LISA ALLEGRETTA and DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS - [2009] AATA 271

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 271
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3864

GENERAL ADMINISTRATIVE DIVISION )

Re LISA ALLEGRETTA

Applicant

And

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member
Date17 April 2009
PlacePerth

Decision The Tribunal affirms the Social Security Appeals Tribunal decision of 12 July 2007, to raise and recover from the applicant a parenting payment debt of $29,691.91 incurred during the period 27 November 2003 to 22 August 2006.
....(sgd) Mr A Sweidan........
Senior Member

CATCHWORDS
Social Security – parenting payment – whether applicant received overpayment – whether value of assets exceeded limit – "common intention constructive trust" – whether debt should be waived - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 500 a; 11(1) 1, 1(12); 1118, 1132(3); 1223; 1237A; 1236;
Social Security Administration Act 1999 ss 68 (2)
Guide to the Social Security Law Chapter 4.12.3.51
CASES
Agnew v Secretary, Department of Social Security [1999] FCA 837
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9,
Re Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Riddell v Secretary, Department of Social Security [1993] FCA 261
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
REASONS FOR DECISION

17 April 2009 Mr A Sweidan, Senior Member

1.Decision Under Review

1.1 The applicant Mrs Lisa Allegretta seeks a review of the Social Security Appeals Tribunal (SSAT) decision of 12 July 2007, which affirmed a decision made by a Centrelink delegate, to raise and recover a parenting payment debt of $29,691.91 incurred during the period 27 November 2003 to 22 August 2006.
2.Issues and Matters For Determination

2.1      Was Mrs Allegretta overpaid parenting payment during the period 27 November 2003 to 22 August 2006? If so;
2.1.2     Is there a debt due to the Commonwealth? And if so,
2.1.3     Should the debt be recovered?
2.2To determine these issues it is necessary for the Tribunal to consider:
2.2.1What is the date of effect of the transfer document relating to a half share of the fishing boat and cray licenses signed by Mrs Ioppolita Allegretta, the applicant and her husband
2.2.2Were the half share of the fishing boat and the craypot licences unrealisable assets
2.2.3Was the debt, or any part of the debt caused by sole administrative error and,
2.2.4Are there special circumstances that warrant the waiver of all or part of the debt

3.Facts and applicant’s Contentions

except where otherwise indicated the following matters are not in dispute
3.1     The applicant Lisa Allegretta is married to Damiano Allegretta. They own their home.
3.2     Mr and Mrs Allegretta have two children, who were under 16 years of age during the period 27 November 2003 to 22 August 2006 (the relevant period).
3.3     Mrs Allegretta has been paid parenting payment since 1995 and prior to that parenting allowance. She was paid parenting payment in part at the partnered rate and in part at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LISA ALLEGRETTA and DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS [2009] AATA 271
Case: [2009] AATA 271
Decision Date: 17 April 2009

CaseChat Overview and Summary

The case involved Lisa Allegretta and the Department of Employment and Workplace Relations, with the dispute centering on a debt incurred from a parenting payment overpayment. The matter was brought before the Administrative Appeals Tribunal in Australia. The Tribunal was tasked with determining whether Allegretta had indeed received an overpayment of a parenting payment, whether the value of her assets exceeded the allowable limit, and if a "common intention constructive trust" applied in this context. Additionally, the Tribunal needed to decide if the debt should be waived.

The legal issues the Tribunal had to address included the interpretation and application of the relevant social security laws, particularly in relation to the overpayment of benefits and the circumstances under which such overpayments might be waived. The Tribunal examined whether Allegretta's assets were accurately declared and whether the existence of a common intention constructive trust could mitigate the recovery of the debt. The Tribunal also considered the principles of equity and fairness in its assessment of whether to waive the debt.

The Tribunal found that Allegretta had indeed received an overpayment of a parenting payment and that the value of her assets exceeded the allowable limit. The Tribunal determined that a common intention constructive trust did not apply in this context. After carefully considering the evidence and arguments presented, the Tribunal concluded that the overpayment was correctly identified and that the debt should not be waived. Therefore, the Tribunal affirmed the earlier decision of the Social Security Appeals Tribunal to recover the debt from Allegretta. The Tribunal ordered that Allegretta must repay the sum of $29,691.91, which represented the overpayment incurred during the specified period.

Orders

Orders of the court

The Tribunal affirms the Social Security Appeals Tribunal decision of 12 July 2007, to raise and recover from the applicant a parenting payment debt of $29,691.91 incurred during the period 27 November 2003 to 22 August 2006.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		LISA ALLEGRETTA