Re Woodward and Secretary, Department of Family and Community Services
[2001] AATA 818
•27 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 818
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/122
GENERAL ADMINISTRATIVE DIVISION )
Re BARBARA WOODWARD
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms N Bell, Member
Date 27 September 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution decides that the debt owed by the Applicant to the Commonwealth should be waived.
[sgd] Ms N Bell
Member
CATCHWORDS
SOCIAL SECURITY – carer pension – failure to notify Centrelink that person cared for had entered a nursing home – overpayment – debt – whether debt should be recovered – whether Applicant knowingly failed to comply with a requirement of the Act – special circumstances – waiver or write-off of debt
Social Security Act 1991 – ss 1237AAD, 1236(1A)
Re Nisha and Secretary, Department of Family and Community Services [2000] AATA 315
Director-General of Social Services v Hales (1983) 47 ALR 281
Re Secretary, Department of Social Security and Donald (AAT 12461, 4 December 1997)
Re Killeen and Secretary, Department of Family and Community Services (AAT 13514, 8 December 1998)
Re Huynh and Department of Social Security (1994) 34 ALD 694
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Riddell v Department of Social Security (1993) 42 FCR 443
Department of Social Security v Hales (1998) 82 FCR 154
REASONS FOR DECISION
Ms N Bell, Member
This is an application by Ms Barbara Woodward ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 10 January 2001 (T2), which affirmed the decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 30 August 2000, to raise and recover an overpayment of carer pension of $3997.90 for the period 26 November 1998 to 15 April 1999. This earlier decision was also reviewed and affirmed by an authorised review officer on 19 October 2000 (T32).
The Applicant was represented by Ms Clark, of the Welfare Rights Centre, and the Respondent was represented by Mr Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Applicant gave oral evidence to the Tribunal. The following documents were placed into evidence before the Tribunal:
Exhibit Document Date
TD1 T1 – T40 pp 1 - 85 Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975
A1 Applicant's Statement of Facts and Contentions 25 May 2001
A2 Report of Dr F Cunliffe 5 June 2001
A3 Letter of Mr Norbert Lipton 30 August 2001
R1 Respondent's Statement of Facts and Contentions 27 August 2001
R2 Commonwealth Bank bank statement for period 1 August 1998 to 1 May 1999
R3 Letter of Pendle Hill Residential Aged Care Facility 30 August 2001
Background
The Applicant, now aged 59 years, was in receipt of carer pension in respect of her mother, aged 80 years, who, in the period for which the Applicant received carer pension, entered a nursing home. The Respondent determined to raise and recover a debt of overpayment of carer pension, on the basis that the Applicant had failed to notify the Respondent that her mother had entered a nursing home, as she had been required to do by notices sent to her by the Respondent.
IssueThe issue for consideration by the Tribunal is whether the Applicant's debt to the Commonwealth of $3997.90 should be recovered. The Applicant does not dispute that debt and does not contend that it arose out of any administrative error on the part of the Respondent. The relevant legislation is, therefore, section 1237AAD of the Social Security Act 1991 ("the Act"), which provides:
"Waiver in special circumstances
1237AAD 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 this Act or the 1947 Act; 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.
Note: Section 1236 allows the Secretary to Write off a debt on behalf of the Commonwealth."
Applicant's evidence
The Applicant told the Tribunal that she had lived her whole life as an only child with her parents, until her father died 18 years ago. After that she lived alone with her mother. The arrangement was such that she and her mother made equal contributions to household expenses, and while the Applicant was in full-time employment, her mother managed the house and their financial arrangements.
The Applicant's mother's health began to decline in 1997 when she began to become forgetful and her behaviour changed. At this time the Applicant did not realise that her mother had Alzheimers disease. Her mother became unable to look after herself and in February 1998 the Applicant left work to care for her. She began to receive carer payments in March 1998. The Applicant had remained working on Fridays with her previous full time employer and in May 1998 advised Centrelink that her mother's condition had deteriorated and that she would no longer be working on Fridays.
The Applicant said that she was required to care for her mother by way of dressing, toileting, washing and feeding and that her mother was very demanding and often abusive, sometimes violently so. Just before the Applicant ceased working on Fridays, her mother fell, breaking her hip and had to be hospitalised. When she came home from hospital she was very aggressive, sometimes hitting, kicking and smacking the Applicant on the face. The Applicant said that this behaviour was in complete contrast to her mother's usual demeanour which was gentle and "ladylike". She said that this change in her mother's behaviour caused her enormous distress and she, the Applicant, was unable to accept what was happening. She described herself as living from minute to minute, simply trying to cope with her mother and her extremely distressing behaviour.
The Applicant said that in approximately July or August 1998 her mother had another fall and broke her leg. She was hospitalised again and the Applicant was advised by hospital staff to arrange for her to enter a nursing home.
The Applicant described the nursing home as "very basic", short staffed and with many patients suffering from severe dementia. She found it necessary to continue to provide care for her mother in relation to washing, toileting, dressing and feeding because she was immobile and, notwithstanding the efforts of the few staff available, would suffer without her assistance. It was her practice to spend every day with her mother, arriving at approximately midday and leaving after-dinner. The Applciant said that at this time she simply "let everything go" and was "in a daze". She said she focused entirely on her mother and neglected everything else except for her small companion dog. She was trying to find a way to get her mother home again and "not running (her) life in any normal way". She said that bills mounted up, the house went uncleaned and she had no contact with her few friends. She would pay small amounts towards her bills when she thought of it, or when she received overdue notices and incurred significant interest on her council rates as a result of her failure to pay those rates.
The Applicant acknowledged that she had received some letters from Centrelink during the relevant period, but had simply put them away in a drawer. She said that she did not think about her obligations to notify Centrelink about her mother's entry into a nursing home. She considered herself continuing to provide care for her mother, and required to do so, given the standard of the nursing home.
The Applicant said she had concerns about her own mental health during the time her mother was in the nursing home and once considered driving her car off the end of the road. She said she simply didn't want to go on. She consulted a doctor at the time for dizziness and he told her that it was probably due to stress and she should visit her mother less often. This was not, in her opinion, an option she could take up. The Applicant said she was diagnosed by Dr Bennett, a Geriatrician, in February 2001 as suffering from severe depression, and she is currently taking medication for this. She had consulted Dr Bennet because she was concerned about her own forgetfulness and state of mind and worried that she, like her mother, may have developed Alzheimers disease. The Applicant conceded she did not see any other doctor in 1998 or 1999 about her mental or emotional state.
The Applicant is now employed again by the firm of solicitors she had previously worked for, for 18 years. She is doing the work of a junior and not her previous secretarial job in which she assisted in probate and conveyancing matters and was the personal assistant to the Principal of the firm. She said she is extremely forgetful and often makes mistakes, even in this new simplified job.
The Applicant said that she has a number of outstanding debts, run up during the time her mother was in the nursing home, and finds that she is unable to discharge them. She agreed, in cross-examination, that she owns her house unencumbered. The house is a four-bedroom, brick veneer, worth, in her opinion, approximately $200,000. She does not wish to sell her house as she has lived in the area for approximately twenty years and is comfortable there.
The Applicant said that, during the period her mother was in the nursing home, she did not look for work as she was in no position to do so.
Dr CunliffeDr Cunliffe (Exhibit A2) described the Applicant's situation after her mother entered the nursing home, as "extremely stressful" and said that:
"her mother's demented personality (caused) Barbara to become extremely depressed and these periods were aggravated by the effects of the physical assault (by) her mother".
Dr Cunliffe also noted that the Applicant spent 20 out of 24 hours at her mother's bedside at the nursing home. He said that the Applicant reported to him at the time that "it left her confused and depressed and unaware of the necessities of her own affairs". Dr Cunliffe noted that Dr Bennett had found the Applicant to be "quite depressed" and had recommended that she take Efexor 37.5 mg daily.
Mr Lipton
Mr Lipton is the Principal of the firm Norbert Lipton & Co., Solicitors, and has been the Applicant's employer since May 1979. He described the Applicant as being, prior to her resignation in February 1998, a competent shorthand typist who had endeared herself to many of his long term clients. He described her as punctual, reliable and extremely honest.
Mr Lipton said:
"I feel certain that she in all probability was not aware of her obligation to inform Centrelink of her changing circumstances or else was so consumed by her obligation to be with her mother in the nursing home every day that she neglected her day-to-day affairs.
As you are no doubt aware, Barbara is 60 years of age, not married, an only child with no other family and has always resided with her parents. All holidays were taken with her parents and she was really emotionally dependent upon in all ways -- decision-making, financial advice and management, shopping, cooking, washing etc. They controlled her life. If they did not want her to do anything, she did not to it unquestioningly."Mr Lipton noted that by the time the Applicant's mother had died, the Applicant had high blood pressure, came out in a skin rash, and could not manage her day-to-day affairs. Her conversation was slow and very repetitive and she was very depressed. Her finances were in disarray and she had run up a number of debts. The house was uninsured, the rates had not been paid for a year and the car, which had not been serviced for over a year, was uninsured and unregistered.
Mr Lipton said that the Applicant had recommenced employment with his firm on 16 October 2000 and her duties now amount to a junior's job. He said she is now becoming forgetful and although her duties are minimal, repetitive work is often done incorrectly because she has forgotten how to complete the task. Mr Lipton said "... I feel that because Barbara is not progressing as I had hoped, her time with this firm might be limited".
Respondent's evidenceThe Respondent presented to the Tribunal a copy of the "Passbook Reconstruction" of the Applicant's Commonwealth Bank savings account, which showed the regular deposit into her account of a fortnightly payment in the sum of $362.76 described in the Reconstruction as "DSS Pension". The documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 included copies of notices sent to the Applicant on 2 March 1998 (T3), 26 March 1998 (T4), and 29 May 1998 (T5). The notices required the Applicant to inform the Respondent within 14 days of any changes to her circumstances and were issued pursuant to sections 222 and 223 of the Act. Further, a copy of a file note of a conversation between the Applicant and an officer of Centrelink on 29 May 1998 (T6) states:
"mother (caree) is very ill so a/n is not able to work. Was working Fridays and today is first one she has missed. Mother is in hosp and may have to go to a nursing home. We discussed bve payment and what happens in the event of caree passing away or going to n/h."
Submissions
Ms Clark's submission, on behalf of the Applicant, was that the Applicant neither denied the debt or the sending of notices by Centrelink. Her submission was that the Applicant was, at the time, simply incapable of attending to the notices. She noted that the Applicant was only able to deal with regular bills when they became overdue and were clearly marked as urgent. Ms Clark noted that generally Centrelink mail does not carry such markings. She submitted that the Applicant did not "knowingly" fail to comply with the requirements contained in the notices.
Ms Clark submitted that special circumstances, of the kind contemplated by section 1237AAD of the Act, apply here, in that the Applicant, at the time the debt arose, had impaired psychiatric health arising from the stress and depression associated with her mother's decline; an associated inability to look after her own affairs; and her alternative notional entitlement to newstart allowance with an exemption from the activity test. Ms Clark noted that the Applicant does not seek to write off of the debt. She submitted that, should the Tribunal determine that the debt should be recovered, then it should be recovered at a rate no higher than the rate it is being recovered at currently.
Ms Clark provided the Tribunal with a list of authorities and referred, in particular, to the Tribunal's decision in Re Nisha and Secretary, Department of Family and Community Services [2000] AATA 315.
Mr Lozynsky, for the Respondent, emphasised to the Tribunal that the debt arose as a result of the Applicant's failure to notify Centrelink of her mother's entry into a nursing home. He submitted that it was "inexcusable" for her to have "ignored her obligations". He noted that the Applicant had been sufficiently capable of arranging nursing home accommodation for her mother and that there was no evidence of her having consulted a doctor, in the relevant period, about her own state of mind.
Mr Lozynsky submitted that financial hardship alone does not constitute special circumstances for the purposes of section 1237AAD. He noted that the Applicant is currently employed and earning approximately $420 per week gross, with Centrelink recovering only $15 per week.
In relation to the issue of notional entitlement to another payment, Mr Lozynsky noted that section 1237AAC, concerning notional entitlements, relates only to family payment, family allowance or parenting payment. He further noted that, in order to be entitled to newstart allowance, the Applicant would have had to make a claim and satisfy the activity test. Mr Lozynsky referred the Tribunal to a number of decisions including Director-General of Social Services v Hales (1983) 47 ALR 281; Re Secretary, Department of Social Security and Donald (AAT 12461, 4 December 1997); and Re Killeen and Secretary, Department of Family and Community Services (AAT 13514, 8 December 1998) in relation to the issue of whether the Applicant knowingly failed to comply with a requirement under the Act. Mr Lozynsky also referred to Re Huynh and Secretary, Department of Social Security (1994) 34 ALD 694 in relation to the question of "special circumstances".
ConsiderationThe Tribunal accepts the Applicant's evidence that during the period her mother was in the nursing home she was distraught and disorganised, focusing only on matters pertaining to her mother's welfare. The Tribunal also accepts the Applicant's evidence that she did so to the detriment of other aspects of her life, including her finances, the maintenance of her house and car, and the payment of bills. Her ability to arrange nursing home accommodation for her mother is, in the Tribunal's view, indicative of her particular focus on her mother at that time rather than of a normal level of organisational or functional capacity.
The Tribunal notes that there is no direct medical evidence available to support the Applicant's claim that, during the time her mother was in the nursing home, she was severely depressed, as recently diagnosed as being by Dr Bennett. However, the Tribunal accepts the evidence of Dr Cunliffe (albeit retrospective) that the Applicant was "extremely depressed" by the situation, which included her mother's demented personality, and aggravated by the effects of physical assault by her mother. In reaching this conclusion, the Tribunal takes into account the Applicant's particular relationship to her parent as an unmarried only child who had always lived with her mother and was, according to Mr Lipton's statement, exceptionally dependent on her for emotional and domestic support, guidance and advice.
The Tribunal had regard to the decision of the Tribunal in Re Nisha and Secretary, Department of Family and Community Services [supra] in which it was considered that the Applicant in that case had not "knowingly" made false statements, during the period after the birth of a disabled child, because her depression had reduced her capacity and ability to comprehend her obligations. The Tribunal considers that similar considerations apply here. The Applicant's ability to manage her own affairs was, during the period her mother was in the nursing home, significantly impaired. While the Applicant does not dispute that notices, advising her of her obligations to notify the Respondent of changes in circumstances, were sent to her, her evidence was that she simply did not read or absorb their contents. The Tribunal has no reason to reject this evidence and therefore concludes that the Applicant did not knowingly fail to comply with a requirement of the Act. In reaching this conclusion, the Tribunal also had regard, as requested by the Respondent, to the decisions in Re Secretary, Department of Social Security and Donald [supra] and Re Killeen and Secretary, Department of Family and Community Services [supra]. In Donald [supra] the Tribunal reached the conclusion that the respondents in that case had not knowingly failed to comply with a requirement of the Act and in Killeen [supra] the issue appears not to have been considered at all. The Tribunal cannot see the relevance of the Full Federal Court's decision in Hales [supra] to this aspect of the application.
The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 is often quoted in relation to the interpretation of "special circumstances". In that decision, the Tribunal said at ALD 3:
"An expression such as `special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."
The breadth of the discretion in relation to "special circumstances" was also commented on by the Full Federal Court in Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 at 450:
"Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other."
The Tribunal therefore will have regard to the context in which the circumstances, peculiar to the Applicant, occurred. The Tribunal has already accepted that the Applicant had a relationship with her mother that was marked, to an unusual degree, by dependence. After her mother's decline, the "tables were turned" and she found herself solely responsible for her mother's welfare. In addition, the nature of her mother's illness caused her mother to behave in a way that was quite out of character and very distressing to the Applicant.
The experience of caring for an elderly relative who is suffering from the effects of dementia or of Alzheimers disease is unfortunately not an uncommon one. It is also, commonly, a distressing experience. However, the Tribunal considers that the context in which the Applicant was required to care for her mother, at home and when she entered the nursing home, served to particularly heighten the distress caused by the experience, and did so to an unusual degree. The Applicant's particular and exclusive dependence on her mother and the nature of their previous relationship and living arrangements meant that the common experience of caring for an elderly, Alzheimers disease affected parent, was exceptionally distressing for the Applicant. The Tribunal also finds that the effects of the distress suffered by the Applicant continue now, almost a year after her mother's death, in the manner described by Mr Lipton.
The Tribunal considers that these circumstances are "special" within the meaning of section 1237AAD of the Act. Having reached this conclusion, it is unnecessary to deal with the additional factor of a possible "notional entitlement" to another payment under the Act or with any question of financial hardship. In this respect, the Tribunal notes the decision of the Federal Court in Secretary, Department of Social Security v Hales (1998) 82 FCR 154, that financial hardship need not be included in the range of matters constituting special circumstances for the purpose of the exercise of the discretion in section 1237AAD.
It does remain, however, for the Tribunal to consider the write-off provisions in the Act. The Tribunal concludes that write-off of the debt is not appropriate in this case. The Applicant does have a "capacity to repay the debt" as is shown by her current payments of $15.00 per week (see section 1236(1A) of the Act).
It follows that the debt should be waived, the Tribunal being satisfied that the Applicant did not knowingly fail to comply with a provision of the Act, that there are special circumstances that make it desireable to waive the debt and that it is more appropriate to waive than to write off the debt.
DeterminationThe Tribunal sets aside the decision under review and in substitution decides that the debt owed by the Applicant to the Commonwealth should be waived.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: R Quinn .....................................................................................
AssociateDate/s of Hearing 31 August 2001
Date of Decision 27 September 2001
Solicitor for the Applicant Ms Clark
Solicitor for the Respondent Mr Lozynsky
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