Lynch and Secretary, Department of Family and Community Services
[2005] AATA 182
•25 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 182
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/899
GENERAL ADMINISTRATIVE DIVISION ) Re JASON LYNCH Applicant
And
SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date25 February 2005
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Dr J D Campbell Member
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance - overseas travel - medical treatment - overpayment - administrative error - special circumstances - decision affirmed
Social Security Act 1991 - sections 68, 1212, 1223, 1237A, 1237AAD
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary Department of Social Security v Hales (1998) 82 FCR 154
Jess v Scott and Ors (1986) 12 FCR 187
REASONS FOR DECISION
25 February 2005 Dr J D Campbell, Member 1. In this matter Mr Lynch seeks review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 10 June 2004. This decision affirmed the decision of an Authorised Review Officer (“ARO”) of the Secretary, Department of Family and Community Services (“the Respondent”) dated 6 April 2004 to raise and recover a debt of Newstart Allowance from Mr Lynch in the amount of $1,120.12 for the period 29 September 2003 to 7 November 2003. In reaching this decision the ARO had reviewed an earlier decision dated 18 November 2003, made by an authorised delegate of the Respondent.
background
2. Mr Lynch commenced receiving Newstart Allowance on 13 July 2001. On 7 July 2003 and 7 August 2003 the Respondent advised Mr Lynch of his fortnightly payment amount and requested that, amongst other matters, he inform Centrelink if he decided to leave or did leave Australia, even if it were for a holiday.
3. On 26 August 2003, Mr Lynch lodged a medical certificate for temporary drug dependence with a consequent inability to work for the period 5 August 2003 to 4 November 2003. On 26 August 2003 Centrelink again advised Mr Lynch that he was required to inform Centrelink if he intended to go or had been overseas (even for a short period).
4. On 26 September 2003, Mr Lynch lodged a further medical certificate with Centrelink concerning the period 26 September 2003 to 26 November 2003.
5. On 1 October 2003, Mr Lynch was advised by Centrelink of his fortnightly payment for the period 27 September 2003 to 10 October 2003, with date of payment being 13 October 2003.
6. On 24 October 2003, Centrelink requested a Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) review concerning Mr Lynch.
7. On 7 November 2003, Centrelink received undated and unsigned correspondence from Mr Lynch indicating that he had travelled to America in September to visit relatives, and that he had informed Centrelink orally that he was intending to travel overseas for a couple of months.
8. On 7 November 2003, an application for payment of Newstart Allowance to Mr Lynch was lodged with Centrelink. This form was signed and did not state that Mr Lynch was overseas.
9. On 10 November 2003 DIMIA advised Centrelink that Mr Lynch left Australia by air on 29 September 2003.
10. On 18 November 2003, Centrelink decided to raise a debt of $1,120.12 paid to Mr Lynch during the period 30 September 2003 to 7 November 2003. The reason given for raising the debt was that Mr Lynch no longer qualified for Newstart Allowance upon leaving Australia on 29 September 2003.
11. Mr Lynch had been placed on the waiting list for the Personal Support Program (“PSP”) in May 2003. Further, Centrelink records show that on 1 March 2004 Mr Lynch stated that he advised the customer service officer, when lodging his medical certificate on 26 September 2003 that he was intending to travel overseas.
12. Mr Lynch returned from overseas on 7 December 2003. On 11 March 2004, Mr Lynch, in a telephone discussion with Centrelink, stated that he had discussed his plans to travel overseas in July/August 2003 with a Centrelink psychologist. On 6 April 2004, Mr Lynch was advised by an ARO that the decision was affirmed.
issues
13. The relevant issues in this matter are whether:
(a)Mr Lynch owes a debt of Newstart Allowance; and
(b)there are any grounds for not recovering all or part of the debt.
decision
14. For the reasons detailed later in this decision, I find that:
(a)Mr Lynch owes a debt of $1,120.12 to Centrelink for overpayment of Newstart Allowance, during the period 30 September to 7 November 2003, as he received payment when he was no longer qualified; and
(b)Waiver of all or part of the debt due to sole administrative error pursuant to section 1237A(1) of the Social Security Act 1991 (“the Act”), is not applicable as the debt was raised on 18 November 2003; that being within a period of six weeks from the first payment (13 October 2003) that caused the debt (section 1237A(1A)(a) of the Act); and
(c)Waiver pursuant to section 1237AAD is not available, as special circumstances were not found to exist; and
(d)Recovery of the debt cannot be written off as Mr Lynch’s circumstances do not satisfy any of the criteria nominated in section 1236(1A) of the Act.
evidence of mr lynch
15. In relation to special circumstances, Mr Lynch detailed:
(a)He is aged 33; and previously he served a twelve - month period of periodic detention for driving charges and minor possession of drugs charges;
(b)He shares a townhouse with his mother and his income ($470 per fortnight) is spent on rent ($330), food ($80) and bills ($40);
(c)He has outstanding household debts of $500 (water, gas, electricity and phone);
(d)He has debts of approximately $13,000 ($5,500 interest free from family to fund overseas trip; $5,900 accumulation of State fines which he is contesting; $5,600 to his solicitor for services);
(e)He commenced smoking marijuana at age 13; his father having died when he was young. By age 16 -17 he was taking speed and acid trips and by age 21-22 he was using speed and cocaine. Such activities have caused him grief and interaction with the police authorities and at this point in time he is not using drugs;
(f)He has no assets and he relies on being able to secure an advance of his Centrelink payments to meet outstanding household expenses, with such an advance having to be repaid.
evidence of ms hooper
16. In Exhibit A2 Ms Hooper, Mr Lynch’s mother, detailed her attempts to help Mr Lynch overcome his addiction problems. This included moving from Liverpool to Monterey and the trip overseas. Ms Hooper also acknowledged that she had forwarded a letter to Centrelink, at Mr Lynch’s direction, when she received a letter from Centrelink threatening to stop Mr Lynch’s Newstart Allowance payments (Exhibit A2).
consideration and findings
17. In preliminary consideration I note that the basic facts in this matter are not in contest between the parties. I therefore find the following as a statement of facts in this matter:
(a)Mr Lynch was in receipt of Newstart Allowance while he was travelling overseas between 29 September 2003 and 7 December 2003;
(b)Mr Lynch believes he informed Centrelink of his intention to travel overseas at the same time he lodged a further medical certificate on 26 September 2003; Centrelink have no written record of such notification;
(c)On 7 November 2003, Ms Hooper lodged, with Centrelink, correspondence stating that Mr Lynch was overseas and a document, completed and signed in relation to Mr Lynch’s continued receipt of Newstart Allowance, but in which it was not indicated that Mr Lynch was overseas;
(d)On 10 November 2003, DIMIA notified Centrelink that Mr Lynch had departed Australia on 29 September 2003;
(e)On 18 November 2003, Centrelink raised a debt arising from an overpayment of Newstart Allowance to Mr Lynch in the amount of $1,120.12 for the period 29 September to 7 November 2003.
18. In his evidence Mr Lynch stated that he travelled overseas as part of a rehabilitation program to distance himself from other associates involved in drug and other criminal activities. While understanding this purpose, I find that it does not fall within the medical exception purpose detailed in section 1112 of the Act. In such circumstances, I conclude that during the period 29 September 2003 to 7 November 2003, Mr Lynch was not qualified to receive Newstart Allowance payments as he was absent from Australia on a holiday.
19. In such circumstance I find that an overpayment of Newstart Allowance did occur and pursuant to section 1223 of the Act I find that the overpayment amount of $1,120.12 is a debt due and owing by Mr Lynch to the Commonwealth.
20. In addressing the issue of write off or waiver of the debt in whole or in part I note the following:
write off
(a)Section 1236(1A) details the circumstances under which a debt may be written off. I note that Mr Lynch’s circumstances do not fall within any of the listed criteria. I conclude that write off pursuant to section 1236 of the Act is not appropriate in this matter.
sole administrative error
(a)For Mr Lynch to be successful pursuant to section 1237A of the Act, it must be demonstrated that:
(i) the whole debt or a proportion of the debt was solely attributable to administrative error made by the Commonwealth (s1237A(1)); and
(ii) Mr Lynch received in good faith the payment or payments that gave rise to that proportion of the debt (s1237A) ; and
(iii) the debt was raised outside a period of six weeks from the first payment that caused the debt (s1237A(1A)).
(b) The Respondent argued that, pursuant to section 68 of the Act Mr Lynch had been notified, on a number of occasions, to inform Centrelink if he intended to travel overseas. Mr Lynch asserted that he notified Centrelink verbally on 26 September 2003. It is clear that a more fundamental issue is at play and this issue should be considered, before embarking on whether a debtor received such overpayments constituting the debt in good faith.
(c) The precondition is outlined in section 1237A(1A) of the Act and relates to a procedural matter of whether a debt has been raised within a period of six weeks from the first payment that caused the debt. Further, I note that in this matter the first payment that caused the debt occurred on 13 October 2003; with that payment covering the period 26 September to 10 October 2003 and that the debt was raised on 18 November 2003. As a consequence, I find that the debt was raised within a period of six weeks from the time the first overpayment occurred, with the outcome being that the provision nominated within section 1237A(1) is not applicable in this matter. In summary, Mr Lynch is unable to obtain any relief of his debt by way of waiver for sole administrative error, even in a situation where I had concluded that sole administrative error had occurred and Mr Lynch had received such payments in good faith.
special consideration
(a) Section 1237AAD details the criteria whereby debts may be waived pursuant to a finding that special circumstances exist. I note that for circumstances to be considered special they must be “unusual, uncommon or exceptional” (Re Beadle and Director General of Social Security (1984) 6 ALD1); generally, what is required are “circumstances… that take the case out of the ordinary” (Jess v Scott and Ors (1986) 12 FCR 187); “to allow a flexible response to the wide range of situations which could give rise to hardship or unfairness if the debt is recovered”. (Secretary Department of Social Security v Hales (1998) 82 FCR 154).
(b) In addressing Mr Lynch’s particular circumstances, I note his past history and his continuing battle concerning the abuse of drugs. I note that he currently describes himself as not using illegal substances. I further note his financial circumstances, which can be best described as tight but not dire. I note the issue of debt, and that two of the debts were associated with past activities, with action to collect appearing in abeyance in the light of Mr Lynch’s absence of assets. The third debt relates to the overseas trip and is to be re-paid when Mr Lynch is in a position to do so.
(c) While further noting that Mr Lynch is currently sharing the cost of his accommodation with his mother, I find that Mr Lynch’s financial situation is similar to many in receipt of a social security payment, and as such alone cannot be regarded as unusual, uncommon or exceptional.
(d) In considering the effect of any administrative error that may have occurred as a consequence of Mr Lynch’s contention that he notified Centrelink of his intentions to travel overseas on 29 September 2003; I note the following:
· further confirmation of such activity in a letter lodged with Centrelink at Mr Lynch’s direction on 7 November 2003;
· an activity undertaken by Centrelink to seek advice from DIMIA as to Mr Lynch’s overseas travel dates on 24 October 2003;
· a contention by Centrelink that Mr Lynch had never informed them of his intention to travel overseas as prior to the letter of 7 November 2003.
(e) In examining the offset of such an error, if it were to exist, I would conclude that such an error would have minimal effect on Mr Lynch’s financial situation, in that the quantum of money spent by Mr Lynch on his overseas trip would have remained the same, with the only deficiency being the source of the money. In such circumstances I find that any error, if it were found to exist, did not create a financial environment any more adverse to Mr Lynch than he now faces. I have already concluded that Mr Lynch’s financial circumstances are tight but not dire, and this takes into consideration any fortnightly repayments that he has been making to Centrelink to repay both the debt and other advances of Newstart Allowance.
(f) In summary I conclude that Mr Lynch’s circumstances when taken as a whole do not constitute special circumstances.
21. In summary I conclude that Mr Lynch owes a debt of $1,120.12 as a result of overpayment of Newstart Allowance for the period 29 September 2003 to 11 October 2003. I have examined write off and waiver provisions of the Act and have concluded that none are appropriate in this matter for the reasons stated in consideration of each aspect. I conclude that the decision under review be affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: A. Krilis Associate
Date/s of Hearing 5 January 2005
Date of Decision 25 February 2005
Representative for the Applicant Self
Solicitor for the Respondent Mr Luke Carter
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