Moore and Department of Family and Community Services
[2000] AATA 750
•31 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 750
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/25
GENERAL ADMINISTRATIVE DIVISION )
Re JAMES MOORE
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION AND ORAL REASONS FOR DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date31 July 2000
PlaceBrisbane
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – overpayment – Department not advised of commencement of work immediately – whether special circumstances existed to allow waiver of all or part of debt – decision affirmed
Social Security Act 1991 s 1223(5), 1224, 1237AAD
Secretary, Department of Education, Training and Youth Affairs v Prince NG 338 of 1997
ORAL REASONS FOR DECISION
31 July 2000 Miss WJF Purcell (Senior Member)
This is an application for the review of a decision of the Social Security Appeals Tribunal (the SSAT) of 14 December 1999 which decided that the decision of an Authorised Review Officer of 21 October 1999 should be affirmed. The Authorised Review Officer decided that the applicant had been overpaid Youth Allowance in the amount of $226.77 for the period 5 February 1999 to 5 March 1999.
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 an exhibit tendered by the respondent (the department). The applicant did not attend the Hearing, and his father telephoned the Tribunal this morning to advise that his son would not be attending, that he did not wish the matter to be adjourned but to proceed and that this applicant had nothing further to add to what was already in the T documents. The Hearing proceeded in the applicant's absence. Ms Dwyer represented the department.
The applicant, who was born on 23 October 1980, was in receipt of Youth Allowance, when on 13 January 1999 the Department forwarded a letter advising him that he must contact it if he commenced paid employment. He filled in an application for Youth Allowance on 19 March 1999, and answered questions relating to the period 26 December 1998 to 19 March 1999. He stated that he had not commenced any permanent full-time work but ticked the "yes" box at question 6 which related to part-time casual temporary work and wrote "See letter". The letter reads in part as follows:
"I phoned your office to advise you I was able to get some part-time/casual work.
I worked for Acme Jordan for approximately five weeks from 03/02/99 to 05/03/99. My pay was as follows: 132 hours, gross pay $1127.13.
On 08/03/99 I began a traineeship at Bremmer TAFE. Please contact me if you require any further information…..NB. Could you please advise me if I will still be eligible for a Health Care Card. My pay from my traineeship will be $510 per fortnight before tax."
The Australian Tax Office data matching revealed that the applicant had been employed by Acme Jordan and Labour Linq Pty Ltd during the period, 26 December 1998 to 19 March 1999. The Department wrote to Labour Linq Pty Ltd to ascertain details of the applicant's employment, and the company replied that the applicant had worked for five hours on 29 January 1999 and also on 11 February 1999, a total of 10 hours for gross pay of $117.80. Acme Jordan's letter detailed the applicant's gross pay in accordance with his letter to the Department.
Payment of Youth Allowance to the applicant for the period 5 February 1999 to 5 March 1999 was made without regard to his income from employment. On 25 May 1999 the applicant was advised that an overpayment of Youth Allowance of $226.77 had been raised. He requested review of the decision, and on 12 August 1999 the manager Centrelink affirmed the decision, and on 21 September 1999 an Authorised Review Officer affirmed the decision. The applicant applied for review to the SSAT which affirmed the decision on 14 December 1999.
The applicant applied to this Tribunal for review of that decision and his letter in support of his application reads in part as follows:
"To begin with I was receiving Youth Allowance for approximately six months and in early February I began a casual job with Acme Jordan Furniture. On the first day of this job I went to Centrelink, Ipswich office, and advised the person at the desk I was now working. The lady told me she had stopped my payment and it was all okay. I went back to Centrelink one week later and was told the payment had been stopped. Almost six weeks later I received a letter from Centrelink stating I owed them $226.77. I don't believe I owe Centrelink this money. I believe I have done the correct thing my notifying Centrelink not once but twice."
The Department submits that the Centrelink records do not indicate any contact by the applicant during the subject period. The first record of any contact is 4 March 1999. The Department contends therefore, that a recoverable debt of Youth Allowance in accordance with section 1224 of the Social Security Act 1991 (the Act) has arisen. In the alternative, the Department contends that a debt arises pursuant to section 1223(5) of the Act, as the correct rate of Youth Allowance was not paid to the applicant. Section 1223 of the Act as far as is relevant for the purposes of this review provides:
"1223.(5) If:
(a)an amount (the received amount) has been paid to a person by way of social security payment on or after 1 October 1997; and
(b)because the received amount had not been correctly calculated using the relevant rate calculator, or for any other reason, the received amount is greater than the amount (the correct amount) of social security payment that should have been paid to the person;
the difference between the received amount and the correct amount is a debt due to the Commonwealth."
The Department contends further, that the debt cannot be waived in accordance with section 1237A of the Act, as no administrative error has occurred. The customer record access monitor report and the receipt numbers, do not evidence any contact by the applicant. In the alternative, if the Tribunal was to accept that the debt was caused solely by administrative error, the Department maintains that it would still need to be established that the payments were received in good faith.
The Department argues also that the applicant's claim that he contacted Centrelink one week after he commenced work indicates that he knew he was not entitled to receive Youth Allowance whilst he was working and it cannot be said that he received the payment in good faith if he was aware that he was not entitled to receive the payment. The Department relies on the decision in Secretary, Department of Education, Training and Youth Affairs v Prince. It contends finally that there are no special circumstances in this matter which would warrant the application of section 1237AAD of the Act to waive recovery of the debt. Section 1237 of the Act as far as is relevant for the purpose of this review provides:
"Waiver in special circumstances
1237AAD. 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."
I have examined the whole of the evidence, carefully and in detail, and I have taken into account the applicant's letter in support of his application for review, and the Department's submissions. On the whole of the evidence, I see no reason to disturb the decision of the SSAT. The evidence does not disclose that the applicant contacted the Department as he claims, but, in any event, even had he contacted the Department, he received a payment to which he was not entitled, and to which he knew he was not entitled. The amount of the overpayment is a debt due to the Commonwealth and, as such, recoverable.
There is, in my view, no administrative error on the part of the Department, and, even if there was, the applicant did not receive the money in good faith, in my view. Having examined the whole of the evidence, I see no circumstances which could be regarded as special circumstances such that the exercise of discretion under section 1237AAD of the Act would be appropriate.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 31 July 2000
Date of Decision 31 July 2000
Applicant Non appearance
For the Respondent Ms J Dwyer, Departmental Advocate
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