.  He described the difficult time he had had during and after the war and the subsequent loss of contact with his family.  He also described the financial and bureaucratic difficulties he had experienced when his now estranged wife first came to Australia.  He said that she felt completed to start working as they could not live on the income he received.  Furthermore, he said that she has an obligation to help support her family overseas.  He described the breakdown of their marital relationship.  He said that they remain under the same roof as they jointly own the property in which they are living.  Mr Kriesner said that as a pensioner, he cannot afford to buy a property of his own. 

16.     Mr Kriesner blamed his difficulties with Centrelink, and the Australian Government in general, for the failure of his marriage due to the enormous pressure and financial strain put upon him.  He stated that the relationship had effectively broken down by the year 2000.  However, he conceded that he did not inform Centrelink at that time of the marital split.   He only provided this information to Centrelink after the debt was imposed.

17.     Waiver of a debt due to special circumstances is not available where the debt arose out of a person knowingly failing or omitting to comply with a provision of the Act. In relation to s 1237AAD(a)(i), the Tribunal is satisfied that Mr Kriesner did not knowingly make false statements or representations. However, there is evidence to suggest that Mr Kriesner knowingly withheld information from Centrelink. Mr Kriesner himself has conceded that he did not inform Centrelink that his wife was working and earning income. He acknowledged having received letters from Centrelink during the relevant period but said that he ignored them because Centrelink was ignoring his letters to it. He has explained in detail his reasons for not providing the information. These reasons centre primarily on Centrelink’s failure to assist and support him in relation to his dispute with German authorities over his entitlement to a German pension. He is particularly aggrieved that Centrelink had directed him to pursue his entitlement to a German pension when he is not and has not ever been a citizen of Germany. (see, for example, letter to Centrelink International Services of 1 December 2000). However, regardless of Mr Kriesner’s motivation for so doing, he knowingly failed to provide information to Centrelink despite being advised that he must do so. He therefore failed to comply with a provision of the Act. He therefore fails to meet the criteria in 1237AAD(a)(ii). The Tribunal finds that Mr Kriesner does not meet the criteria set out in s 1237AAD(a) of the Act. Therefore, the Tribunal is unable to find that there are special circumstances as s 1237AAD(a) is a precursor that must be met before the special circumstances provisions can be invoked.

18.     The Tribunal finds that Mr Kriesner owes a debt of $6,314.22 to the Commonwealth, of which a considerable portion has already been repaid.

DECISION

19.     The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  29 November 2005
Date of decision:  19 January 2006
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr D Perdon, Centrelink