Marriott and Department of Family and Community Services

[2005] AATA 926

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 926

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2004/25

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANET MARRIOTT

Applicant

And DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date26 September 2005

PlaceBrisbane

Decision The decision under review is affirmed.

..................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – Widows Allowance – applicant paid periodic and lump sum compensation payments whilst in receipt of Widow Allowance – the respondent raised two debts against the applicant – applicant subject to a lump sum preclusion period – periodic compensation payments classified as ordinary income – both debts properly raised – exercise of the discretion to waive debts not appropriate in the circumstances.

Social Security Act 1991 (Cth) ss 1169, 1170, 1173, 1184, 1237

Re Beadle and Director-General of Social Security (1984) 6 ALD 1; (1984) 1 AAR 362

REASONS FOR DECISION

26 September 2005 Senior Member B J McCabe

1.      Ms Janet Marriott received a Widow Allowance. She also received lump sum and periodic compensation payments in respect of an injury at work. When Centrelink became aware of this the department recalculated the applicant’s entitlement to Widow Allowance during the period she was receiving compensation payments. The Secretary subsequently raised two debts against Ms Marriott because the respondent says the applicant was not entitled to receive the Widow Allowance in the circumstances. The Social Security Appeals Tribunal (the SSAT) affirmed the decision, and the applicant has asked the Administrative Appeals Tribunal to reconsider the matter.

2.      For reasons I will explain, I am satisfied the applicant was not entitled to Widow Allowance during the relevant periods. It follows the debts have been properly raised. I am also satisfied there is no basis for exercising the statutory discretion not to recover the debt.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents). The following documents were also tendered: 

·        Information table produced by the applicant detailing monies paid and debts raised – undated (exhibit 2);

·        Bundle of the applicant’s ANZ bank account statements from 18 May 2001 to 30 October 2003 (exhibit 3).

4.      The decision of the Authorised Review Officer (ARO) is included in the T documents at T46. The SSAT decision is included in the T documents at T2.

5.      The applicant represented herself at the hearing. She also gave evidence. Ms Oliver appeared on behalf of the respondent.

6.      At the hearing of this matter in Darwin, Ms Marriott provided the Tribunal with a printout form from a Centrelink office in Darwin detailing the amount of the debts outstanding. The figures differed from those provided by the respondent on the day. I asked the respondent to provide submissions on the debt calculation and gave the applicant a right of reply. The respondent’s submissions were lodged in the Tribunal on 6 July 2005. The applicant provided me with extensive submissions and a further bundle of documents that were lodged in the Tribunal on 11 July 2005.

The facts

7.      On 1 August 2002 the applicant injured herself at work. She hurt her hand in a freezer. The injury required surgery. The applicant has also suffered other joint problems.

8.      The applicant claimed compensation in respect of her work injuries. She began receiving weekly payments in the amount of $307.00 from her employer’s insurance company QBE Insurance (Australia) Ltd (QBE) for the period 2 August 2002 to 31 October 2002. The applicant also received a lump sum payment of $40,000 on 18 November 2002 when she settled the claim.

9.      The applicant worked briefly for the Northern Territory Electoral Commission after sustaining her injury. The applicant is currently unemployed. She receives the Disability Support Pension.

10.     It appears the applicant’s current situation has arisen as a consequence of a misunderstanding of entitlements and reporting obligations. The applicant told Centrelink she ceased work before applying for Widow Allowance. She subsequently received unexpected workers compensation payments and did not inform Centrelink. The applicant was also paid the lump sum from QBE and became subject to a preclusion period.

11.     The applicant says she was under the impression QBE would tell Centrelink about the lump sum payment. The respondent contends the applicant did not read documents provided by QBE suggesting it was her responsibility to inform Centrelink.

12.     Centrelink became aware of the applicant’s compensation payments on 26 November 2003 and proceeded to calculate a lump sum preclusion period from 19 November 2002 to 7 July 2003. The applicant received $7,054.45 in Widow Allowance during the preclusion period which the respondent now claims is an overpayment.

13.     On 12 March 2004 Centrelink decided to raise a further debt in respect of Widow Allowance paid during the period the applicant was receiving weekly compensation payments. This debt is in the amount of $2,466.53.

14.     I note there was some confusion over the exact figures of the debts both at the hearing of this matter and in the events leading to the SSAT review. I have examined the submissions of the parties, the recalculation of debts undertaken by the ARO and supporting documentation. I am satisfied the amounts subject of this review are $2,466.53 (for payments made coinciding with the weekly compensation payments) and $7,054.45 (for payments made during the preclusion period).

The legislation and consideration

Debt due to periodic compensation

15.     The Social Security Act 1991 (the Act) requires that periodic compensation payments be treated as ordinary income: s 1173. Centrelink was not informed of the weekly compensation payments in the amount of $307.00 which should have been treated as ordinary income, reported and taken into account when calculating the applicant’s entitlement to Widow Allowance. At the hearing the applicant did not dispute the Secretary’s decision to raise the debt but contended she should not have to repay the money. I will deal with that question in due course.

16.     I am satisfied a debt was properly raised in the amount of $2,466.53 in respect of the Widow Allowance paid in the period 2 August 2002 to 31 October 2003 while the applicant was in receipt of periodic compensation payments.

Debt due to lump sum compensation payment

17.     Section 1169 of the Act states that a compensation affected payment is not payable during a lump sum preclusion period. Widow Allowance is a compensation affected payment: see s17.

18.     Section 1170 provides a formula for calculating a lump sum preclusion period. The respondent has calculated a preclusion period of 33 weeks commencing 1 November 2002 and concluding on 19 June 2003. I am satisfied this calculation is correct. This means the applicant was not entitled to payments of Widow Allowance during this period. An amount of $7,054.45 was paid to the applicant during that period. I am satisfied the Secretary was right to raise a debt in that amount.

Non-recovery of debt

19.     The applicant has received money to which she was not entitled. The debt has not arisen solely as a result of administrative error of the respondent; the applicant did not properly inform Centrelink of the compensation payments she received. That leads me to the question of special circumstances. If there are special circumstances justifying a reduction in the preclusion period (s 1184) or waiver (s 1237AAD), I can assist the applicant.

20.     The term “special circumstances” means circumstances that are ”unusual, uncommon or exceptional”: see Re Beadle and Director-General of Social Security (1984) 6 ALD 1. Recipients of social security payments generally suffer financial hardship. The special circumstances test is a strict one designed to allow the decision-maker to give relief from paying a debt in situations that are “markedly different from the usual run of cases”: see Re Beadle at 3.

21.     I have considered the applicant’s evidence about her personal circumstances. She is certainly in a straitened financial situation. The applicant says she is reliant on her family for financial support. The applicant is unable to work because of her physical ailments, for which she has received compensation and is paid Disability Support Pension. While I have sympathy for her current situation, financial difficulty is not unusual. I was not made aware of any other circumstances that would enable me to conclude the applicant is subject to special circumstances within the meaning of the Act that would justify an exercise of the statutory discretion.

Conclusion

22.     The decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Date of Hearing  29 June 2005, Darwin
Date of Decision  26 September 2005, Brisbane

The applicant appeared in person.

The respondent was represented by Ms Oliver, departmental advocate.