Little and Secretary, Department of Family and Community Services

[2004] AATA 406

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 406

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/447

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FRANCIS JAMES LITTLE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor GA Barton, Member

Date21 April 2004

PlacePerth

Decision The Tribunal affirms the decision under review.

.............(sgd G A Barton)...................

Member

CATCHWORDS

SOCIAL SECURITY - Advance payment - paid in breach of the Social Security Act 1991 - repaid by deduction from social security entitlements - not a debt due to the Commonwealth

Social Security Act 1991 ss 1061(C)(1), 1237(1), 1222A, 1224E(1), 1061 EL(1)(a)

Farmer and SDSS (1993) 17 AAR 468; 31 ALD 262; 75 SSR 1085

REASONS FOR DECISION

21 April 2004 Associate Professor G A Barton, Member         

1. The Tribunal had before it the “T documents” (T1 – T17) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The applicant who gave sworn evidence, was unrepresented.  He tendered exhibit A1, a copy of the birth certificate of his son Frank Anthony Little.  The respondent was represented by Mr Brian Sparkes (assisted by Mr Chris Ward) who tendered exhibit R1, a document of 21 pages of the respondent’s records relating to the applicant.

2.      The applicant is estranged from his wife.  He testified that their estrangement began in November 2002 when his wife was in full control of their finances and when he received Carer Payment (“CP”) in respect of his wife, under the Social Security Act 1991 (“the Act”). He and his wife were also caring for two of their grandchildren. In previous years, in December, he made written application to the respondent for an advance payment of his CP, something he did not do in December 2002 because he had sold a motor vehicle. His wife first left their family home in Perth, together with a family friend and the grandchildren, in November 2002, to spend time with their elder son in Dongara, north of Perth. Initially the applicant took no steps to secure his finances because his wife was responsible for the grandchildren and he believed that her absence would be short. When this turned out not to be the case, he acquired a bank statement for their joint bank account that alerted him to a transaction in Dongara which the parties did not dispute was the deposit of an advance payment of CP in the amount of $500 by the respondent. It was not disputed that the advance payment of CP had been applied for and was approved by telephone in contravention of s 1061C(1) of the Act. The advance payment of CP was credited to the account on 9 December 2002. On that day two withdrawals were made from the account in Dongara using an automatic teller machine, one for $150 and another for $500 (T14). The applicant contended in his evidence and the Tribunal finds, that he did not apply for the advance payment of CP nor did he withdraw it from the bank account. The applicant contended further that his loss in this regard was solely attributable to the respondent’s failure to comply with the provisions of s 1061(C) of the Act which stipulate that an application for an advance payment of a social security entitlement must be in writing and must be in accordance with a form approved by the respondent. The applicant has repaid the advance payment of CP by deductions from his social security entitlements pursuant to s 1061 EL(1)(a) of the Act.

3.      The only issue raised by the applicant at the hearing was whether in the circumstances he should have been required to repay the advance payment of CP and whether he should be refunded the repayment.

4. The respondent may waive the Commonwealth’s right to recover the whole or a part of a debt from a debtor only in the circumstances described in ss 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD of the Act; s 1237(1) of the Act.

5. A social security payment under the Act is only a debt due to the Commonwealth if a provision of the Act expressly provides that it is a debt due to the Commonwealth. Section 1222A of the Act prevents a debt arising on any basis other than the application of a provision of the Act, Farmer and SDSS (1993) 17 AAR 468; 31 ALD 262; 75 SSR 1085. Section 1224E(1) of the Act governs debts arising from advance payments of social security entitlements. This section relevantly provides:

“1224E(1)       If:

(a)a person has received an advance payment of a social security entitlement (the first entitlement) or an instalment of such an advance payment; and

(b)the first entitlement ceases to be payable to the person; and

(c)when the first entitlement ceases to be payable, the person has not repaid the whole of the advance payment or instalment; and

(d)the person does not receive another social security entitlement or benefit PP (partnered) immediately after the first entitlement ceases to be payable;

the amount that has not been repaid is a debt due to the Commonwealth.

6. The Tribunal finds that the advance payment of CP was never a debt due to the Commonwealth because the circumstances in which it was paid and repaid precluded it or any part of it from becoming a debt due to the Commonwealth pursuant to the above provisions of s 1224E(1). It follows that the respondent (and therefore the Tribunal) does not have a discretion in terms of any of the provisions of the Act mentioned in paragraph 4 above to waive the right of the Commonwealth to the amount of the advance payment of CP repaid.

7.      For the above reasons the Tribunal affirms the decision, in this matter, of the Social Security Appeals Tribunal (“SSAT”) of 8 April 2003.

8. The SSAT attached a recommendation to its decision that the respondent compensate the applicant in the amount of $500 due to the defective manner in which the Act was administered in relation to the advance payment of CP. The Tribunal was informed by Mr Sparkes that the respondent declined to follow the recommendation.

9. The Tribunal recommends, for the same reasons advanced by the SSAT, that the amount of $500 deducted from the applicant’s social security entitlements in repayment of the advance payment of CP, pursuant to s 1061 EL(1)(a) of the Act, be refunded to the applicant.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor GA Barton, Member

Signed:         ...............(sgd V Wong)....................................
  Associate

Date/s of Hearing  30 March 2004
Date of Decision  21 April 2004
Counsel for the Applicant         In person
Counsel for the Respondent     Mr B Sparkes
Solicitor for the Respondent     Service Recovery Team Centrelink