Lambkin and Secretary, Department of Family and Community Services
[2004] AATA 238
•11 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 238
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION ) No N2003/1211 Re Jason LAMBKIN Applicant
And
Secretary, Department of Family and Community Services
Respondent
No N2003/781
Re Secretary, Department of Family and Community Services Applicant
And
Jason LAMBKIN
Respondent
DECISION
Tribunal Mr S Webb, Member Date11 February 2004
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review in application number N2003/1211 and sets aside the decision under review in application N2003/781, deciding in substitution therefor that Mr Lambkin’s overpayment debt to the Commonwealth is recoverable and there are no grounds for its waiver under the Social Security Act 1991.
[sgd] S Webb
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification - ‘impairment points’ –continuing inability to work – criteria not satisfied - decision affirmed
SOCIAL SECURITY – disability support pension – overpayment – applicant working 30 hours a week or more – no special circumstances – decision set aside.
LEGISLATION
Social Security Act 1991 sections 94, 1223, 1236, 1237A, 1237AAD, Schedule 1B
Social Security (Administration) Act 1999 section 68, Schedule 2
CASELAW
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
11 February 2004 Mr S Webb, Member 1. At the conclusion of the hearing of the above matter the terms of the decisions made and the reasons therefor were stated orally. Pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 Mr Lambkin requested that the Tribunal provide a statement in writing of the reasons of the Tribunal for its decisions.
2. The oral reasons for the decisions were transcribed by Auscript, the Commonwealth Reporting Service. That transcript has been edited, as appropriate, and sets out the reasons for the decisions below.
3. Mr Lambkin has brought an application seeking review of a decision of the Social Security Appeals Tribunal to affirm a primary decision rejecting his claim for a disability support pension dated 6 November 2002. There is also the matter heard concurrently today brought by the Secretary of the Department of Family and Community Services seeking review of a decision of the Social Security Appeals Tribunal to set aside a primary decision relating to recovery of an overpayment debt of $1,473.08. That debt was raised against Mr Lambkin as the consequence of an alleged overpayment of disability support pension during the period from 17 July 2002 to 7 October 2002.
4.I will deal with each matter separately.
5. In the first case concerning Mr Lambkin’s eligibility for a disability support pension pursuant to section 94 of the Social Security Act 1991 (“the Act”) I find that he has impairment of both of his arms as a result of bilateral carpal tunnel syndrome. I note that he has had surgery for that condition in his right arm but not in his left arm and that the condition has recurred in his right arm. I find that he also has impairment of his left ankle. I accept that that both conditions are permanent and they are likely to continue for a period of at least two years. There is a question whether his bilateral carpal tunnel syndrome has been fully treated, especially in his left arm, and whether such treatment may result in improvement of that condition. However, I accept Dr Mishricky’s opinion that further surgery is not recommended and note that he has suffered from the condition since 1987.
6. Considering the impairment tables set out under the Schedule 1B of the Act I am satisfied that a rating of 15 impairment points is warranted in relation to Mr Lambkin’s arms pursuant to Table 3 of the Schedule. That is 10 impairment points for his right dominant arm and 5 impairment points in relation to his left non-dominant arm. I accept that Mr Lambkin suffers a loss of strength and mobility in both his arms that causes moderate interference with his hand function. I am satisfied that his left ankle impairment when assessed under table 4 of Schedule 1B warrants a nil rating. I accept Mr Lambkin’s evidence that he can walk without difficulty at varying speeds for distances of more than 500 metres, for example when making deliveries to the Wagga Base Hospital.
7. In making those assessments I am only looking at the period of 13 weeks following Mr Lambkin’s claim for a disability support pension on 6 November 2002 in accordance with Schedule 2 of the Social Security (Administration) Act 1999 (“the Administration Act”). That Schedule sets out the way in which the start day for the disability support pension must be worked out. Essentially Mr Lambkin must either qualify for the pension on the date on which he lodged his claim or during a period of 13 weeks thereafter.
8. In his submissions to me, Mr Lambkin has relied on the report of Dr Tom Heaney, which is in exhibit A1. That report is dated 16 December 2003. It relates, in other words, to a period of time that I cannot take into account in terms of assessing his eligibility for disability support pension pursuant to his claim. I accept, however, that such reports may have contextual relevance. Dr Heaney’s report does not persuade me that his assessment of Mr Lambkin’s impairments should apply during the relevant period.
9. Pursuant to section 94(1)(b) of the Act I am satisfied to the requisite degree that Mr Lambkin does not qualify for a disability support pension either on 6 November 2002 or within the period of 13 weeks thereafter. He does not qualify in that period because his impairments do not warrant a rating of 20 or more points under the tables set out at Schedule 1B of that Act.
10. Even if I found Mr Lambkin to have 20 or more impairment points, I would be compelled to find that he doesn't have a continuing inability to work 30 or more hours a week pursuant to section 94(1)(c) of the Social Security Act. That being the case, his application would fail. On the evidence before me, I am satisfied that he is capable of working 30 hours or more per week. That is evidenced by the fact that on a number of occasions he has done so, and also by the fact that for a long period of time now he has been working at the level of 29 hours per week by his own request. There is no compelling evidence before me that persuades me to conclude that he is unable to work an additional one or more hours per week in his current employment or in other suitable employment.
11. In making that decision I am taking into account all of the evidence before me and all the matters that the parties have raised in submissions before me today in the hearing.
12. In relation to the matter brought by the Secretary, I now turn to consider the matter of a debt raised against Mr Lambkin in the amount of $1473.08. On the evidence before me I am satisfied that the debt is raised correctly pursuant to section 1223 of the Act. The debt has arisen in consequence of an overpayment to Mr Lambkin of disability support pension during the period 17 July 2002 to 7 October 2002.
13. The issue is whether Mr Lambkin was entitled to receive disability support pension during that period. It is a fact that he was in receipt of disability support pension when he commenced employment in May 2002. On 25 July 2002 Centrelink suspended payment of disability support pension following a decision that Mr Lambkin was capable of working 30 or more hours per week and was not qualified for that pension. On 1 August 2002 Mr Lambkin told Centrelink that he was not working more than 30 hours per week at that time and provided some payslips to support that contention. I am satisfied that it was in consequence of the information provided by him that Centrelink decided to reinstate his disability support pension.
14. It is necessary to consider Mr Lambkin’s payslips for the period of time immediately surrounding 1 August 2002. Those payslips indicate quite clearly that on a number of occasions, including in the fortnight commencing on 5 August which is immediately after 1 August, that Mr Lambkin actually worked 30 hours a week, and did so again in ensuing periods through to September 2002.
15. There is no evidence before me, apart from Mr Lambkin’s assertion, that he provided those payslips for weeks in which he worked 30 or more hours to Centrelink. I am satisfied that he did not. I accept the submissions for the Secretary that Mr Lambkin’s disability support pension should not and would not have been reinstated had those payslips been provided. The test to be applied pursuant to section 94 (1)(c) is whether there is a continuing inability to work 30 or more hours per week. Mr Lambkin failed to satisfy me that he is unable to work 30 or more hours per week. The evidence of his payslips stands against him. He has also failed to persuade me that he suffers from a continuing inability. The fact is he has worked for 29 hours per week by his own request for a long period of time. I am satisfied that Mr Lambkin was not qualified for disability support pension during the period in question and that the reinstatement of that pension was in error. Nonetheless, disability support pension was paid until 7 October 2002. I am satisfied that those pension payments from 17 July 2002 until 7 October 2002 are payments to which Mr Lambkin was not entitled. Such an overpayment is a debt to the Commonwealth pursuant to section 1223 of the Act.
16. The Social Security Appeals Tribunal concluded that the debt was solely attributable to Centrelink’s error reinstating Mr Lambkin’s pension. I do not agree. I am satisfied that the error of reinstatement of pension was, at least in part, attributable to the erroneous information provided to Centrelink by Mr Lambkin.
17. I am sympathetic to Mr Lambkin’s case, but I have to make a decision on the basis of the evidence before me, and I have to make a decision in accordance with the law.
18. The fact that Mr Lambkin provided Centrelink with information that was incorrect or incomplete compels me to find that Mr Lambkin’s debt cannot be waived pursuant to section 1237A(1). That debt is not solely attributable to Commonwealth error. Mr Lambkin’s action contributed to the error.
19. Mr Lambkin agreed, and I find, that he received a notice pursuant to section 68 of the Social Security Administration Act informing him of his obligations to inform Centrelink if he worked 30 or more hours a week (T4 folios 9 and 10). I accept that there may be confusion about terms such as “at least 30 hours per week” and “more than 30 hours per week. However, the letter Mr Lambkin received from Centrelink to which I have referred is not in those terms. It sets out Mr Lambkin’s obligation to inform Centrelink within 14 days “…if you start work for 30 hours per week or more”. Mr Lambkin, on balance, I am satisfied that you did understand that if you worked 30 or more hours a week you should inform Centrelink. You did not fulfil that obligation.
20. So, there is no ground on which I can waive the debt on the basis of sole administrative error. Finally, the only other relevant ground for waiver of the debt that is relevant in these proceedings is waiver pursuant to section 1237AAD of the Act concerning special circumstances (see Re Beadle and Director-General of Social Security (1984) 6 ALD 1). I am satisfied on all the evidence before me that Mr Lambkin’s case is not sufficiently different, unusual or exceptional from the run of cases.
21. Mr Lambkin is in employment where many others are not capable of undertaking such employment. He has an ability to work 30 or more hours per week, in my view. That places him in terms of your income above the level of people who are not able to work in that way. His financial circumstances are somewhat straitened, I accept that, and it may be difficult for him to repay the debt. However, his circumstances are not such to warrant a finding of special circumstances to the extent that the taxpayer should carry the burden of the debt of the over-payment.
22. Finally, I am satisfied that the debt should not be written off pursuant to section 1236 of the Social Security Act because none of the grounds set out in that section are satisfied in this case.
23. In conclusion, therefore, I find that the debt is correctly raised and there are no grounds under the Act for its waiver. It follows the decision of the Social Security Appeals Tribunal must be set aside and the matter remitted to the Secretary so that appropriate recovery action can be pursued.
24. The decision under review concerning Mr Lambkin’s qualification for disability support pension is affirmed, and the decision under review concerning recovery of the overpayment debt must be set aside. The matter is remitted to the Respondent.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: Guy Moloney .....................................................................................
AssociateDate/s of Hearing 11 February 2004
Date of Decision 11 February 2004
Representative for the Applicant Self RepresentedRepresentative for the Respondent George_Lozynsky
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