Mann and Department of Family and Community Services

[2001] AATA 941

DECISION AND REASONS FOR DECISION [2001] AATA 941

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W2001/47

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      GRANT  MANN    
  Applicant
           And    SECRETARY DEPARTMENT OF FAMILY & COMMUNITY SERVICES   
  Respondent

DECISION

Tribunal       Administrative Appeals Tribunal  

Date14 November 2001

PlacePerth

Decision      The decision of the Social Security Appeals Tribunal, dated 23 January 2001, is affirmed.     
  ..........(Sgd Mr J Handley)...........
  Senior Member
CATCHWORDS
  Social Security; Applicant qualified for parenting payment; later commenced employment; Whether Centrelink notified; Whether overpaid; Whether any entitlement to payments; Decision affirmed.

REASONS FOR DECISION

14 November 2001 Administrative Appeals Tribunal              

1. This is an application brought by Mr Mann against a decision made by the Social Security Appeals Tribunal (SSAT) on 23 January 2001. The SSAT then decided to affirm a decision previously made by an authorised review officer of Centrelink to raise and recover a debt of $1172.70 being an alleged over payment of parenting payment for the period 13 August 1998 to 22 October 1998.

2. The application was listed for hearing in Perth on 12 November 2001. Mr Mann did not appear personally but gave his evidence by telephone from his home in Albany. Mr Ellis a Departmental advocate appeared on behalf of the respondent.

3. The facts may be briefly summarised as follows:

4. Prior to 17 July 1998 Mr Mann was in receipt of parenting payment. He was then in a defacto relationship. His defacto wife was in receipt of newstart allowance. At or about that time Mr Mann apparently became disenchanted with the Commonwealth Bank and elected to open a new account with the Challenge Bank expressly for the purposes of receiving fortnightly payments of parenting payment from the respondent. He said he gave his wife access to that account and she alone operated it.

5. On 17 July 1998 Mr Mann commenced employment. The respondent learnt of this in November 1998. The respondent then calculated whether Mr Mann had any entitlement to parenting payment after the date he commenced employment. The entitlement was determined with regard to the income earned which varied weekly, because Mr Mann was being paid as a casual employee and the number of days he worked each week differed. The Department determined that an overpayment had been made in the sum of $1172.70. (There is no issue concerning the calculations or the quantum of overpayment.)

6. Mr Mann said that he telephoned an officer in the Albany office immediately prior to commencing work notifying that it was his intention to commence earning income. He could not recall who he spoke with or when he made the telephone contact. He said he has no records of that event and drew to my attention that the telephone call was made more than three years ago. Additionally he said that his wife completed a form, which he did not read but which he signed and which he understood was a communication to the Department as to him having found employment. Again he did not have any copies of those documents. He understood the form was a written notification of having commenced employment.

7. It was clear from the evidence of Mr Mann today that he and his wife had not only separated but there is considerable tension between them. He alleged that his signature had been forged and that his wife at all relevant times had access to the bank account which he opened with the Challenge Bank. He said that he was not aware during the period of time that he was working that payments were being made because having notified the Department by telephone it was his understanding the payments would not be made. He said that his wife had access to his account and that she obtained the benefit of the monies paid. Additionally he said that he did not receive any statement of communication from the bank during the relevant period notifying him that payments were being made or that there was a credit balance by reason of the payments made by the respondent.

8. Mr Ellis said that all relevant documents with respect to any telephone contact or notification by way of the printed form have been destroyed pursuant to the Department's archive processes. He said there was nothing available from the existing file to indicate that a telephone contact had been made or that a form had been lodged. He said specifically for the period 13 – 27 August 1998 (within which time Mr Mann understood the relevant form as described above was lodged) Mr Ellis said that there were no records found for that period nor any evidence that forms were lodged.

9. Mr Ellis submitted that the applicant was responsible for his own misfortune by having given his wife access to his bank account. He said the Secretary of the Department was entitled to accept the forms lodged by her on face value. He assumed that having observed the applicant's signature on the form that the Secretary was entitled to make payments consistent with the content of the form. He assumed also that the form did not disclose that Mr Mann had commenced employment. He said if there was any dispute about the content of the form or any misrepresentation made to the Department by his wife that Mr Mann should consider action against her and not the Secretary.

10. Mr Ellis acknowledged that the applicant may well have rung the Albany office and communicated that he had commenced employment. He assumed the form as alleged apparently did not contain reference to having commenced employment and the Department was therefore obliged to make the payments that it did.
    Reasons for decision

11. The Social Security Appeals Tribunal by its decision noted that there were inconsistencies in the information given to it by Mr Mann. Those inconsistencies range between whether a form was lodged; if it was lodged whether it was signed by Mr Mann and whether there was a misrepresentation made to the Department by the applicant's wife. Additionally there is a reference to whether in fact Mr Mann did at any time ever declare that he had commenced employment.

12. Mr Ellis submitted that certain interpretations or assumptions should be made as to the Department's conduct by having apparently correctly processed forms received as evidenced by payment having been made. I am, with respect, unable to accept this submission nor to draw the assumptions that he would urge me to draw. Centrelink is a major government agency and is responsible for making thousands of decisions each day in each office. Despite its high standards of administration, errors can be made. I have difficulty accepting or comprehending the conclusions made by the Social Security Appeals Tribunal at paragraph 11 where it found that

    "…it prefers the evidence of Centrelink that Mr Mann did not correctly declare the earnings of he and his wife during the period in which the debt arose in."

Mr Ellis said that relevant documents had been destroyed. The "evidence" relied on by the SSAT is not apparent. The only evidence presently held by the Department are some file memorandums and forms and questionnaires completed many months after this debt was raised.

1. As against this however Mr Mann was paid monies during a period of time in which he was working and when he had no entitlement to parenting payment.

2. The relevant bank account was in the name of Mr Mann only and he had a responsibility for it and for the monies that were received into it. Whilst I accept that he divested responsibility for the account to his wife and permitted her to draw monies from it the fact remains that monies were paid "to him" for which he did not have an entitlement.

3. Section 1223 (1) of the Social Security Act 1991 ("the Act") provides that if an amount is paid to a person after 1 October 1997 by way of "social security payment" and the person was not qualified for the payment when it was granted or that the amount was not payable the amount paid is a debt due to the Commonwealth.

4. For the purposes of this application a parenting payment is a "social security payment" within the meaning of the Act.

5. Mr Mann was qualified for parenting payment when it was granted but later he did not become qualified for it when he commenced employment. Accordingly during the relevant period parenting payment was "not payable" to him. It follows with regard as to s1223 that the amounts paid to him as parenting payment are a debt to the Commonwealth.

6. If it is not already clear from the above I am not prepared to find that Mr Mann did not communicate with Centrelink by telephone or that a false representation was made by the forms submitted by his wife. In the absence of those forms or the absence of satisfactory documentation from the respondent, a finding as urged by the Department would not be appropriate. Indeed I agree with the concession made by Mr Ellis that the applicant may in fact have notified the Department by telephone that he had commenced employment.

7. But whether he notified the Department or not, the fact remains that the amounts paid to him were monies to which he had no entitlement. It follows that those amounts should not have been paid to him and the amount paid is a debt.

8. I understand that the sum overpaid has been repaid by pension withholdings and there are no monies presently outstanding against the Department. Additionally, I am not satisfied that the provisions of the Act concerning write off or waiver of the debt apply either in law or on the facts.

9. In the circumstances – although for different reasons expressed by the Social Securities Appeals Tribunal I am obliged in the circumstances to find that the decision under review should be affirmed.

   I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

   Signed:

   ......(Sgd E Edwards)      
   Associate

   Date/s of Hearing  12 November 2001
   Date of Decision  12 November 2001
   Counsel for the Applicant        In Person
   Solicitor for the Applicant          
   Counsel for the Respondent    Mr S Ellis
   Solicitor for the Respondent    Advocacy & Admin Law Team