Lazzaro and Secretary, Department of Social Services (Social services second review)

[2016] AATA 1007

Lazzaro and Secretary, Department of Social Services (Social services second review) [2016] AATA 1007 (9 December 2016)

Division	GENERAL DIVISION
File Number	2016/1137
Re	Brock Lazzaro
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member P Nolan
Date	9 December 2016
Place	Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]................................................

Senior Member P Nolan

CATCHWORDS

SOCIAL SECURITY - Youth Allowance debt – School Kids Bonus debt – overpayment -where applicant ceased full-time study – where no administrative error - whether debt should be written-off or waived due to “special circumstances” – no special circumstances found - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999

CASES

Dranichnkov v Centrelink (2003) 75 ALD 134

ReBeadle and Director-General of Social Security (1984) 6 ALD 1

Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

REASONS FOR DECISION

Senior Member P Nolan

9 December 2016

BACKGROUND

1. Mr Lazzaro (“the Applicant”) has been in receipt of youth allowance since the 26 June 2011.[1] On 30 May 2015, the Secretary, Department of Social Services (“the Department”) made a decision to raise and recover a portion of the youth allowance (“YAL”) debt for the amount of $4,061.20 covering a period of 4 April 2014 to 24 August 2014[2] and to raise and recover a School Kids Bonus (“SKB”) debt in the amount of $410 representing a one-time payment made on 18 July 2014.[3] These decisions were affirmed by an Authorised Review Officer on 15 July 2015.[4] The Applicant requested a review of those decisions and lodged an appeal with the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal.

   [1] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 12 September 2016, paragraph [5].

   [2] Exhibit 1, T Documents, T4, page 46, Electronic File Note of Department of Human Services with Receipt Date 30 May 2015.

   [3] Exhibit 1, T Documents, T4, page 55, Electronic File Note of Department of Human Services with Receipt Date 30 May 2015.

   [4] Exhibit 1, T Documents, T8, page 74-80, Decision of Authorised Review Officer dated 15 July 2015.

2. The matter came before Member Devereux. On 8 October 2015, Member Devereux set aside the matter and sent it back to the Chief Executive Centrelink for reconsideration in accordance with the direction that investigations would be undertaken to establish whether the Applicant’s youth allowance employment plan reflected the capacity assessed of him in his Job Capacity Assessment of 3 March 2014.

3. At paragraph 12 of the decision, Member Devereux made it clear that the matter was being remitted to Centrelink to investigate whether the youth allowance employment plan specified that the Applicant was to undertake 8-14 hours of work per week during the debt period. If so, then subject to him meeting other eligibility requirements, the Applicant was, during that period, eligible for youth allowance.[5]

   [5] Exhibit 1, T Documents, T2, page 8, Administrative Appeals Tribunal, Social Services and Child Support Division, Decision and Reasons for Decision dated 8 October 2015.

4. On the 27 October 2015 the Department determined that the correct amount of debt was $2,556.00.[6] The mechanics of that calculation are set out in Exhibit 1.[7] The SKB debt of $401.00 remained unchanged.[8] More importantly, the Department’s representative attached to the Statement of Facts, Issues and Contentions a document referred to as Attachment “D” which clearly showed documentation that had been sent to the Applicant indicating that the debt had been altered to the amount stated above.

   [6] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions dated 12 September 2016, Attachment “D”.

   [7] Exhibit 1, T Documents, T11-T12, pages 87-94, Debt Calculations and Debt Details.

   [8] Exhibit 1, T Documents, T12, pages 95-96, Debt Details.

5. The Applicant sought further review citing that: “att number 1 review wiped part of debt due to studying some hours i had to work. But theres still part of debt I want wiped due to car accident while studying.”[9] He indicated that “apparently its because i didnt tell them i stopped study but i told them on 5 different occasions that I stopped study. i also had a car accident and was in hospital through study period.”[10]  As such, the issue before me for review is not the existence or quantum of the debt, but whether the debt should be recovered or waived on the basis of special circumstances.

   [9] Exhibit 1, T Documents, T1, page 4, Application for Review of Decision (Individual), Section 2, lodged 3 March 2016.

   [10] Exhibit 1, T Documents, T1, page 4, Application for Review of Decision (Individual), Section 3, lodged 3 March 2016.

   HEARING

6. The Applicant appeared in person and presented, in my opinion, as an honest but often confused young man. He explained that there were in fact two car accidents which appeared to be relevant to his contention. He explained that he had an accident where he was a passenger in a vehicle (A1) that his mother was driving. This occurred when he was 4 years old but he brought no action to recover damages for that until he turned 18.

7. The second accident the Applicant referred to (the accident he refers to in his grounds for appeal) was a single vehicle accident (A2) where he rolled his vehicle and it ultimately collided with a tree before coming to rest. That occurred on or about 30 April 2014. The Applicant spent the night in hospital after the accident. It was clear that he missed some appointments from what he said as a result of A2 but it was by no means as serious as A1.  

8. The Applicant was cross-examined by the Department’s representative. It became clear as a result of the questions and answers that were given that he had misunderstood the nature of his obligations. At the end of the matter, when I called for submissions, the Applicant conceded that he had not notified the Department of changes to his circumstances as he should have and that he misunderstood his obligations. He said that quite often he threw out letters because he could not understand them. The Applicant is not the first person to have difficulty following correspondence from the Department but the fact of the matter is he should have done more than simply throw them out.

9. Had the matter ended there, I would have had no difficulties dismissing the appeal. However, after hearing the Respondent’s submissions about the question of whether special circumstances existed in relation to the potential waiver of the debt, the Applicant tendered a document that was a clinical neuropsychology and psychology report prepared for his personal injuries action. This is a report under the hand of Dr Brona O’Dowd and I accepted it as an exhibit on the basis that it may have been relevant.

10. The report has never been seen by any decision-maker prior to its production at the hearing. The Applicant submitted that the report attested to the fact that as a result of A1, he suffered a number of continuing difficulties. These difficulties related to his ability to be organised and understand correspondence. The Applicant felt that the opinion expressed by Dr O’Dowd had been used at his personal injuries trial to show many of the difficulties he suffered and that they contributed to the circumstances that brought about this matter. Namely, his forgetfulness and his inability to understand Centrelink letters and documents that were sent to him.. Had that been correct, I may have had no difficulties finding that there were special circumstances in this case.

11. A debt can be waived in situations where special circumstances are identified. Special circumstances are clearly available to help an Applicant and in this instance are set out in s 1237AAD of the Social Security Act1991 (Cth) (“the Act”) and s 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 (“FAAA”). Special circumstances are not defined; however, a number of authorities point to the fact that special circumstances depend on how an error came about or occurred and would require that the circumstances as such would take the case out of the ordinary. The authority on special circumstances shows that the circumstances should usually have a particular quality of being “unusual, uncommon or exceptional.”[11]

    [11] ReBeadle and Director-General of Social Security (1984) 6 ALD 1 at [3]; See also, Dranichnkov v Centrelink (2003) 75 ALD 134 at 148; Re Ivovic and Director-General of Social Services (1981) 3 ALN N95.

12. The difficulty for the Applicant is that the report in fact says the opposite to what he thought. A careful analysis of the report in my opinion shows that Dr O’Dowd took the view that the Applicant’s inability to think properly and the difficulties that he faced at school are attributable to constitutional cognitive weaknesses and gaps in his learning due to his lack of application and excessive absentees from school.[12] However what Dr O’Dowd did find is that there was a psychological injury. This caused depression and could be clearly related back to A1. The chronic pain resulting from A1 lead to the Applicant’s psychological injury which caused him to have poor self-esteem. As a result, that injury did attract a head of damages in the personal injuries matter, but is unfortunately on its own not capable of attracting a special circumstance in this case. The Applicant did not provide any further evidence that satisfied me that his circumstances were unusual, uncommon or exceptional.

    [12] Exhibit 4, Letter from Patinos Lawyers dated 14 April 2015 and Report of Dr O’Dowd dated 17 March 2015. Page 13.

    DECISION

13. The issue in this case is not whether the debt is due and owing because it clearly is. I have been as careful as possible with the question determining whether the debt should be waived on the basis of special circumstances and unfortunately for the Applicant I can find none. There is no question here of whether the debt should be written off or whether there has been an administrative error and nor has it been raised by either party.

14. In the circumstances, the only appropriate order is that the debt should be affirmed. The order sought by the Secretary, Department of Social Services to the effect of the Decision dated 27 October 2015 to recover the debt of $2556.00 and raise a recovery for a SKB debt $401.00 is affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Nolan

..........................[Sgd]..............................................

Associate

Dated 9 December 2016

Date of hearing	12 October 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services