Milo and Secretary, Department of Family and Community Services

[2005] AATA 168

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 168

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/828

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL MILO

Applicant

And SECRETARY, DEPARTMENT OF  FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal  Senior Member B J McCabe

Date 24 February 2005

Place Brisbane

Decision  The decision under review is affirmed.

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

B J McCabe
  SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – overpayment made and debt duly raised applicant undertook part-time work while on disability support pension – applicant did not receive pension funds in “good faith” – no special circumstances – no basis for waiving debt – decision under review affirmed.

Social Security Act 1991, ss 1223, 1237, 1237A, 1237AAD

Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127, (1997) 50 ALD 186; (1997) 26 AAR 385; (1998) 3 SSR 37a; BC9707562
Re Beadle and Director-General of Social Security (1984) 6 ALD 1, (1984) 1 AAR 362

REASONS FOR DECISION

24 February 2005

introduction

1.      Mr Paul Milo is a recipient of the disability support pension (DSP). The Secretary says Mr Milo failed to declare his income from several jobs during the period 27 May 1999 to 21 November 2000. As a result, the Secretary says the applicant was overpaid. A debt has been raised. The applicant disputed the amount of the debt and says it arose as a result of mistakes made by Centrelink. He insists he did keep Centrelink informed of his earnings. He adds that if a debt exists, there are special circumstances that would justify a waiver of the debt.

2.      For reasons I will explain, I am satisfied a debt exists. I am also satisfied there is no basis upon which I can properly waive the debt.

material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following additional documents were also tendered in evidence:

·Supplementary T-Documents (exhibit 2)

·Letter of the respondent dated 8 February 2005, including an annexed letter to Mr Milo (exhibit 3)

·Applicant’s statement of facts and contentions, including a statement of Mr Milo (exhibit 4)

4.      The applicant represented himself and gave evidence. The respondent was represented by Ms Oliver, a Centrelink advocate.

the factual background

5.      Mr Milo suffers from post traumatic stress disorder and depression. He receives DSP. During the period in question he was able to do some part-time work. He worked for four different firms. He says he was aware of his obligation to keep Centrelink informed of his earnings because he knew his income might affect his entitlement. He says he often rang Centrelink’s Maroubra office in particular on its direct line and spoke to officers there. He also attended Centrelink offices (most frequently the Maroubra office) and showed them copies of his pay slips. He says he thought Centrelink officers noted the information he supplied them. He says he was told on a number of occasions that the information did not and would not change anything. He says one of the desk staff at Centrelink’s Maroubra office became exasperated with him and indicated he should leave Centrelink to get on with its job. He says he resolved not to worry about the issue any more after that.

6.      There is no record of these interactions. Mr Milo says that is suspicious. He says his visits and telephone calls to Centrelink officers were not logged. (Telephone calls through Centrelink’s central call centre are logged). But he says he watched staff enter data into the computer on his file when he visited the office on several occasions. No one can explain why there is no record of Mr Milo’s visits.

7.      Mr Milo acknowledged he received a number of letters from the applicant suggesting he was making only $0.03 a year. He agrees he should have taken the letter into the Centrelink office and asked them to explain it. The letters should have rung alarm bells, but he did not take the letter with him on any of what he says were frequent visits. He says he thought taking his pay slips along to the Centrelink office was enough.

8.      The applicant’s income was discovered after data-matching between Centrelink and the Australian Tax Office. A debt in the amount of $5560.97 was duly raised against Mr Milo. An Authorised Review Officer and the Social Security Appeals Tribunal considered and affirmed the decision to raise and recover the debt.

9.      Ms Oliver informed the Tribunal at the commencement of the proceedings that errors had been identified in the calculation of the debt. She explained the correct amount of the debt was $5269.75. She identified the errors and went through the calculations in her letter to the applicant dated 8 February 2005.

10.     The applicant recounted an earlier unhappy experience in relation to a Centrelink debt. The debt had been raised against him on the basis that he had misreported his income. Mr Milo says he was harassed in relation to the debt by Centrelink officers and by a debt collector. He spoke of calling the police to remove a debt collector from his property. The debt was subsequently reduced substantially by an Authorised Review Officer.  Mr Milo says his health was badly shaken by the whole affair and his confidence in Centrelink was shattered. He says he fears his health is suffering as a result of what he says are Centrelink’s latest mistakes.

11.     Mr Milo says he is in straitened financial circumstances – he cannot work – and the condition in respect of which the DSP was awarded is being exacerbated. He says he is unable to cook and clean his home. He has increased his medication in order to cope.

the legislation

12. Section 1223(5) of the Social Security Act 1991 (the Act) said (at the relevant time) any amount paid to the applicant in excess of his entitlement became a debt due to the Commonwealth.

13.     I have reviewed the calculations set out in the letter from Ms Oliver to the applicant dated 8 February 2005. I am satisfied those calculations are correct. It follows I am satisfied there was an overpayment in the amount of $5269.75. That is the amount of the debt due to the Commonwealth.

14. The Act provides the decision-maker may decline to recover the debt in certain circumstances: s 1237. The first provision is s 1237A. It allows waiver of a debt “attributable solely to an administrative error made by the Commonwealth”. Mr Milo said that is what occurred here. I disagree. On his own admission, he could and should have taken the letters he was receiving that indicated he was making $0.03 a year into a Centrelink office to ask officers what they meant. He admitted he misunderstood the import of the letters. He was obviously aware of the potential impact of his earnings on his entitlements. He should have realised Centrelink was continuing to work on the basis of incorrect assumptions about his income.

15.     I am also not satisfied the applicant received the money “in good faith” within the meaning of the section. I do not suggest he was acting dishonestly. The expression “in good faith” has been interpreted widely: see Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 132 ALR 127. It extends to situations where the applicant knew, or should have known, he was not entitled to the money he or she received. Such a person does not receive the money in good faith. Here, Mr Milo knew of the risk his entitlements would be affected. While he says he made efforts to inform Centrelink of his earnings, he ignored the letters which included estimates of income that were plainly wrong. I think he is unable to satisfy the requirements of s 1237A.

16. The right to recover debts may also be waived in the event the applicant can establish he faces “special circumstances”: s 1237AAD. “Special circumstances” are circumstances that are unusual or extraordinary and set the applicant’s case apart from others: see Re Beadle and Director-General of Social Security (1984) 6 ALD 1. I note Mr Milo’s health issues – although these are the very issues in respect of which he is already receiving benefits. I also note his sense of distress in dealing with Centrelink officers. Unfortunately none of these features set Mr Milo’s case apart from many others. It follows I am unable to waive the debt under s 1237AAD.

conclusion

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         Sam J Appleton
  Associate

Date of Hearing   10 February 2005
Date of Decision   24 February 2005

The applicant appeared in person.

The respondent was represented by Ms Oliver.