Kristoffersen and Secretary, Department of Family and Community Services
[2004] AATA 688
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 688
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/80
GENERAL ADMINISTRATIVE DIVISION )
Re KURT KRISTOFFERSEN Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date30 June 2004
PlaceBrisbane
Decision The Tribunal:
§ affirms the decision under review in relation to the decision to raise and recover an overpayment of newstart allowance in the amount of $366.20.
§ in relation to the decision that the applicant does not have status to seek review of the decision to cancel rent assistance, remits the matter to the Social Security Appeals Tribunal with directions that it consider the matter in the light of the further evidence available and, in the event that the applicant does have status to have the matter reviewed, to determine the matter.
...................[Sgd]......................
J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – newstart allowance – overpayment – applicant failed to disclose income from employment – debt properly raised – no basis to waive Commonwealth’s right to recover the overpayment – decision affirmed
SOCIAL SECURITY – benefits and entitlements – rent assistance – standing of applicant to seek review – rent assistance paid to applicant’s partner – applicant had completed questionnaires – questionnaires addressed to applicant – SSAT did not have evidence of applicant’s involvement in case before decision made – matter remitted to SSAT for reconsideration with direction that they consider new evidence of applicant’s involvement
Social Security Act 1991 ss 1068-A1, 1223(1), 1237A(1), 1237AAD
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
30 June 2004 Ms J Cowdroy, Member Hearing
1. A hearing in respect to a number of matters was conducted on 12 November 2003 and 22 March 2004 in Maroochydore. Mr Kristoffersen appeared and gave evidence. Ms Wallis-Dunn appeared for the respondent. Before the Tribunal were the T-documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and other documents, relevant to this application and the applicant’s other application (Q2003/112), were taken into evidence as follows:
Exhibit 1T documents for Q2003/80
Exhibit 2T documents for Q2003/112
Exhibit 3 Copy of bank statement
Exhibit 4Letter to Ms Bernadette Grills dated 1 October 2002
Exhibit 5 Letter from Mr Gibbons dated 11 December 2002
Exhibit 6Letter from Mr Gilfeder dated 3 October 2002
Exhibit 7 Letter from Mr Kristoffersen to Centrelink dated 4 December 2002
Exhibit 8Documents provided by applicant headed, “The Alleged Debt of $366.20”
Exhibit 9Documents provided by applicant in relation to “The Cancellation of Rent Assistance”
Exhibit 10Document provided by respondent in relation to Rent Assistance
2. There are two decisions in respect of which the applicant has sought review.
The First Decision - Overpayment of Newstart Allowance
3. The first decision relates to a review of a decision of Centrelink dated 7 May 2002, which determined to raise and recover an overpayment of newstart allowance in the sum of $366.20 for the period 1 March 2002 to 28 March 2002. This decision was affirmed by the Social Security Appeals Tribunal ("the SSAT") on 15 January 2003.
4. The debt was said to arise because Mr Kristoffersen worked at Namtec Incorporated for the period 1 March 2002 to 28 March 2002, earning gross wages of $739.71 which he failed to declare to Centrelink.
The Issue
5. The issue to be determined is:
(i)whether a debt to the Commonwealth exists and;
(ii)if so, whether the debt should be recovered.
Evidence
6. The applicant, in his application for review, was aggrieved that the respondent had not had regard to his status as a full time student. At T5-25 he indicated on an Application for Payment of Newstart Allowance form that he had not worked in the period 28 February 2002 to 13 March 2002. When asked about his job seeking efforts, he replied ”…not necessary as I am NIES Registered”. At question 6 he ticked the box indicating that he had undertaken a full time Centrelink approved activity in that period.
7. The applicant acknowledged that he worked at Namtec during the period and failed to declare this income. His bank statements disclose that he received net amounts of $326.56 and $363.15 on 14 March 2002 and 28 March 2003 respectively. He maintained, however, that as a full time student, he was entitled to “income bank”, which permits full time students to earn up to $236.00 before Centrelink payments are reduced.
8. In a letter dated 24 April 2002, which appears at T9-37, Mr Kristoffersen stated relevantly:
“…I had no reason to declare the wages paid to me as intensive case manager and teacher, personal development facilitator for Namtec Ink.”
9. The applicant had no idea of the amount he was going to be paid, as it was part time employment and he had not worked for five years. In any event, he considered that the income he received should be offset against tuition fees of $747.95, which he had expended in earning his diploma, as well as the $100 bonus payment given to persons seeking work for the purpose of purchasing appropriate clothing.
10. He also disputed the amount of the overpayment, arguing that the respondent had treated both payments as having been received in the one fortnight, creating a debt which would not have been incurred if the income had been treated as having been received over two fortnights. He pointed to the fact that in the second fortnight he was paid as a business, which is treated in a different manner than personal income.
11. The applicant was reticent to declare his earnings on the forms provided as he was concerned that Centrelink would make contact with his employer and make defamatory comments about him, which would result in his dismissal. He pointed to long standing antagonism between himself and various Centrelink employees who have harassed him and excluded him from mainstream services enjoyed by other Centrelink recipients. He pointed to the fact that he is barred from accessing Centrelink offices, and he does not have a contact person.
Findings and Consideration
12. The Tribunal is satisfied that, on 14 March 2002, the applicant was paid a gross amount of $348.56 representing payment for work on various dates between 1 March 2002 and 14 March 2002. On 28 March 2002, he was paid a gross amount of $391.15 for work on 21 March 2002 and 28 March 2002. The amount which was paid to Mr Kristoffersen in his business name (ATC Engineering) was received on 12 April 2002 and it is not the subject of the Centrelink debt.
13. The Tribunal finds that the applicant knowingly failed to declare his income on the various forms he submitted to Centrelink in connection with his continuing entitlement for newstart allowance.
14. At T10-42, the calculations in relation to the overpayment are set out. They disclose that when the amounts received from Namtec are taken into account in respect to two fortnightly periods, the applicant was overpaid by am amount of $167.90 and $198.30 for the periods ended 13 March 2002 and 27 March 2002. The fact that the applicant received those amounts shortly after the end of those periods has no bearing on the correctness of the debt calculation.
15. Section 1068-A1 of the Social Security Act 1991 (the Act), sets out the method of calculating a person's entitlement to benefit. Step 5 of that methodology provides directions for calculating a reduction in benefit on the basis of income received. The rate of benefit is a daily rate, however it is calculated by reference to a fortnightly period.
16. Section 1223(1) of the Act provides:
“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.”
17. As can be seen, the Act makes no provisions for any offsetting of any debt against amounts to which the applicant may have been entitled in respect of other types of allowances or benefits.
18. The Tribunal finds that the calculations have been carried out according to the formula in the Act and it finds that there is a debt of $366.20 to the Commonwealth. The Tribunal then considered the waiver provisions.
19. Section 1237A(1) states:
“Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to 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.”
20. The Tribunal finds that the debt arose solely because of the applicant's failure to declare that he had worked during the relevant periods. Whilst the Tribunal accepts that he did not know precisely what he would receive by way of wages, the form he completed seeks information on work activities generally, as well as wage details. He simply did not disclose he had been working. The Tribunal rejects the applicant's assertion that he regarded himself as exempt on the basis that he was either a student or registered on the NIES scheme. It finds that the omission to declare his income was a deliberate act on his part.
21. Consequently, the applicant cannot avail himself of the provisions of section 1237A(1) as the debt did not arise because of administrative error. The Tribunal accepts that the applicant held a belief that he had entitlements to other benefits which he was not receiving, however that does not satisfy the requirement that he received the amounts of newstart allowance in good faith.
22. The applicant did not specifically address the special circumstances provision in section 1237AAD of the Act, however it was implicit from his submissions that he believes his personal circumstances meet these criteria. This subsection provides that debts can be waived in certain circumstances. It states:
“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.”
23. The term “special circumstances” has been considered by the Tribunal and other forums on numerous occasions. In this context the decision of Re Beadle andDirector-General of Social Security (I984) 6 ALD 1 has been much quoted as the benchmark in respect to the interpretation of those words. In that case the Tribunal said:
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
25. Whilst the Tribunal accepts that the applicant's relationship with Centrelink officers has been difficult and that he may have had entitlement to other benefits from Centrelink which, for various reasons, have not been made available to him, such considerations do not constitute special circumstances. The debt has been substantially repaid. The Tribunal was cognizant of the fact that where a person is a recipient of a social security payment and the debt is being deducted by instalments, such a situation cannot constitute financial hardship (see section 1236).
26. Consequently, having considered all of the evidence and having applied the relevant legislation, the Tribunal determined to affirm the decision under review.
The Second Decision - Cancellation of Rent Assistance
27. This relates to a review of a decision by the SSAT, dated 15 January 2003, which determined that it did not have jurisdiction to deal with a Centrelink decision to cancel rent assistance. The SSAT found that a decision was made in respect to a female person with whom the applicant was sharing accommodation at the time. That Tribunal considered that that other person is the appropriate person to pursue an application for review.
The Issue
28. The issue to be decided in this case is, does the applicant have standing to seek review of a decision of Centrelink to cancel rent assistance?
Evidence
29. The applicant contended that he had the relevant status to have the decision reviewed. At T17-61, a customer services manager advised that whilst proof of rent for the period 12 September 2002 to 26 September 2002 had been received (T16-59 refers), for rent assistance to continue to be paid, a new agreement or current receipts would need to be provided.
30. The applicant was living with Ms Bernadette Grills on a boat moored at a marina, in respect of which he paid mooring fees. The rental agreement for the mooring was in the applicant's name and initially the rent assistance was being paid to him. Subsequently, the payment was split equally between himself and Ms Grills. After a change in Centrelink procedure, both rent assistance and family payment were paid to Ms Grills.
31. A letter had been sent from Centrelink requesting verification of the rental payments. The applicant produced a letter headed Rent Assistance Review on Centrelink letterhead which is undated. That letter states that that office was undertaking a review of customers who receive rent assistance and have not had a change in address or rent for the past two and a half years. Upon receipt of that letter, the applicant spoke to a person at Centrelink named Helen, on 11 April 2002, who informed him that the letter had been sent in error and to ignore it.
32. By letter dated 6 May 2002, the applicant advised that he had received a rent assistance questionnaire dated 27 March 2002. He referred to the previous conversation with Helen. He indicated that nothing had changed in regards to his rent situation. Mr Kristoffersen did not complete any of the questions in the questionnaire which he signed on 28 March 2002. In the space provided for answers to some of the questions he wrote “not necessary”.
33. At Appendix G to the applicant's submissions dated 18 December 2003, a completed rent assistance questionnaire (which is undated but issued on 14 March 2002), indicates that the applicant had written in answer to most of the questions on that form “unchanged” or “nothing has changed”.
34. In April 2002, rent assistance was cancelled, however it was subsequently re-instated in September of that year. A letter dated 11 December 2002 from Centrelink to the applicant indicates that rent receipts were received on 10 December 2002 and arrangements were made to pay arrears of rent allowance from 27 September 2002.
35. The applicant contends:
“Centrelink did not have the right to cancel rent assistance based on an alleged instruction via an alleged telephone call. Section 68 notices are written documents and are noted as section 68 documents.
The rent review questionnaire was sent back completed and it was identified that rent circumstanced were unchanged. Cancellation of rent assistance is not an option available under soc sec law in unchanged circumstances.
The cancellation has no basis in soc sec law as this was not a new claim or changed accommodation circumstances. Centrelink were not entitled to cancel rent assistance
Rent assistance was paid on the 13/9/02 and no extra or different documentation was provided by Mr Kristoffersen or Ms Grills
Rent assistance was paid on the 18/12/02 and no rent assistance questionnaire, or rental agreement was required.
Mr Kristoffersen is now owed $2256.27…”
36. However, at Appendix E of the applicant’s batch of documents he refers to rent assistance owed to him from 4 April 2002 to 28 August 2002 in the amount of $1,605.00. The applicant asserts that the information which the respondent sought to justify the continuance of rent assistance was information which was only applicable to a person who had made a fresh application for rent assistance. All that was required by Centrelink from him at that time was notification that the circumstances had not changed.
37. The applicant in his application for review dated 28 January 2003 stated:
“I am requesting an appeal against the decision made by the SSAT dated 15/1/03… not to hear my appeal in regards to the decision to cancel the payment of rent assistance for the period April 2002 to January 2003.
The rent assistance was paid on my behalf and the rental agreement, for which rental assistance was paid, was between myself and Lawries Marina…
I am the person who instigated the review of the decision to cancel rent assistance by an A.R.O. and I was the person who made all the telephone calls in regard to this cancellation, I was also the person who was evicted and the person who currently has an outstanding account of $1600 due to his cancellation and cessation of payment. I was also the person who sent in rental receipts and a copy of the rental agreement on four separate occasions, because the originals had apparently been lost by Centrelink, and lost four times by Wain Gibons including documentation sent by registered mail and signed for.
Bernadette Grills had sent in a letter allowing me to deal with this matter on our behalf, considering that Centrelink was paying us as a couple, and Centrelink acknowledged this fact and up until the A.R.O. decision had been happy to allow me to deal with this matter.”
38. The respondent's position is that no acceptable verification of rental payments had been provided by the applicant or his partner, Ms B Grills. Although he had provided a rental certificate, it had not been verified by his landlord. Consequently, all amounts payable for rent assistance had been paid. The only periods during which no payments were made was 24 October 2002 to 6 November 2002, 7 November 2002 to 20 November 2002 and 21 November 2002 to 4 December 2002.
39. In any event all payments were made to Ms Grills, who, according to Centrelink records, separated from Mr Kristoffersen on 28 September 2000.
Findings and Consideration
40. The essential issue relates to whether Mr Kristoffersen has the necessary status to seek review of the decision to cancel rent assistance. The Tribunal has considered it necessary to canvass much of the evidence about the events which precipitated cancellation of rent assistance, as it demonstrates the extent of involvement which the applicant has had with Centrelink about that issue. The Tribunal notes the following.
41. Mr Kristoffersen’s Centrelink records reveal that he was in contact with various Centrelink officers between April and July 2002 by letter and responses were directed to him in relation to the matters he raised. Of significance is the fact that the Rent Assistance Questionnaires dated 14 March 2002 and 28 March 2002 are in the applicant’s name.
42. The Tribunal notes that by letter dated 14 May 2002, Mr Morton of Centrelink advised the applicant that he needed to complete the rent assistance questionnaire signed by the person to whom he paid rent and return it to Centrelink. Further, Centrelink records reveal that on 1 October 2002, an ARO affirmed the April 2002 decision to cease payments of rent assistance due to verification of rent payment not being provided. That decision was addressed to the applicant.
43. Clearly, it appears all Centrelink dealings in relation to rent assistance were with the applicant. Whilst there may also have been some dealings between Centrelink and Ms Grills, such information is not before this Tribunal. The applicant had provided a letter dated 12 April 2002 signed by Ms Grills, addressed to Centrelink which authorised the applicant to act on her behalf and access documents relating to the cancellation of rent assistance.
44. The decision by the SSAT that Mr Kristoffersen did not have jurisdiction to have the decision reviewed was made when that Tribunal was not in possession of information about the applicant’s involvement. That comment is not critical of the Tribunal, as it appears from reading its decision that the issue was raised by the applicant at the hearing in relation to the overpayment dealt with earlier in these reasons. It may have been an issue which the Tribunal had not been expecting to address.
45. The Tribunal finds that Mr Kristoffersen’s status to seek review of the decision has not been properly considered by the SSAT. In those circumstances, it determined to remit the matter back to the SSAT with directions that it consider the status of the applicant to have the decision dated 1 October 2002 reviewed. Further, if it is found that he does have the requisite status, it should then determine the substantive issue as to whether the decision to cancel rent assistance was properly made.
46. The Tribunal’s decision is that the matter be remitted to the SSAT for consideration in accordance with the above directions.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Sarah Oliver
AssociateDates of Hearing 12 November 2003 and 22 March 2004
Date of Decision 30 June 2004
The Applicant appeared in person
For the Respondent Ms H Wallis-Dunn, Departmental Advocate
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