Lawson and Secretary, Department of Family and Community Services

[2003] AATA 1325

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1325

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1446

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Leslie Harold Lawson

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal M.A. Griffin, Member

Date22 December 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd]  M.A. Griffin, Member

CATCHWORDS

SOCIAL SECURITY - Disability Support pension - overpayment whilst in prison - debt - special circumstances - decision affirmed

Social Security Act 1991 sections 1158; ;1223; 1236; 1237A; 1237AAD

Dranichnikov v Centrelink [2003] FCAFC 133

REASONS FOR DECISION

22 December 2003 M.A. Griffin, Member         

1.      This is an application by Leslie Harold Lawson (“the Applicant”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 30 August 2002 (T2). The SSAT affirmed the decision of an authorised review officer (“ARO”) of Centrelink dated 15 March 2002 (T20) to raise and recover an overpayment of disability support pension debt of $13,286.20 for the period 26 November 1998 to 20 January 2000 (“the Relevant Period”).

2.      At the hearing of this matter on 3 November 2003 the Applicant was represented by Mr Darryl Barlow, Solicitor and Ms Cheryl Collis, a Centrelink advocate, represented the Secretary, Department of Family and Community Services (“the Respondent”).

3. The Tribunal received into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act1975 (T1-22) as well as exhibits marked A1 and A2 for the Applicant and R1 for the Respondent.

BACKGROUND

4.      On 16 November 1998 the Applicant commenced a sentence of six years imprisonment. At that time he was in receipt of a disability support pension.  The pension continued to be paid into his credit union account. On 28 January 2000 Centrelink wrote to the Applicant advising that his pension payments had been stopped upon receipt of information that he was in prison. On 15 March 2000 the Applicant’s solicitor advised Centrelink that funds had been withdrawn from the Applicant’s credit union account without his knowledge or approval.  On the following day a debt was raised for the overpayment amount.

EVIDENCE

5.      Mr Lawson said he was sentenced on 16 November 1998 at Penrith court and taken to Silverwater Correctional Centre the same day. He said he surrendered his mobile telephone and his wallet containing his credit union card at the court.  He said he was interviewed by a welfare officer at Silverwater and Centrelink payments were discussed. He said he filled out some forms including one for Centrelink. He said the welfare officer told him Centrelink would be notified and the payments stopped.  He said he knew nothing more about the payments until 29 February 2000 when he received the letter from Centrelink addressed to him at Silverwater. He was in fact at Long Bay Correctional Centre at the time.  He said he had never given his automatic teller machine (ATM) personal identification number (PIN) to any person nor had he given anyone permission to access that account. Mr Lawson said his mail was forwarded to him in prison with a delay of about two months.

6.      He said he instructed his solicitor to report the matter to the police. A detective from Mascot police interviewed him in prison. He said he obtained a print-out from the prison listing his property held by the prison and his wallet and mobile telephone were not on the list. He said there was an incorrect entry for some other property on the list, which was not his and which he did not have. The police investigation identified a person of interest but there was insufficient evidence to lay charges for any offence.

7.      The credit union provided a print-out of the transactions using the ATM card over the relevant period. The credit union stated that the original card and PIN number was used. Mr Lawson said he had received several replacement cards over time and no longer had the original card when he handed in his wallet. The print-out of transactions showed a very similar continuation of the places, amounts and periodic withdrawals which had been the pattern of use of the card by Mr Lawson before his imprisonment. Mr Lawson could offer no explanation for this similarity in the pattern of use.  Mr Lawson referred to some recent newspaper reports of ATM thefts using a technology which involved photographing or electronically capturing PIN numbers and suggested this may have been what happened to his account. Mr Lawson said there had also been unauthorised use of his mobile telephone during the relevant period.

8.      Mr Lawson suffers from illness and disability, which he says restrict his physical mobility and make it unlikely that he will be able to find employment for some time after his release from prison in November 2004. However, Mr Lawson has undertaken a number of educational courses in prison including, horticulture, computers and “Year 12”.. This course attendance has required him to sit at a desk in a classroom situation for extended hours. He has no assets.

CONSIDERATION OF ISSUES

9. Section 1158 of the Social Security Act 1991 (‘the Act”) prevents the payment of a social security pension to a person in prison. Pursuant to section 1223 of the Act, if a pension payment is made and a person obtains the benefit of the payment without entitlement to that benefit, then the amount paid is a debt due to the Commonwealth and the debt arises when the person obtains the benefit of the payment.

10. Mr Lawson was in prison during the relevant period and as such did not have a continuing entitlement to the disability support pension. However, the payments continued to be made into his account. The credit union account was in his name only and there were no other persons authorised to access the account. As a matter of fact, the payments came under his control and ownership as soon as they were paid into his account and he obtained the benefit of the payments at that time. What became of the money after that does not alter this fact for the purposes of section 1223, giving rise to the debt.

11.     The issue to be considered next is whether or not the debt should be written-off or waived. Section 1237A provides that a debt must be waived where it is due solely to an administrative error by the Commonwealth.  Mr Lawson says the overpayment is due solely to administrative error by Centrelink because it did not act on the form he completed which was provided to him by a welfare officer at Silverwater Correctional Centre on his arrival there on the day of his sentencing. He says he was in shock at the time and entitled to rely on the representations made to him by the welfare officer that the payments would be stopped. I do not accept that submission. It may be that Centrelink accepts the process as described in the prisons by Mr Lawson and thereby holds the system out to be an official process. However, it does not in my opinion entitle a pension recipient to turn a blind eye to further payments being made.  Having had the benefit of observing Mr Lawson giving oral evidence for some time, I am not satisfied his evidence about his knowledge of the use of his account is reliable. I draw support for this conclusion from the similarity in the pattern of use of his card after his imprisonment and his inability to offer an explanation for this. I find the overpayments were not due solely to administrative error on the part of the Commonwealth.

12. In relation to section 1237AAD of the Act, the various sub-sections are conjunctive. That is, the discretion to waive a debt is only enlivened where section 1237AAD (a) and (b) and (c) are made out. Section 1237AAD(b) requires “… special circumstances (other than financial hardship alone)…”.  In Dranichnikov v Centrelink [2003] FCAFC 133 (19 June 2003) at paragraph 65, Hill J in considering the term “special circumstances” said:

“65. … The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words “unusual, uncommon or exceptional” come was not actually affirmed by the Full Court.

66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred.  Again that is not a matter to which the decision maker apparently averted.  Other cases which have considered analogous words such as “special reasons” has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case.  There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.

67. It is possible to read the decision statement as suggesting that the present case was one incapable of falling within the words “special circumstances”.  If that is what was held, it would involve legal error.  However, the real problem with the exercise of discretion under s 101 as with the mandatory provisions of s 97, is that the decision maker appears not to have considered at all what the circumstances were which gave rise to the overpayment.  Whether those circumstances were or were not special will obviously be a matter for the decision maker when the factual circumstances have been ascertained.”

12. On the evidence presented, the Tribunal finds that there are no personal or financial, or other matters raised by the Applicant that could constitute special circumstances, nor is there anything in the circumstances which gave rise to the overpayment that constitute special circumstances. Therefore, the Tribunal finds that the Applicant does not satisfy section 1237AAD(b) of the Act. As a result, he is unable to satisfy section1237AAD, and the debt may not be waived. In view of the education and training activities he has undertaken in prison, Mr Lawson has substantially improved his employment prospects on release despite his physical restrictions. If he is not able to work he will qualify for a social security payment and consequently the Tribunal finds that write-off of the debt pursuant to section 1236 is not appropriate.

DECISION

13.     The Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin, Member

Signed:         Neil Glaser
  Associate

Date of Hearing  3 November 2003
Date of Decision  22 December 2003
Solicitor for the Applicant          Darryl Barlow
Solicitor for the Respondent     Cheryl Collis