Mandlawi and Secretary, Department of Family and Community Services

[2005] AATA 236

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 236

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W2004/339

General Administrative DIVISION		)
Re		KAMAL MANDLAWI

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Dr J Campbell, Member

Date18 March 2005

PlacePerth

Decision The decision under review is affirmed

........ (sgd J Campbell)........
  Member

CATCHWORDS

Social Security - Assurance of Support - Assurance of Support and debt - Sole Administrative Error - Special Circumstances.

Social Security Act 1991 sections 23, 1227, 12371(A), 1237AAD.

REASONS FOR DECISION

18 March 2005 Dr J Campbell, Member     

1.      In this matter Mr Mandlawi seeks a review of the decision of the Social Security Appeals Tribunal (‘SSAT’) dated 8 September 2004.  This decision varied the decision of an authorised Centrelink delegate dated 16 February 2004 to raise and recover an assurance of support debt in respect of payments made to Mrs Azra Al Khyon by waiving the right to recover the assurance of support debt accruing from 7 March 2003 to 20 August 2003.  In so doing the SSAT reduced the amount of debt owed by Mr Mandlawi to $9801.90

Background:

2.      On 11 March 2001 Mr Mandlawi (formerly Hassan Al Abood) signed a discretionary assurance of support for Azra Al Khyon (T11).

3.      On 8 January 2002 Mrs Al Khyon lodged a claim for special benefit, which was approved with special benefits being paid from 10 December 2001.  Mrs Al Khyon noted in her application that she had arrived as a permanent resident in Australia with the subclass of her visa being 309 on 5 December 2001.  Mrs Al Khyon did not declare that someone had provided assurance of support for her first two years in Australia (T19).

4.      On 6 March 2003 Mrs Al Khyon transferred from special benefit to Youth Allowance and on 7 August 2003 transferred from Youth allowance to Newstart allowance.  It is stated in the decision statement by the authorised review officer on 22 June 2004 that Mrs Al Khyon did inform Centrelink in her claim for Youth Allowance on 19 March 2003 that an assurance of support had been given.

5.      On 16 February 2004 a Centrelink Officer wrote to Mr Mandlawi advising that he owed an assurance of support debt of $13,582.53.  On 22 June 2004 an authorised review officer reviewed and affirmed the decision to recover the debt, while varying the amount to be recovered to $13081.67.

6.      On 8 September 2004 the SSAT determined to vary the decision under review by waiving the amount of the assurance of support debt accruing between 7 March 2003 and 20 August 2003, leaving a recoverable debt of $9801.90.

Issues:

7.      The relevant issues in this matter are

(a) Does Mr Mandlawi owe a debt to the Commonwealth of $9801.90 arising from an assurance of support given to Mrs Azra Al Khyon by him on 11 March 2001 for a period of two years commencing from arrival in Australia on 5 December 2001? : and

(b) If so, should all or part of that debt be waived.

Decision:

8.      For reasons nominated later in this decision I find that:

(a) Mr Mandlawi owes a debt to the Commonwealth in the amount of $9801.90, with such debt accruing from the payment of a special benefit allowance to Mrs Al Khyon during the period 4 January 2002 and 5 March 2003 and arising because of the assurance of support given by Mr Mandlawi on 11 March 2001.;and

(b) That in the circumstances of this matter waiver of the debt cannot be considered in the absence of findings to support either sole administrative error by the Commonwealth or special circumstances.

9.      In evidence Mr Mandlawi detailed the following circumstances

·that he agreed to provide assurance of support to Mrs Al Khyon on 11 March 2001 following an approach by a friend, who was a friend of the husband of Mrs Al Khyon.  He did not know either Mr or Mrs Al Khyon.  He also stated that he was aware of his responsibilities in signing such a document.

·that the next information was a letter form Centrelink in February 2004 stating that he owed a debt because of benefits paid to Mrs Al Khyon during the period after her arrival to 20 August 2003 and he having given an assurance of support on 11 March 2001.

·that he had been completely unaware of any benefits paid by Centrelink to Mrs Al Khyon until the letter of February 2004.

·that he had an expectation that he would be notified by Centrelink if Mrs Al Khyon sought to received payment of Centrelink benefits covered by his assurance of support.

·that once he was made aware of the payments he attempted to address the issue with Mr Al Khyon, but the latter was not amenable to any resolution of Mr Mandlawi’s debt by providing financial restitution.

·that he understood the consequences when he signed the documents of assurance of support on 11 March 2001, as regards the responsibilities that would accrue if Mrs Al Khyon received Centrelink benefits.

·that he was aware that Mrs Al Khyon had not indicated in her claim for special benefit on 8 January 2002 that someone had provided assurance of support.

·that despite Mrs Al Khyon’s failure to declare assurance of support Centrelink should have been more particular in checking the assurance of support issue before granting special benefit to Mrs Al Khyon.  In such circumstances he would have been notified and would have been able to take steps to remedy the situation with the husband of Mrs Al Khyon, thereby preventing the accrual of a sizeable debt.

10.     In further evidence as to the personal circumstances of he and his family Mr Mandlawi stated that he was married in May 2004, that his wife is pregnant and that he is currently on Newstart Allowance following work related injury.  He stated that he received compensation for this injury of $26,000 in 2002, but this was distributed to family members to alleviate particular financial difficulties.  He also indicated that he developed depression associated with his back injury and that this tends to vary in severity.  He is treated by his local practitioner with effexor, one tablet daily.

11.     In relation to his current financial circumstances Mr Mandlawi stated that he had a fortnightly net payment from Centrelink of $398.  Expenses on a fortnightly basis included rent ($290), food ($140), utilities ($70), car expenses ($50).  Mr Mandlawi has $6 in a bank account, no credit cards, owns a car (value $800) and is assisted by family to make ends meet.

Consideration and findings

12.     The facts in this matter are not in dispute and in essence are

(a) Mr Mandlawi signed an assurance of support document on 11 March 2001 to assist Mrs Al Khyon in receiving a visa to come to Australia, which she did on 5 December 2001.

(b) In signing the assurance of support documentation on 11 March 2001, Mr Mandlawi agreed to undertake to repay particular Centrelink payments made to Mrs Al Khyon during a period of two years commencing with her arrival in Australia on 5 December 2001.

(c) Mrs Al Khyon sought and received payment of a special benefit allowance from 10 December 2001 until 5 March 2003.

(d) that in her applications for special benefit, Mrs Al Khyon did not declare that she had been provided with assurance of support by Mr Mandlawi.

(e) that Mr Mandlawi was not made aware that Mrs Al Khyon had received any particular Centrelink benefits until notified of his debt in February 2004.

13.     I note the definition of ‘assurance of support’ and ‘assurance of support debt’ contained within section 23 of the Act.  I further note that Mr Mandlawi has signed an assurance of support under the Migration Regulations which include a declaration that he would undertake to repay to the Commonwealth where any funds paid under Special Benefit Allowance are paid under the Social Security Act 1991 to a person covered by this assurance.

14.     I further note section 1227 of the Act, which in this matter results in Mr Mandlawi having a debt due to the Commonwealth in the amount of $9801.90 being the amount of special benefit allowance paid to Mrs Al Khyon between 4 January 2002 and 5 March 2003.

15.     In addressing the issues of waiver pursuant to section 1237 (A) 1, I note that the error must be due solely to an administrative error made by the Commonwealth and the debtor must have received this payment in good faith.  In this matter I note that the debtor (Mr Mandlawi) never received the payments, with Mrs Al Khyon receiving such payments.  Certainly it is evident that Mrs Al Khyon satisfied the requirements for receiving such special benefit allowance as she was married to a person who had been permanently resident in Australian for more than two years.  It would seem that the only error made was that made by Mrs Al Khyon when she failed to declare Mr Mandlawi’s provision of assurance of support.  I am unaware as to why this was not declared, but clearly it is not an error that can solely be attributed to the Commonwealth.  In such circumstances of non declaration I consider it a harsh imposition on the Commonwealth to have to routinely check as to whether the benefit seeker has been provided with an assurance of support.

16.     In concluding as I have that Centrelink does not have to routinely check applications to ensure that there has been no provision of assurance of support, when indeed the beneficiary has not so declared, and accepting the argument that the grant of assurances of support would appreciate the earliest possible notification of debt accruing as a consequence of his promise of assurance of support, I recognise the difficulties that may ensue.  Nevertheless as far as the provider of the assurance of support is concerned his responsibilities began from the time he provided such assurance, and while understanding the need to be notified of an accruing debt, the provider of such assurance should I believe expect notification from both the individual for which the assurance of support of debt has been given and from Centrelink in particular circumstances.  Such circumstances include knowledge that such assurance of support had been provided in the applications for benefit lodged, or in such circumstances where either the nature of the visa held by a claimant or the nature of a particular benefit claimed triggered necessary further investigation.  In this matter neither circumstances existed.  I conclude that any administrative error in this matter was the error made by Mrs Al Khyon when she failed to declare Mr Mandlawi’s provision of assurance of support.  I would again note that any administrative error resulted in payments to a third party and not the debtor.

17.     In summary I conclude that the issue of sole administrative error by the Commonwealth cannot be satisfied in the matter, and hence WAIVER PROVISIONS pursuant to section 1237(A) 1 of the Act cannot be satisfied.

18.     In addressing the issues of waiver pursuant to section 1237AAD of the Act, the essential issue is whether special circumstances are found to exist.  I have earlier detailed Mr Mandlawi’s financial circumstances, and clearly it is evident that Mr Mandlawi and his wife are in tightened financial circumstances.  However such circumstances alone are not uncommon in individuals in receipt of Social Security benefits and such financial tightening in many matters has not been considered to constitute special circumstances.

19.     I also note Mr Mandlawi’s history in relation to his work related back injury and associated depression.  Again in the absence of particular documentation detailing the severity of each condition, and in the face of Mr Mandlawi’s personal well being during the hearing, I am unable to find that his medical circumstances alone or in combination with his financial circumstances are uncommon, unusual or exceptional.

20.     In addressing the third issue of unfairness arising from the lack of notice of Mrs Al Khyon receiving special benefit payments.  I have already acknowledged that it is difficult to impose a duty upon Centrelink to routinely search for assurance of support particularly in the absence of a claimant declaring such.  Further to this I observe that any redress that the provider of such assurance of support is limited essentially to personal negotiations between the provider of such assurance and beneficiary of such payments.  In this matter Mr Mandlawi, while attempting to discuss and resolve such issues with the husband of the Beneficiary, had elected to allow the matter rest, even though failure to notify him of benefits being paid to Mrs Al Khyon had resulted from her failure to declare his assurance of support provision.

21.     In such circumstances I believe any unfairness, if it exists arises from the failure of Mrs Al Khyon to declare Mr Mandlawi’s assurance of support provision.  Added to this is a recognition that Mr Mandlawi was aware of his responsibilities in signing such an assurance of support, and that in so providing such an assurance of support it was his responsibility to make the necessary arrangements with the husband of Mrs Al Khyon to be notified if indeed Centrelink benefits were to be sought by Mrs Al Khyon during the two years that the assurance of support covered.  The duty which Mr Mandlawi would seek to impose on Centrelink in the circumstances of non disclosure of the existence of an assurance of support is as I have said earlier an unfair imposition on Centrelink, in that it seeks to transfer the responsibility for Mrs Al Khyon’s error to Centrelink.

22.     In summary I conclude that special circumstances are not found to exist in the matter and that conditions precedent to waiver pursuant to section 1237 AAD of the Act are not satisfied.

Determination

23.     The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member

Signed:         ......................(sgd N Wee)..............................
  Associate

Date/s of Hearing  15 March 2005
Date of Decision  18 March 2005
Solicitor for the Applicant          Self represented
Advocate for the Respondent  Ms Rhonda Bradley,
  Service Recovery Team Centrelink