PATRICK HEATLEY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 152

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 152

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5384

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PATRICK HEATLEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date1 March 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..............[Sgd]................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Social security benefit – Newstart allowance – Applicant received more than he was entitled – Overpayment amounts to a debt owed to the Commonwealth – No severe financial hardship – No administrative error – No special circumstances apply – Debt recoverable. 

Social Security Act 1991 (Cth) ss 1068, 1223, 1236, 1237, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) s 68

Data-Matching Program (Assistance and Tax) Act 1990 (Cth) ss 7, 10(3), 11

REASONS FOR DECISION

1 March 2010 Mr S Karas, AO, Senior Member

INTRODUCTION

1.      Over the course of a number of years, Mr Patrick Heatley (the applicant) was in receipt of newstart allowance (NSA).  On 28 August 2009, Centrelink calculated that a debt of $3,907.65 was owed by the applicant on the basis that he was overpaid NSA from 18 August 2004 to 7 June 2005.  The applicant sought review of that decision by an authorised review officer.  That officer affirmed the original decision on 15 September 2009.  On 22 September 2009, the applicant appealed to the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the authorised review officer’s decision on 9 October 2009.  On 10 November 2009, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.  The applicant is no longer in receipt of NSA but does receive a disability support pension (DSP).

ISSUES AND LEGISLATION

2.      The issues for determination by the Tribunal are:

·     Whether the applicant received more NSA than he was entitled to during the relevant period, and, if so;

·     Whether the overpayment is a debt due to the Commonwealth, and, if so;

·     Whether the debt should be recovered, or whether the Commonwealth’s right to recover all or part of the debt should be waived or written off.

3. The rate or amount of NSA payable to a person is calculated using the Benefit Rate Calculator contained in s 1068 of the Social Security Act 1991 (Cth) (the Act). That section dictates that the income of a person on a fortnightly basis must be taken into account and considered when calculating the appropriate rate of NSA. Section 68 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) requires a person to advise Centrelink about matters that might affect their payment. Section 1223 of the Act states that if a person is paid a social security payment which they were not entitled, for any reason, the amount of the payment is a debt due to the Commonwealth. While the Commonwealth is obliged to recover all debts it is owed, s 1237 of the Act authorises the Commonwealth to waive the right to recover all or part of a debt where certain criteria are satisfied.

4. Section 1237A of the Act requires the Commonwealth to waive the right to recover a debt if it is attributable solely to an error by the Commonwealth and the person received the payments in good faith. Section 1237AAD of the Act allows the Commonwealth to waive the right to recover a debt if the debt did not arise as a result of the debtor knowingly contravening the Act.

5.      The Data-matching Program (Assistance and Tax) Act 1990 (Cth) (DMP Act) allows Centrelink to seek information from the Australian Taxation Office regarding a person’s declared income. Section 10(3) of the DMP Act provides that Centrelink must commence any action in relation to information received under that Act within 12 months from the date it receives that information from the Data Matching Agency. Further, s 11 of the DMP Act requires Centrelink to notify a person prior to taking any action to recover an overpayment as a result of the information provided and to give the person an opportunity to respond within 28 days.

EVIDENCE

6.      A hearing of this matter was held on 16 February 2010.  The applicant who was unrepresented, attended and gave evidence to the Tribunal.  The respondent was represented by Mr Nolan.

7.      The applicant questioned why, if the debt arose in 2005, it was not pursued until 2008.  He conveyed his feelings of frustration over the matter and contended that he had been notified of four different start dates for his appeal and that there were inaccuracies over dates referred to in Centrelink’s material.  Ultimately, the applicant stressed feelings of unjustness.  The applicant referred to the medical conditions he suffers and how they have the potential to affect his memory.  The diary notes contained in the T documents amount to contemporaneous accounts of the matter.  Further, the applicant referred to the fact that since October 2009 he has been paying off the existing $3,907.65 debt at a rate of $10 per DSP payment. 

8.      The applicant referred to his work at RJ’s Bar and at the Cinema Café.  He was adamant that every Tuesday he would take his payslips into the Centrelink branch in Katherine, would be attended to by one of the counter staff (any one of approximately 15), and would watch the attendant stamp a copy of the payslip, return the original to him and place the copy in a folder.  The applicant did not retain any of the original payslips or copies of them.  The applicant also explained that he took his medical certificates to Centrelink every 12 weeks.  He believed he started taking his work payslips from RJ’s Bar to Centrelink in either April or May 2004 until either June or July 2005.  The applicant also worked at the Cinema Café in Katherine from April or May 2005 and could not recall when he finished although it was before his return to Brisbane on 1 August 2005.

9.      In reply to the respondent’s submission that Centrelink has no records of the applicant’s payslips ever being submitted during the aforementioned period, the applicant contended that a ”human error” must have occurred as he was obstinate that he never failed to produce his payslips every Tuesday.  However, when questioned by Mr Nolan, the applicant could not confirm or deny his attendance at Centrelink on various dates and days between 2004 and 2005.  The applicant identified the medication he was taking throughout the relevant period as the catalyst for his inability to accurately recall the details of his recorded attendances at Centrelink.

10.     In response to submissions by Mr Nolan regarding the applicant’s failure to inform Centrelink that his payments hadn’t been adjusted to reflect his employment, the applicant claimed that he had told Centrelink approximately five times but that they hadn’t done anything about it. 

11. Mr Nolan relied on the statement of facts and contentions dated 12 February 2010 and the annexures to it. He noted that the steps taken under the DMP Act were adhered to and how Step 6 in s 7 of the DMP Act was relevant to this matter. He referred to inconsistencies in the applicant’s evidence and noted that based on the 12 month time limit that Centrelink is obligated to contain itself to when dealing with the matter once it has received the information from the Data Matching Agency, Centrelink had until 10 September 2009 to act. Accordingly, the debt of $3,907.65 was properly raised and legally recoverable.

12. Further, Mr Nolan submitted that the debt should not be waived as there was no administrative error on the part of the Commonwealth and that the applicant had received his NSA payments in good faith. He confirmed that the Centrelink records did not support the applicant’s contention that he produced his payslips to Centrelink throughout the period of his employment. He also submitted that there were no “special circumstances” in this case and that s 1237AAD of the Act does not apply. He concluded by submitting that the SSAT’s decision be affirmed.

CONSIDERATION AND FINDINGS

13.      The Tribunal does not consider the applicant to be dishonest or purposely untruthful with aspects of his evidence.  However, given the number of people he allegedly dealt with in Centrelink’s Katherine office, the Tribunal is unable to accept that all of the staff (some 15) he dealt with would not have made any records of their dealings with him in relation to his payslips especially when there are Centrelink file notes detailing communications with the applicant in relation to other matters.   

14. The Tribunal notes that the applicant worked at RJ’s Bar and at Cinema Café while he was living in Katherine. On 10 September 2008, the Data Matching Agency distributed income and payment matching data to Centrelink that indicated an overpayment of NSA to the applicant. In April 2009, Centrelink wrote to the applicant pursuant to s 11 of the DMP Act, and indicated that a discrepancy existed between the amount of income the applicant had declared to the ATO and the amount he had declared to Centrelink. As such, on 28 August 2009 Centrelink calculated that a debt of $3,907.65 was owed by the applicant to the Commonwealth for overpayment of NSA from 18 August 2004 to 17 June 2005. The applicant acknowledged in a letter to Centrelink dated 17 September 2009 that he was “resigned to pay the Centrelink debt”.

15.     Given the evidence and material before it, the Tribunal finds that the respondent has complied with its obligations under the DMP Act.  It further finds that the debt of $3,907.65 is correct in the circumstances taking into account the 1000 working credits available to the applicant at the relevant time, the income earned and the NSA payments received for the period from 18 August 2004 to 7 June 2005. 

16. Section 1236 of the Act provides criteria enabling a debt to the Commonwealth to be written off if the debtor has no capacity to repay it. As the applicant is already having $10 deducted from his fortnightly DSP in satisfaction of this debt, and there is no evidence to suggest that this is causing the applicant “severe financial hardship”, the Tribunal finds that the debt should not be written off.

17. In relation to the provision provided for in s 1237A of the Act, the Tribunal is satisfied that the debts were not due to an administrative error by the Commonwealth. The Tribunal is satisfied that the applicant was aware of his obligation to notify Centrelink of his employment and income and that he failed to do so. Consequently, the Tribunal is precluded from exercising its discretion under s 1237AAD of the Act.

18.     Furthermore, the Tribunal finds that no “special circumstances” apply to this matter.  The Tribunal does not consider it would be unfair or unjust for the applicant to repay the debt as calculated to the Commonwealth and therefore does not waive the Commonwealth’s right to recover the debt accordingly.

DECISION

19.     The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed:............[Sgd]..................................................................
            Kate Slack, Research Associate

Date/s of Hearing  16 February 2010

Date of Decision  1 March 2010
Applicant was self represented
Solicitor for the Respondent     Phil Nolan, Sparke Helmore Lawyers