O'Connor and Secretary, Department of Family and Community Servic Es

[2003] AATA 1302

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1302

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/856

GENERAL ADMINISTRATIVE DIVISION  DIVISION		)
Re		FREDERICK O'CONNOR

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal MS N BELL

Date19 December 2003

PlaceSydney

Decision The Tribunal affirms the decision under review. 

[Sgd] Ms N Bell, Member

CATCHWORDS

SOCIAL SECURITY – overpayment of age pension – Applicant did not advise Centrelink of income from employment and investments – Applicant objected to annualisation of his earnings – no special circumstances – no administrative error – decision affirmed

Social Security Act 1991 sections 1223(1), 1224, 1237A, 1237AAD

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

REASONS FOR DECISION

19 December 2003 MS N BELL           

1.      The Respondent raised a debt of $4,341.96 against the Applicant in respect of overpayment of age pension paid to him over the period 4 April 1996 to 1 January 2002.  The Respondent’s reason for raising the debt was that, it contended, the Applicant had not advised Centrelink of his income from employment.

2.      That decision was varied by an authorised review officer by reducing the amount of the debt, after waiving the overpayment made during the period 21 July 2000 to 1 November 2000, to $4,077.84 (T50).  The decision was affirmed by the Social Security Appeals Tribunal (T2).  After the Applicant made his application to this Tribunal, the Respondent recalculated the debt to $3,784.49.

3.      The Applicant maintained that he informed Centrelink of all of his income from his employment and his investments. It was this income on which Centrelink based its overpayment calculations.  The Applicant disputed the debt on this basis.  The Applicant also maintained that Centrelink had included in its calculations an investment that he had realised many years ago.

The Applicant’s Income from employment

4.      The following facts are not in dispute:

§  The Applicant has been employed on a casual basis by Westfield Sports High School from 4 May 1994 to for 4 hours per week (T33);

§  The Applicant was employed by Meriden School on a casual basis from 24 March 2001 to 16 June 2001, working for 22 hours over the period (T34);

§  The Applicant was employed by Little Athletics of NSW on an occasional basis from 5 August 2000 to 22 September 2001 (T35);

§  The Applicant was employed by Abbotsleigh School in the 1999/2000 financial year for a short time (T36 and T26).

5.      At the hearing the Applicant maintained that he had advised the Respondent of his various employment but he was unable to point to the time at or circumstances in which he had given this advice.  He also maintained that he had been advised by an officer of the Respondent that he could earn an amount of $120.00 per fortnight before any income would be taken into account for the purposes of calculating his rate of pension.

6.      The Respondent maintained that the first advice it received about the Applicant’s earnings was in a claim for carer allowance made by the Applicant on 21 July 2000 (T10 and T11) in respect of his wife (now deceased). The Applicant advised on that form that he earned an amount of $90 per week as a casual athletics coach with Westfields Sports High School.

7.      Following receipt of this advice from the Applicant, the Respondent undertook a data matching exercise with the Australian Taxation Office in October 2000 (T14).  This exercise yielded further information about the Applicant’s employment and he was asked by the Respondent to provide details.  A further data matching exercise in May 2001 yielded information about the Applicant’s employment by Meriden School which the Applicant had begun in March 2001 (T20).

8.      A study of the T documents shows no record of contact by the Applicant with the Respondent giving any information about his employment prior to the lodgement of his carer allowance claim form.  In view of the vague recollections of the Applicant and the absence of any evidence in the Respondent’s records of prior contact or advice, I find that the Applicant did not advise the Respondent of his employment with Westfield Sports High School prior to the lodgement of his carer allowance form on 21 July 2000, nor did he advise the Respondent about his employment with Abbotsleigh and Little Athletics until November 2000, nor Meriden until May 2001.

9.      The Applicant also objected to the annualisation by the Respondent of his earnings from Westfield Sports High School.  The basis of this objection was that the Applicant is paid by Westfield at the end if each term, two or three weeks after the term ends and so he gets paid four times a year.  The Applicant submitted that he should be assessed on the basis of 52 weeks per year rather than 48 weeks which yields a higher rate of fortnightly income.

10.     The Respondent referred to Exhibit R3 which shows the way in which the Applicant’s earnings from Westfield were assessed.  That document shows that in three of the 25 12-week periods between 4 April 1996 and 2 January 2002, nil earnings were attributed to the Applicant from Westfield because no payment was received by him in those 12-week periods.  In all remaining 12-week periods a payment was received.  Exhibit R3 also shows that the amounts of the payments received by the Applicant from Westfield fluctuated significantly with the lowest at $960 and the highest at $1,440.  The annual rate was calculated for each 12-week period and yielded different annualised rates depending on the amount of the payment received in respect of each 12-week period.

11.     I consider that the Respondent’s annualisation of the Applicant’s earnings in this way provides the most accurate reflection of his current earnings in any period, including those periods where he has no earnings.  I also note that the Respondent, in its calculations, has treated the Applicant’s earnings from Abbotsleigh and Little Athletics as “one off” payments and did not take them into account in the calculation of his overpayment. On this basis, I will not disturb the Respondent’s calculations.

The Applicant’s income from Investments

12.     The Applicant had a range of investments throughout the period of the alleged debt.  He was unable, at the hearing, to list those investments or their history with any certainty and appeared to be somewhat confused about what he had done with various investments over the years.  He was, however, adamant that he had realised one of his GIO investments in the amount of $33,000 in 1994 and the proceeds were taken as a cheque for $15,000 and the balance of $18,173.15 was deposited in a GIO building society account.  Document T54, a letter to the Applicant from AMP Life Limited (which took over the GIO) shows that a GIO Good Life insurance bond was cancelled on 30 December 1994.  The Applicant’s evidence was that he spent the $15,000 and the moneys in the building society account on an overseas trip for himself and his wife and on a car.  He maintained that the moneys were not reinvested.

13.     On the carer allowance claim form lodged by the Applicant on 21 July 2000 (T10), the Applicant gave details of bank accounts with the ANZ Bank ($16,489) and St George Bank ($2,572), investments in an ANZ Term Deposit ($16,000) and in a GIO Monthly Trust No.1 ($20,905) and of a “superannuation / term deposit” with the GIO ($18,272).  The combined total of these investments is just over $74,000.

14.     However, the documents contained in T54 show that the Applicant also had a GIO Building Society term deposit with an initial investment of $21,931.61 in 1997 and fluctuating over the years until it reached $20,021.19 when it was closed on 31 December 2001.  It is possible, but not certain, that this is the “superannuation/term deposit” referred to by the Applicant in his carer allowance form.  The appearance, in Document T54 at page 304 of a GIO Building Society investment maturity advice which refers to term deposit account No. 003025434 with a balance of $18,272.87 as at 27 April 2000 would suggest that it is. In addition the documents show a GIO Business Superannuation Plan which was terminated on 9 December 1997 for just $89.30.

15.     The amount used by the Respondent as at October 2000 to assess the Applicant’s deemed income from investments was $83,412.14 (T17).  As at 17 March 1997 the amount used was $81,244 (Attachment C to Exhibit R1).  This latter amount yielded a deemed rate of income of $3,874.68.  Using the same formula, an amount of $74,000 yields a deemed income of $3,440.  Over a year, this difference would have little impact on the rate of pension paid to the Applicant.

16.     The Applicant has made a number of assertions about his dealings with various investments over the years but has been inconsistent in those assertions and has not provided any material to support them.  It is not possible, on the basis of the information before the Tribunal, to conclude that the way in which the Respondent has assessed the Applicant’s income from his investments is incorrect on the bases raised by him.  Given the small effect of the difference between the assessment of assets by the Respondent and those declared by the Applicant in his carer allowance form, I will not disturb the Respondent’s assessment.

Is there a Debt?

17.     I have found that the Applicant did not advise the Respondent of his income from employment with Westfield Sports High School until the lodgement of his carer allowance claim form and that he did not advise of his other employment until prompted to do so by the Respondent’s data matching exercises.  That was so notwithstanding that the Respondent had sent him a number of notices advising him that he must notify Centrelink if his income increases or if he becomes employed (Attachments A, B and C to Exhibit R1).

18. Section 1224 of the Social Security Act 1991 (“the Act”) as it stood prior to 1 October 1997 provided that if an amount was paid to a person because the person failed to comply with a provision of the Act (for example, to comply with notices served by Centrelink), then any overpayment so made is a debt due to the Commonwealth. After 1 October 1997, section 1223(1) of the Act provided that if a payment is made to a person who is not entitled to that payment then the amount so paid is a debt due to the Commonwealth. Therefore, the amount overpaid to the Applicant is a debt due to the Commonwealth.

Should the debt be recovered?

19. Section 1237A of the Act provides for the waiver of debts caused solely by administrative error. This provision has already been applied by the Respondent in respect of the overpayment made to the Applicant for the period 21 July 2000 to 1 November 2000, being the period after the lodgement of the Applicant’s carer allowance form in which he disclosed his employment by Westfield Sports High School until the time at which the Respondent acted on his advice and reduced his rate of age pension accordingly.

20.     There is no evidence of any other administrative error on the part of the Respondent.

21. Section 1237AAD of the Act provides for waiver where there are special circumstances that justify doing so. There is no evidence of any matter that is “unusual, uncommon or exceptional” (Re Beadle and Director General of Social Security (1984) 6 ALD 1) in the Applicant’s circumstances and therefore no basis on which to waive recovery of the debt.

Decision

22.     The Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member.

Signed:         L Bonouvrie
  Associate

Date/s of Hearing  13 October 2003
Date of Decision  19 December 2003
Advocate for the Applicant             Self-represented
Advocate for the Respondent        Mr George Lozynsky