Ngerengere and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 123

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 123

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/4525

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MICHAEL NGERENGERE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date8 February 2008

PlaceCanberra

Decision 1.     The reviewable decision made by the Social Security Appeals Tribunal on 14 August 2007 is affirmed.

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J.W. Constance. Senior Member

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TRANSCRIPT OF PROCEEDINGS

DRAFT DECISION  [2.00 pm]
ADMINISTRATIVE APPEALS TRIBUNAL
By MR J. CONSTANCE, Senior Member
Matter No A2007/4525
M. NGERENGERE and SECRETARY, DEPARTMENT OF
EMPLOYMENT AND WORKPLACE RELATIONS
CANBERRA, 8 FEBRUARY 2008

MR CONSTANCE:   This is a matter of Ngerengere v the Secretary of Department of Employment and Workplace Relations, matter number 2007/4525 for decision.  The decision under review by this tribunal is a decision made by the Social Security Appeals Tribunal to affirm a decision made by Centrelink on 17 January 2006 to raise and recover a disability support pension debt totalling $2367.49 for the period from 21 October 2005 to 26 December 2005, being a period during which Mr Ngerengere was in gaol.

At the outset I acknowledged that the respondent has filed in this matter or did file in this matter, a detailed statement of facts and contentions and in my view the facts as stated is a correct statement of facts and the contentions set out are in fact correct and I acknowledge the work that was put into that statement and the detail and I will be following that quite closely in the decision that I give and it is for that reason that I do so.

The issues stated by the secretary with which I agree are that one, was Mr Ngerengere overpaid a disability support pension totalling $2367.49 for the period 21 October 2005 to 26 December 2005, if so;  two, whether the overpayment constitutes a legally recoverable debt an if so;  three, whether there are grounds for not recovering some or all of that debt.  I have before me evidence in exhibit T1 which are the documents filed pursuant to section 37 and I also take into account a statement made by Mr Ngerengere during the hearing.

I am satisfied of the following facts as follows that from 15 June 2005 Mr Ngerengere was granted a disability support pension. On 19 August 2005 Centrelink sent to Mr Ngerengere a notice under subsection 62(2) of the Social Security Administration Act of 1999 indicating that he was obliged to notify Centrelink within 14 days of certain events, including being charged with an offence and being in custody on remand or in gaol. I am satisfied that on 21 October 2005 Mr Ngerengere was taken into custody at the Belconnen Remand Centre in Canberra and in accordance with the Act, was in gaol from that date until 26 December 2005, being the relevant period and in fact remained in the remand centre for some weeks after the latter date.

On 13 December 2005 Centrelink received information indicating Mr Ngerengere was in gaol and that he was still receiving Centrelink payments  Inquiries were made and in early January 2006 it was confirmed to Centrelink that in fact Mr Ngerengere was in gaol and had been held in gaol from 21 October 2005.  On 9 January 2006 Centrelink wrote to Mr Ngerengere asking that he confirm that he had in fact entered prison on 21 October 2005.  On 17 January 2006 Centrelink raised a disability support pension debt for the period previously referred to totalling $2367.49 and a letter was sent to Mr Ngerengere advising him of this.

Mr Ngerengere has sought a review of the decision to raise the debt. On 14 August 2007 the Social Security Appeal Tribunal affirmed Centrelink’s decision and the matter now comes before the tribunal seeking a review of the decision. Section 1158 of the Social Security Act 1991 provides that an instalment of Social Security pension is not payable to a person in respect of a day in which that person is in gaol and as I have indicated I am satisfied that for the relevant period Mr Ngerengere was in gaol and I should add that that was not disputed by Mr Ngerengere. In fact, there are few of the facts in this matter that were in dispute.

It is clear that for the period that Mr Ngerengere was in gaol the disability support pension was not payable.  Section 94(1) of the Administration Act provides that a person who is in receipt of a Social Security payment and who has received a notice requiring him to advise the department of a change in circumstances and whose circumstances change in the manner for which notice has been given, and if that person does not inform the department of the occurrence of the event, the Social Security payment is cancelled.

The secretary has referred me to the decision of Martin v The Secretary, Department of Social Security (1997) AATA12460.  In that case there was reference to a practice in the Western Australian Ministry of Justice to provide a fortnightly report to the Department of Social Security in Canberra identifying persons who were currently serving a term of imprisonment in Western Australia.  There was no specific evidence before the tribunal in that matter, that the applicant’s imprisonment was in fact notified by the Ministry of Justice.  The tribunal said that even if there was such evidence and such notification did in fact occur, this would not relieve the applicant of his obligation to notify the department pursuant to the Act of his imprisonment.

The amount paid in the circumstances under consideration become a debt by reason of section 1223 subsection (1) of the Act and I am satisfied that in fact the debt did arise under that section.  Then it is necessary to turn to consider whether there should be a waiver of the debt by reason of administrative error.  Section 1237A of the Act provides a debt arising solely from administrative error may be waived in certain circumstances.  It is important to note that the section provides that the waiver must take place in certain circumstances, but including the circumstance that is attributable solely to an administrative error made by the Commonwealth.

The Federal Court and the tribunal have considered the meaning of sole administrative error in various decisions and in the case of re Gehard v The Department of Employment, Education and Training (1997) FCA 815 it was held that solely means only or to the exclusion of all else. Mr Ngerengere has claimed that he advised the officers at the Belconnen Remand Centre when he was taken to that institution that he was receiving Centrelink payments and it appears from the decision of the Social Security Appeals Tribunal that that was what he told that tribunal. In his statement before me he reiterated that but also indicated that he told the police who arrested him.

I have considered whether the failure, assuming for the purpose of the argument that Mr Ngerengere did inform both the police and the custodial officers at the Belconnen Remand Centre, whether the failure of either or both of those groups of officers amounted to administrative error by the Commonwealth.  It certainly raises questions in relation to the staff at the Belconnen Remand Centre who are employees of the Australian Capital Territory, as to whether in fact any error by members of that organisation would amount to error by the Commonwealth.

However, even assuming that there was administrative error, and I make no finding of such, it is clear to me that it cannot be said that the debt arose solely by reason of the administrative error of the Commonwealth because of the continuing obligation of Mr Ngerengere to advise Centrelink of his imprisonment and for that reason I am not satisfied that there has been administrative error by the Commonwealth which has solely given rise to this debt.

I then turn to consider were there any special circumstances to justify the waiver of the debt.  Section 1237AAD of the Act allows waiver of debt if a debt did not result from a person knowingly failing to comply with the provision of the Act and where there are special circumstances that make it desirable to waive the debt.  The section to which I’ve just referred makes a reference to special circumstances other than financial hardship alone.  There are a number of cases which have considered special circumstances and I have considered the matters which Mr Ngerengere has put forward to the tribunal.  These circumstances include his ill health and his need to care for his children aged six months, 11 years and 5 years on an average of five days out of each two week period and indicate on the information which Mr Ngerengere provided to the tribunal and which I have no reason to doubt, he is not in a strong financial situation.

I have also taken into account a letter which is document T19 in the section 37 documents and that is a letter from Dr Bruce Lean, L-e-a-n, psychiatrist from the city mental health team referring to Mr Ngerengere’s ill health and seeking leniency in the matter but even taking all of those matters into account I am not satisfied that special circumstances, other than financial hardship alone, have been made out.  Whilst Mr Ngerengere is certainly not in a strong financial position the secretary has in the past deducted payments from payments being made by him so that he is in fact being allowed substantial time to repay the debt and I am told and accept that that will continue so he does not need to find the full amount owing at short notice and certainly does not have to provide a lump sum.

I have also given consideration to whether the debt should be written off for a period.  Section 1326 of the Act provides for this possibility and in effect would delay recovery of the debt.  The section provides for that to happen in certain circumstances and including a consideration of whether the applicant would suffer severe financial hardship, taking into account that Mr Ngerengere has the capacity to repay the debt via ongoing withholdings from his fortnightly Centrelink entitlements.  I am not satisfied that this arrangement would cause severe financial hardship and particularly as I am told, and I accept, that the amount of repayment is subject to negotiation and should Mr Ngerengere’s financial situation deteriorate he can apply to the secretary to reduce the amount being withheld.  On this basis I am not satisfied that the debt should be written off or delayed under section 1236 of the Act.

In all these circumstances the decision of the Social Security Appeals Tribunal made 17 January 2006 is affirmed.

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