NAMMALA and SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 766
•7 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 766
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3195
GENERAL ADMINISTRATIVE DIVISION ) Re NANTAVAN NAMMALA Applicant
And
SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date7 October 2010
PlaceSydney
Decision The decision under review is affirmed.
................[sgd]..............................
Ms N Bell, Senior Member
CATCHWORDS – Social Security – Newstart Allowance – disability support pension – compensation preclusion period – administrative error – special circumstances – incorrect legal advice – English skills
Social Security Act 1991
Angelakos v Secretary, Dept of Employment and Workplace Relations (2007) 100 ALD 9
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Hajar v Secretary, Department of Social Security (1988) 16 ALD 716
Re Alexakis and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 158
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Colaiacolo & Secretary, Department of Social Security (unreported, 24 April 1985)
Re Davy and Secretary, Department of Employment and Workplace Relations (2007)
94 ALD 693Re Hollis and Secretary, Department of Employment and Workplace Relations
[2006] AATA 4Re Ivovic and Director-General of Social Services (1981) 3 ALN N 95
Re Mosarevski and Secretary, Department of Social Security (unreported, SM Handley,
2 February 1996)Re Nadjovska and Secretary, Department of Social Security (1998) 54 ALD 184
REASONS FOR DECISION
Ms N Bell, Senior Member 1. Ms Nantavan Nammala, who migrated to Australia from Thailand in 1995, was employed as a cleaner from September 2005 until September 2006 when she left work because of pain in her right arm and elbow. She was granted Newstart Allowance in November 2006 and then was granted disability support pension in August 2007.
2. On 8 March 2008, Ms Nammala began to receive weekly payments of workers compensation, including lump sums for arrears. She telephoned Centrelink a few days after receiving her first workers compensation and told Centrelink she had commenced to receive workers compensation. He disability support pension was reduced. She continued to receive weekly compensation payments until October 2008.
3. Centrelink has raised a debt of $10,508.29 of overpayment of Newstart Allowance and a debt of $5125.48 of overpayment of disability support pension. The debt of overpayment of disability support pension was reduced to $4,771.89 by the Social Security Appeals Tribunal which otherwise affirmed Centrelink’s decision to raise and recover the debts.
4. Ms Nammala does not dispute the debts but contends that they should not be recovered. Ms Nammala contends, first, that they are attributable solely to administrative error by the Commonwealth and, second, that her circumstances constitute special circumstances that make it desirable to waive recovery of the debts.
5. The Secretary contends that there was no administrative error made by the Secretary and that Ms Nammala’s circumstances do not constitute special circumstances within the meaning of the Social Security Act 1991.
6. It follows that the issues for me to consider are:
(a)Is all or part of Ms Nammala’s debt attributable solely to administrative error made by the Commonwealth?
(b)Do Ms Nammala’s circumstances constitute special circumstances that make it desirable to waive recovery of the debt?
Is all or part of Ms Nammala’s debt attributable solely to administrative error made by the Commonwealth?
7. Sections 1237A(1) and 1237A(1A) of the Social Security Act 1991 provides:
Waiver of debt arising from error
Administrative error
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
(1A) Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
8. Ms Nammala identified the relevant administrative error as the confusing nature of a question about compensation on the Newstart Allowance claim form and the delay by Centrelink in investigating Ms Nammala’s compensation claim once it was appraised of it.
9. In relation to the Newstart form, Ms Nammala contended, via a submission made on her behalf by Legal Aid NSW, the question on the claim form asked “Are you able to claim compensation?” In her statement of 28 May 2010, Ms Nammala said she found this question difficult to interpret and asked her friend, an Australian man who speaks Thai, for guidance. She said he told her “You haven’t received any compensation money and you don’t know whether you are going to receive any money so the answer is ‘no’”.
10.
However, when questioned by the Tribunal and in cross examination,
Ms Nammala said that when claiming Newstart Allowance she attended an interview at a Centrelink office, accompanied by her English speaking friend, and also by a Thai interpreter.
11. When it was put to Ms Nammala that she had not completed a paper claim form and that, rather, she had met with an officer who had asked her questions and entered her answers on a computer, she said she could not remember. When it was put to her that at the end of the interview the officer gave her a claim form to sign, she agreed it was her signature on the document contained in the T documents beginning at page 72 and that the form says “I have no reason to claim compensation”. I note that the form is initialled by her on that page.
12. I also note that Ms Nammala’s statement dated 28 May 2010 says that when she attended the Centrelink office in November 2006 she took her English speaking friend with her and because she had his help she did not ask for an interpreter. She stated in this statement that the question about compensation said “Do you have reason to claim compensation?”
13. In a written submission made, on Ms Nammala’s behalf, by Legal Aid NSW, who did not represent Ms Nammala at the hearing, the Tribunal is referred a decision of the Social Security Appeals Tribunal in which that tribunal found that a question that required a claimant for family tax benefit to assess her legal entitlement to that benefit amounted to administrative error.
14.
I note that an online document recording archive records both an initial contact and a staff assisted interview on 8 November 2008 for which a Thai interpreter was requested. I also note that the version of the claim form as at
8 November 2008, a copy of which was provided to the Tribunal by the Secretary, includes the following at question 13 on page 18:
13. Have you claimed, or are you entitled to claim, compensation or damages from an accident, illness or injury?
15. The form provides for the completion of one of two boxes ‘No’ or ‘Yes’. The latter for which the following notation is provided:
You will need to complete and attach a Compensation and damages form (Mod C). If you do not have this form, call Centrelink…or go to our website….
16. I am satisfied that Ms Nammala attended an interview at Centrelink to make her claim for Newstart Allowance and that she had the benefit of a Thai interpreter at that interview. I am also satisfied that the question she was asked about compensation was: “Do you have reason to claim compensation?” I am also satisfied that Ms Nammala had the benefit of Centrelink staff assistance and a Thai interpreter in the interview and that the information she gave about compensation was: “I have no reason to claim compensation.”
17. I find no administrative error arising out of these events. In addition, I note that Centrelink wrote to Ms Nammala on a number of occasions to advise her of her obligation to inform Centrelink if she may receive compensation and, later, whether she had claimed compensation. Ms Nammala did not so advise.
18. In addition, at the time Ms Nammala lodged her claim for disability support pension she had already claimed compensation, yet she did not answer the question asking whether Centrelink held details of her possible claim or possible entitlement to claim compensation.
19. In relation to delay on the part of Centrelink, Ms Nammala notified Centrelink on 12 March 2008 that she began to receive weekly payments of compensation. This was confirmed by the insurer on 13 March 2008. The insurer also advised Centrelink that the applicant had received no lump sums. Ms Nammala did not advise Centrelink that she had received a lump sum. I note her evidence that she received an amount of approximately $15,000 as one or more lump sums. Centrelink had no information about lump sums until 2 October 2008 when the insurer advised Centrelink that lump sum payments had been made. I note that the debts were raised against Ms Nammala in December 2008. I also note that Centrelink had reduced the rate of Ms Nammala’s disability support pension very soon after it was advised by her in March 2008 that she was receiving weekly compensation payments. Her debt arises out of the lump sum payments of arrears of compensation she received but failed to tell Centrelink about. These arrears relate to the period from October 2006 to February 2008.
20. I find no delay on the part of Centrelink that could be characterised as administrative error.
21. Because Ms Nammala did not advise Centrelink when she claimed compensation, or that she could claim compensation, Centrelink was unable to alert the insurer to its interest in the matter and was therefore not refunded the payments it had made to Ms Nammala over the period for which she received a compensation lump sum.
22.
The debts are attributable to Ms Nammala’s failure to advise Centrelink and not to any error on Centrelink’s part either through the questions asked of
Ms Nammala or through delay.
Do Ms Nammala’s circumstances constitute special circumstances that make it desirable to waive recovery of the debt?
23. Section 1237AAD of the Act provides:
Waiver in special circumstances
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 a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration 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.
Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt.
24. The term “special circumstances” is not defined in the Act, but it has been considered extensively by the Federal Court and by the Tribunal. See Re Beadle and Director-General of Social Security (1984) 6 ALD 1; Groth v Secretary, Department of Social Security (1995) 40 ALD 541; Re Ivovic and Director-General of Social Services (1981) 3 ALN N 95; Angelakos v Secretary, Dept of Employment and Workplace Relations (2007) 100 ALD 9; and Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693.
25.
Ms Nammala, and Legal Aid NSW on her behalf, raised a number of matters that, it was submitted, amounted to special circumstances. These included incorrect legal advice, poor English skills, the manner in which the overpayment arose,
Ms Nammala’s financial circumstances and her ongoing health problems.
26. Ms Nammala said in her statement that she had told her solicitor for her workers compensation claim that she was in receipt of Newstart Allowance but that he had not advised her of the need to report her claim to Centrelink or of the effect of compensation payments on her social security benefits. She said she only reported her compensation payments to Centrelink because a friend advised her to do so.
27. The Tribunal was referred to the decision in Re Nadjovska and Secretary, Department of Social Security (1998) 54 ALD 184 in which it was held that incorrect legal advice could be a factor in establishing special circumstances.
28. I note that the Tribunal has decided differently in a number of subsequent matters. See Re Mosarevski and Secretary, Department of Social Security (unreported, SM Handley, 2 February 1996); Re Hollis and Secretary, Department of Employment and Workplace Relations [2006] AATA 4; Re Alexakis and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 158; Re Colaiacolo & Secretary, Department of Social Security (unreported, 24 April 1985); and Hajar v Secretary, Department of Social Security (1988) 16 ALD 716.
29.
In any event, I am mindful that Ms Nammala was advised by Centrelink on a number of occasions to tell it if she may claim or had claimed compensation. I have only Ms Nammala’s evidence that her solicitor did not advise her about the need to tell Centrelink about her compensation claim or the effect that it may have on her social security payments. I also note that the Authorised Review Officer noted
Ms Nammala’s advice that her solicitor had told her that Centrelink should receive payments owed to it before any payments would be released to her.
30. In the circumstances of this matter, I do not consider that the advice given or not given to Ms Nammala by her solicitor amounts to special circumstances.
31. While I accept that Ms Nammala’s English skills are limited, though not entirely absent as she appeared able to understand and converse in English in relation to a number of matters, she mentioned in her statement and in the course of her evidence at the hearing at least two English speakers who had given her advice and assistance in relation to this matter from the time she first claimed Newstart Allowance. I also note the availability of an interpreter at the Newstart Allowance staff assisted interview. In that context, I do not regard Ms Nammala’s English skills as unusually or especially disadvantaging her.
32. I have already canvassed the manner in which the debts arose and have attributed no error to Centrelink. Nor do I find poor administration on Centrelink’s part, as suggested by Legal Aid NSW. The manner in which the debts arose is not special.
33. Ms Nammala’s financial circumstances are difficult. She receives approximately $790.00 per fortnight in disability support pension and her son who lives with her pays her $100.00 per week. She pays $300 per week rent, $50.00 per fortnight for electricity, $72.00 per month for loan repayments, and $160.00 per quarter for water bills. She has little left for food and other expenses. She said she spent the lump sum payments she received on retrieving belongings from the pawn shop, paying debts, a computer for her son and sent money to her mother in Thailand. She is currently paying back the debt to the Commonwealth at $20.00 per fortnight.
34. While these are difficult financial circumstances, I do not consider them to be out of the ordinary for a person dependent on state income support. Ms Nammala has assistance from her son and is therefore in a slightly better position than many of her fellows. I do not consider these financial circumstances to be special.
35. Similarly, Ms Nammala’s health problems continue. Her back and neck remain painful and her evidence is that her arm is not fully functional. While this is no doubt difficult, it is unfortunately not out of the ordinary for a person in receipt of disability support pension. It is not special.
36. For these reasons I do not consider that Ms Nammala’s circumstances are special and therefore they do not make it desirable to waive recovery of the debt.
Decision
37. The Tribunal affirms the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ..................[sgd]..................................................
Associate: Lloyd DohertyDates of Hearing 1 June 2010, 7 July 2010
Date of Decision 7 October 2010
Solicitor for the Applicant UnrepresentedSolicitor for the Respondent Ms Laura Combes for the
Australian Government Solicitor
0
2
0