ROBERTA MANSFIELD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITIY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 206
•24 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5545
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERTA MANSFIELD Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITIY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms L R Tovey, Member Date24 March 2010
PlacePerth
Decision The Tribunal affirms the decision under review.
........(sgd) Ms L R Tovey............
Member
CATCHWORDS
SOCIAL SECURITY – carer payment – whether overpayment – waiver of recovery of debt – whether overpayment received in good faith – whether debt resulted from the Applicant knowingly making a false representation
Social Security Act 1991 ss. 198, 1223, 1236, 1237, 1237A, 1237AAD
Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529
Jordan v Secretary, Department of Family and Community Services (2004) 86 ALD 256
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127
REASONS FOR DECISION
24 March 2010 Ms LR Tovey, Member 1. The Applicant seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") made on 25 October 2007, which found that the Applicant owed the Commonwealth a recoverable debt in respect of carer payments she received from 21 December 1998 to 11 July 2000.
2. The Applicant has been given a diagnosis of gender dysphoria syndrome, and at different times relevant to this review has presented as a male and female. She has been known to Centrelink as both Robert David Stinson and Roberta Dee Mansfield. I shall refer to the Applicant in the female gender throughout these reasons, although at some of the times referred to in the reasons she presented as a male.
3. The following facts, which I find from the Section 37 Documents, explain the manner in which the alleged debt arose.
4. In August 1997 the Applicant applied for a newstart allowance under the name Robert David Stinson. For the purpose of that application, on 2 September 1997 the Applicant completed a form of questions for clients with insufficient proof of identity, in which she gave details of her family members and previous addresses and employment. She received payments of that allowance into a Commonwealth Bank account.
5. In 1998 the Applicant applied for a disability support pension, which was refused by the delegate of the Respondent on 25 August 1998. For the purposes of making that application the Applicant signed a number of documents under the name Robert David Stinson.
6. On 11 December 1998 Centrelink received an application form, purportedly signed by the Applicant in the name Robert David Stinson. The form gave the Applicant's date of birth and indicated that her sex was male. The form indicated that the Applicant's home address was in Water Street, Spring Hill, Queensland, with her postal address being a post office box in New Farm, Queensland. The form indicated that the Applicant was being paid newstart allowance and gave her customer reference number. The form identified a person, who I will refer to as F, as a person who regularly stayed at her current address, and in respect of whom she was applying for a carer payment. The application was accompanied by a medical report which diagnosed F as suffering from schizophrenia. The Applicant nominated the Commonwealth Bank account referred to above for the purpose of receiving payments.
7. A delegate of the Respondent granted the Applicant a carer payment with effect from 26 November 1998. The Applicant was informed of this decision by letter dated 11 December 1998. That letter advised the Applicant that she must inform Centrelink within 14 days of certain events happening. One of those events was that the person who the Applicant cared for "stops being cared for in your home". Also on 11 December 1998 the Applicant was informed that her newstart allowance would cease because she was receiving another payment. These letters of 11 December 1998 were both sent to the post office box address given on the application for a carer payment.
8. Centerlink's computer records indicate that on 29 December 1998 the Applicant, as Robert Stinson, advised Centrelink that she was living at a new address in Masons Parade Gosford, New South Wales. The record indicates that the "client advised that is paying $140 per week private rent and is not sharing accommodation".
9. Also on 29 December 1998 a Centrelink officer wrote to the Applicant at the Masons Parade address advising that the rate of her carer payment had increased as a result of additional rent allowance. This letter also advised the Applicant that she should advise Centrelink within 14 days if the person for whom she cared stops being treated in her home. Another letter dated 18 January 1999, which dealt with other aspects of the Applicant's carer payment, carried the same warning.
10. On 11 February 1999 the Applicant completed an application for newstart allowance, under the name Roberta Dee Mansfield. In that form she indicated that she had not had any other names. The Applicant indicated that her sex was male to female transgender, and that she did not have a partner. She gave the Masons Parade address as her home address. She indicated that she had never claimed a social security/Centrelink payment before. She asked for payments to be made into a Commonwealth Bank account in the name of Roberta Dee Mansfield. The application was supported by a treating doctor's report, which included a diagnosis of gender dysphoria syndrome.
11. On 15 February 1999 the Applicant signed a statutory declaration in the name of Roberta Dee Mansfield. The declaration included the following passage:
"I ROBERTA Dee Mansfield whom is a Transgender Male to female Transexual DO SOLEMNLY SWEAR that as back as far I can remember I have been knowen as the family name of Mansfield." (sic)
12. The Applicant also completed an Australian Taxation Office form of Tax File Number Application dated 16 February 1999 in the name of Roberta Dee Mansfield. In that form she indicated that she had not been known by any other names and had never previously had a tax file number. It gave a different Gosford address than had been supplied to Centrelink.
13. Centrelink's computer records indicate that on 17 February 1999 the Applicant contacted Centrelink and advised of her change of address and new rental arrangements. The customer reference number against which the call was recorded was that of Robert David Stinson. The new address given was in Newcastle Street Gosford.
14. On 18 February 1999 a delegate of the Respondent wrote to the Applicant, as Roberta Mansfield, at the Masons Parade address advising that she would be paid newstart allowance from 10 February 1999. That letter gave the Applicant a new Centrelink customer reference number. Payments of newstart allowance were made from this date into the Applicant's Commonwealth Bank account under the name Roberta Dee Mansfield, which noted the Masons Parade address. Withdrawals were made from that account between February and July 1999.
15. Subsequently, Centrelink sent letters to Robert Stinson at the Newcastle Street address in relation to carer payments and to Roberta Mansfield at the Masons Parade address in relation to newstart allowance.
16. On 28 June 1999 Centrelink wrote to Roberta Mansfield at the Masons Parade address indicating that her newstart allowance had been cancelled with effect from 5 May 1999 because the Applicant had not returned a review form which had been sent to her. On 30 June 1999 Centrelink wrote to Roberta Mansfield at the Newcastle Street address thanking the Applicant for "telling us your address details have changed", and advising of the re-started newstart allowance.
17. On 8 July 1999 the Applicant completed a "Work Ability" form under the name Roberta Mansfield. There was an indication on that form that a person, who I will refer to as N, helped her complete the form.
18. A file note of a Centrelink officer dated 8 July 1999 records a discussion with the Applicant, as Roberta Mansfield, in which:
"I asked about any other names because she states she did not know her parents and was always in foster homes. The only info is that she said she has always been known as Roberta … even as a little kid!!!! No mention of other names."
19. On 16 July 1999 the Applicant lodged a further application form for newstart allowance which she had been sent by Centrelink. The form was completed in the name Roberta Dee Mansfield and gave her address as the Newcastle Street address. In response to the question of whether she had ever claimed a social security payment other than Family Allowance from Centrelink before the Applicant responded ”yes", and identified "newstart on now" as the only payment she had claimed. The form indicated that she paid rent to F.
20. On 23 August 1999 the Applicant lodged a medical certificate, dated 4 August 1999, with Centrelink indicating that the Applicant was unfit for work until 5 November 1999. This led to medical review, eventually by a Consultant Psychiatrist Dr Maclean who reported on 25 November 1999. While I have taken the comments in that report into account, it is unnecessary to expressly set them out in these reasons. The medical reports also indicate that the Applicant was accompanied by N, who was described in the report as a "carer".
21. From August 1999 to October 1999 the Applicant's newstart allowance was paid into an account kept with Elcom Credit Union under the name Roberta Dee Mansfield, and withdrawals were made from that account.
22. In September 1999 the Applicant, as Roberta Mansfield, was recorded by Centrelink as having moved from the Newcastle Street Address to an address in Faunce Street Gosford.
23. On 29 September 1999 Centrelink sent a notice to the Applicant, as Robert Stinson, at the Newcastle Street address. Another notice was sent on 28 March 2000. Over this time regular notices were sent to the Applicant, as Roberta Mansfield, at the Faunce Street address.
24. In December 1999 Centrelink cancelled the Applicant's newstart allowance, and transferred her to a disability support pension.
25. On 13 July 2000 a Centrelink officer raised a debt of $18,581.21 in a notice sent to the Applicant, as Roberta Mansfield, at the Faunce Street address. The basis was stated as follows:
"You have been overpaid because you received payments of Carers Allowance in the name of Robert Stinson while you were also receiving payments of Disability Support Pension in the name of Roberta Mansfield."
26. Adjustments to the amount payable were made by notices sent to the Applicant on 12 and 21 March 2002.
27. During the time the Applicant received the carers pension as Robert Stinson, payments were made into a Commonwealth Bank account in the name of Robert Stinson, and withdrawals regularly made from that account generally from Gosford.
28. On 14 February 2006 an Authorised Review Officer of the Respondent confirmed the decision that a debt should be raised in respect of receipts of carer payment, although he recalculated the amount owing. That decision was affirmed by the SSAT, which again recalculated the amount owing. It determined that carer payments received by the Applicant from 21 December 1998 to 11 July 2000 were debts owing to the Commonwealth, which should be recovered from her. Centrelink then recalculated the amount of the debt as determined by the SSAT to be $18,820.99.
ISSUES
29. The Applicant gave evidence about a range of matters, and raised a number of issues. However, having reviewed all of the material I have come to the view that the Applicant must fail on three points, which mean that the decision of the SSAT was correctly made.
30. In my view the three critical issues are whether:
(a)the Applicant received carer payment to which she was not entitled;
(b)the payments were not received in good faith, and resulted wholly or partly from the Applicant making a false statement or representation, so as to preclude waiver of the debt; and
(c)the Applicant has capacity to repay the debt, so as to preclude write off of the debt.
Consideration of the Issues:
Whether the Applicant received a payment to which she was not entitled
31. The qualifications for carer payment were set out in s. 198(1) of the Social Security Act 1991 (Cth). The qualifications included that the carer "personally provides constant care for a severely handicapped person".
32. The Applicant accepted in her evidence before me that she moved away from F's residence to Gosford in December 1998 and at least from that time ceased caring from him. She was not entitled to carer payment at least from that time. However, carer payments continued to be paid into an account in the Applicant's name, and were therefore received by her. Having received a payment to which she was not entitled, the Applicant owes the relevant debt to the Commonwealth pursuant to s. 1223 of the Act.
33. The Applicant said that she could not remember completing the application form for the carers pension, and referred to a statutory declaration of F to the effect that he was unaware of being the subject of the Applicant's application for carer payments. The Applicant said that she was unaware that she was receiving carer payments and said that N assumed control of her bank account and forced her to complete certain forms under duress. While I have considered these issues it is unnecessary to set them out in any detail or resolve them. This is because it is clear from the facts recited in the previous paragraph that carer payments to which the Applicant was not entitled were made into her bank account and were therefore received by her, even if they were subsequently appropriated by N. Irrespective of the manner in which other issues are resolved, it remains the case that in those circumstances a debt is due to the Commonwealth.
Waiver of debt
34. Section 1237 of the Act provides for my power to waive the debt in circumstances described in certain other provisions. The two other provisions which are potentially relevant here are ss. 1237A and 1237AAD of the Act.
35. Section 1237A of the Act provides that the Secretary must waive the right to recover a proportion of a debt that is "attributable solely to an administrative error by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt". In my view the Applicant did not receive the carers payments made after December 1998 in good faith within the meaning of this provision.
36. In Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 the Federal Court was concerned with whether a debt arising from an overpayment of Austudy allowance should be waived. Mr Prince was aware that he was not entitled to continue to receive Austudy payments but, having taken steps to cancel the payments, was not aware that he was continuing to receive them. The question which arose under s. 289(2)(b) of the Student and Youth Assistance Act 1973 (Cth) ("the SYA Act") was whether "the person received in good faith the payment or payments that gave rise to the debt". As to this provision, Finn J said of the concept of "good faith" at 152 ALR 130:
"The section asks that quite a specific question be addressed: was the payment received in good faith? It is quite unconcerned, for example, with whether, after 22 December, Mr Prince acted in good faith towards DEETYA. Its sole concern is with whether a particular state of affairs exists at the time a payment (or payments) is received …
The burden of the formula can vary significantly given the purpose it is intended to serve in a given setting. In one context it can focus inquiry upon a person's reason for action (eg as with the good faith duty of company directors); in another, to a person's state of knowledge when a particular event occurs.
For my own part, I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received -- ie is not entitled to use the moneys received as his or her own -- that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.
Given the conventional liability of a mistaken payee of money from consolidated revenue to repay that money irrespective of his or her belief as to an entitlement to it (ie the 'rule' in Auckland Harbour Board v R [1924] AC 318), the concession made to the mistaken payee by s 289 of the SYA Act does seem in all probability to be directed to a payee who receives the money (to put the matter positively) in the good faith belief that he or she is entitled to receive it. In other words the frame of the section is to exclude from the right to a waiver, a person who knows or has reason to know that he or she is not entitled to receive the payment. It would be surprising to find that the parliament intended otherwise."
37. At 152 ALR 131 Finn J concluded:
"… can a receipt be otherwise than in good faith when the recipient is unaware that the payment has been received? The short answer to that in my view is 'yes'. Knowing that, in the relevant period, he had no entitlement to receive an Austudy payment, he was never in a position to be able to assert that any mistaken payment made to him was one to which he had an entitlement. Thus while he may have received a payment of which he was ignorant, he could not, in the sense that I have explained, have received it in good faith."
38. That decision of Finn J was applied by French J in Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529 at 533-4; [2000] FCA 1287 at [13]. After referring to Prince, French J said of the requirement of good faith in the context of s. 289 of the SYA Act (at 31 AAR 534, [2000] FCA 1287 at [16]):
"Consistently with what his Honour said in the Prince case, want of good faith will arise where there is a positive belief that the payment has been made by mistake. It will also arise where there is a suspicion held by the recipient that he or she may not be entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt. The provision does not, however, authorise the imputation of want of good faith in any of the senses above described simply because there are in existence objective facts which would raise a belief or a doubt or a suspicion of non-entitlement in the mind of some imaginary recipient. That proposition is quite consistent with the view that the existence of such facts may support an inference that the recipient disbelieved or doubted or was suspicious about his or her entitlement. 'Reason to know' as Finn J used that term in Prince does not necessarily import a criterion of imputed as distinct from actual want of good faith as I have described it."
39. The above decisions were applied in the context of s. 1237A of the Social Security Act by Finn J in Jordan v Secretary, Department of Family and Community Services (2004) 86 ALD 256 at 261-62; [2004] FCA 1582 at [25]-[29]. In that case Mr Jordan had received two kinds of benefits, one of which should have been reduced due to receipt of the other. Mr Jordan was aware that he was not entitled to the full amount of both benefits, but did not appreciate that he was receiving both forms of benefit. Justice Finn upheld the decision of this Tribunal to the effect that the overpayment was not received in good faith.
40. The Applicant was aware that she was not entitled to receive a carer payment after December 1998 because at least after that time she was not, in any sense, caring for F. It follows that she could not have knowingly received the payments in good faith for the purposes of s. 1237A of the Act. Even if, as she claimed in evidence before me, the Applicant was unaware that she was receiving the payments then, as the above decisions illustrate, she would not have been receiving the payments in good faith.
41. Section 1237AAD of the Act provides that the Secretary may waive the right to recover a debt in certain "special circumstances". However, before that discretion is enlivened, it is necessary that I be satisfied that "the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation".
42. In my view the debt did arise partly from the false statements or representations made in the application form completed by the Applicant on 11 February 1999 to the effect that she had never had any name other than Mansfield and that she had never made a social security/Centrelink payment before. Those statements were patently false: the Applicant accepts that she was known to Centrelink by the name Stinson and has received at least a newstart allowance in that name. The Applicant completed a statutory declaration to the effect that "as far back as I can remember, I have been known as the family name of Mansfield". This statutory declaration carried at least the implicit representation that the Applicant had never been known by any other surname. That representation was also false. If Centrelink had been informed of the Applicant's previous name and social security payments then the Respondent's officers would have, or would have least have had the opportunity to have, discovered that the carer's payments were being made and stopped them when the newstart allowance application was accepted.
43. The question is then whether the statements and representations referred to in the previous paragraph were made knowingly, within the meaning of s. 1237AAD. Assuming in the Applicant's favour that the reference is to actual rather constructive knowledge (see re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at [46]-[48]), I am satisfied that the Applicant had actual knowledge of the falsity of the statements. She accepted in her evidence that she knew she had been known by the name Stinson and had previously received social security payments. The Applicant also accepted that she had signed the documents in question, and sought to justify the making of these false statements by indicating that she was under the influence of drugs and had been coerced by N. Even if I were to make that finding, it would not alter the fact that the Applicant had knowingly made false representations. It would merely explain why she did so.
44. As I am satisfied that the debt arose partly from the Applicant knowingly making a false statement or false representation, I have no discretion to waive the debt under s. 1237AAD of the Act.
Write off of debt
45. Section 1236 of the Act provides that the Secretary may decide to write off a debt if, and only if, certain circumstances are satisfied. A number of the possible grounds of write off are clearly not applicable in this case. The debt is recoverable at law, the debtor's whereabouts are known and it is cost effective for the Commonwealth to take action (namely by deductions from the Applicant's social security payments) to recover the debt.
46. In the present case the only ground for write off would be if "the debtor has no capacity to repay the debt". However, the fact that the Applicant continues to receive social security payments from which deductions may be made shows that she does have the capacity to repay the debt.
47. In reaching that conclusion I have had regard to the financial statement provided by the Applicant, which shows her fortnightly expenditure (including $15 Centrelink repayment) to exceed her fortnightly income. While I accept that, as with most social security recipients, the Applicant lives in straightened financial circumstances, the fact remains that she does have the capacity to repay the debt by modest deductions from the social security payments otherwise made to her. The fact that the deductions may cause or add to the hardship which the Applicant suffers is not to the point.
Conclusion
48. For the above reasons, even if I were to accept the entirety of the Applicant's evidence as to the circumstances in which the debt arose, I must find that she has incurred a debt which I have no discretion to waive or write off. It is therefore unnecessary for me to deal with the other evidence of the Applicant as to the manner in which the debt arose, much of which concerns matters of a sensitive and personal nature for the Applicant.
DECISION
49. For the above reasons the Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: ..........(sgd) Ms L Huynh.............................................
AssociateDate of Hearing 14 May 2009
Date of Decision 24 March 2010Representative for the Applicant Self Represented
Representative for the Respondent Ms M Conlon
Centrelink Legal Services
0
3
0