Lym and Secretary, Department of Social Services (Social services second review)
[2021] AATA 1916
•10 June 2021
Lym and Secretary, Department of Social Services (Social services second review) [2021] AATA 1916 (10 June 2021)
Division:GENERAL DIVISION
File Number: 2020/4471
Re:Ms Jacqueline Lym
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:10 June 2021
Place:Melbourne
The Tribunal affirms the decision under review.
...............[sgd].........................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY –widows allowance - overpayment – debt due to the Commonwealth – undeclared income – whether recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink – whether applicant knowingly made false statements or gave false representation in claims - special circumstances not found – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991Social Security (Administration) Act 1999
Cases
Anderson and Secretary, Department of Families and Community Services, Re [2002] 69 ALD 494
Callaghan and Secretary, Department of Social Security, Re [1996] 45 ALD 435
Groth and Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Jazazievska v Secretary, Department of Families and Community Services [2000] FCA 1484
Pledger v Secretary Department of Family & Community Services (2002) FCA 1576
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866Secretary, Department of Families and Community Services and Reardon, Re [2002] AATA 33
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
10 June 2021
INTRODUCTION
Ms Lym (the Applicant) sought a second-tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) that she had a Widow Allowance (WA) debt of $69,493.32 for the period 1 March 2013 to 6 September 2018.
On 15 February 2019, the Department of Human Services (Centrelink) raised a debt of $69,493.32 against Ms Lym as the value of her assets during the period from 1 March 2013 and 6 September 2018 were above the allowed limit. Based on her actual circumstances, she should have been paid $0.00.
The application was heard on 23 March 2021 by video conference. Ms Lym was self-represented, and Ms Kellie Latta of Sparke Helmore Lawyers appeared for the Respondent. At the conclusion of the hearing the Tribunal allowed Ms Lym additional time to provide any further information and the Respondent time to reply to any additional matters relied upon by Ms Lym.
BACKGROUND
Ms Lym is a 68-year-old Australian citizen who is currently residing in Malaysia. Ms Lym holds tertiary qualifications in Accountancy from the London School of Economics and was employed in the financial sector both in Australia and London. Her last position before retiring from the workforce was with Westpac as the Asian Business Development Manager in one of their large suburban branches. When in Australia Ms Lym lived in her own unencumbered home with her adult son who is in full time employment. Ms Lym divorced her husband in 2001, and he has subsequently passed away. Ms Lym then entered another relationship in 2007 which she left in 2009 as a result of domestic violence.
On 18 January 2010, Ms Lym lodged a claim for WA. In this claim she advised she did not own shares and had no income stream from a superannuation fund, or any other money invested in any other instrument.
On 15 February 2010, Ms Lym’s claim for WA was granted with effect from 4 January 2010.
On 21 October 2015, Centrelink decided that Ms Lym did not satisfy the residency requirements to be paid WA, due to her extended periods of absence from Australia. This was affirmed by an Authorised Review Officer (ARO) on 2 December 2015. On or about 11 May 2017, the decision regarding Ms Lym’s residency was subsequently overturned on appeal at the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1.)
On 15 February 2019, Centrelink determined Ms Lym owed a debt to the Commonwealth of $69,493.32 for overpayment of WA as she had assets above the allowed limit.
On 12 April 2019, a departmental ARO reviewed the decision to raise and recover a WA debt of $69,493.32. The ARO found as follows:
Widow Allowance (WA) customers may incur an overpayment if they fail to notify a change of circumstance which results in a loss of entitlement. Evidence indicates that the department was not advised of your Account Based Income Stream with BT Funds Management Limited (originally Trust Company Superannuation Services) when you first claimed Widow Allowance in 2010. You lodged a claim for Age Pension on 8 February 2018 with advice of your BT Income Stream and further information was requested from you at this time. Account balances and annual income amounts from 1 July 2009 were updated on 8 September 2018 when full details of your investments were provided.
From 1 March 2013 to 6 September 2018 you received Widows Allowance totalling $69,493.32. Based on your actual circumstances, you were entitled to receive $0. This means you have a debt of $69,493.32.
I have considered the rules that allow the recovery of a debt to be waived.
A debt must be waived if it was caused solely by an error by the department, the debt was not raised within 6 weeks of the incorrect payment and the overpaid amount was received by the person in good faith. If a person knew or had reason to know that they were not entitled to a payment they have received, they cannot be said to have received the payment in good faith.
You have a debt because you did not provide the department with information about your Account Based Income Stream from BT Funds Management Ltd until 8 February 2018.
As the debt was not caused solely by the department's error the debt cannot be waived for this reason.
A debt may also be waived if there are special circumstances that make it desirable to waive. Circumstances need to be sufficiently unusual or uncommon to be considered special. I took into account all available information on your department record however I am not satisfied there are special circumstances that make waiving the debt desirable.
On 10 July 2020, AAT1 affirmed the decision of the ARO, finding that Ms Lym been overpaid $69,493.32 for WA received in the period 1 March 2013 to 6 September 2016. The Member found:
The tribunal is satisfied from the date of grant that Mrs Lym was not entitled to receive widow allowance of $69,493.32 from 1 March 2013 to 6 September 2018 due to the value of her assets being over the asset limit from this date for widow allowance to be payable to her.
…
The tribunal is satisfied that Mrs Lym may have misunderstood the questions asked of her in the claim form and accepts she did not knowingly fail or omit to comply with a provision of the Act or the Administration Act. The tribunal notes that when Mrs Lym was required to provide information to Centrelink she provided this information. Therefore, the discretion to consider whether special circumstances exist in the case is met.
Mrs Lym told the tribunal that the debt being such a large debt has been extremely distressing for her. She said she believed she was entitled to this money and at no time did she think she was not entitled to the money paid to her. Mrs Lym said she was in a relationship with a man in 2007 who was abusive and she suffered family violence during this time. She said it was this partner at this time who suggested she sell her family home which she did and once she separated from this partner she moved in with her sister for a period of time and with her son as she was essentially homeless.
The tribunal notes that Mrs Lym fully owns her current property and has no debt; she has some savings and some money remaining in both the Colonial First State and SuperWrap Pension Plan amounting to approximately $300,000. Mrs Lym receives a small Australian pension as well as a small pension from the United Kingdom.
The tribunal has carefully considered all of Mrs Lym’s current and past circumstances and finds that special circumstances do not exist that warrant waiver of any part of the debt. If Mrs Lym had provided all the information relevant to her claim for widow allowance Centrelink would have determined at this time that she was not qualified for widow allowance and her claim would have been rejected. This would have allowed Mrs Lym to test her qualification for another payment if she chose to do so but given her assets throughout the period, for some payments she would have been subject to the same assets test.
On 23 July 2020, Ms Lym sought a review of the AAT1 decision by this division of the Tribunal, as she disagreed with the decision made, stating:
… I left this relationship as soon as my younger son, Mark Lym, sat for his VCE last paper at the end of 2009. During the telephone interview on 28 April 2020 with Ms de Bono, I related my story to her.
I entered this relationship with every hope that my young son (Mark) will find a fatherly figure and role model since his older brother (Matthew, who is 7 years older than him) has left home. In 2007, I sold our matrimonial home in Glen Iris for AUD1.3 mil. After paying off the balance of the Westpac Bank mortgage, I invested the remaining money in 2 portfolios/platforms....Colonial First State (CFS) and Superwrap Funds (BT).
Then I moved in, together with Mark, to live with my partner.
Unfortunately, this man was hot tempered and abusive. He'd hit me or lift me up and dropped me violently. I also found out that he'd mark my car tyres to check if I went out when he was golfing. A trip to a supermarket on my own was not even allowed. There was no choice but to escape before it got any worse, taking Mark with me.
I moved into my sister's house and was granted an Intervention Order because he was stalking me.
Left homeless then, I began looking for a house to buy; I was coaxed and encouraged to get help from Centrelink (C/L). It was with great shame and reluctance that I finally decided to seek help.
Please refer to Question 8 ("Your Permanent Address") of my Original Claim Form. This question was left unanswered but with an annotation below it, reading...."I have no permanent address at this point in time. Am looking for a property to purchase."
Question 9: That postal address belonged to my best friend.
Again, please refer to Question 81: The C/L staff helped me complete that box "Current Market Value" of household contents. We discussed and agreed, so she wrote $5000. This was not in my handwriting.
Question 85: Balance of Account. The amount of "$500" was also filled in by the C/L staff after she perused my bank statements.
I recall sitting in front of this C/L Officer and we ran through every single question on the Claim Form. Prior to the Appointment/Interview (and subsequent submission of the Claim Form), I was asked to bring ALL relevant documents relating to my assets, which I did.
I brought my folder of Bank Statements and both sets of documents pertaining to the Superwrap and CFS Pension Funds. I offered the Officer my files/folders and she took photocopies of whatever documents needed to process my Application.
I did not hold back any information from Centrelink.
The Officer was well aware that I had to withdraw from the 2 Pension Funds to purchase a house and that I was already looking for one at the time of Application (Refer Question 8 Annotation). She was also aware of my answers "No" to both Questions 94 & 95 on the Original Claim Form.
Through all these years I have never failed to supply C/L with any information they so required. There had been occasions when I was asked to re-submit information/documents within days of the first submission. A Glen Waverley C/L Officer had even apologised for some "mixed up" in sorting the huge volumes of paperwork at the Centre, hence the request for re-submission.
Referring to Point 11 of the Decision, I totally disagree with the debt because I had provided ALL the information about my assets at the time of application for Centrelink's help.
I believed I was entitled to my Widow Allowance and was receiving it in good faith. I am still shocked with this information that I owe Centrelink such a huge debt of AUD 69,493.32. This is giving me sleepless nights!
Centrelink had already deducted some of this debt from my fortnightly Aged Pension Payment. This deduction stopped after I spoke with AAT seeking an Appeal.
Sir/Madam, I would like to inform you that I have merged the 2 Pension Funds into one by closing the BT Superwrap and rolling the balance into CFS. The CFS now has AUD 253, 496.40 as at 21 July 2020.
ISSUES IN CONTENTION
The Tribunal needs to consider the following relevant issues:
(a)whether Ms Lym was overpaid WA;
(b)if so, is the debt recoverable; and if yes,
(c)should the debt be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 (the Act); or
(d)whether special circumstances exist, such that the debt should be waived pursuant to section 1237AAD of the Act.
RELEVANT LEGISLATION AND ISSUES
WA is an income support payment for women born on or before 1 July 1955 who ceased to be a member of a couple since turning 40 years old and have no recent workforce experience. It is a non-activity tested payment paid at the JobSeeker Payment rate. As with all social security payments, it is granted on the premise that an individual is unable to support themselves via any other means. The Act provides the mechanism for calculating the rate of WA payable to an individual, taking into consideration their income and assets. The allowance has subsequently been abolished.
Section 408BA of the Act outlines the criteria that need to be met for qualification for WA:
(2) Subject to section 408BB, a woman is qualified for widow allowance in respect of a period if:
(a) she has turned 50; and
(b) she was a member of a couple and since turning 40:
(i) her partner died; or
(ii) she separated from her partner; or
(iii) she divorced from her husband; and
(c) she satisfies the Secretary that she has no recent workforce experience on the day when she makes her claim for the allowance; and
(d) at least one of the following is satisfied:
(ib) the woman has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks before the day she lodged the claim for the allowance; or
(ii) she has 10 years qualifying Australian residence; or
(iii) she has a qualifying residence exemption for widow allowance; or
(iv) both the woman and her partner were Australian residents at the time when the qualifying event under paragraph (b) occurred; and
(e) throughout the period, she:
(i) is not a member of a couple; and
(ii) is an Australian resident.
Note 1: For recent workforce experience see subsection (3).
Note 2: For Australian resident and qualifying residence exemption see section 7.
Note 4: For member of a couple see section 4.
(3) For the purposes of subsection (2), recent workforce experience is employment of 20 hours or more a week for a total of 13 weeks or more at any time during the 12 months immediately before the day the woman lodged the claim for the allowance.
Section 408CA of the Act provides WA is not payable if a person’s allowance rate is nil:
Widow allowance not payable if allowance rate nil
(1) Subject to subsection (2), a widow allowance is not payable to a person if the person's widow allowance rate would be nil.
(2) Subsection (1) does not apply to a person if the person's rate would be nil merely because:
(a) an election by the person under subsection 915A(1) (about quarterly energy supplement) or 1061VA(1) (about quarterly pension supplement) is in force; or
(b) the person has been paid an advance pharmaceutical allowance under the social security law.
Section 408CE of the Act set out the assets test for WA – noting the allowance is not payable if the person’s assets exceed the asset value limit:
Assets test--allowance not payable if assets value limit exceeded
(1) Widow allowance is not payable to a woman if the value of her assets exceeds her assets value limit.
(2) A woman's assets value limit is worked out using the following Table:
Assets value limit table
Column 1
Item
Column 2
Woman's situation
Column 3
Assets value limit
1
Woman is a homeowner
$250,000
2
Woman is not a homeowner
$450,000
Note 1: For homeowner see section 11.
Note 2: The assets value limit in column 3 of item 1 is indexed annually in line with CPI increases (see sections 1190 to 1194).
Note 3: The assets value limit in column 3 of item 2 is adjusted annually (see subsection 1204(1)).
Note 4: If widow allowance is not payable to a woman because of the value of her assets, she may be able to take advantage of provisions dealing with financial hardship (see sections 1131 and 1132).
Section 408FA of the Act sets out how to work out a woman's WA rate:
A woman's widow allowance rate is worked out using the Benefit Rate Calculator B at the end of section 1068.
The asset value limits for the period 1 March 2013 to 6 September 2018 were $192,500 (in March 2013) increasing to $258,500 (in September 2018).
Section 68(2)(a) of the Social Security (Administration) Act 1999 (Administration Act) empowers the Secretary to give a notice to a person to whom a social security payment (such as a DSP payment) is being paid, requiring that person to inform the Centrelink if a specified event or change of circumstances occurs or is likely to occur. Section 72 of the Administration Act requires the notice be given in writing, personally, or by post, or in any other manner approved by the Secretary. It also specifies how the information is to be given by the person to the Department; and specifies when the information is to be given. Section 72(3)(b) of the Administration Act provides that a person must give the information required to be given under the section 68 notice within 14 days after the day on which the event or change of circumstances occurs; or the day on which the person becomes aware that the event or change of circumstances is likely to occur.
Section 1223 of the Act outlines how debts arise from a lack of qualification, overpayment or other such circumstances:
(1) Subject to this section, if:
a) a social security payment is made; and
b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Section 1237A(1) of the Act provides grounds for the decision-maker to waive recovery of any part of the debt. The Act provides that the decision-maker must waive a debt if it was attributable solely to an administrative error made by the Commonwealth and the debtor received the payments in good faith.
Section 1236 of the Act allows the decision-maker to write off a debt if:
(i)the debt is irrecoverable at law; or
(ii)the debtor has no capacity to repay the debt; or
(iii)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(iv)it is not cost-effective for the Commonwealth to take action to recover the debt.
Section 1237AAD of the Act allows the decision-maker to waive all or part of the debt if they are satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Ms Lym provided numerous statements, prior to and after the hearing, and gave oral evidence at the hearing of this matter.
Ms Lym advised the Tribunal in both her written statements and testimony that:
·After graduating in London and working there for a few years (with Lloyd’s of London), she with her late husband decided to emigrate to Melbourne as both their parents had discouraged them from returning to Malaysia because of the political and racial disharmony there. Their parents had also felt her and her husband’s qualifications and experience would not be appreciated, which would have frustrated them;
·They applied for Permanent Residence (PR) in Australia whilst still working in London. Their application was approved based on their professional qualifications;
·Australia gave them “a fair go in every respect” and Ms Lym would still like to believe that she had not made a mistake choosing Australia as their home, where both their children were born and bred;
·As soon as the two years of PR were fulfilled, they applied to become citizens of Australia and were sworn in at the Melbourne Town Hall, which Ms Lym described as a “momentous day.”
·They bought an old weatherboard house in Glen Iris for $80,050 in 1984, a month after their first son was born, renting it out till 1987. They then demolished it and engaged A V Jennings to build their dream home where they lived for 20 years.
·They felt blessed!
·Her late husband was her university classmate. Ms Lym stated that he was a good man before he became addicted to gambling and alcohol. – Ms Lym asked: ‘Should I blame the Crown casino for breaking up my beautiful family? OR, blame my late husband’s “fleshly weakness” which eventually succumbed to his gambling addiction? His gambling losses were colossal!’;
·She said she was still trying hard to put all these sad events behind her but when her husband finally succumbed to throat cancer on 3 March 2020, at only 67 years of age, she was devastated all over again and his demise threw wide open the floodgates of memories;
·Ms Lym retired from Westpac Bank in 2007 and until January 2010 was a self‐funded retiree because she had set up her “nest egg” with two pension funds (which provided her with an income stream; and
·It was only after she left her partner because of his abuse at the end of 2009 that she sought Centrelink’s help. She stated her close friends persuaded her to do so because they could see that after purchasing a house to live in, she would be “in need.”
CONTENTIONS
Applicant
Ms Lym, by way of written submission following the hearing, contended she had no debt to the Commonwealth, stating as follows:
·At the 23/3/2021 Hearing, Ms Latta stressed on the point that I have “significant assets”. I would, once again, like to remind/inform Ms Latta that.
a). Raised and guided to be an independent, responsible and decent human being, I live with this idiom “SAVE FOR A RAINY DAY”
b). Instead of cashing out on the 2 companies share dividends, I opted to re‐invest and hence the current number of shares I hold with WFI & Westpac. I was only offered the Westpac shares after Westpac took over the Bank of Melbourne in 1999. (I had this notion that holding too much disposable cash is unhealthy).
· Ms Latta also stressed that I “own my house outright, there’s no mortgage.” Please allow me to remind Ms Latta that it is very much within the Chinese/Asian culture that the “roof over our heads is a very important priority”. We do not believe in renting (if we can avoid it) and will even take up a 2nd job to pay off our mortgage as soon as possible. Owing is a swear word ! I DO NOT OWE Centrelink ANY MONEY.
· So I pray that Ms Latta will resist emphasising on my “nest egg” which I have accumulated and built through sacrifices and years of hard work.
·I am beginning to think that I’m being punished for my “significant assets” and also that I “own my house outright, there’s no mortgage”, because Ms Latta compared me with those who are really poor and needy. Has she conveniently forgotten my brother’s P of A totalling $250,000 when she even informed me “that any monies held under the P of A is not yours”?
· As an Australian citizen for almost 40 years, I have always experienced a level playing field. I do feel disadvantaged being away from home for so long.
·At the time of Application in January 2010, the CL Officer sighted both the Pension Funds – BT Wrap & CFS - amongst other relevant documents like Bank Statements, etc. When we discussed the soon-to-be purchase of my house, the Officer understood that just one of the Funds would not be sufficient to buy the house. CFS had a starting balance of $550,000 and I would definitely need to draw from BT Wrap too.
·Was the CL Officer also unsure when she placed me under the NEWSTART Allowance instead of Widow Allowance?
·Referring to the Secretary's Statement of Issues, Facts and Contentions (Received from Ms Latta on email dated 24 February 2021), Point 3.7 reads...."On 7 March 2011 Logan Raj and Associates wrote to the Agency and said they had acted for the Applicant in family law proceedings. They advised that the Applicant was in control of $250,000, subject to a Power of Attorney, for her brother who lived in Malaysia (T6, Page 64)...."
· Please note that
a). I am still in control of the $250,000 under P of A and
b). my older brother still lives in Malaysia.
·Logan Raj & Associates wrote in response to CL's enquiries about the balances in my 2 Pension Funds...BT Wrap and CFS.
· THEREFORE, IN EARLY MARCH 2011 (OR LATE FEBRUARY 2011), CL WAS ALREADY AWARE OF BOTH THESE FUNDS.
·Yes, I have been darting in and out of Melbourne but these are not holidays or recreational trips. I happen to be the most available (being single), suitable and appropriate family member to answer the calls of duty. To me, it’s merely giving back a little of what I have been given...my education. Such is the closeness of my family unit; hence the P of A without much hesitation from my older brother.
·My nephew, after he was diagnosed with severe Bipolar, terminated his university studies in Year 2000 and returned for good to Malaysia. That was 21 years ago.
·The P of A from my older brother (covering that $250,000) was already in place when I visited the Centrelink (CL) Branch in January 2010. This was made known to the CL Officer then. This P of A was taken into consideration in the settlement between Wilson Beng and myself in the family law proceedings.
·So what legally belongs to me are as follows:
a.my house, … in Mount Waverley,
b.the 2 Companies shares in Westpac Bank and Coles/WFI
c.the balance after deducting the $250,000 held under P of A, in the CFS Pension Fund.
·My older brother was regularly sending money to Melbourne for his son's fees, board and lodging. Most of these monies were invested in short Fixed Term Deposit Accounts.
· When I started to plan for my retirement in 2007, I began to consolidate my financial matters. That was when I discussed with my brother regarding his money held by me under the P of A. So instead of sending his money back to Malaysia, he suggested to have his money, together with mine, invested in the 2 Pension Funds. (Please refer to The Secretary's Facts 3.1 and 3.2 of 24 February 2021)
· I was quite happy to place the total combined amount with BT Wrap (then Westpac's Financial arm) as I was very confident and familiar with the Bank I worked with for so many years. During all those years in Australia, I have not banked with another bank. I trusted Westpac!
·It was upon my brother's advice/insistence that we should not "put all the eggs in one basket"; hence the split between BT Wrap and Colonial First State (CFS).
· It was only 2-3 years ago that we decided to roll the 2 Funds into one to save the fees. CFS was the preferred choice because their fees are more reasonable.
· As I've stated in my previous response, that balance standing in CFS does not totally belong to me.
·I would like to reiterate that with all these instances of ERROR and APOLOGIES form various CL staff, I have, all the more so, been extremely alert and mindful of the procedures and requirements of CL.
· Please do not palm any of CL’s errors onto me. I do not wish to bear the brunt of CL’s shortcomings.
·After receiving the letter from CL, , I called to enquire about transferring my Widow Allowance to Age Pension. A very kind gentleman informed me that it should be a very straightforward transfer since I was then already on Widow Allowance. He then went on to ask me the relevant questions as he filled in the Transfer form. (The form had been completed over the phone by the Centrelink office as Ms Lym was in Malaysia at the time.)
·Ms Latta in 23 March 2021 Hearing showed my Age Pension Application, particularly and specifically,
a) T13 Page 1 of 10....”Corrections made by customer”. This was annotated by the CL officer
b) T13 Page 7 of 10.....all the handwritten annotations/corrections 1 & 2 were made by me
c) T13 Page 10 of 10....correction no. 3 was made by me.
·I arrived home to Melbourne very late in the night of 13 October 2018 (Saturday). Went to the CL Glen Waverley branch on 15 October 2018 (Monday). After completing the Application Form on the CL’s PC, I told the CL Officer that I’ve just arrived home from Malaysia and would like to check those latest figures regarding my 2 companies share portfolios and other details. I said I would come back to make the necessary corrections immediately the following day (16 October 2018). I wanted to be certain before the Officer submitted my Claim.
·My annotation “Last night, after lodging, I went home to double check the figures and they were incorrect. Hence the correction. Sorry! Signed and dated 16/10/2018” PLEASE NOTE THAT EVERY PAGE OF T13, from Pages 134‐144 bear the date 16/10/2018. YOU MAY FIND THIS AT THE BOTTOM RIGHT HAND CORNER OF THE PAGES. Referring to Part A) above, T10 Pages 83 & 84 also have the date 2/8/2018 but found on the TOP LEFT HAND CORNER OF THE PAGES. How could I have I signed on T10 Page 84 and dated it 8/2/2018, some 6 months beforehand? My observation: Every page of those Application forms was/is dated.
Finally, Ms Lym, given all the circumstance of the lockdown and her long distance from her home in Melbourne, asked quite rightly:
WAS/IS MY ABSENCE FROM HOME (MELBOURNE) AFFECTING MY STAND IN THIS APPLICATION? The closed borders due to the Pandemic have stopped me from returning home to Melbourne. To my knowledge, the Hearing was granted and meant to “ hear both sides”; but it did not come across that way on that day.
Respondent
The Respondent contended that based on the available evidence, Ms Lym’s rate of WA for the debt period was nil as her assets exceeded the asset value limit and WA was therefore not payable. The Respondent argued Centrelink had correctly calculated that Ms Lym was overpaid WA in the sum of $69,493.32 for the period 1 March 2013 to 6 September 2018 and has a debt to the Commonwealth.
The Respondent contended that it was not in dispute Ms Lym was a homeowner and was not a member of a couple for the duration of the debt period. Accordingly, Ms Lym’s entitlement for WA had to be assessed by reference to the assets value limit for a single homeowner. The Respondent advised that this varied from $192,000 to $258,500 during the debt period.
The Respondent argued the available evidence (inclusive of Ms Lym’s own evidence to the ARO and AAT1) indicated that prior to Ms Lym purchasing her home in 2010 for $803,500, she had two pension funds which combined were valued at $1,146,686.94 from which she withdrew the purchase price for her home. The Respondent determined that Ms Lym therefore had $343,186.94 remaining in her allocated pension.
The Respondent contended statements from Ms Lym’s Colonial First State (CFS) pension and her BT pension indicated their amounts varied during the debt period, but consistently exceeded the asset value limit during the debt period, as set out below:
Date
Colonial First State
BT
Total
30 June 2011
$104,851.95[1]
$192,748.38[2]
$297,600.33
30 June 2012
$99,573[3]
$181,855.35
$281,428.35
Debt period: 1 March 2013 to 6 September 2018
30 June 2013
$107,382
$202,288.29
$309,670.29
30 June 2014
$121,956
$217,731.50
$339,689.50
30 June 2015
$125,079
$173,409.64
$298,488.64
30 June 2016
$133,862.12[4]
$171,743.03
$305,605.15
30 June 2017
$114,341.5410
$183,202.23
$297,543.77
30 June 2018
$126,900.76
$191,456.25[5]
$318,357.01
The Respondent contended in addition to her pensions, Ms Lym also held shares in various companies including Westpac Banking Corporation and Wesfarmers which appear to have been valued at approximately $100,000 for each company. The Respondent argued that Ms Lym’s own evidence was that she most likely received her Westpac shares while she was an employee, having last worked for Westpac in 2007, but she had failed to declare these shares in her claim for WA in 2010. The Respondent argued in fact, Ms Lym first provided details of her share portfolio on or about 16 October 2018 as part of her claim for Age Pension.
The Respondent argued that even without these additional assets, however, the total amount of Ms Lym’s pensions exceeded the assets value limit and precluded her from being eligible for WA during the debt period.
The Respondent contended the Tribunal could not accept Ms Lym’s claims regarding the $250,000 said to be held by her under a power of attorney, for the following reasons:
(a) no copy of any power of attorney had been provided to the Tribunal such that the Tribunal could be satisfied Ms Lym was permitted to combine that money with her own investments;
(b) there were no documents before the Tribunal to confirm where this money was held at any time; and
(c) there was no evidence in the information provided by CFS or BT that would indicate any such amount was deposited into those funds.
The Respondent noted Ms Lym withdrew $250,000 from her BT pension on 8 July 2010 and $356,834.86 from her CFS pension on 30 June 2010, and it was her evidence that this was used to purchase her home in Mount Waverley on 13 July 2010. The Respondent noted that the purchase price for this property was $803,500, approximately $200,000 more than what was withdrawn from her pension accounts. The Respondent argued there was no evidence before the Tribunal to explain how the remaining part of the purchase price was funded, noting that the property was not subject to any mortgage.
CONSIDERATION
Does Ms Lym owe a debt of WA?
Ms Lym contended that she did not owe a debt to the Commonwealth as Centrelink had advised her not to include her pension funds in her WA claim form as she was intending to purchase a property with this income. She argued she had been placed on New Start Allowance (NSA) and struggled to understand why Centrelink had granted her a WA when her husband was still alive at the time of her claim. She contended that at no stage had Centrelink correctly calculated her assets and income as they had never taken into account the $250,000 she had under power of attorney from her brother.
Ms Lym argued her debt had arisen when she transferred from her WA to the Age Pension, that she had been punished because of Centrelink’s ineptitude and because she has worked hard to ensure she had a “nest egg” in retirement.
On principal, Ms Lym did not accept she owed a debt to the Commonwealth as the debt was solely attributable to Centrelink and should be waived, as she had brought all her documentation to the interview and had sought help from Centrelink staff when she completed her claim form.
The Tribunal finds that Ms Lym had been overpaid WA as she had failed to advise Centrelink of her considerable income inclusive of her two pension funds and shares. The Tribunal could find no evidence that advice had been provided to Ms Lym by Centrelink, that she had no need to declare her pensions as she was intending to purchase a property. Additionally, there was no evidence Ms Lym had been placed on NSA at any stage.
Even if the Tribunal accepted that Ms Lym had been ill advised by Centrelink about not needing to declare her pension funds on her original claim, it could not account for why Ms Lym had failed to advised Centrelink, of her actual income until she applied for the Age Pension even though she had received numerous notices asking her to update her financial position prior to this event. Ms Lym at no stage had advised Centrelink of the amounts held in her pensions’ funds after the purchase of her property in Mount Waverley or her shareholdings. These assets alone, excluding the purchase price of her home, took her above the asset value limit.
The Tribunal had before it Ms Lym’s application for WA, which she had signed and dated. The Tribunal understood the name of the benefit may be misleading, as indeed a woman does not in fact need to be a widow to be eligible for the allowance. However, it appeared to the Tribunal that Ms Lym was more than capable of comprehending that the allowance, which has since been discontinued, had been designed specifically to assist women such as herself who were no longer part of a couple, had not worked for a considerable period of time, were not yet eligible for the aged pension and would therefore struggle to re-enter the job market.
The Tribunal found no evidence to support Ms Lym’s assertion that $250,000 should be removed from any calculation of her income and assets as it was under a power of attorney, which provided that the amount could only be accessed to support her nephew and not utilised for her personal benefit. The Tribunal at the conclusion of the hearing allowed Ms Lym additional time to provide evidentiary proof of this claimed power of attorney. Despite numerous submissions from Ms Lym, no evidentiary proof was supplied to explain where or how this $250,000 from her brother was held in Ms Lym’s income to discount it from any calculations of her debt.
The Tribunal found Ms Lym at no stage had advised Centrelink of all her income. The issue of transferring from WA to Age pension had no bearing on the calculation of her debt as the debt had arisen in 2011 when she had failed to fully inform Centrelink of her income. The Tribunal noted that as early as 28 March 2011 Centrelink had requested Ms Lym provide details of her superannuation fund to show all commutations but there were no records that Ms Lym had replied to numerous requests to advise of her actual income from that date onwards.
The Tribunal noted Ms Lym’s numerous letters from Centrelink indicated she had approximately 0.15 income,[6] which was obviously not the case. It was not until 2018 when Ms Lym transferred from WA to the Age Pension that she advised Centrelink of her BT fund which she had purchased prior to her claim for the WA.
[6] T documents 22, page 360.
The Tribunal found it implausible that a woman with qualifications in accounting from the London School of Economics, who had been employed for many years in the Australian banking sector, would be unaware of her obligations to provide all her financial advice to Centrelink or that she would require the assistance of a Centrelink office to complete a form which clearly asked her to detail all her income and assets.
The Tribunal found based on all the evidence before it that Ms Lym had been overpaid $69,493.32 in WA for the period 1 March 2013 to 6 September 2018 as her assets exceeded the asset value limit and she has a legally recoverable debt to the Commonwealth.
The Tribunal then explored if any of the debt was attributable to administrative error on the Respondent’s part; or if there were special circumstances to write off or waive all or part of the debt.
Writing-off the debt
The Tribunal, standing in the shoes of the Secretary, has the discretion to write-off the debt under section 1236 of the Act.
The Respondent submitted Ms Lym’s debt could not be written off under section 1236 of the Act for the following reasons:
·The debt was not irrecoverable at law;
·Ms Lym had the capacity to repay the debt;
·Recovery of the debt would not cause Ms Lym severe financial hardship; and
·Her whereabouts were known, and it was cost-effective for the Commonwealth to recover the debt.
Based upon the evidence before it, the Tribunal finds it is not reasonable to write off the debt under section 1236 of the Act as Ms Lym does not meet the requirements of the Act.
Waiving the debt on the basis of administrative error
Under section 1237A of the Act, the Tribunal has a discretion to waive the right to collect the debt, if it was due solely to administrative error.
Ms Lym contended that the debt was solely attributable to a department error and should be waived in its entirety. She contended she was advised by a customer service officer to answer “no” to the questions regarding whether she had any income streams (question 94 and 95 of the claim form). Ms Lym stated that this advice was given following her discussion with the Centrelink office assisting her to fill in the form to the effect that she intended to use the funds to purchase a home and that, following this, she would either have “no or minimal income” flowing from her pension funds.
The Respondent contended that there was nothing in Ms Lym’s customer contact notes to suggest that any customer service officer was aware of her pensions at the time of lodging her claim. The Respondent contended that in fact, Centrelink became aware of Ms Lym’s CFS pension as a result of data matching in 2011. The Respondent argued this lack of disclosure was compounded by Ms Lym’s lawyers, at that time, who provided details of her CFS pension but no information regarding Ms Lym’s pension with BT.
The Respondent contended records indicate that Centrelink first became aware of Ms Lym’s BT pension in approximately 2015 when they were reviewing her qualification for the WA, based on her residency status, as she had numerous extended periods of time overseas. The Respondent conceded this advice was not followed up as Ms Lym’s WA had been cancelled because of her failure to fulfil the residency requirements and was then reinstated following an appeal process. The Respondent argued that despite being specifically sent a notice on 28 August 2015 requesting this information, Ms Lym did not provide details of her BT pension until 1 June 2018.
The Respondent argued that even if Ms Lym had been advised by a customer service officer to answer “no” to question 94 and 95 of the claim form, which they did not concede, it did not explain why Ms Lym had failed to advise the Agency of the remaining balance of these pensions once she had purchased her home, or when she was asked to provide details of her CFS pension in 2011, or when specifically asked to provide details of her BT pension in 2015.
In addition, the Respondent argued that Ms Lym had been sent regular information notices under section 68(2) of the Administration Act about her WA during the debt period. Notably, these advised Ms Lym of the information used for calculating her payment and required her to advise of any events or changes in circumstances—including if she made a withdrawal from an investment or if the value of her assets went above a certain amount. Ms Lym had made withdrawals from her BT pension on 16 and 25 June 2015 in the sum of $17,769.12 and $32,230.88, respectively and also withdrew $20,000 from her CFS pension on 20 June 2017 yet none of these withdrawals were reported to the Agency.
Based on the available evidence, the Respondent contended that Ms Lym did not receive payments of WA in good faith and therefore her debt cannot be waived under section 1237A of the Act. The Respondent referred the Tribunal to the matter of Pledger v Secretary Department of Family & Community Services (2002) FCA 1576 (Pledger), where the Federal Court found that the term “good faith” did not have any special meaning in the Act. The Court said the term should be given its “ordinary and natural meaning” and that the “values which they reflect must be the values of ordinary, decent members of the community”.
The Respondent argued that based on Ms Lym’s own evidence, she was advised that she did not need to report her pension funds because there would be “no” or “minimal” income after the purchase of her home. The evidence indicates, however, that she still held approximately $300,000 in these pension funds after the purchase of her home.[7] The Respondent contended that the ordinary person would not consider this a “minimal” amount. The Respondent contended that even if the Tribunal were to accept she had been given the advice to not advise of her pension funds, regardless Ms Lym would have been aware that the balance of these pensions may have affected her eligibility and should have been reported to Centrelink.
[7] The Respondent’s Statement of Facts, Issues and Contentions at 5.20.
The Respondent contended further that even if Ms Lym was not aware of this, the subsequent notices—especially the specific notices in 2011 and 2015—put her on notice that this information should be reported to Centrelink. The Respondent noted that Ms Lym need not have acted fraudulently when the payment was received and retained for it to be made out that she had not received the payments in good faith, referring the Tribunal to Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484 at [40]). The Respondent noted that being “wilfully blind” can be sufficient to find payments were not received in good faith and referred the Tribunal to the matter of Pledger at [56] and [59]).
The Respondent contended that Ms Lym’s failure to comply with the written notices and to report changes in her circumstances for the purpose of ensuring she was paid the correct amount of WA contributed to the overpayment. The Respondent therefore contended that the resulting debt is not solely attributable to administrative error and recovery of the debt cannot be waived under section 1237A of the Act.
The Respondent noted that the Guide at 6.7.3.30 provides that the requirement that part of the debt must have arisen 'solely' from administrative error means that there must have been no other factors that caused the debt to arise or contributed to the debt arising. The part of the debt must have arisen as a result of administrative error alone.
The following example is given:
Example: Henry receives YA and reports that he started earning income. He continues to receive YA at the full rate for 3 weeks without realising that Centrelink has made a mistake. Henry receives a notice stating that his income is zero, and that he must inform Centrelink within 14 days if this is wrong. Henry does not notify Centrelink as required. Centrelink raises a debt against Henry 9 weeks later. The amount that was overpaid between the time that he reported his income to Centrelink and receiving the letter is due solely to administrative error. However, the remaining part of the debt cannot be attributed solely to administrative error as Henry contributed to the debt by not complying with his notification obligations.
The Respondent referred the Tribunal to the case of Jazazievska v Secretary Department of Families and Community Services [2000] FCA 1484, in which the Federal Court considered whether a person who ‘turns a blind eye’ could be said to act in good faith. The conclusion of the Court was:
[44] A person does not act in good faith when a person turns a blind eye to circumstances which raised doubt as to entitlement of the person to receive and retain payment or refuses to make reasonable enquiries when doubt exists….
The Respondent also referred the Tribunal to the matter of Secretary, Department of Families and Community Services and Reardon, Re [2002] AATA 33, where the Tribunal found that a failure to read notices amounted to a lack of good faith.
Ms Lym contended she had accepted the payment in good faith as she had lodged all information requested by Centrelink and they determined she was eligible for WA. She argued that she had at all times advised Centrelink of all her income and assets and provided the correct advice on each occasion Centrelink had notified her of her requirement to update her circumstances.
The Tribunal could find no evidence to support Ms Lym’s claim that her debt had arisen as a result of Centrelink advising her she had no obligation to report her pension funds, that $250,000 of her income should be excluded from any calculation of her income as it was under a power of attorney, or that she had always provided Centrelink with all information about her income and assets. Based on the evidence, the Tribunal finds that Ms Lym’s WA debt did not result solely from an administrative error by Centrelink but as a result of her failure to advise Centrelink of all her income throughout the relevant period. In such circumstances, the debt cannot be waived under section 1237A(1) of the Act.
As the Tribunal has found that Ms Lym’s debt was not attributable solely to administrative error but as a result of her failure to advise Centrelink on numerous occasions of her actual income, recovery of the debt cannot be waived under section 1237A of the Act and as such the Tribunal had no need to address whether Ms Lym had received the monies in good faith.
Waiving all or part of the debt in special circumstances
The Tribunal, standing in the shoes of the Secretary, also has the discretion to waive all or part of Ms Lym’s debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 1237AAD must be satisfied.
Knowingly
In order to waive part or all of the debt under section 1237AAD of the Act, the Tribunal must be satisfied that Ms Lym did not knowingly make a false representation to Centrelink or fail to comply with the relevant legislative provisions. The term ‘knowingly’ has not been defined in the Act, although it has been considered extensively by the Tribunal in similar circumstances.
In Callaghan and Secretary Department of Social Security, Re [1996] 45 ALD 435, Deputy President Forgie said at [445]:
There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge rather than constructive knowledge, that he or she is making a false statement or representation that he or she is failing or admitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act of omission.
In Anderson and Secretary, Department of Families and Community Services, Re [2002] 69 ALD 494, the Tribunal stated at [496]:
[…] it is open to the Tribunal to infer that the applicant has actual knowledge of his obligations under the act where there are opportunities for that knowledge to be gained when there are no obstacles to him acquiring knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act to the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge.
The Respondent contended that Ms Lym had failed to comply with the provisions of the Act as she had failed to advise Centrelink of her CFS and BT pension funds, had failed to advise of her shareholdings, had failed to respond to the regular information notices under section 68(2) of the Administration Act about her WA during the debt period and had at no stage contacted the Department to make sure their records were correct.
The Tribunal does not concur with the findings of the AAT1 which accepted Ms Lym “did not knowingly fail or omit to comply with a provision of the Act or the Administration Act. The Tribunal notes that when Mrs Lym was required to provide information to Centrelink she provided this information”. The Tribunal could find no instance during the debt period where Ms Lym had provided a complete picture of her income nor that she had responded to notices to clarify her actual income during the period.
The Tribunal did not consider that Ms Lym had made a false statement or a false representation to Centrelink in respect of her income but rather that she had failed to comply with a provision of the Act when not advising Centrelink of her actual income in the debt period.
The Tribunal found that Ms Lym’s debt could not be waived under section 1237AAD of the Act as her debt had arisen through her actions of knowingly making repeated admissions of her income to the Department.
Given Ms Lym’s extensive evidence to the Tribunal and her perception of disadvantage as she is currently stranded in Malaysia, the Tribunal, whilst not required to consider special circumstances (as her debt cannot be waived as she has not satisfied section 1237AAD(a) of the Act) did so for completeness in this matter.
Special circumstances
The expression ‘special circumstances’ has not been defined in the Act. However, the meaning of special circumstances has been considered extensively by the Federal Court and the Tribunal.
In Ryde v Secretary Department of Family and Community Services [2005] FCA 886, Branson J said at [26]:
[…] the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for special circumstances discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.
In Groth v Secretary Department of Social Security [1995] FCA 1708, Kiefel J said at [545]:
[…] for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
The Respondent contended that in making an assessment as to whether circumstances are special, it is relevant to consider how the overpayment came about, arguing that if Ms Lym had advised Centrelink of her pensions at the time of her claim, her assets would have exceeded the allowable limit and her WA would not have been payable. Even if she had advised Centrelink of her pensions following the purchase of her home in 2010, the remaining balance would have still exceeded the allowable asset value.
The Respondent contended that Ms Lym had not advised of any special circumstances which would make it desirable to waive recovery of the debt. Ms Lym has contended that she received the payments in “good faith” and that she provided “ALL the information and documents as and when requested by [the Agency]”.
The Respondent contended that Ms Lym was aware of her obligation to advise Centrelink of changes in her circumstances, having provided details of her travel overseas. The Respondent argued that in addition to the usual notices regarding fortnightly payments, Ms Lym was provided notices specifically requesting information regarding her pension funds. In light of these notices, the Respondent contended the Tribunal cannot be satisfied that Ms Lym was unaware of her obligation to advise the Agency of her pensions.
The Respondent contended that Ms Lym is not in severe financial hardship and does not qualify for special circumstances on that basis as she owns her home, has no mortgage, and still has approximately $300,000 in her pension funds. Additionally, Ms Lym also holds shares in Wesfarmers and Westpac Banking Corporation worth approximately $200,000 (in total). In addition to these assets, Ms Lym is currently in receipt of the Age Pension and a small pension from the United Kingdom.
The Respondent contended on the evidence before the Tribunal Ms Lym’s circumstances were not unusual or uncommon such that they would qualify as special circumstances or otherwise make it desirable to waive recovery of the debts under section 1237AAD of the Act.
The Respondent in reply to Ms Lym’s written closing submissions, and evidence given at the hearing, contended there was no basis for the Tribunal to waive the debt. The Respondent argued that Ms Lym does not deny the existence of these assets and appears instead to suggest that they should not be taken into consideration on the basis that she worked hard to obtain them. The Respondent contended that whilst they did not dispute Ms Lym had worked hard during her lifetime, this is not a basis on which to waive a debt nor does the Tribunal have discretion to disregard those assets.
The Respondent contended that Ms Lym claim’s that she was advised not to disclose these assets was inconsistent with the documentary evidence before the Tribunal. The Respondent argued that even if the Tribunal accepted Ms Lym’s evidence that she was told not to include her pension accounts on her claim form in 2010, this does not explain her ongoing failure to disclose these assets—especially when specifically asked to do so—and does not explain her failure to disclose her share portfolio.
Ms Lym maintained her circumstances are special and that she should not be punished for her hard work, her honesty, and Centrelink’s bad advice.
Ms Lym argued that her circumstances were indeed special as she had suffered much as a result of her husband’s gambling addiction and alcoholism which left her with significant debt and trauma. She stated that her second relationship was physically and mentally abusive, and that she had to flee this domestic violence to protect herself and her child resulting in her becoming homeless. She also stated that she had been required to travel to Malaysia on numerous occasions to act as a carer for her frail father and uncle. She contended that she fully accepted this responsibility as a dutiful daughter and niece giving back for the sacrifices made by her family for her education. However, she stated that this travel had required a great deal of herself and her own income as she spent a great deal of time away from her own children. She had also needed help financially at the time she had applied for the WA as she was not working, needed all her available income to purchase a home and had only applied for Centrelink benefits at the behest of her friend.
Ms Lym argued she was being prejudiced by the Administrative Appeals Tribunal (AAT) process as she was on the phone in Malaysia and is unable to return to Australia because of the COVID restrictions to argue her case.
The Tribunal found that whilst Ms Lym is in a difficult situation as she is unable to return to Australia because of COVID restrictions, she has not been prejudiced or disadvantaged by her being out of the country whilst her appeal was being dealt with. The Tribunal noted that Ms Lym has travelled to Malaysia extensively over the years, spending considerable periods of time there and returning to Australia intermittently. Given that Malaysia could be considered Ms Lym’s second home the Tribunal considers she had the resources and material available to her to engage fully with her appeal. The Tribunal also noted that numerous applicants are in the same boat as Ms Lym, having to conduct their appeal from abroad. Finally, the Tribunal considered that Ms Lym’s hearing conducted via video was on the same footing as any other applicant in Melbourne during the COVID pandemic.
The Tribunal did not consider Ms Lym’s being in Malaysia constituted a special circumstance.
The Tribunal did not dispute that Ms Lym had worked hard to provide for herself and her sons and that she had ensured she had a nest egg for her retirement. However, this is not a basis on which the Tribunal can waive her debt or find special circumstances exist. Social security benefits are there for people who do not have a nest egg; the social security system is based on the premise that you only seek a payment when you have no means on which to support yourself. The Tribunal could not find Ms Lym was in need of any financial assistance during this period. Ms Lym had advised the Tribunal that after she finished work in 2007 she had been a self-funded retiree, her husband was paying for her son’s private school fees, she was living with her partner and only applied for WA in 2011 after she had left his home believing her income would be exhausted by the purchase of her home. This was not the case at any time Ms Lym was in receipt of WA as her income prior to and after purchase of her home exceeded the assets value limit and precluded her from being eligible for WA during the debt period.
The Tribunal did not dispute that Ms Lym had suffered her fair share of physical and mental hardships, first through her husband’s gambling and alcohol addiction and then through domestic violence at the hands of her partner. Tragically, these situations are neither unusual or uncommon to be considered special circumstances and are the basis on why numerous women are forced onto Centrelink benefits. The Tribunal noted both these events had occurred prior to Ms Lym’s claim for WA and whilst there was no corroborating evidence to indicate what impact these events had on Ms Lym at the time of her claim for WA, the Tribunal did not dispute they would have lasting impacts on her physically and mentally. However, the Tribunal did not consider this impacted on Ms Lym’s ability to engage with her requirements to inform Centrelink of her income. The Tribunal considered that Ms Lym, unlike numerous Centrelink recipients, holds tertiary qualifications, has an obvious understanding of the financial sector and has an ability to read and understand documentation which makes it hard to accept that she did not understand her obligation to inform Centrelink of her actual income during this period. The Tribunal also considered that during this period Ms Lym was able to purchase her home, travel to and from Malaysia constantly, care for her son, father and uncle and was able to argue another case successfully at the AAT, which indicated she was more than capable of understanding and complying with her Centrelink obligations.
The Tribunal did not find Ms Lym had been given incorrect advice by Centrelink or that she had always advised Centrelink of her actual income.
Whilst the Tribunal was very sympathetic to the hardships faced by Ms Lym, tragically these hardships as discussed above are not out of the ordinary. Additionally, Ms Lym is not facing any particular financial hardship, as she owns her own home outright, has income in her pension fund, owns shareholdings, is in receipt of a small pension from the UK and an Age Pension from Australia from which she was previously able to make payment towards her debt.
The Tribunal, based upon the evidence before it, finds that Ms Lym’s circumstances as a whole were not sufficiently unusual, uncommon or exceptional so as to make her case different from the ordinary and otherwise special. Therefore, her circumstances did not satisfy section 1237AAD(b) of the Act. Additionally, Ms Lym is not facing any particular financial hardship.
The Tribunal, having considered all the evidence placed before it, finds that Ms Lym’s situation was not unusual, uncommon or exceptional, markedly different from the usual run of cases, special, or out of the ordinary to make it desirable to waive her debt.
DECISION
The decision under review is affirmed.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, AO Member
..........[sgd]........................
Associate
Dated: 10 June 2021
Date of hearing: 23 March 2021 Date of final submission: 14 May 2021 Applicant: Self-represented Advocate for the Respondent:
Solicitors for the Respondent:
Ms Kellie Latta
Sparke Helmore Lawyers
0
3
0