Ofli and Secretary, Department of Social Services (Social services second review)

[2022] AATA 2

Ofli and Secretary, Department of Social Services (Social services second review) [2022] AATA 2 (5 January 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/1104
GENERAL DIVISION	)

Re: Julia Aslan
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:  Member K. Parker

DATE OF CORRIGENDUM:            13 January 2022

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.At paragraph 1 of the decision, after the words “in the sum of $4,857.15”, insert the following words: “recalculated by the Respondent on 21 May 2021 to $4,255.32”.

2.At paragraph 29(a) of the decision, after the words “in the sum of $4,857.15”, insert the following words: “recalculated by the Respondent to $4,255.32 on 21 May 2021”.

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Member K. Parker

Division:GENERAL DIVISION

File Number:          2021/1104

Re:Hulya Ofli (aka Julia Aslan)

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:5 January 2022

Place:Melbourne

The Tribunal Affirms the Decision Under Review.

...[SDG]...........................................................

Member K. Parker

CATCHWORDS

SOCIAL SECURITY – parenting payment – failure to declare earnings – overpayments – whether debt properly raised – whether debt should be waived or written off – whether debt arose due to sole administrative error by the Commonwealth – whether “special circumstances” exist – debt fully repaid – Decision Under Review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Member K. Parker

5 January 2022

INTRODUCTION

1. The Applicant seeks review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 22 February 2021 (Decision Under Review), regarding a debt raised by the Commonwealth against her. The debt arose from overpayments of a parenting payment at the single rate (PP) in the sum of $4,857.15 (Debt). This Debt relates to the period 20 May 2003 to 20 September 2004 (Debt Period).

   ISSUE

2. The issues in this case are whether the Debt was properly raised and if so, whether the Debt should be written off or waived.

   BACKGROUND

3. The Applicant received PP in respect of her child. The child’s father is Mr Orhan Ozaslan. Mr Ozaslan is the Applicant’s ex-husband. At the hearing before this Tribunal, the Applicant gave evidence that Mr Ozaslan’s “nickname” (or alias) was “Ozel Sani”.

4. The Applicant gave evidence at the hearing that her birth name was “Hulya Ofli”, and that she changed her name to “Julia Aslan” in 2013. The Applicant said she did not change her “Centrelink name” to “Julia” at that point, but “they were aware”. The Applicant said that she then opened a bank account under the name “Julia”. The Applicant said she used the name “Julia Aslan” in her last tax return, which she said she lodged about ten years ago because she has been “very unwell”.

5. Copies of the Applicant’s Australian passports were before the Tribunal. One of those passports was issued on 18 April 1994 in the name of “Hulya Ofli”.[1] The most recent passport was issued on 6 July 2017 and also shows the Applicant’s name as being “Ofli Hulya”.[2]

   [1] The Respondent lodged a set of documents under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) in this proceeding (T-Documents), and a further set of documents under s 38AA of the AAT Act (ST-Documents). Refer ST-Documents ST9/450.

   [2] Refer T-Documents T6/12.

6. The Debt was raised following the discovery of undisclosed deposits made into the Applicant’s bank account and following an investigation that resulted in findings by Centrelink that the Applicant had worked under a different name “Narelle Konca”. A debt against the Applicant was originally raised in a higher amount, based on undisclosed bank deposits. Subsequently Centrelink recalculated (and substantially reduced) the debt by basing it solely on payslip income, as verified by the Applicant’s employer.[3]

   [3] Refer T-Documents T17/71.

7. The Applicant has repaid the Debt in full. She claims reimbursement based on her contention that the Debt was not properly raised because she has not been employed under the name “Narelle Konca” and that this was another person, or alternatively, that the Debt should be written off or waived. On 9 August 2021, the Applicant lodged a detailed undated 12-page statement (also containing some data matching information) explaining her position, which the Tribunal has carefully considered.

8. The Respondent contends that income verified by an employer that was paid to “Narelle Konca” should be treated as income for the purpose of calculating the Applicant’s PP during the Debt Period. Those monies were deposited into the Applicant’s bank account. The Applicant contends that those deposits should not be treated as her income. She sought to explain those deposits as having occurred only because she had permitted another person by the name of “Narelle Konca” to use the Applicant’s bank account to receive her wages for and on behalf of Ms Konca. The Applicant claimed that she had no knowledge as to the source of the undisclosed deposits.

   CONSIDERATION

   Was the Debt properly raised?

9. The Tribunal will start by considering whether the Debt was properly raised. This will depend on whether the Tribunal is satisfied that that overpayments of PP at the single rate, in the sum of the Debt, were made to the Applicant during the Debt Period. In turn, this will require an examination of whether the evidence supports a finding that “Narelle Konca” is a different person to the Applicant, or whether they are the same person. The Tribunal must consider whether the Applicant used the alias, “Narelle Konca”, when she engaged in employment and received wages during the Debt Period, which she subsequently failed to disclose to Centrelink.

10. A person is entitled to receive PP under the Social Security Act 1991 (Cth) (SS Act). The rate of PP (Single) is worked out in accordance with a Rate Calculator in s 1068A-A1 of the SS Act. The income test is prescribed in Module E found at s 1064A-E1 of the SS Act.

11. The Department lodged a document with the Tribunal showing in detail the calculation of the Debt. The Applicant did not dispute those calculations at the hearing. Instead, her contentions focussed on why the Debt should not have been raised at all or why it should be written off or waived.

12. Section 1223(1) of the SS Act provides that any payment made to a person in excess of their entitlement to a social security payment, constitutes a debt due to the Commonwealth and such a debt is recoverable.

13. The Applicant refuted the suggested that she had not fully disclosed her income and that overpayments of PP had been made to her. The Applicant sought to explain the undisclosed bank deposits in her bank account as follows. She said that her intention was to assist Ms Konca by allowing her to use the Applicant’s bank account, because Ms Konca was unable to open a bank account under her own name because she did not have 100 points of identification. In a file note of a conversation between the Applicant and a Centrelink authorised review officer (ARO) on 25 November 2020, the Applicant states that Ms Konca was “a seasonal worker” and “a friend of hers”, that they “spoke the same language” and that the Applicant had spoken to Ms Konca “a lot” about the domestic violence the Applicant was going through at that time. This note records that the Applicant had stated that Ms Konca had moved to Melbourne. This note also records that the Applicant was no longer in contact with Ms Konca and had no idea how to get in contact with her. At the hearing before this Tribunal, the Applicant did not call Ms Konca as a witness in this proceeding.

14. The Applicant gave evidence at the AAT1 hearing that she had allowed Ms Konca to have full access to the Applicant’s bank account and to her ATM card. She maintained this position at the hearing before this Tribunal. The Tribunal regards the Applicant’s evidence in this regard as being implausible because this would have allowed another person to have withdrawn the Applicant’s personal savings. The Applicant sought to explain that she was the victim of domestic violence at this time, was “not in a good headspace” which was why she had “not made good decisions at this time” and had not noticed that the withdrawals from her bank account did not exactly match the undisclosed deposits, a matter the Applicant was questioned about at the hearing. The Tribunal does not accept the Applicant’s explanation as to why she would have granted access to Ms Konca to her bank account and personal savings, and to have allowed another person to use her personal ATM card. On the balance of probabilities, the Tribunal finds that this did not take place and that the only person who had access to the Applicant’s bank account, was the Applicant.

15. The Applicant’s bank statements before the Tribunal show that subsequent withdrawals made from the Applicant’s bank account did not exactly match the earlier undisclosed deposits. No explanation was given by the Applicant at the hearing as to why they did not match. As mentioned above, the Applicant gave evidence that she had not noticed this. The fact the deposits did not exactly match the withdrawals, constitutes a further reason why the Tribunal does not accept the Applicant’s explanation in relation to the undisclosed deposits, and why the Tribunal finds that they were not made by or on behalf of a separate person with the name of “Narelle Konca”. If those deposits were made by Ms Konca, it is reasonable to expect that Mr Konca, if she were a different person from the Applicant, would have withdrawn the same sum of money immediately after each deposit allegedly made on behalf of Mr Konca, was made. The Tribunal is satisfied that the Applicant, and not another person, had worked for the employers who made those payments, and the the deposits in the Applicant’s bank account constituted wages for work that the Applicant had performed, albeit carried out by the Applicant under the alias “Narelle Konca”.

16. The following evidence further supports the Tribunal’s finding that the Applicant was employed and received wages under the alias “Narelle Konca”:[4]

    (a)a tax return was lodged with the ATO in the name of “Narelle Konca” for the 2004 financial year listing her address at Rosshall Street, Bowen, Queensland, 4805 (Rosshall St Address). Centrelink records showed that the Applicant lived at this address from October 2003 to January 2004. However, the Applicant gave evidence at the hearing that she had never lived with an adult female by the name of “Narelle Konca”;

    (b)the person who was employed by “Brucher”, completed an “Induction and Contract of Employment” form stating that her address was at the Archer St Address, their telephone number was XXX XXX 465; and the bank account details given for the payment of wages was an ANZ bank account in the name of “Ozel Sani” (the Applicant’s ex-husband’s alias) ending in XXX479. Centrelink records indicate that on 19 April 2004, that the Applicant’s telephone number was XXX XXX 464, being dentical to the number provided by the person working for Brucher under the name of “Narelle Konca”. The signature of the person who signed the tax file declaration when commencing employment with Brucher, was identical to the signature of the Applicant, appearing on a Commonwealth Bank of Australia form to open an account on 25 June 2003, and when she applied for a personal loan in January 2004;

    (c)Centrelink, Medicare, the Australian Electoral Commission, Department of Home Affairs had been checked and there was no record of a person known by the name of “Narelle Konca” with the date of birth 25 October 1964;

    (d)Indigo Labour Hire had advised that the person working for it under the name “Narelle Konca” had requested that her wages be paid into the ANZ bank account XXX479 in the name of “Ozel Sani” (the Applicant’s ex-husband’s alias);

    (e)Amjad Pty Ltd had advised that the person working for it under the name “Narelle Konca” had completed a form entitled “Staff Information Sheet” stating that her telephone number was XXX XXX 465 and her wages were to be paid into a Suncorp bank account numbered XXX868 in the name of “Orhan Osalan” (the Applicant’s ex-husband) and a Westpac bank account numbered XXX492. A Westpac bank statement for the account numbered XXX492 is registered in the name of “Julia Aslan” and referenced deposits made by Amjad Pty Ltd described as “PAY NO XXX-KONN”.[5] The name “Julia” was written on the top of the Staff Information Sheet; and

    (f)The signatures showing on a tax file declaration form signed on 28 May 2003 by the person who worked for Amjad Pty Ltd, is identical to the signatures of the Applicant, as appearing on her Centrelink PP claim form completed on 13 March 2003 and a Newborn Child Declaration completed on 17 August 2006.

    [4] Refer T-Documents T21/89-91.

    [5] Refer T-Documents T21/168-180.

17. Based on this evidence and the matters referred to in paragraphs [13] to [15] of these Reasons for Decision, on the balance of probabilities, the Tribunal finds that the person who worked for and received wages from Amjad Pty Ltd, Brucher and Indigo Labour Hire was, in fact, the Applicant (and not a different person), and that she did so under the alias, “Narelle Konca”.

18. On numerous occasions during the Debt Period, Centrelink issued notices to the Applicant under subsection 68(2) of the Social Services (Administration) Act 1999 (Administration Act). Those notices required the Applicant to inform Centrelink about any changes including whether she had commenced employment or had started to receive any income.[6] The Applicant did not disclose any wages she had received from Amjad Pty Ltd, Brucher or Indigo Labour Hire when she was obligated to do so.

    [6] Refer T-Documents at T24/212, 213 & 216-222.

19. Accordingly, the Tribunal finds that the Applicant received payments of PP during the Debt Period in the sum of the Debt to which she was not entitled. The Tribunal concludes that the Debt was properly raised by the Respondent on account of overpayments to the Applicant of PP. The Tribunal concludes that the Debt was properly raised against the Applicant.

    Should the Debt be written off or waived?

20. The Tribunal will now consider whether the Debt should be written off or waived.

21. Firstly, the Tribunal will consider whether s 1237A of the SS Act applies in this case. This provision requires that the right of the Respondent to recover a debt, or any proportion of it, must be waived, if it is attributable solely to an administrative error made by the Commonwealth provided that the debtor received the payment in good faith. There is a notation to this section which states that this provision does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more factors (such as error by the debtor).

22. The Respondent contends that there was no sole administrative error on the part of the Commonwealth in this case and that the error arose due to the Applicant’s failure to disclose the wages earned by her during the Debt Period from her employment under the alias “Narelle Konca”. Based on the Tribunal’s findings made above, the Tribunal accepts the Respondent’s contention and agrees that there was no sole administrative error on the part of the Commonwealth which gave rise to any part of the Debt.

23. For this reason, the Tribunal concludes that s 1237A of the SS Act does not apply in the circumstances of the Applicant’s case and there is no requirement under this provision for the Tribunal to waive the right of the Commonwealth to recover any portion of the debt.

24. Secondly, the Tribunal will consider whether the Tribunal’s discretion to waive all or part of the Debt was enlivened under s 1237AAD of the SS Act. Such discretion will be enlivened under this provision if there were “special circumstances (other than financial hardship alone) that make it desirable to waive” all or part of the Debt, and it is more appropriate to waive than to write off the Debt or part of it. It is also necessary to establish that the Debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the SS Act or Administration Act or the 1947 Act.

25. Dealing with the last of those requirements, based on the findings of the Tribunal above, the Tribunal considers that the Applicant has failed to comply with the requirements under the legislation to declare all her earnings, so that her income could be accurately assessed and factored in the calculation of the rate of her PP. On this basis alone, the discretion under s 1237AAD of the SS Act is not enlivened in this case.

26. Further, the Tribunal does not consider that “special circumstances” exist in this case. Medical evidence was presented to the Tribunal indicating that the Applicant suffers from several different physical and mental health medical conditions which the Tribunal has taken into account. The Tribunal accepts that the Applicant is likely to struggle to make ends meet financially. However, the Tribunal notes the Debt has been repaid in full. The Tribunal was not satisfied that the Applicant would experience financial hardship if the Debt is not reimbursed to her as a result of this decision upon review.

27. Considering all those matters, the Tribunal is not satisfied that “special circumstances” exist in this case. For this reason, the Tribunal concludes that discretion is not enlivened under s 1237AAD of the SS Act to waive all or any part of the Debt.

28. Thirdly, the Tribunal must consider whether discretion to write off the Debt under s 1236 of the SS Act is enlivened in the circumstances of this case. This discretion is enlivened if the Tribunal finds that the debtor has no capacity to repay the debt, or it is not cost effective for the Commonwealth to take action to recover the debt. None of those circumstances are relevant in this case because the Debt has been repaid in full. As such, the discretion under s 1236 to write off the Debt is not enlivened in this case.

    CONCLUSION

29. The Tribunal concludes that:

    (a)the Debt was properly raised by the Commonwealth due to overpayments made to Applicant in respect of PP in sum of $4,857.15, relating to the period 20 May 2003 to 20 September 2004;

    (b)there is no requirement under s 1237A to waive the Commonwealth right to recover the Debt or any part of it because it was not attributable to a sole administrative error on the part of the Commonwealth;

    (c)no discretion was enlivened to waive the debt under s 1237AAD because the Tribunal has found that the Applicant failed to fully declare her earnings and because “special circumstances” do not exist in this case;

    (d)no discretion was enlivened to write off the debt under s 1236 because the Applicant has already repaid the Debt.

30. Accordingly, the Tribunal affirms the Decision Under Review. This means that the Debt raised against Applicant stands and she is not entitled to be reimbursed the repayments she has made in satisfaction of this Debt.  

31.     I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

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Associate

Dated: 5 January 2022

Date of hearing:

Date last submission lodged:

9 July 2021

9 August 2021

Representative for the Applicant:

Self-represented

Advocate for the Respondent:

Ms Vincci Chan

Solicitors for the Respondent:

Services Australia