QX06/16 and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1761

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1761

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          No Q 200600425

GENERAL ADMINISTRATIVE DIVISION			)
Re           QX06/16

Applicant

And         SECRETARY, DEPARTMENT

  OF EMPLOYMENT and   WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date14 September 2007 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

…………[sgd]…………………  

RG Kenny

Member

CATCHWORDS

SOCIAL SECURITY – parenting payment – calculations based on incorrect income levels – overpayment of parenting payment – debt due to the Commonwealth – debt not attributable solely to Commonwealth error – no special circumstances to enable debt to be waived – decision affirmed.

Social Security Act 1991 (Cth) ss 503, 1068A, 1068B, 1223, 1237, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) ss 68, 180

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

14 September 2007     Mr RG Kenny, Member

Application

1.          In the period from 23 September 2003 until 26 December 2005, the applicant received income support payments under the Social Security Act1991 (the Act) in the form of parenting payment. On 31 March 2006, a Centrelink officer determined that the applicant had been overpaid in respect of parenting payment and a debt of $449.20 was raised. The decision was affirmed by an authorised review officer on 12 April 2006. The Social Security Appeals Tribunal (the SSAT) then reviewed the decision and, on 31 May 2006, set it aside and remitted the matter to the respondent to recalculate the debt. The applicant, on 26 June 2006, sought further review by the Administrative Appeals Tribunal (the Tribunal). On 18 September 2006, the respondent recalculated the debt and determined that it amounted to $822.82 during the period from 23 September 2003 until 26 December 2005. Further recalculations were undertaken by the respondent on 22 January 2007, 11 July 2007 and 13 July 2007and the debt was assessed at $1,046.12 in the period from 23 September 2003 until 19 September 2005 (the overpayment period). In accordance with s 180(1)(a) of the Social Security (Administration) Act 1999 (the Administration Act), the Tribunal is to review the most recent decision of the respondent as if it had been affirmed by the SSAT.

Issues for Determination

2. The rate of parenting payment is calculated in accordance with s 503, s 1068A and s 1068B of the Act. These provisions base the rate of payment on the fortnightly income of a recipient and that of his or her partner. The first issue for determination is whether the applicant was overpaid an amount of parenting payment in the overpayment period. If that is the case, it must then be determined whether any resultant debt may be waived.

Evidence

3. Centrelink sent the applicant a series of letters throughout the overpayment period. These constituted notices under s 68 of the Administration Act and, as such, obliged her to advise of a range of matters including the expected earnings of herself and her partner each fortnight even if payments had not been received for work done. The Centrelink fortnightly periods were identified in the letters and, for each fortnight, a reporting date was given which set the time by which the information had to be provided. The applicant was not able to provide an accurate statement of earnings and also found it difficult to estimate, with any precision, what the income in the fortnights nominated by Centrelink would be. This was because of the payment arrangements at her partner’s workplace. During the overpayment period, the applicant’s partner was employed on a casual basis with a state government department. His hours of work varied each fortnight and he was paid on a fortnightly basis from Monday to Sunday. The components of his fortnightly payments also varied to take into account factors such as penalty rates, holiday rates, laundry allowances and consolidation/shift allowances. He also worked, from time to time, on shifts which commenced on one day and finished on the next and this contributed to the difficulty in providing Centrelink with accurate earnings information. His wages were paid directly into his bank account some 9 days after the last day of a fortnight’s work but the corresponding payslip was not provided to him until some 11 to 24 days after the last working day of the fortnight.

4.          The Centrelink requirement for the applicant to provide an estimate of income during each fortnight represented a change from the previous Centrelink practice of permitting the applicant to lodge payslips every two weeks.  When this was first introduced, the applicant and her partner realised that it would present difficulties to them because of the payment arrangements noted above. An attempt was made by the applicant to lodge a payslip on 3 November 2003 and this is recorded in a Centrelink file note.  The applicant was advised that the payslip would not be used as the basis for calculating the parenting payment.  The applicant and her partner advised Centrelink of their concerns.  Centrelink file notes to that effect were recorded on 17 November 2003, 15 December 2003, 2 February 2004, 9 February 2004 and 1 June 2005.  The opportunity was also taken on those occasions by the applicant to advise Centrelink that the estimate given for particular fortnights did not match the payslips subsequently received.  Both the applicant and her partner attended an interview with a Centrelink Officer on 1 June 2005.  The officer’s file note reveals that they requested an actual income figure at which they should recontact Centrelink to advise when payslips did not match the estimate previously given.  The officer acknowledged the difficulty that they faced and advised that “a few dollars would not affect over the fortnight but that $100 over the fortnight might”.  The officer also noted that the applicant was advised that, if they maintained records of income and advised of any discrepancies as soon as they became aware of them, they would be meeting their obligations. 

5.          On 19 April 2005, Centrelink raised a debt of $69.51, in relation to parenting payments, for the period from 24 August 2004 until 6 September 2004. At the hearing, Ms Forsyth conceded that this had been raised, in part, due to a Centrelink error.

6.          The respondent’s contention is that, during the overpayment period, parenting payment was calculated on the basis of estimates of income which were inaccurate and that the amount paid to the applicant was $11,904.58.  It was contended that the amount to which the applicant was entitled, on the basis of actual income figures, was $10,858.46 and that, therefore, she was overpaid the amount of $1,046.12.  Those calculations were made by a Centrelink officer who gave evidence at the hearing.  He utilised Centrelink’s computer programs and also manual calculation methods.  He provided detailed reports dated 22 January 2007, 11 July 2007 and 13 July 2007.  The accuracy of these was challenged by the applicant’s partner.  In particular, he contended that inaccuracies arose because of the way in which his income was apportioned over the Centrelink fortnightly periods and because of small variations in “other income” which related to matters such as interest earned on bank accounts.  As to the first of those matters, the Centrelink officer said that apportionment of income had been correctly attributed throughout the overpayment period.  As to the second matter, the Centrelink officer agreed that this would affect the calculations but also said that he had entered the correct amounts as they changed from time to time and that the reports which he produced accurately reflected those amounts. 

Consideration

7. Central to the issue of whether the applicant was overpaid an amount of parenting payment is the accuracy of the calculations made by the Centrelink officer. The evidence was that he had been engaged in the process of calculating entitlement benefits under the Act for 6 years. I was impressed by his demeanor as a witness and, based upon his experience, upon the detailed reports of his calculations, upon the number of occasions when he has conducted the calculation exercise and the various modes that he had adopted in doing so, I am satisfied that those calculations should be accepted as correctly reflecting the amount of parenting payment that the applicant received and the amount to which she was entitled. For those reasons, I have adopted those calculations rather than those made by the applicant’s partner. Based upon the Centrelink officer’s figures, I am satisfied that the applicant was overpaid the amount of $1,046.12 in relation to her parenting payment.

8. In accordance with s 1223(1) of the Act, where a person obtains the benefit of a social security payment, which includes parenting payment, and where the person was not entitled, for any reason, to obtain that benefit, the amount of the payment is a debt due to the Commonwealth. I am satisfied that this provision of the Act is met and that the overpayment of $1,046.12 constitutes a debt owed by the applicant to the Commonwealth.

9. Section 1237 of the Act lists the circumstances in which a debt may be waived. This includes the waiver of a debt arising from error in accordance with s 1237A of the Act which, in so far as relevant, reads:

…the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

10. The issue for the Tribunal is whether the applicant’s debt, or some proportion of it, should be waived in accordance with that provision. As noted above, the respondent has conceded that the debt of $69.51 raised by Centrelink on 19 April 2005 for the period from 24 August 2004 until 6 September 2004 related, in part, to a Centrelink error. I am satisfied that the remainder of the debt was contributed to by the incorrectness of the estimates of income provided by the applicant. In this, the applicant was disadvantaged by the system which did not permit her to advise of income by the lodgement of payslips. Nevertheless, this contributed to the debt and, accordingly, the debt is not attributable solely to administrative error by the Commonwealth. In relation to the debt of $69.51 for the period from 24 August 2004 until 6 September 2004, it was submitted by Ms Forsyth that notification of the income amounts by the applicant had been received outside of the time-frame within which she was obliged to provide income information and which was nominated in the letters sent to her by Centrelink during the overpayment period. I accept Ms Forsyth’s submission in that regard and, therefore, I am satisfied that this also contributed to the overpayment. Therefore, the debt of $69.51 was not due solely to administrative error by the Commonwealth. The applicant’s debt of $1,046.12 cannot be waived under s 1237A of the Act.

11. I am also satisfied that the debt cannot be waived under s 1237AAD of the Act, which applies only where there are special circumstances, other than financial hardship alone, that make it desirable to waive the debt. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, observed (at 545) that special circumstances:

would require something to distinguish... [the]… case from others, to take it out of the usual or ordinary case. ……. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

12. It was contended by the applicant’s partner that his remuneration arrangements met those requirements. However, I do not accept that submission. It is not unusual that payment arrangements do not match the Centrelink fortnightly reporting arrangements and that estimates of income must be made. It is also not unfair or unjust that public monies incorrectly paid to a person should have to be repaid. Indeed, the evidence given at the hearing was that most of the debt has already been recovered by Centrelink through subsequent withholdings of benefits to the applicant. The evidence of the applicant’s partner was that there are no health concerns in the family and that they are able to make ends meet in a financial sense. I am satisfied that there are no special circumstances which enable the debt to be waived under s 1237AAD of the Act.

Decision

13.     The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:…………[sgd]…………………………………..
  Legal Research Officer

Date/s of Hearing  24 October 2006; 2 August 2007  
Date of Decision  14 September 2007
For the Applicant  The applicant’s partner
For the Respondent                  Ms J Forsyth