Prahara; Secretary, Department of Employment and Workplace Relations

[2006] AATA 868

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 868

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/35

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And WAWAN PRAHARA

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date10 October 2006

PlaceBrisbane

Decision The decision under review is set aside. The Tribunal decides in substitution that the debt in respect of parenting payment should not be waived pursuant to s 1237AAD of the Social Security Act 1991.

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

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – parenting payment – overpayment – special circumstances – no special circumstances exist to waive the debt

Social Security Act 1991 s 1237AAD

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

Schulze and Secretary, Department of Family and Community Services [2004] AATA 705

Secretary, Department of Family and Community Services and Varhegyi [2005] AATA 635

REASONS FOR DECISION

10 October 2006	Senior Member B J McCabe
introduction

1. Mr Wawan Prahara received Parenting Payment in the amount of $3544.19 for the period 18 August 2004 to 29 November 2004. The Secretary says Mr Prahara was not entitled to receive the payment. The Secretary raised a debt in respect of the overpayment. Mr Prahara appealed to the Social Security Appeals Tribunal (the SSAT) which decided there were special circumstances warranting the exercise of the discretion to waive the debt pursuant to s 1237AAD of the Social Security Act 1991 (the Act). The Secretary has appealed to this Tribunal.

2.      The matter was heard in Lismore. Mr Prahara attended in person and gave evidence. He was represented by Ms Dillon-Smith. Mr Belcher represented the applicant.

factual background to the dispute

3.      Mr Prahara is the respondent. He comes from Indonesia. He has lived in Australia since 1983. He has an uncertain grasp of English. He was able to answer questions during the course of the hearing, albeit with some difficulty.

4.      The respondent and his former partner, Ms De Jong, had three children together. The couple actually separated in 1993. Ms De Jong lives in Mullumbimby while the respondent resides in Byron Bay. Djava, the youngest child, was born on 26 February 2000.

5.      Mr Prahara testified the children’s mother would disappear from her home in Mullumbimby for days at a time without explanation. The children would be unsupervised. He said one of the children would call him during these absences. He would pick up the children and take them to his home where he cared for them. The applicant said the children were effectively living with him full-time during the period in question. He says he had sole care, control and custody of Djava in particular.

6.      The respondent spoke with Centrelink about the situation. He made a claim for parenting payment in respect of Djava. He was assisted in his claim by a family worker from the Ballina-Byron Family Support Service. A worker from the service provided a statement in support of the claim. Mr Prahara submitted claim forms although he says he did not complete the forms himself. He says he was not able to understand the forms because of his limited grasp of English, and because he was usually accompanied by the children who made it hard for him to concentrate. It was unclear who else might have completed the forms, although I note the handwriting in some of the forms appears to be different. He signed the forms in any event.

7.      After some investigation, Centrelink decided to grant the parenting payment to Mr Prahara from 18 August 2004. Ms De Jong subsequently provided a completed questionnaire which included an assertion that the children – including Djava – were in her exclusive full time care at her home in Mullumbimby. She subsequently sought to have the benefits paid in respect of Djava restored to her. Centrelink asked Mr Prahara for more information about the care arrangements. He completed a questionnaire on 27 September 2004 indicating Djava was in his care at his home.

8.      Centrelink was subsequently provided with signed terms of settlement relating to the care of Djava. The respondent was granted contact visits each fortnight and during the school holidays. The terms of settlement presented a quite different picture to the one painted by Mr Prahara in his correspondence with Centrelink. The parenting payment was subsequently cancelled and a debt was raised on 3 December 2004.

the issue

9. The respondent has conceded in his statement of facts and contentions that he was not in fact entitled to receive a parenting payment in respect of Djava during the relevant time. It follows the amount of the overpayment is a debt due to the Commonwealth which may be recovered. The question in this case is whether the debt should be waived pursuant to s 1237AAD of the Act in light of the special circumstances of the case.

what does the legislation mean by the expression special circumstances?

10. Section 1237AAD permits the decision-maker to waive a debt in special circumstances. The debt must not have arisen because the recipient of the payment knowingly made a false statement, or because he knowingly failed or omitted to comply with a requirement of the Act. I note the applicant provided inaccurate information but after hearing all of the evidence I accept he did not do so knowingly. The section also provides the debt cannot be waived if it would be more appropriate to write it off. I accept – other things being equal - waiver is preferable to a write off in the circumstances of this case. It follows I accept the discretion is available to me provided I can be satisfied “there are special circumstances (other than financial hardship alone) that make it desirable to waive” the debt: s 1237AAD(b).

11.     The expression special circumstances has been considered in many cases. The best known authority is Beadle and Director-General of Social Security (1984) 6 ALD 1. In that case, the Tribunal explained the circumstances must be “unusual, uncommon or exceptional” when compared to those in other cases.

12.     The SSAT found the applicant had a notional entitlement to Newstart and took that entitlement into account when discussing special circumstances. The SSAT said the applicant would probably have received Newstart in any event, even though he was not entitled to parenting payment so there has been no net loss to the Commonwealth. That conclusion is at odds with other decisions of this Tribunal, most obviously Schulze and Secretary, Department of Family and Community Services [2004] AATA 705 and Secretary, Department of Family and Community Services and Varhegyi [2005] AATA 635. Those decisions make it clear “there is no room to introduce a concept of notional entitlement” into the expression special circumstances: Varhegyi at paragraph 37 per Deputy President Forgie.

13.     The SSAT also found there were administrative errors in Centrelink’s handling of the file. The errors, if they occurred, did not strike me as being particularly serious. Mr Prahara provided forms which he signed. He provided supporting information. There were some inconsistencies but Centrelink acted quickly to solicit information from Mr Prahara and his former partner. I accept Mr Prahara obviously had difficulty communicating in English; perhaps Centrelink should have arranged for an interpreter to assist them in dealing with him. In fairness to Centrelink, Mr Prahara was to their knowledge being assisted in his application by workers at the Family Support Service. Ms Dillon-Smith suggested the workers from the Service may have been overzealous. Perhaps they were. But I do not think that adds up to special circumstances.

14.     The applicant also said he was suffering from health problems. He experiences migraines and depression. I accept ill health can amount to special circumstances in appropriate cases. There is limited evidence to support his claim. In any event, it is unclear that he is affected by the conditions to such an extent that would justify exercise of the discretion.

15.     The SSAT also found the applicant incurred a range of expenses when he took care of the children in the absence of their mother. That may well be so, but it is unclear why that amounts to circumstances that are “unusual, uncommon or exceptional”: Beadle.

16.     I accept the applicant is in difficult financial circumstances. But I was not referred to any other circumstances that might constitute special circumstances for the purposes of the Act, and I am unable to exercise the discretion on the basis of financial hardship alone. In any event, the applicant’s financial hardship is not unusual. He continues to receive benefits paid under the Act. The amount of the overpayment can be deducted from those earnings each fortnight. That will cause him difficulty, but not extreme hardship. Many recipients of social security benefits suffer from financial hardship of a similar order.

conclusion

17. The decision under review is set aside. The Tribunal decides in substitution that the debt in respect of parenting payment should not be waived pursuant to s 1237AAD of the Social Security Act 1991.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  13 July 2006
Date of Decision  10 October 2006
The applicant was represented by Ms Dillon-Smith, solicitor.
The respondent is represented by Mr Belcher, a departmental advocate.