Parmaklis and Department of Family and Community Services

[2001] AATA 903

DECISION AND REASONS FOR DECISION [2001] AATA 903

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2001/41

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      DOMNA PARMAKLIS      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date24 October 2001

PlaceDarwin

Decision      The Tribunal varies the decision under review and determines that the right of the Commonwealth to recover an overpayment of $36,482.20 consisting of age pension, remote area allowance and pharmaceutical allowance for the period 14 December 1945 to 2 September 1999 is waived in respect to the age pension component namely, $33,940.30, but not in respect to the remote area allowance and pharmaceutical allowance, namely $2,541.90, due to the special circumstances of the case.

............(Signed)..........................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
SOCIAL SECURITY – waiver – special circumstances – no departure certificate – elderly non-English speaker
Social Security Act 1991: s 1237AAD

REASONS FOR DECISION

24 October 2001     Mr. D.W. Muller, Senior Member             

1. This is an application to review a decision to raise and recover an overpayment of age pension, remote area allowance and pharmaceutical allowance totalling $36,482.20 for the period 14 December 1995 to 2 September 1999.

2. The applicant, Domna Parmaklis, was born in Turkey on 2 August 1909.  She is of Greek heritage.  She first arrived in Australia on 11 November 1968.  She first received the age pension on 27 May 1976.

3. The applicant returned to Greece from Australia for the following periods:

   late 1969                   to        early 1970
   December 1975       to        30 April 1976
   10 September 1980 to        December 1980
   24 August 1987       to        4 December 1990
   9 June 1991             to        20 January 1995
   2 June 1995             to        19 December 1999

1. Mrs. Parmaklis is 92 years of age.  She does not read English and her spoken English is very poor.  She relies on her close relatives to read letters and fill in forms when she deals with government officers.

2. On 2 June 1995, Mrs. Parmaklis left Australia to travel to Greece under difficult emotional circumstances.  Her grandson had been killed in a car accident in Athens.  She stayed on in Greece because of other traumatic events in the affairs of her family.

3. Mrs. Parmaklis failed to notify Centrelink of her departure on 2 June 1995.  Consequently, she failed to obtain a departure certificate pursuant to s.1219 (since repealed by No. 94 of 2000) of the Social Security Act 1991. The effect of the failure to get a departure certificate was that she lost her qualification for age pension after six months absence from Australia pursuant to the then s.1218 of the Act (now replaced).

4. Mrs. Parmaklis received the age pension until 2 September 1999 even though she was not entitled to it after 14 December 1995, due to the technicality of not having received a departure certificate.

5. Mrs. Parmaklis and her family knew about the necessity to obtain a departure certificate in 1995, because they had made the necessary arrangements on all of the previous occasions when Mrs. Parmaklis travelled overseas.  It seems that the matter was overlooked by the family members because of the traumatic and urgent nature of the arrangements preceding the trip.  Mrs. Parmaklis had assumed that the procedures had been complied with because she continued to receive her pension.

6. An officer of Centrelink informed the Tribunal that Mrs. Parmaklis would have been entitled to receive the age pension for the full period that she was away had she received a departure certificate, because she qualified in all other respects.

7. However, she would not have received the remote area allowance, nor would she have received the pharmaceutical allowance.

8. The Tribunal may make a decision to waive the right to recover all or part of the debt if it is satisfied that the provisions of s.1237AAD of the Act apply (the only relevant waiver provision in this case).

   "1237AAD.  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 false representation;  or

   (ii)failing or omitting to comply with a provision of this 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."

9. The Tribunal is satisfied that Mrs. Parmaklis did not knowingly fail to comply with a provision of the Act.  The failure was the result of misunderstanding and confusion between her and her relations.  In any event she received by way of age pension that to which she was otherwise entitled.  The Tribunal is satisfied that as far as the age pension component  of the overpayment is concerned, the circumstances are sufficiently special to make it desirable to waive the right to recover the debt.

10. The right to recover the overpayment component comprising the remote area allowance and pharmaceutical allowance, $2,541.90, is not waived.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

Signed:         .....................................................................................
           B. Hitchcock, Secretary

Date/s of Hearing  24 October 2001
Date of Decision  24 October 2001
Applicant  Mrs. Parmaklis
Respondent  Mr. P. Kanowski, departmental advocate