Mottahedin and Secretary, Department of Education, Employment and Workplace Relations and Anor

[2008] AATA 122

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 122

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2007/2962

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAIMAN MOTTAHEDIN

Applicant

And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondents

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:15 January 2008

Place:Melbourne

Decision:

For reasons given orally at the hearing the Tribunal:

1.        sets aside the decision under review dated 22 June 2007 and substitutes a decision that the applicant has a newstart allowance debt of $157.40 in respect of the period 29 July 2004 to 8 September 2004; and

2.        in all other respects affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY – family tax benefit – parenting payment single – austudy payment – newstart allowance – overpayment – debt to Commonwealth – waiver – whether special circumstances

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999 ss 71(2), 101, 71(2)

Social Security Act 1991 ss 17(1)(c), 503, 643, 1068, 1068A, 1184K(1), 1184I, 1223(1), 1067L, 1237AAD, 1173(4)

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

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

REASONS FOR DECISION

15 January 2007 G.D. Friedman, Senior Member

1.        Paiman Mottahedin received parenting payment single (PPS), newstart allowance (NSA), family tax benefit (FTB) and austudy payment.  Centrelink decided:

• on 28 November 2003 that Mr Mottahedin had incurred a FTB debt of $221.76 for the period 11 October 2003 to 7 November 2003;
• on 26 November 2005 that he had incurred NSA debts of $1,098.50 for the period 29 July 2004 to 8 September 2004, and $735.58 for the period 12 February 2005 to 8 April 2005;
• on 26 November 2005 that he had incurred a PPS debt of $2,577.51 for the period 4 January 2003 to 2 January 2004; and
• on 3 November 2006 that he had incurred an austudy debt of $575.61 for the period 5 February 2002 to 30 May 2002.

Mr Mottahedin sought review of these decisions by the Social Security Appeals Tribunal.  On 22 June 2007 the SSAT decided that the NSA debt of $1,098.50 should be recalculated and affirmed the remaining decisions under review.  Centrelink subsequently recalculated this NSA debt to be $157.40.  On 5 July Mr Mottahedin sought review of the SSAT decision by this Tribunal.

ISSUE

2.        The issues before the Tribunal are whether debts to the Commonwealth arise from the overpayments and, if so, whether the debts should be waived.

WAS THERE AN OVERPAYMENT OF FTB?

3. Schedule 1, Part 2, Division 3 Clause 3 of the A New Tax System (Family Assistance) Act 1999 (FA Act) provides that a person can be paid rent assistance as a component of FTB if the person has at least one rent assistance child and the person pays rent (other than Government rent).

4.        On 14 November 2003 Mr Mottahedin told Centrelink that he had ceased paying private rent on 11 October 2003 as he had purchased and moved to a unit in Frankston.   As Mr Mottahedin continued to receive rent assistance until 7 November 2003, Centrelink determined that he was overpaid rent assistance in the amount of $221.76.  Mr Mottahedin acknowledged to the Tribunal that he did not notify Centrelink until a month after he ceased paying rent.

5. The Tribunal finds that Mr Mottahedin was overpaid FTB in the amount of $221.76 for the period 11 October 2003 to 7 November 2003. Under s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (FA Admin Act) the Tribunal finds that this amount is a debt owed to the Commonwealth.

WERE THERE OVERPAYMENTS OF NSA AND PPS?

6. Section 643 of the Social Security Act 1991 (the Act) provides that a person’s rate of NSA is calculated using the rate calculator at s 1068 of the Act. Section 503 of the Act provides that a person’s rate of PPS is calculated using the rate calculator at s 1068A of the Act. A person’s income must be taken into account in determining the both the rate of NSA and PPS.

7.        Mr Mottahedin told the Tribunal that he worked for Latimer Taxis during the periods in question.  He submitted that the employment income records from Latimer Taxis should not be the records relied upon to calculate his income.  He said that the company’s records did not reflect a true version of his earnings or the work he performed as they did not take into account factors including daily insurance fees, people who refused to pay their fare and superannuation.  He said that the company did not issue him with group certificates.  He said it was very hard to calculate his income on a daily or weekly basis and he had to give estimates of his income to Centrelink.

8.        The Tribunal takes into account Mr Mottahedin’s submission regarding the accuracy of Latimer Taxi’s employment income records however is satisfied that these are the records that should be used in the calculation of the debts.  In evidence to the Tribunal Mr Mottahedin said that he had difficulty in maintaining accurate records and calculating his income.  The Tribunal is not satisfied that Mr Mottahedin has a more accurate record of income than the company he worked for.

9. The Tribunal finds that Mr Mottahedin was overpaid NSA in the amount of $157.40 for the period 29 July 2004 to 8 September 2004, and $735.58 for the period 12 February 2005 to 8 April 2005. The Tribunal also finds that Mr Mottahedin was overpaid PPS in the amount of $2,577.51 for the period 4 January 2003 to 2 January 2004. Under s 1223(1) of the Act the Tribunal finds that these amounts are debts owed to the Commonwealth.

WAS THERE AN OVERPAYMENT OF AUSTUDY PAYMENT?

10. Section 1067L of the Act provides that a person’s ordinary income must be taken into account in determining the rate of austudy payment. Section 1173(4) of the Act states:

1173(4) If:

(a)  a person receives periodic compensation payments; and

(b)  at the time of the event that gave rise to the entitlement of the person to compensation, the person was qualified for, and was receiving, a compensation affected payment; and

(c)   the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;

the periodic compensation payments are to be treated as ordinary income of the person for the purposes of this Act.

Austudy payment is a compensation affected payment under s 17(1)(c) of the Act.

11.      Mr Mottahedin acknowledged that he received weekly compensation payments in the period from 5 February 2002 to 12 July 2002 from CGU Insurance following an accident on 18 January 2002 and that he was receiving austudy during this time.

12.      Mr Mottahedin claims he told Centrelink about the compensation in March or April 2002 when he attended the Dandenong office.  Centrelink has no record of this visit and the authorised review officer maintains that Centrelink was first informed of the compensation payments on 4 June 2002.

13. The Tribunal finds that Mr Mottahedin was overpaid austudy payment in the amount of $575.61 for the period 5 February 2002 to 30 May 2002. Under s 1184I of the Act the Tribunal finds that this amount is a debt owed to the Commonwealth.

ARE THERE SPECIAL CIRCUMSTANCES TO WARRANT WAIVER OF THE DEBTS?

14. Section 1237AAD of the Act allows for waiver of a debt due if there are special circumstances (other than financial hardship alone) that make it desirable to do so. A similar provision exists in s 101 of the FA Admin Act. Section 1184K provides for a decision maker to disregard all or part of a compensation payment if it is appropriate to do so in the special circumstances of the case.

15.      Mr Mottahedin told the Tribunal that his circumstances are unusual because he has severe medical problems.  In a letter dated 8 January 2008 Dr I. Katz, consultant psychiatrist, reported that Mr Mottahedin suffers from a severe melancholic depressive illness.  In a letter dated 3 May 2007 Dr R. Korman stated that Mr Mottahedin has symptoms of anxiety including insomnia, palpitations, constant worrying, great tiredness, difficulty concentrating and panic attacks.

16.      Mr Mottahedin also told the Tribunal that he believes that Centrelink should have raised the debts a lot earlier and should have taken appropriate steps at the time to recover the debt instead of taking steps at this late stage.  He believes he should not have to repay the money now, particularly as he is in a difficult financial position. 

17.      He said he is not able to work and still has $3,000 of an earlier debt to repay.  He also referred to his mortgage payments of $335 per fortnight and he said that he receives $435 per fortnight in NSA and has been relying on charities for food and clothing.

18.      Mr Mottahedin also said that he is unable to assist his children, particularly his son Nathan who is studying at university.  He said he would like to assist his son and thinks he would be able to if the debts were waived.

19.      In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal held that the special circumstances must be unusual, uncommon or exceptional so as to distinguish the case under review from the usual case.  In Groth v Department of Social Security (1995) 40 ALD 541 the Federal Court held that special circumstances would require something to take the case …out of the usual or ordinary case. 

20.      In Angelakos v Secretary Department of Employment and Workplace Relations [2007] FCA 25 the Federal Court stated:

…There is less overstatement if the words “unusual” or ‘uncommon’ are emphasised.  Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary usual case…

21.      The Tribunal accepts Mr Mottahedin’s evidence that he did not knowingly fail to meet his obligations under the legislation or knowingly make false statements.

22.      The Tribunal takes into account the medical evidence provided by Dr Katz and Dr Korman and accepts that Mr Mottahedin has medical issues that prevent him from currently working but that his aim is to get back to employment when he is able to.  The Tribunal also accepts that he is in a difficult financial position and would like to be in a position to assist his children, however notes that he owns a significant asset, that being his unit in Frankston.  The Tribunal acknowledges that he has a mortgage over this property. 

23.      The Tribunal is not satisfied that there is anything in the behaviour of Centrelink that would suggest that the circumstances should be judged as special.  Although Centrelink took some time to finalise the debts, this is not unusual and does not warrant waiver of the debts under special circumstances. 

24.      Taking into consideration all the matters raised by Mr Mottahedin the Tribunal finds that his situation, while difficult, is not out of the ordinary or uncommon.  The Tribunal is not satisfied that his circumstances constitute special circumstances. Therefore, the waiver provisions of s 1237AAD and s 1184K of the Act; and s 101 of the FA Admin Act do not apply.

DECISION

25.      For reasons given orally at the hearing the Tribunal:

1.sets aside the decision under review dated 22 June 2007 and substitutes a decision that the applicant has a newstart allowance debt of $157.40 in respect of the period 29 July 2004 to 8 September 2004; and

2.        in all other respects affirms the decision under review.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Date of hearing:  15 January 2008

Date of decision:  15 January 2008
Advocate for the applicant:          Self-represented

Advocate for the respondent:      Mr M. Pike, Centrelink Legal Services