Miller and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 908

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 908

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1127

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN MILLER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N BELL, Senior Member

Date26 October 2006

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell  Senior Member

Centrelink – Overpayment of Age Pension – Debt Payable to Commonwealth - Should Debt be Recoverable – Administrative Error – Receipt of Overpayment in Good Faith – Special Circumstances – Australian Taxation Office – Decision Under Review Affirmed

Social Security Act 1991

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

REASONS FOR DECISION

Ms N BELL, Senior Member         

1.      Mr Miller lives, with his dog, in a granny flat behind the house of his landlady and good friend, Mrs Gamble.  A Justice of the Peace for 30 years, Mr Miller has been on the age pension since 1999, but he has always worked.  His last work was as a casual cleaner for Visidet Pty Ltd.  He was dismissed from that job in 2005 after he suffered a heart attack.  The work was variable and the hours unpredictable.  When he applied for the aged pension Mr Miller provided copies of two payslips from Visidet. Centrelink calculated the rate of his pension on the basis of those two payslips and other income information he provided at later dates.

2.      In 2003 Centrelink exchanged information about Mr Miller with the Australian Taxation Office.  That exercise showed that the amount of income received by Mr Miller in earnings from Visidet was considerably more than the amount indicated by the two payslips and other information he had provided.  Centrelink decided that Mr Miller had been overpaid $14,497.28 in age pension and it decided to recover that debt.  Centrelink now withholds $15.00 from Mr Miller’s fortnightly pension payments. 

3.      It is not in dispute Mr Miller was overpaid from 3 September 1999 to 9 October 2002 and that he consequently has a debt due to the Commonwealth.  The central issue is whether that debt should be recovered.  Mr Miller contends, on two grounds, that it should not.

4. The first ground is that the debt is due to an administrative error by the Commonwealth. For Mr Miller to succeed on this basis, I must be satisfied that the debt arose solely because of administrative error and that he received the overpayments in good faith (s. 1237A of the Social Security Act 1991).

5.      The second ground on which Mr Miller says recovery of the debt should be waived is that his circumstances are special.  In order for the debt to be waived on this basis, I must be satisfied not only that his circumstances are special but that he did not knowingly fail to advise Centrelink of his correct income or give false information to Centrelink about his income (s. 1237AAD of the Act).

administrative error

6.      Mr Miller said he was not given pay slips regularly by his employer and sometimes given none at all.  He also said he could not understand his payslips when he did receive them.  They seemed to him to bear no relationship to the hours he had worked and the money he had received.   He said he had told Centrelink many times about this difficulty.

7.      Mr Miller said sometimes four weeks would go by before he received a payslip from his employer and by then he would already have submitted his estimated earnings to Centrelink.  When I asked him what he did when that happened, he said there was no use doing anything because no one at Centrelink took notice of him anyway.

8.      Mrs Gamble confirmed, in her evidence to the Tribunal, the confusion Mr Miller had about the hours recorded on his payslips.  She said he had also told her there was a mismatch between the amounts he received and the amounts recorded on his payslips.  She also confirmed that he had phoned Centrelink on many occasions about the hours he had worked and that she had sometimes made calls on his behalf.  She said Mr Miller told her Centrelink had simply said it was “OK”.  She said, however, that Mr Miller’s “intense” communication with Centrelink had begun after he received the letter notifying him of his debt.

9.      The T documents show that Centrelink wrote to Mr Miller on many occasions advising him that if his income rose above a certain amount then he must tell Centrelink.   The details, provided by Visidet to Centrelink, of wages paid to Mr Miller over the relevant period show that, when his proper entitlement was calculated, on the basis of these earnings, he was paid considerably more than he was entitled to.

10.     I accept that Mr Miller was confused about the amounts of his earnings.  However, he was given many opportunities to clarify this when amounts were advised to him by Centrelink and he was asked to advise if he had earned more.  He said he did not cross check his earnings, as advised on his payslips, with amounts received by cheque or by direct deposit into his bank account.  Had Mr Miller advised Centrelink of the amounts on the payslips he received, he would not have been overpaid or overpaid to the extent that he was.   Rather, he took the view that the payslips were incorrect but did not do anything about it.  I do not consider that his debt arose solely as a result of an administrative error, if any, by Centrelink.

special circumstances

11.     Mr Miller gave evidence of a range of difficulties he faces.  The first of these was his diagnosis of prostate cancer in 2005.  Dr P Ainsworth, Urologist, wrote in a report dated 20 July 2006:

“I would not expect his prostate cancer to cause a significant problem for at least three or four years.  It is however possible that John will have a completely normal life expectancy.”

12.     Also, in 2005, Mr Miller suffered a heart condition and was admitted to Belmore Hospital for three days.  Mr Miller also said he has cataracts and will see a specialist about it soon.  He takes medication for blood pressure, cholesterol and for his prostate cancer.

13.     Mr Miller has limited assets: a television, a video player, books and his dog.  The rent for his granny flat is $130 per fortnight.  He spends approximately $130 per fortnight on food.  He said he sometimes runs out of food and Mrs Gamble lets him eat with her.  He said he had to sell his M. V. Holden to a panel beater's son last week for $100.

14.     In cross examination Mr Miller conceded that after meeting his regular food and rent expenses, he has approximately $130 per week remaining.  He said he spends that money on food for his dog, on having him clipped every four to five weeks (at a cost of $40), on vet's fees intermittently and on about 60 cigarettes per fortnight.  It was pointed out to Mr Miller that, in the discharge notes of Belmore Hospital it was noted that he drank excessively.  Mr Miller said that at the time of his admission to hospital he was drinking approximately 31 big bottles of beer per week.  He stressed, however, that he is not an alcoholic and that he has not spent money on alcohol for at least a month.   But he agreed that he “likes a drink”.

15.     Mrs Gamble said Mr Miller used to drink a lot more than he does now.  He has a few mates around now and then and he used to go to the Bowling Club or the Salamander Hotel.  She knows he smokes but he has now cut down.

16.     Mr Miller said he left school at 14 and worked in the Post Office and then as a boot maker’s apprentice.  He has a stutter which sometimes impedes his speech but it is not difficult to understand him.  He is an intelligent and articulate man.  His own evidence was that he has no difficulty with reading.  He was recently reappointed as a Justice of the Peace for a further five years.

17.     The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 is often quoted in relation to the interpretation of "special circumstances". In that decision, the Tribunal said at 6 ALD 3:

"An expression such as `special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."

18.     Mr Miller’s health, including his diagnosis of prostate cancer, is not an unusual state for a man of his years.  I note, in particular, the relatively optimistic prognosis of Dr Ainsworth.  His financial circumstances, although tight, do not preclude him from enjoying a drink or a smoke.   His current arrangement to repay the debt at $15.00 per fortnight is quite lenient.   He has the support and company of friends.  He continues to take pride, justifiably, in his role as a Justice of the Peace.

19.     Mr Miller’s circumstances are not “special”.  They do not have the quality of unusualness that permits that description.

20.     Given this conclusion, it is not necessary for me to determine whether Mr Miller knowingly failed to advise Centrelink of his correct income or knowingly gave false information to Centrelink about his income.

decision

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed          .................. [ Sanjiv Shah ]………………
  Associate

Date of Hearing  18 September 2006
Date of Decision  26 October 2006

Solicitor for the Applicant   Mr James Marshall  

Solicitor for the Respondent                     Mr Gavin Jensen