Manuel and Secretary, Department of Family and Community Services
[2002] AATA 1122
•11 October 2002
DECISION AND ORAL REASONS FOR DECISION [2002] AATA 1122
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/98
GENERAL ADMINISTRATIVE DIVISION )
Re CATHERINE MANUEL (NOW DAVIES)
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Date11 October 2002
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review, and substitutes a decision that the debt to the Commonwealth, for the period 28 November 2000 to 30 May 2001, in the sum of $4,191.31 be waived.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Parenting Payment Partnered – overpayment – whether there is a debt due to the Commonwealth – whether there are grounds to waive or write-off all or part of the debt
Social Security Act 1991section 1237A
ORAL REASONS FOR DECISION
11 October 2002 Senior Member WJF Purcell
This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 5 March 2002, which affirmed the decision of an Authorised Review Officer to recover an overpayment of Parenting Payment Partnered for the period 28 November 2000 to 30 May 2001, in the sum of $4,191.31. The Authorised Review Officer had varied an earlier decision of a delegate, and reduced the period of the debt.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the respondent (the Department). The applicant appeared on her own behalf, and gave oral evidence. Mr Kilderry represented the Department.
The applicant is married with 3 children, and commenced receiving Parenting Payment Partnered in June 2000, having remarried in March 2000. Her rate of payment was assessed having regard to her husband's income of $13,040.82 per annum. She was advised by notice dated 23 June 2000, that she must advise Centrelink within 14 days if her husband's income exceeded $511 per fortnight ($13,286 per annum) or if her income went above $60 per fortnight. The applicant was also receiving Family Tax Benefit (A) and Family Tax Benefit (B).
On 28 November 2000 the applicant attended at Centrelink's Norwood office, and had an interview with a Departmental officer, Mr Maxsted. The applicant advised that her husband's annual income had increased to more than $1,384 per fortnight ($35,984 per annum). She gave evidence, which I accept, that Mr Maxsted told her that as her file was so messy, it was necessary to cancel her Parenting Payment Partnered, in the light of the new financial information, and reassess all the allowances. A notice confirming cancellation of her Parenting Payment Partnered was sent to her dated 28 November 2000, and in error, on 29 November 2000, her Parenting Payment Partnered payments were restored, and a notice sent to her informing her of the restoration of her payments and advising that the amount of $13,040.82 was taken to be her husband's annual income, and this figure was used to assess the rate of her payments.
The applicant gave evidence that she and her husband again spoke to Mr Maxsted on 1 December 2000, and told him that the income amount was in error, and that the husband's income was more than $1,384 per fortnight. Mr Maxted said that he had made an error, and would rectify this and adjust all payments. The applicant says that as a result, one of the Family Tax Payments was cancelled, the other reduced to base level, and Parenting Payment Partnered was adjusted downwards for some time - the end result being that she received less from the Department, and she was confident in the advice she had been given by the Departmental officer. She received no further correspondence from the Department until 6 April 2001, when she received a questionnaire in relation to her current estimate of income of $46,000 per annum, which again assured her, she says, that the correct amount was being taken into account.
At the Hearing, Mr Kilderry advised that subsequent to the SSAT decision, the Department had conceded that the debt arose solely from administrative error, but contended that the payments were not received in good faith. The applicant knew she had to advise Centrelink when her husband's income exceeded $537 per fortnight and that the rate of payment would be reduced. The letter of 29 November 2000 [T4/33] restoring her payments, informed her again of her obligation to advise the Department in those circumstances.
Section 1237A(1) of the Social Security Act 1991 (the Act provides):
"(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor)."I accept the applicant's evidence as to the advice and assurances she was given by the Departmental officer on three occasions, in as many days, in late November 2000. I am satisfied, on the evidence, that she received the payments in good faith. I consider that it is appropriate that the debt be waived in accordance with section 1237A(1) of the Act.
For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that the debt to the Commonwealth for the period 28 November 2000 to 30 May 2001, in the sum of $4,91.31, be waived.
I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 11 October 2002
Date of Decision 11October 2002
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr R Kilderry
Solicitor for the Respondent Centrelink
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