Marinozzi and Secretary, Department of Family and Community Servi Ces

[2003] AATA 456

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 456

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1120

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ILDO MARINOZZI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S Webb, Member

Date16 May 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Mr S Webb, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – overpayment – debt to the Commonwealth – waiver – special circumstances

LEGISLATION

Social Security Act 1991 ss 132, 133, 1223, 1236, 1237AAD

REASONS FOR DECISION

16 May 2003 Mr S Webb, Member         

1.      This application by Mr Ildo Marinozzi (“the Applicant”) is for review of the decision of the Social Security Appeals Tribunal (“the SSAT”) on 27 May 2002 (T2) to affirm the decision of an authorised review officer (“ARO”) on 6 February 2002 to recover a debt in the amount of $4,357.40 (T44).  The ARO affirmed an earlier decision of a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) but varied the amount of the debt from $4,852.20 to $4,357.40.

2.      A hearing before the Tribunal was held in Sydney on 24 February 2003, at which the self represented Applicant and his daughter, Ms Patricia Marinozzi, gave oral evidence. Ms Andrea Garcia, an advocate from Centrelink’s Advocacy and Administrative Law Team, represented the Respondent.  The Tribunal was assisted during the hearing by an interpreter in the Italian language.

BACKGROUND

3.      The Applicant was granted a disability support pension on 16 March 1989 (T3). 

4.      On 9 October 2001 Centrelink raised a debt against the Applicant following a data-matching exercise with the Australia Taxation Office, in consequence of which the Applicant exercised his rights of appeal.

ISSUES BEFORE THE TRIBUNAL

5.      The issues before the Tribunal are:

(a)whether the decision to raise and recover a debt to the Commonwealth in the amount of $4,357.40 was the correct and preferable decision; and if so

(b)whether there are grounds to write off or waive the debt.

LEGISLATION

6.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”), in particular sections 1223, 1236 and 1237AAD.

EVIDENCE BEFORE THE TRIBUNAL

7.      The Tribunal had before it the following documents.

EXHIBIT        DESCRIPTION

T1-T51Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

R1Respondent’s Statement of Facts and Contentions dated 14 February 2003.

8.It was agreed that supplementary submissions would be received from the Respondent by 3 March 2003 and from the Applicant, in response, within 7 days thereafter.  On request the Respondent was granted an extension of time and lodged a submission on 10 March 2003 which was taken into evidence: Exhibit R2.  The Applicant declined the opportunity to provide submissions in response.

evidence of the applicant

9.      The Applicant told the Tribunal he arrived in Australia in April 1964 and worked in the painting trade.  He gave evidence he fell into a coma on 1 April 1987 and remained in that state for “a couple of years”, during which time he was refused “the dole” because he could not sign the application form and his wife was not permitted to do this for him.  He recalled being granted disability support pension on 16 March 1989.

10.     The Applicant stated that his pension was “stopped” after five years because he allegedly had “lots of money in the Commonwealth Bank”.  The Applicant gave evidence that he had only one bank account at the Commonwealth Bank and had “never had investments … never had money”.  He told the Tribunal his pension was reinstated in 1995.

11.     The Applicant gave evidence that Centrelink had informed him that they believed he had investments in two banks: the ANZ Bank and the Commonwealth Bank.  However, the Applicant stated that he had never had a bank account at the ANZ Bank.  His evidence was that he opened an account with the Commonwealth Bank in 1964 and had a NSW Bank account in 1972.  In cross-examination, the Applicant agreed that he received statements for two ANZ Bank accounts, an ANZ credit card account and a Colonial Bank account, and previously had a term deposit account and an investment account “a long time ago”..  He said he had held money in the Commonwealth Bank for the purpose of purchasing property.

12.     The Applicant told the Tribunal he lives with his daughter and wife, from whom he is separated, at 7 Persic Street, Belfield.  He stated that he purchased and moved in to this property in 1981.  He told the Tribunal that he had previously purchased a property at 9 Persic Street, Belfield in 1969, which he sold in 1987 for $123,000.  The Applicant gave evidence that he used the proceeds from the sale of 9 Persic Street, Belfield to purchase another property at 66 Seymour Parade, Belfield in 1993 for an amount of $170,000.  He stated that he borrowed an amount of $10,000 from his brother and an amount of $30,000 from his sister-in-law in order to complete the purchase.  The Applicant informed the Tribunal he had demolished the rear section of the house at 66 Seymour Parade, Belfield and that the property remains vacant, incurring costs without generating income.  The Applicant estimated that he has repaid $2,000 or 3,000 to his brother and $5,000 to his sister-in-law.

13.     The Applicant told the Tribunal that he did not recall receiving letters from Centrelink in the period 1995 to 1999, noting that he receives letters that are addressed to different people.  Subsequently he gave evidence that he had attempted to read the Centrelink letters but does not read English well.  He stated that his daughter read all the letters coming into the house.  The Applicant agreed that he understood his responsibility to notify Centrelink if he gained employment for which he was paid.

14.     The Applicant told the Tribunal he had financial problems.  He informed the Tribunal that he had no debts on 7 Persic Street, Belfield and owned a 1997 model Ford Futura car.  He stated he had to repay debts to the State debt recovery office in the amounts of $3,000 and $6,000 and had significant legal costs associated with his defence of 27 charges relating to anti-violence orders, paying $1,500 for each visit to his solicitor.  He claimed he had received threats on his life from his neighbours and local “hooligans”.

15.     The Applicant gave evidence that his house had been broken into in late 1986 and a number of items had been stolen, including his wife’s jewellery, a new microwave oven and his Commonwealth Bank passbook.  He recalled that the television had not been stolen.  He told the Tribunal he reported the matter to the police and a report was made.  Subsequently, the Applicant told the Tribunal about a second burglary, but he could not recall when this had occurred, or what was stolen.  He did recall reporting the matter to the police.

16.     The Applicant told the Tribunal he has a heart problem, high blood pressure and diabetes, for which he takes medication.

ms patricia marinozzi

17.     Ms Marinozzi told the Tribunal she has a credit card debt of approximately $2,000 in consequence of paying for household, medical and legal expenses for her father. 

18.     Ms Marinozzi told the Tribunal she opens and reads all the mail coming into the house, even if it is not addressed to anyone in residence. 

ISSUES, SUBMISSIONS AND FINDINGS

19.     In order the make the correct and preferable decision the Tribunal carefully considered all of the evidence, the submissions of the parties and the relevant legislation and caselaw.

20.     The Tribunal notes discrepancies and inconsistencies in the Applicant’s evidence concerning his receipt of letters from Centrelink and his financial affairs and arrangements.  The Applicant was guarded and combative when giving his evidence, selectively providing information and reconstructing evidence in cross examination to suit his purpose.  The Tribunal finds there are issues of credit concerning his evidence and the evidence of Ms Marinozzi. 

21.     The Tribunal notes the Applicant and his daughter resorted to abusive language and threats of violence during the hearing when called upon to explain apparent anomalies or discrepancies between their evidence and the documentary exhibits before the Tribunal.  While such intemperate behaviour is unhelpful and inappropriate in the circumstances, the Tribunal puts this to one side and proceeds to consider the matters before it for determination.

does the Applicant owe a debt to the Commonwealth?

22.     Ms Garcia, for the Respondent, submitted that the Applicant:

(a)Opened an ANZ Bank term deposit account (account number 9814-64143) on 20 October 1995 with an opening balance of $40,008.82 (T10, folio 71);

(b)Had a balance of $34,398.17 in a State All-In-One account (account number 052113065-81) on 14 June 1996 (T12, folio 73);

(c)Was employed by Duke’s Painting Service from 3 August 1998 until 13 October 1998 (T23) and earned a gross income of $7,116.25 (T18);

(d)Was employed by Higgins Coating Pty Ltd from 15 April 1999 until 30 April 1999 and earned a gross income of $2,346 (T29); and

(e)Failed to declare these amounts and earnings to Centrelink in compliance with a formal notice and in breach of his obligations under the Act.

23.     The Applicant denied the bank accounts and monies therein were his and denied that he had ever worked for Duke’s Painting Service or Higgins Coating Pty Ltd.  In the Applicant’s submission he had not failed to comply with a Centrelink notice as he could not declare amounts of money that he did not possess or earnings that he had not earned.  The Applicant submitted that he had worked hard since arriving in Australia despite some physical and language difficulties and it is unfair to expect him to repay the debt claimed by Centrelink.  In the Applicant’s submission Centrelink should have paid him a pension during the period he was in a coma but failed to do so because he could not sign the application form and an application signed by his wife was rejected.  These considerations combined with his current financial and health difficulties constitute special circumstances, the Applicant submitted, on the basis of which the debt should be waived.

24.     The Tribunal turns to consider the evidence before it.

bank accounts

25.     The evidence reveals that the ANZ Bank term deposit account number 9814-64143 is held in the name of Ildo Marinozzi of 7 Persic Street, Belfield (Exhibit T21 folio 133).  The application form that was lodged to open the account on 20 October 1995 is signed by Ildo Marinozzi and Patricia Marinozzi (although the latter signature is crossed out) (Exhibit T21 folio 132).  Identification used to open the account included a Commonwealth Bank passbook in the name of Vera Marinozzi (account number 2133 5010868); a driver’s licence for Vera Marinozzi of 7 Persic Street, Belfield; a notice from Canterbury City Council addressed to I & V Marinozzi, 7 Persic Street, Belfield; a Commonwealth Bank passbook (account number 2128 5008905) in the name of Ildo Marinozzi; a Medicare card for the Marinozzi family; and a driver’s licence for Ildo Marinozzi (Exhibit T21, folios 136 to 138).

26.     The Applicant denied the ANZ Bank account was his, claiming that someone must have impersonated him or used documents that were stolen when his house was burgled.  The Applicant told the Tribunal that he keeps his driver’s license in his wallet, which he always carries with him.  The Applicant did not suggest in his evidence regarding the burglary that his wallet had been stolen and there is no evidence that it was.  The Tribunal has no reason to disbelieve the Applicant’s account of the burglary and finds in all likelihood that the Applicant’s wallet, and his photographic driver’s licence therein, was not stolen.  It follows, therefore, that the person who sought to open the ANZ Bank account in question, who presented the Applicant’s drivers licence for the purpose of completing an identity check, was the Applicant.  It is noteworthy that the Applicant’s drivers licence contained a photograph of the Applicant as well as his address and his signature, which are repeated on the ANZ Bank application form.

27.     The preponderance of the evidence suggests that the Applicant lodged the application to open the ANZ Bank account in question and the Tribunal so finds.

28.     The evidence reveals that the Colonial State Bank State All-In-One account number 05211306581 was held in the name of Ildo Marinozzi (Exhibit T22, folio 143).  Statements for this account in evidence are addressed to Ildo Marimozzi at 7 Persic Street, Belfield (Exhibit T12).  The person authorised to operate the account is shown to be Ildo Marinozzi whose signature is contained in the bank’s Authority to Operate form (Exhibit T22, folio 144).

29.     During the hearing the Applicant was shown signatures on a Tribunal application form (Exhibit T2, folio 2) and a social security statement (Exhibit T6, folio 34).  He accepted that the signatures were his and he had signed the documents.  The Applicant was shown signatures on the application form for the ANZ Bank term deposit account (Exhibit T21, folio 132) and the Colonial State Bank authority to operate form (Exhibit T22, folio 144).  He denied that these signatures were his.  Comparing the signatures on the Tribunal application form, the social security form and the bank account documents, the Tribunal is satisfied, on the balance of probabilities, that the signatures are those of the Applicant.  Considering in detail the identification documents associated with these bank accounts, the Tribunal is left in no doubt and finds, therefore, that the ANZ Bank and Colonial State Bank accounts were owned and operated by the Applicant. 

30.     The Tribunal notes there is evidence that a person by the name of Ildo Marinozzi of 7 Persic Street, Belfield held five Commonwealth Bank accounts in June 1995, three of which were closed as follows (Exhibit T16, folio 121):

Account number  Balance  Date closed

20777  $66,750  29 June 1995

5000395  $35,157  29 June 1995

5001042  $38,240  14 June 1995

The remaining two accounts, account numbers 10019622 and 5008905, were not closed at that time.  The Tribunal finds that the Applicant’s pension is deposited on a fortnightly basis into Commonwealth Bank account number 5008905.

31.     The Applicant initially claimed that these Commonwealth Bank accounts were not his.   The Tribunal notes, however, that one of the signatures the Applicant accepted as his own was on a social security statement dated 5 July 1995 (Exhibit T6 folio 34), in which the Applicant advised Centrelink of the closure of his Commonwealth Bank account in Belfield (account number 2114 20777) and the opening of a new Commonwealth Bank account in Burwood (account number 2128 5008905).  When confronted with this evidence the Applicant agreed that bank accounts 2114 20777 and 5008905 were his.  There is no reason to doubt that the five Commonwealth Bank accounts and the amounts on money therein were owned and operated by the Applicant and the Tribunal so finds.

employment

32.     In consideration of the evidence concerning the employment of Ildo Marinozzi of 7 Persic Street, Belfield (Exhibits T18 folio 124, T23 folios 146 to 148, T29 folio 159) by Duke’s Painting Service and Higgins Coatings Pty Ltd, the Applicant submitted that someone must have impersonated him because he had never been employed by these businesses and did not know the people involved.

33.     The Applicant adduced no evidence before the Tribunal in support of his submission and was unable to provide any credible response to the documents in evidence, which included a group certificate in the name of Ildo Marinozzi of 7 Persic Street, Belfield (Exhibit T29 folio 159).  The Tribunal notes the name, address and date of birth of the person employed by Duke’s Painting Service are the same as those of the Applicant.  The Tribunal finds the documentary evidence compelling and concludes in the absence of evidence to the contrary that the Applicant’s assertions are unfounded and without merit.

34.     The Tribunal finds, on the balance of probabilities, that the Applicant was employed by Dukes Painting Service during the period 3 August 1998 to 13 October 1998 inclusive whereby he earned a gross income of $7,116.25, and employed by Higgins Coating Pty Ltd during the period 15 April 1999 to 30 April 1999 inclusive whereby he earned a gross income of $2,346.

conclusion

35. The Tribunal accepts the Applicant’s evidence that he understood the legal requirement to notify Centrelink of any change in his income. The Tribunal finds the notification obligations of the Applicant were set out in a Centrelink letter dated 1 August 1996 that constitutes proper notice pursuant to section 132 and 133 of the Act which were then in force (Exhibit T15).

36.     The Tribunal has found as a fact that the Applicant owned and controlled ANZ Bank and Colonial State Bank accounts containing substantial amounts of money, which were not declared by the Applicant to Centrelink as they should have been.  The Tribunal has also found as a fact that the Applicant was employed by Duke’s Painting Service and Higgins Coating Pty Ltd but failed to inform Centrelink about his earned income from these activities. 

37. The Tribunal concludes that the Applicant knowingly made a false statement and failed to declare his investments and earned income as he was required to do under the Act, in consequence of which he was overpaid disability support pension. The Respondent submits that the amount of the overpayment is $4,357.40, as found by the ARO and affirmed by the SSAT. The Tribunal finds no fault in the calculation of the amount of the overpayment.

38. Current subsection 1223 (1) of the Act provides:

“1223 Debts arising from lack of qualification, overpayment etc.

(1)       Subject to this section, if:

(a)       a social security payment is made; and

(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

… ”

The Tribunal finds, therefore, that the amount of the overpayment is a debt to the Commonwealth for which the Applicant is liable.

should the debt be written off or waived?

39. The Tribunal turned to consider section 1236 of the Act, which provides:

“1236 Secretary may write off debt

(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a)       the debt is irrecoverable at law; or

(b)       the debtor has no capacity to repay the debt; or

(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.

…”

40.     The Tribunal is satisfied there are no grounds to write off the debt as the debt is recoverable at law.  The Tribunal accepts that the Applicant’s circumstances are difficult but finds he has capacity to repay the debt and is doing so by deduction.  It is clear the whereabouts of the debtor are known and the Tribunal accepts the Respondent’s contention that it is cost effective for the Commonwealth to recover the debt. 

special circumstances

41. The Tribunal turns to consider whether the debt may be waived on the basis of special circumstances pursuant to section 1237AAD of the Act, which provides:

“1237AAD Waiver in special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)        making a false statement or false representation; or

(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt.

… ”

42. The Tribunal has found as a fact that the Applicant knowingly made a false statement and failed to comply with a provision of the Act in consequence of which he has a debt to the Commonwealth. This being the case, the debt may not be waived pursuant to section 1237AAD and the Tribunal so finds.

43.     This being the case, it is not necessary to give further consideration to the Applicant’s circumstances for the purpose of determining whether special circumstances exist. 

44.     Finally, the Tribunal notes that the Applicant submitted that he should not be required to repay the debt because Centrelink did not pay him any benefit or allowance during the period he was in a coma.  His evidence was that his wife had not been permitted to lodge an application on his behalf with Centrelink.  Ms Garcia submitted that a search of Centrelink records had been conducted and no record of Mrs Marinozzi attempting to lodge such an application was found (Exhibit R2).  In the circumstances, it is not necessary for the Tribunal to make any findings on this point.

decision

45.     The Tribunal affirms the decision under review.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed:         L Bonouvrie
  Associate

Date/s of Hearing  24 February 2003
Date of Decision  16 May 2003
Advocate for the Applicant       Self-represented
Advocate for the Respondent   Ms Andrea Garcia