MacMillan and Department of Family and Community Services

[2000] AATA 347

DECISION AND REASONS FOR DECISION [2000] AATA 347

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W1999/267

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      Walter MacMillan  
  Applicant
           And    Secretary, Department of Family & Community Services            
  Respondent

DECISION

Tribunal       Mr R D Fayle, Senior Member     

Date3 May 2000

PlacePerth

Decision      The decision under review is affirmed. 
  ...........(sgd R D Fayle)...........
  Senior Member
CATCHWORDS
SOCIAL SECURITY – overpayment of age pension – debt to the Commonwealth – whether applicant advised of notifiable event within 14 days as required.
Social Security Act 1991, ss 66 and 1224

REASONS FOR DECISION

May 2000      Mr R D Fayle, Senior Member                 

1. This is an application by Mr Walter MacMillan ("the applicant') to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 27 July 1999 to affirm a decision by the respondent that he was overpaid his entitlement to age pension from 12 November 1998 to 10 December 1998 in an amount of $185.70.  There was no dispute amongst the parties as to the calculation of the overpayment.  What the applicant disputes is the validity of it.

2. The applicant represented himself at the hearing. Mr K de Hoog, a senior advocacy officer, represented the respondent. The applicant gave oral evidence. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("T documents").
   Facts

3. The applicant was in receipt of an age pension (single pensioner rate) from the respondent.  On 7 February 1994 he was sent a notice which stated, among other things, that he must notify the respondent (then the Department of Social Security) within 14 days if he commences living with someone as if married.

4. On 31 October 1998 the applicant commenced living with Mrs J in a de facto relationship.  Mrs J was also in receipt of the age pension (single pensioner rate).

5. As a consequence, Mrs J telephoned the respondent some time after she and the applicant began living together; to notify them of her changed circumstances.  She was sent forms to complete, which she duly did.  These advised the respondent of the fact that it was the applicant with whom she was now living.

6. As a result, the respondent made an adjustment to the applicant's entitlement to be paid age pension and raised the overpayment in question.
   The applicant's evidence

7. The applicant acknowledged the receipt of the letter of 7 February 1994 in relation to his age pension and which informed him of his obligation to notify the respondent should he "start living with someone as if you are married" (T4).  However, he said that the letter had been sent over four years previously and he only remembered it when it was pointed out to him leading up to the proceedings before the SSAT.  He did acknowledge to the Tribunal that he was mindful that his age pension entitlement would be adversely affected should he begin to live in a de facto relationship.  He said that he and Mrs J had discussed that consequence of them living together and they accepted that their combined pension entitlements would reduce by about $60 per fortnight.  He told the Tribunal that he made no attempt to advise the respondent of his changed circumstances because he understood that Mrs J was to do that for them both.  He said Mrs J moved in with him on Saturday, 31 October 1998, and they agreed that she would contact the respondent the following Monday.  He said he recalls her coming down to his shed during the morning of the Monday or the Tuesday following, to advise that she had telephoned the respondent and notified them of her changed circumstances.  If that telephone call was made it would have been on either the 2nd or 3rd of November 1998.

8. The respondent's records show that a telephone call was received from Mrs J on 23 November 1998 (T5 & T6).  They also show that forms sent to Mrs J were returned completed on 3 December 1998 (T7).  The respondent's computer record shows that it became aware that Mrs J and the applicant were living together from 31 October 1998 and were not advised of this until 23 November 1998 (T8).

9. The applicant told the Tribunal that Mrs J would not attend the Tribunal to corroborate his evidence as she was not the sort of person who could endure such an experience as it would be too traumatic (for her).  Because of the critical nature of the alleged telephone call on 2nd or 3rd of November 1998, the Tribunal adjourned to allow the applicant time to obtain a schedule of telephone calls made from his home about that time to support his (hearsay) evidence.  Some time later the applicant provided that schedule which details the date of each telephone call, the time of the day it was made, the telephone number called and other information relating to charges by the providing telephone company.  It is clear from that schedule that the only telephone call made from his home to the respondent about the time in question occurred on 23 November 1998 at 1649 hours (4.49 p.m.).  This accords with the respondent's records.
   Reasons and decision

10. The Tribunal is satisfied that the applicant was provided with proper notice of the need to advise the respondent in terms of s68 of the Social Security Act 1991 ("the Act"), should specified circumstances change which may affect the rate of age pension payable (T4). Also, a notifiable event referred to above did occur on 31 October 1998 when the applicant began living with Mrs J as if they were married. The applicant did not advise the respondent of this event. The respondent discovered the fact of the applicant living together with Mrs J only as a result of Mrs J notifying it by telephone on 23 November 1998 (outside the required 14 period, (s68(4) of the Act)). As a result the applicant was overpaid his entitlement to the age pension and accordingly a debt to the Commonwealth arose, (s1224 of the Act).

11. The Tribunal finds that the respondent made no error in carrying out its duties in relation to the raising of the overpayment debt referred to above.

12. For the above reasons and in terms of s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

    I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member

    Signed:         

    ..................……….........................
    Associate

    Date of Hearing  22 February 2000
    Date of Decision  3 May 2000
    Counsel for the Applicant        In person
    Solicitor for the Applicant         -
    Counsel for the Respondent    Mr K de Hoog

    Solicitor for the Respondent    Advocacy and Administrative Law Team Centrelink