Lucey and Secretary, Department of Education, Employment and Workplace Relations - [2010] AATA 485

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 485
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/5872

General Administrative Division )

Re: Suzanne Lucey
Applicant

And: Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION

Tribunal Senior Member Bernard J McCabe
Date 24 June 2010
Place Brisbane (heard in Townsville)

Decision
The decision under review is set aside pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). The decision is remitted to the respondent for reconsideration on the basis that:

(a) so much of the debt that is attributable to the applicant’s failure to accurately inform Centrelink of her husband’s earnings from his employment should not be waived;

(b) special circumstances exist justifying the waiver of the balance of the debt pursuant to s 1237AAD of the Social Security Act 1991.

......................[Sgd]........................
Senior Member

CATCHWORDS
SOCIAL SECURITY – overpayment and debt recovery – parenting payment – involved in cattle partnership – whether special circumstances justify a waiver – mistaken assumption that accountants were supplying the relevant information – relied on husband’s paperwork – applicant isolated – decision set aside and remitted to Centrelink for reconsideration.
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Social Security Act 1991 (Cth), s 1237AAD
REASONS FOR DECISION

30 June 2010 Senior Member Bernard J McCabe

1.      I delivered a decision with oral reasons at the conclusion of the hearing in this matter in Townsville. The respondent has asked for written reasons. These reasons are based on my written notes from the hearing.
2.      The applicant is Mrs Suzanne Lucey. Mrs Lucey is a married woman with two school-aged children. She lives with her family on a farming property near Mt Garnet in North Queensland. The children both attend boarding school because there are no schools nearby. The family property is owned by the applicant’s mother-in-law. Mr Lucey works on the property. He is paid a monthly wage for his work. He has some hope of obtaining an interest in the property in due course but it is not clear whether that will occur, or when.
3.      Mr and Mrs Lucey also run their own cattle on the property in partnership. Mr Lucey originally acquired cattle as part payment for his contribution to the larger family farming enterprise. He bought the cattle which all bear his registered brand into the partnership. They have added to the herd over time through breeding, although it is now significantly diminished. The partnership was established in 2002 on the advice of their then accountant. The partnership did not make a profit until 2005. It is not making a profit now.
4.      Mrs Lucey says she instructed her accountants to deal with Centrelink and provide any information about the family’s financial affairs that was required in order to qualify for parenting payment. There is a statement of account from the original firm of accountants that notes those instructions in Exhibit One. The applicant says she and her husband subsequently became dissatisfied with the way…

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: Lucey and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 485
Case: [2010] AATA 485
Decision Date: 24 June 2010

CaseChat Overview and Summary

In the matter of Lucey and Secretary, Department of Education, Employment and Workplace Relations, the applicant, Mrs Lucey, challenged a decision made by Centrelink to recover a debt she owed due to an overpayment of parenting payment. The dispute was brought before the Administrative Appeals Tribunal (AAT) for review. The central issue before the tribunal was whether special circumstances existed that would warrant the waiver of the debt, particularly given Mrs Lucey's reliance on her husband's financial information, which she mistakenly believed was being accurately conveyed to Centrelink by their accountants.

The tribunal considered whether Mrs Lucey's situation constituted special circumstances warranting a waiver of the debt. It noted that Mrs Lucey had been isolated and had relied heavily on her husband's paperwork for financial information. Additionally, the tribunal recognised that there had been a mistaken assumption that the accountants were adequately supplying Centrelink with the necessary information. These factors were crucial in assessing whether the debt could be waived under the relevant legislation.

The tribunal determined that while some portion of the debt was attributable to Mrs Lucey's failure to accurately inform Centrelink of her husband's earnings, the existence of special circumstances justified the waiver of the remaining balance. These special circumstances included Mrs Lucey's isolation and the mistaken belief that her financial information was being correctly handled by her accountants. Consequently, the tribunal set aside the decision and remitted it to Centrelink for reconsideration, specifying that only part of the debt should not be waived.

The tribunal's final orders were that the decision under review be set aside, and that Centrelink reconsider the matter in light of the tribunal's findings. Specifically, the tribunal directed that so much of the debt attributable to Mrs Lucey's failure to accurately inform Centrelink of her husband's earnings should not be waived, whereas the balance of the debt should be waived due to the special circumstances identified.

Orders

Orders of the court

The decision under review is set aside pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). The decision is remitted to the respondent for reconsideration on the basis that:

(a) so much of the debt that is attributable to the applicant’s failure to accurately inform Centrelink of her husband’s earnings from his employment should not be waived;

(b) special circumstances exist justifying the waiver of the balance of the debt pursuant to s 1237AAD of the Social Security Act 1991.

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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