NADJA ROSSER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 475

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 475

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4135

GENERAL ADMINISTRATIVE DIVISION		)
Re		NADJA ROSSER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date29 June 2009

PlaceSydney

Decision

The decision under review is set aside and in substitution thereof I determine that:

(a)     Mrs Rosser received an overpayment of Carer Payment in the amount of $9,633.96 during the period 14 August 2003 and 2 July 2006; and

(b)     a debt of $9,633.96 is due and payable to the Commonwealth.

..................[sgd]............................

Dr J D Campbell
  Member

CATCHWORDS

SOCIAL SECURITY – carer payment – reporting of Income – reporting of combined income – overpayment – sole administrative error – special circumstances – decision under review set aside

Social Security Act 1991 - sections 8, 1223, 1236, 1237A, 1257AAD

Social Security (Administration) Act 1999 - sections 68, 99, 123

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

REASONS FOR DECISION

29 June 2009 Dr J D Campbell, Member

1.      Mrs Rosser was born in Yugoslavia in 1968. Mrs Rosser arrived in Australia in 1995 as a refugee from the Bosnian crisis. Mrs Rosser married Mr Rosser in 1996.

2.      Mrs Rosser lodged a claim for carer payment on 25 July 2003. The claim was granted on 16 September 2003, with date of effect being 30 July 2003. Combined regular fortnightly income was noted as $501.90, with the letter of approval of claim forwarded to Mrs Rosser stating that she was to contact Centrelink if the combined income of her and her partner has changed (ST2 p309).

3.      Mrs Rosser received similar letters from Centrelink on 27 November 2003, 6 December 2003, 30 December 2003, 31 December 2003, 8 March 2004 and 1 April 2004, in which she was told that she had to contact Centrelink if the Combined fortnightly income had changed from $501.90.

4.      Further, Centrelink forwarded letters to Mrs Rosser on 14 July 2004 and 26 July 2004 in which she was told that she had to contact Centrelink if the Combined regular fortnightly income exceeded $881.56.

5.      On 22 September 2004, 15 December 2004, 9 March 2005, 3 June 2005 and 5 September 2005, Centrelink wrote to Mrs Rosser nominating that she was to report combined fortnightly income for her and her partner each fortnight, otherwise payment of the carer payment would not be paid.

6.      On 27 January 2006 Centrelink advised Mrs Rosser that carer payment for the fortnight 12 January 2006 to 25 January 2006 due on 31 January 2006 would be $260.77 and thereafter $357.87 from 10 February 2007, as the combined regular fortnightly earnings were $570.00. Further, Centrelink stated that Mrs Rosser was to inform Centrelink if the combined regular fortnightly income was to change (ST18).

7.      On 8 February 2006, Centrelink informed Mrs Rosser that she did not have to inform Centrelink of her and Mr Rosser’s combined fortnightly income every two weeks, but that she was to inform them of any changes to such income amounts within 14 days (ST19).

8.      Following a review of the carer payment by Centrelink which involved collecting work details and payment from employers of Mr and Mrs Rosser, and data matching with taxation returns, Centrelink determined on 23 February 2007 that Mrs Rosser had been overpaid carer payment in the amount of $9,633.96 during the period 14 August 2003 and 2 July 2006 (T17). The overpayment and resultant debt was reconsidered on 20 March 2007, and referred to an Authorised Review Officer (ARO) (T19).

9.      On 9 May 2007 the ARO affirmed the decision and in so doing concluding that there had been a consistent under-reporting of combined income, that there was no sole administrative error and that there was not sufficient evidence to warrant a finding of special circumstances (T20).

10.     On 27 March 2008 the Social Security Appeals Tribunal (SSAT) set aside the decision of the ARO and sent the matter back for reconsideration in accordance with directions that:

(a)      there is a debt;

(b)      $2,000 of the debt is to be waived;

(c)       the balance is to be recovered.

11.     In so finding, the SSAT were satisfied that Mrs Rosser did not knowingly fail to tell Centrelink as required regarding her income and Mr Rosser’s income, that the overpayments were not solely due to administrative error, but that Centrelink did contribute to the errors by failing to note the obvious inconsistencies between the annual income notified by Mrs and Mr Rosser for family tax benefits and the fortnightly combined income nominated for carer payment.

ISSUES

12.     The relevant issues in this matter are:

(a)Was there an overpayment of carer payment to Mrs Rosser between 14 August 2003 and 2 July 2006?

(b)Did this overpayment amount to $9,633.96 and is it a debt due and payable to the Commonwealth?

(c)Did the overpayment and debt arise as a consequence of sole administrative error by the Commonwealth?

(d)In the event of sole administrative error did Mrs Rosser receive the payments that constituted the overpayment in good faith?

(e)Did the debt arise from Mrs Rosser knowingly make a false statement or failing or omitting to comply with a provision of the Act or the Social Security (Administration) Act 1999?

(f)Do special circumstances exist (other than financial hardship alone) that make it desirable to waive all or part of the debt, it being more appropriate to waive than write off the debt?

FURTHER EVIDENCE

13.     Mrs Rosser is a psychologist, having graduated from University and learning English since she arrived in Australia in 1995. There are two school aged children and Mrs Rosser continues to work full time for the Illawarra Aboriginal Medical Services, with an income in excess of $70,000. The medical issues surrounding her mother remained unchanged until her death in 2008.

14.     Mrs Rosser admitted that she made an error when she mistakenly informed Centrelink of her weekly earnings as being her fortnightly earnings when she became employed by the Aboriginal Medical Services over the period in question, and that she continued the error through the whole of the period in question.

15.     Mrs Rosser stated that she was particular in reporting the combined fortnightly earnings of her and Mr Rosser over the period, and that initially she would walk in and tell them and later phoned the earnings each fortnight. Importantly Mrs Rosser stated that when she changed her hours of work upwards, which occurred on three occasions, she went to Centrelink and showed them the salary advices (payslips) from the workplace.

16.     Further, Mrs Rosser stated that their estimate of combined annual income for family tax benefits over the period in question had always been relatively accurate.

17.     Mrs Rosser acknowledged that she had received many letters during the period from Centrelink with each of the letters nominating a responsibility on her part to notify Centrelink within 14 days of any change in the combined regular fortnightly income of her and her husband. Mrs Rosser acknowledged that she did not read such letters in detail, with the nominated combined fortnightly income not necessarily noted, as she believed she was reporting correctly.

18.     Mrs Rosser also addressed on how diligent she had been in reporting fortnightly and considered Centrelink should bear some responsibility for not correcting her mistake, in light of the fact that she believes she took her payslips on three occasions (each time associated with a change of hours worked) and showed them to Centrelink. Mrs Rosser was also mindful that when Centrelink made a mistake (computer error) and sent them notice of an overpayment of an amount of many thousands of dollars, which was received on a Friday, any subsequent apology by Centrelink was hollow in the light of the stress such an incident caused her. This, Mrs Rosser contrasted with some of the communications (oral) she has received during the current overpayment matter.

19.     Mr Rosser detailed that he has a number of employers, and that his employment with the University of Wollongong was of a permanent casual nature. During the period his fortnightly salary was subject to variability which was even more complicated by a salary process which appeared to have both an arrears and advance component. Mr Rosser estimated his current annual income at in excess of $55,000.

20.     Mr Rosser stated that he provided his fortnightly income figure to his wife as he understood it to be. He acknowledged the fortnightly salary payments provided by the university for years 2004, 2005 and 2006 at T9 p84. Mr Rosser was unable to explain the inconsistencies in the non-reporting by Mrs Rosser of any income for Mr Rosser during the fortnightly periods nominated in tracks one through six of the Centrelink Interaction Voice Response System, extracts of such recordings being before the Tribunal and the earnings listed by the University of Wollongong as payments made to Mr Rosser during the similar nominated periods (T9 p84).

21.     Mr Rosser stated that he had much difficulty in working out his fortnightly earnings from the University of Wollongong, both because of his variable hours and the nature of the pay system. Further, Mr Rosser acknowledged that he did not necessarily read and focus his attention on letters received from Centrelink to the extent that he was aware of the combined fortnightly income inconsistencies.

CONSIDERATION AND FINDINGS

22.     Mrs Rosser and Mr Rosser both considered that there had been elements of unfairness in the assessment of this matter by Centrelink. Such elements have been documented earlier as matters raised in their evidence.

23.     I am mindful that as far as both parties in this matter are concerned, it is easy to be critical of the respective behaviours in hindsight. In this decision I shall attempt to be constructively critical.

24. Having reviewed all the material before me, I am satisfied that there was an overpayment of carer’s payment to Mrs Rosser during the period 14 August 2003 and 2 July 2006. The overpayment during this period amounted to $9,633.96 and pursuant to section 1223(1) of the Social Security Act 1991 this amount is a debt due and payable to the Commonwealth. I note that Mrs Rosser does not dispute the calculations of the amount of the debt.

25.     I acknowledge the admission by Mrs Rosser that despite her best intentions to notify fortnightly combined income for her and her partner, she made mistakes by erroneously reporting her weekly earnings as fortnightly earnings, and for wrongly reporting her husband’s earnings as nil during various fortnightly periods in November and December 2005, when clearly documentary evidence from the University of Wollongong nominates particular earnings amounts for Mr Rosser.

26.     I also note that while Mrs Rosser was attentive to fortnightly notification of erroneous fortnightly combined income during the period, neither she nor Mr Rosser were attentive to perusing Centrelink letters forwarded to her, which clearly detailed what fortnightly income was recorded by Centrelink and what responsibilities were incumbent on Mrs Rosser if such fortnightly earnings changed.

27.     I note that section 1237A(1) of the Act states that a right to recover the proportion of the debt that is attributable solely to an administrative error made by the Commonwealth must be waived provided that the debtor received such payments in good faith. From what I have outlined in the previous two paragraphs, I conclude that the errors made by Mrs Rosser in reporting the fortnightly combined earnings contributed to the situation in which overpayments occurred. I find that in the circumstances of this matter the debt cannot be solely attributable to the Commonwealth. I note that Mrs Rosser does not dispute such a finding. In such circumstances it is unnecessary to further traverse other aspects of the section referred to earlier.

28.     Section 1237AAD of the Act permits the debt or part of the debt to be waived in the following circumstances:

·the debt did not arise wholly or partly from the debtor knowingly making a false statement or false representation or failing or omitting to comply with a provisions of the Social Security Act 1991 or the Social Security (Administration) Act 1999, and

·there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

·it is more appropriate to waive than write off the debt or part of the debt.

29. I note that a debt may be written off pursuant to section 1236(1) of the Social Security Act 1991. Careful examination of the circumstances nominated which permit such writing off are not present in this matter. In so stating I find that the debt is not irrecoverable at law, the debtor has a capacity to repay the debt, the debtor’s whereabouts are known and it is cost effective for the Commonwealth to recover the debt. Accordingly, the circumstances of the matter do not permit me to conclude that the debt can be written off.

30.     In addressing the issue of special circumstances I am mindful of Justice Toohey’s comments in Re Beadle and Director-General of Social Security (1984) 6 ALD 1:

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 the descriptions must depend on the context in which they occur …… 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 unique.

31.     While Mr and Mrs Rosser have two school age children, and a sizeable mortgage, both have had and continue to have annual employment earnings in excess of $50,000. While expenditure may have to be managed, no evidence was forthcoming to suggest significant financial constraints. Further, while Mrs Rosser had a history of being a refugee, her ability to assimilate, learn English and complete a University degree in psychology, as well as having two children and caring for her mother and being employed over the last six years is to be commended, there is no definition of circumstances in their life environment which could be considered unusual or uncommon.

32.     In considering the circumstances of her interaction with Centrelink during the period in which the debt accumulated, my attention was directed to two issues, namely the failure of Centrelink to properly advise and correct misreporting errors in the light of estimates given annually for family tax benefits and the presentation by Mrs Rosser of the salary payslips to Centrelink, each given at a time that Mrs Rosser had an increase in the number of hours worked.

33.     Centrelink advised during the hearing that the annual estimates of income for family tax benefits are given particularly for that purpose as defined within the Act, and because of their particularity are not referenced when considering other payments, such as carer payments. In relation to the payslips issue, Centrelink have no record of such payslips being tendered to Centrelink. Further, Centrelink contended that the nature of the error made by Mrs Rosser, her failure to read in full Centrelink letters forwarded to her on many occasions and report changes in the combined fortnightly income of her and Mr Rosser, as well as incorrectly reporting a nil fortnightly income for her husband on a number of occasions in November/December 2005 nullify any administrative error in relation to the payslip presentation – an error that they do not necessarily admit.

34.     In this matter I have defined the context in which the circumstances that gave rise to the overpayments occurred.  I consider that the circumstances outlined do not have a particular quality of unusualness and I find that such do not constitute special circumstances.

35.     Finally, and without dwelling on the issue, there is material before me which clearly defines that Mrs Rosser did not comply with notices sent to her, which required her to advise Centrelink if there was a change in the regular combined fortnightly income of her and Mr Rosser. In so stating I acknowledge that Mrs Rosser had been advising by mistake an incorrect amount, but nevertheless more attention to notices sent by Centrelink may well have brought focus and resolution to the misunderstanding held by Mrs Rosser. Finally I remain at a loss to understand the incorrect reporting of her husband’s income by Mrs Rosser in November and December 2005, for clearly her husband was earning fortnightly amounts and she was reporting such as nil.

36.     In the circumstances of this matter and for the reasons outlined I find that no relief to Mrs Rosser can be afforded under section 1237AAD of the Act. In such circumstances the debt of $9,633.96 remains due and payable.

37.     The decision under review is set aside and in substitution thereof I determine that:

(c)Mrs Rosser received an overpayment of Carer Payment in the amount of $9,633.96 during the period 14 August 2003 and 2 July 2006; and

(d)a debt of $9,633.96 is due and payable to the Commonwealth.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: ...............[sgd]...............................................................
  Associate

Date of Hearing  19 June 2009
Date of Decision  29 June 2009
Appearance for the Applicant        Self-represented

Appearance for the Respondent    Ms P Lee, Centrelink Legal Services and Procurement Branch