Details
- AGLC
- Pauline Mitchell and Secretary, Department of Social Services [2014] AATA 534
- Case
- [2014] AATA 534
- Decision Date
-
CaseChat Overview and Summary
In the case of Pauline Mitchell and Secretary, Department of Social Services, the primary dispute concerns the overpayment of social security benefits by Mrs Mitchell. The case was heard by the Social Security Appeals Tribunal, presided over by Member J D. The legal issues addressed by the Tribunal included the assessment of overpayments under different sections of the Social Security Act 1991, the determination of whether Mrs Mitchell knowingly incurred debts to the Commonwealth, and the consideration of whether any of these debts could be waived under the legislation. The Tribunal was tasked with interpreting the relevant sections of the 1991 Act, determining the existence and extent of overpayments, and deciding whether Mrs Mitchell's actions constituted knowingly incurring a debt.
The Tribunal thoroughly examined the evidence presented, including testimonies and documents related to Mrs Mitchell's asset holdings, pension payments, and the valuation of her properties. The Tribunal considered the valuations provided by two valuers, Mr Links and Mr Venter, and noted discrepancies in the methods and assumptions used in their assessments. The Tribunal found that Mrs Mitchell knowingly engaged in fraudulent activities by not disclosing her asset levels and by using fictitious identities to claim pensions. This finding was based on the evidence that Mrs Mitchell had multiple properties and had not reported these assets accurately. The Tribunal concluded that as Mrs Mitchell knowingly incurred debts, none of these debts could be waived under Section 1237AAD of the 1991 Act.
The Tribunal's decision upheld the previous determinations regarding overpayments in the names of Kenneth Mitchell and Mary Mitchell, but it set aside the decision regarding overpayments in the name of Pauline Crowhurst, directing a recalculation of the overpayment in line with the Tribunal's findings. The Tribunal also affirmed the decision to suspend Mrs Mitchell's pension. This decision ensures that the overpayments are accurately assessed and that the social security system's integrity is upheld by holding Mrs Mitchell accountable for her actions.
Orders
Orders of the court
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Background
Background to the litigation
Overpayments arising prior to 1 July 1991 must be assessed with reference to the 1947 Act. Section 1224 of the 1991 Act applies to overpayments incurred between 1 July 1991 and 30 June 2001. Overpayments incurred after 1 July 2001 are considered pursuant to section 1223 of the 1991 Act. In any case, a person who receives a social security payment or obtains the benefit of payment to which they were not entitled, incurs a debt to the Commonwealth.BACKGROUND Mrs Mitchell is one of seven siblings, and relevant to this matter, had a brother Kenneth, who was ten years older, and a sister, Mary (from her birth certificate), also known as Marie or Maria, who was two years older. The Applicant married in 1960, and used her married name, Crowhurst, for some time. She received widow’s pension payments in that name, and age pension and other one off pension payments from October 1968, until her pension was suspended in May 2011. Mrs Mitchell told me that she has three children, and that she separated from her husband in 1969, and was divorced in 1975. She told me that her children were 15, 13 and 11 years old at the time of the separation. She said that her husband was still around until the 1990s, but that he had since died. I noted that Mrs Mitchell’s evidence was at times quite lucid and clear, and at other times, I perceived she obfuscated and blamed a 1994 head injury for memory loss, which occurred, she said, when she was thrown from a horse (documents indicate the fall was in 1993). She said that the first five years afterwards were horrific from a memory point of view, stating that although she has a degree in music, she could not even play the piano. Mr Brennan, her counsel, accepted there was no medical support for Mrs Mitchell’s assertions regarding memory loss, but submitted that she generally denied any difficulties, and was, at the Tribunal, demonstrating better cognition than she actually has. Similarly, there was no medical evidence to support his submission. I was not satisfied that the Applicant suffered any memory loss due to a head injury as there was no medical evidence to support that proposition. I noted that Mrs Mitchell had an admission to hospital after a fall from a horse. The records show she had what appeared to be a superficial head injury, and a broken ankle. She said that she had two operations, but no further treatment, as she was too afraid to attend at a doctor. She said that she has never discussed memory loss with her general practitioner. Mrs Mitchell told me that between 1969, when she lived at Asquith, (a house which she said she did not own), and 1975, she moved many times. The documentary evidence indicates that in October 1980 there was a transfer of title of the Asquith property from Douglas Mitchell to Pauline Henning, and that the property was owned by Pauline Henning until November 1987. Mrs Mitchell agreed, when asked in cross-examination, that the transfer was to herself, Henning being her mother’s maiden name. Records indicate that she owned the Asquith property from October 1980 to November 1987.
Evidence
Evidence Before The Court
The values of the above holdings have accordingly affected Mrs Mitchell’s pension entitlements and created debts to the Commonwealth. I note that there was reference in the evidence to mortgages over various properties. The evidence was however insufficient for the purposes of making findings in relation to any encumbrances or charges over the properties that might have been taken into account to determine the value of Mrs Mitchell’s assets.EVIDENCE OF THE TWO VALUERS I had before me, as Exhibit A1, the valuation of Number 11 by Mr P Links of Central Coast Property Advisory Service dated 23 September 2013. Mr Links was able to conduct an onsite inspection, with the value attributed to the property restricted to the date of his inspection, 23 September 2013. Mr S Venter, on the other hand, had been instructed by Centrelink to only carry out roadside inspections. Exhibit R6 and R7 were a series of valuations by Mr Venter of the Australian Valuation Office (AVO) from 1 January 1990 to 1 January 2012. Both valuers dealt with the property at Number 11 Kangy Angy, In addition, Exhibit R7, Mr Venter’s valuation, also dealt with Number 19 Kangy Angy. Both valuers provided values of comparable properties as far as possible, given the unusual nature of the location of Number 11. Both valuers gave oral evidence by telephone. Mr Links stated in his report that the property at Number 11 is located in a bushfire prone zone, a 1:100 year flood zone, and would be subject to flood level requirements. He did not obtain a section 149 certificate from the local council in that regard. He noted that the dwelling presented in a poor and neglected condition, and that a letter dated 8 August 2005 from the local council responsible for the area, ordered cease occupancy of the shed. Mr Links explained that given the improvements were in a rundown state, he selected the comparable properties more for land value than improvements. He concluded that following analysis of comparable sales evidence, he was of the opinion that the fair current market value of the property as at 23 September 2013, fell in the range of $350,000 to $400,000. He selected $380,000 to be the fair current value for market advice/asset purposes. Mr Venter had carried out roadside inspections only, as instructed by Centrelink. His valuations and statements at Exhibit R6 were in regard to Number 11. However, he had not been made aware of the order of council directing non-habitation and demolition of the shed at the time, and accordingly had not taken demolition costs into account for Number 11, nor that services would be required. He had assumed in valuing Number 11 that electricity, sewage and other services were connected. It was estimated that demolition could cost between $24,000 and $36,000, and if Mrs Mitchell were to stay there, the installation of sewage, estimated at approximately $20,000, electrical wiring up to $20,000, and connection of the telephone, approximately $1,000. The abovementioned costs would need to be taken into account, and deducted, in considering Mr Venter’s valuation of Number 11. As with Mr Links, the difficulty of obtaining prices for comparable properties was discussed, as were the presently more stringent requirements which would govern any new construction on the land at Number 11.
Decision
Reasons for decision
Section 1237AAD of the 1991 Act provides for waiver of a debt where a debt is not incurred knowingly by the making of a false statement or false representation, or omitting to comply with the legislation, and the person has special circumstances that make it more appropriate to waive all or part of the debt than to write it off. I have found, in the paragraphs above, that Mrs Mitchell knowingly claimed pensions to which she was not entitled, in that she did not disclose her asset levels, and that she concocted identities for Kenneth Mitchell and Mary Mitchell, both deceased, and collected unauthorised Commonwealth pension payments between 1984 and 2010. I am satisfied that Mrs Mitchell knowingly engaged in that behaviour, and that accordingly no part of the debts can be waived.DECISION The Tribunal decides that:·The decision in respect to the overpayment of pension in the name of Kenneth Mitchell is affirmed (2013/1571);·The decision in respect to overpayment of pension in the name of Mary Mitchell is affirmed (2013/1595);·The decision in respect to overpayment of pension in the name of Pauline Crowhurst is set aside and remitted for recalculation of the overpayment in accordance with these reasons (2013/1596); and·The decision to suspend the pension is affirmed (2013/1597).
Ratio Decidendi
Legal Principle Established
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