Perry and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 200

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 200

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1070

GENERAL ADMINISTRATIVE  DIVISION

Re:         BEVERLEY HELEN PERRY

Applicant

And:       SECRETARY,

DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             7 March 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ family tax benefit ‑ overpayment ‑ debt to Commonwealth ‑ waiver ‑ whether special circumstances exist

A New Tax System (Family Assistance) Act 1999 s 22A, 71

A New Tax System (Family Assistance) (Administration) Act 1999 s 97, 101

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

Re Gerhardt and Department of Employment, Education and Training (AAT 10941, 17 May 1996)

REASONS FOR DECISION

7 March 2006  Regina Perton, Member

1.      Beverley Perry received family tax benefit for her son Matthew Cosier who was born on 30 August 1984.  On 30 August 2000, Matthew was granted youth allowance but Mrs Perry continued to receive family tax benefit.  When Centrelink became aware of the double payments it made decisions on 14 May 2004 that there had been an overpayment of benefits between 2000 and 2004 totalling $8917.31; and that a debt was due to the Commonwealth in that amount.  Mrs Perry claimed that she was not aware of the overpayment or her obligations because her medical condition prevented her from opening her mail.  She argued that in the circumstances, she should not be required to repay the debt.  On 9 June 2004 an Authorised Review Officer affirmed the decisions.  Mrs Perry sought review of the decision by the SSAT.  On 31 August 2004 the SSAT affirmed the decisions.

2.      The issues before the Tribunal are whether a debt to the Commonwealth arises from the overpayment and, if so, whether the debt should be waived.

3.      The relevant legislation is the A New Tax System (Family Assistance) Act 1999 (the Act) which provides (in s 22A) that a person cannot be eligible for family tax benefit if the person’s child is receiving a social security benefit (which includes youth allowance). Section 71 of the Act provides that an overpayment is a debt to the Commonwealth. Section 97 of the A New Tax System (Family Assistance)(Administration) Act 1999 (the Administration Act) provides that a debt may be waived if the debt was solely due to administrative error; the applicant received the payments in good faith; and the applicant would suffer severe financial hardship if the debt was recovered. Section 101of the Administration Act provides that a debt may be waived where there are special circumstances (other than financial hardship alone).

EVIDENCE

4.      Mrs Perry told the Tribunal that she has three children.  Matthew is the youngest.  When Matthew turned 16 years on 30 August 2000, she completed the necessary forms for youth allowance and expected that Centrelink would make the necessary adjustment to her social security payments.  She said that in March or April 2004 she contacted Centrelink when Matthew obtained employment and was told that she had been receiving family tax benefit payments to which she was not entitled.  She said that she was not aware that she was receiving family tax benefit.

5.      Mrs Perry described ongoing medical and personal problems.  She acknowledged that she may have received letters reminding her of her obligation to notify Centrelink if Matthew received a social security benefit, but she explained that she did not open some of her mail or become aware of its contents because of the need to avoid the stress associated with reading the contents.  Mrs Perry presented the Tribunal with a large bundle of unopened letters.  She agreed that she had held a number of conversations with Centrelink officers in person and by telephone, but denied discussing family tax benefit.  She also stated that she did not examine bank statements closely and did not identify individual types of payment made to her account.

6.      Mrs Perry said that she is suffering financial hardship because of the need to support herself, her mother and another son, Anthony, who has experienced medical problems all his life.  She said that she receives a carer pension at the maximum rate.  Her mother, who suffers from dementia, receives a war widow’s pension and Anthony receives disability support pension. 

7.      In a written report dated 16 November 2004 (Exhibit A1), Ms N. Dorrell, psychologist, stated that Mrs Perry has suffered from chronic depression and anxiety, and has experienced stressors arising from the need to care for her mother and Anthony, both of whom have special needs.  In a further report dated 24 March 2005 (Exhibit A2) Ms Dorrell stated that because of Mrs Perry’s psychological state and limited cognitive processes, it is unlikely that she would have bothered to open or attend to mail that she believed to have been of a routine or insignificant nature.  Ms Dorrell concluded that Mrs Perry suffered from clinically significant impairment caused by depression, anxiety, worry and related physical symptoms in all aspects of her life for the previous five-year period.  Ms Dorrell amplified her written comments in oral evidence.

8.      Dr Gerald O’Brien, Anthony’s treating psychiatrist, gave oral evidence about Anthony’s psychiatric condition and the symptoms he exhibits.  He had been treating Anthony for some eighteen months.  He indicated that he had met Mrs Perry on a number of occasions and explained the degree of Anthony’s dependency on his mother. 

IS THERE A DEBT TO THE COMMONWEALTH?

9. The Tribunal finds that Matthew received youth allowance from 30 August 2000 . The Tribunal finds that Mrs Perry continued to be paid family tax benefit until 11 May 2004. She was not eligible to receive family tax benefits once Matthew began receiving youth allowance. Under s 71 of the Act Mrs Perry received $8917.31 in payments to which she was not entitled. The Tribunal finds that that this amount is a debt owed to the Commonwealth.

SHOULD THE DEBT BE WAIVED?

10. Section 97 of the Administration Act allows for waiver of debts that are solely attributable to administrative error by the Commonwealth. Centrelink should have discontinued family tax benefit payments to Mrs Perry when youth allowance was granted to Matthew but did not. However, Centrelink sent numerous letters to Mrs Perry from the commencement of the debt period reminding her of her notification obligations. Mrs Perry also had telephone and personal contact with Centrelink staff concerning her payments before and during the debt period. For these reasons the Tribunal finds that the debt was not attributable solely or exclusively to administrative error by the Commonwealth (Re Gerhardt and Department of Employment, Education and Training (AAT 10941, 17 May 1996). Hence the waiver provision under s 97 of the Administration Act is not applicable.

11. Section 101 of the Administration Act allows for waiver of a debt due to special circumstances and provides:

101.     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 the family assistance law; 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.

12. The Tribunal accepts Mrs Perry’s evidence that she did not knowingly fail to meet her obligations under the legislation nor knowingly make false statements. The Tribunal accepts that she failed to open mail or to check her bank entries during the debt period. The Tribunal is also satisfied that Mrs Perry did not knowingly make a false statement or representation or to fail or omit to comply with the relevant legislation. She therefore meets the criteria in s 101(a) of the Administration Act.

13. In respect of s 101(b) of the Administration Act, the Tribunal notes that in ReBeadle v Director-General of Social Security (1985) 7 ALD 1, it was held that the special circumstances must be unusual, uncommon or exceptional so as to distinguish the case under review from the usual case.  The Tribunal takes into account Mrs Perry’s personal and family circumstances, including her own medical problems as described by Ms Dorrell.  The Tribunal recognises that she has had difficulties coping with her physical and psychological conditions.  The Tribunal also recognises the heavy burden of responsibility that Mrs Perry carries in caring for the special needs of her mother and Anthony.  The Tribunal also recognises the family’s difficult financial situation.  The Tribunal notes that Matthew is largely self-sufficient and that the family receives three separate social security benefits.  The Tribunal also notes that Mrs Perry is receiving appropriate medical treatment for her physical and psychological conditions.  Overall, the Tribunal finds that Mrs Perry’s personal circumstances are difficult.  However, the Tribunal is not satisfied that the situation in which Mrs Perry finds herself is vastly different from that of other social security recipients who have received overpayments.  The Tribunal is not satisfied that Mrs Perry’s circumstances constitute special circumstances (other than financial hardship alone). Hence, the waiver provisions of s 101 of the Administration Act do not apply.

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  3 June 2005

Date of decision:  7 March 2006

Counsel for applicant:                  Ms D. Rasheva

Solicitor for applicant:                  Victoria Legal Aid

Advocate for respondent:            Ms K. Navarro, Centrelink