Robertson and Secretary, Department of Family and Community Services

[2004] AATA 1413

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1413

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004\281

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEONIE ROBERTSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date14 October, 2004

PlaceSydney

Decision The Tribunal varies the decision under review and determines that based on the finding that special circumstances are found to exist, an amount of the debt, which is to be calculated in accordance with the Tribunal’s directions nominated in paragraph 30, is waived.

[Sgd] Dr J D Campbell
  Member

CATCHWORDS

Social Security – Disability Support Pension – Overpayment – Failure to advise of partner’s income – Administrative error – Special Circumstances – Applicant’s Impairments – Family Circumstances

Social Security Act 1991 sections 1064, 1223 (1), 1224, 1236 (1A), 1237A(1), 1237AAD.

Beadle v Director General of Social Security (1985) 60 ALR 225

Secretary, Department of Social Security v Hales (1998) 153 ALR 259

Jess v Scott (1986) 12 FCR 187

Dranichnikov v Centrelink (2003) 75 ALD 134

REASONS FOR DECISION

14 October 2004                  Dr J D Campbell, Member

1.      In this application, Mrs Robertson (“the Applicant”) seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 17 February 2004 which set aside the decision of an authorised review officer (“ARO”) dated 21 January 2004 and determined that an amount of $5,493 of Mrs Robertson’s debt be waived in the ‘special circumstances’ of the case.  The SSAT concluded that Mrs Robertson’s outstanding debt owing and payable to the Commonwealth is $10,464.46 of the original debt of $20,928.97.

2.      On 26 March 2003, Mrs Robertson was advised by a delegate of the Secretary, Department of Family and Community Services (“the Respondent”) that a debt of $20,928.97 was due and owing to the Commonwealth (T29).  The debt was due to overpayment of Disability Support Pension (“DSP”) for the period 23 June 1998 to 14 February 2003, arising from a failure to disclose her partner’s income earned or not coded during that period.  The portion of the debt accrued prior to 1 July 2001 was raised pursuant to section 1223(1) of the Social Security Act 1901 (“the Act”).

3.      On 1 April 2003 Mrs Roberson requested an appeal of the decision to raise the debt, on the basis that her partner was casually employed and that her circumstances were unique in that she has a medical condition and has to care for her children.  Mrs Robertson believed there was an arrangement in place from 1998 whereby the Respondent would check her income each year with the Australian Taxation Office.  Mrs Robertson conceded that she had received and read letters sent to her by Centrelink and stated she was aware of her obligations, but maybe her interpretation was wrong (T31, p141).

4.      On 7 August 2003, the original decision maker reaffirmed the decision and referred the matter to an ARO (T33).  In an undated letter to Mrs Robertson (T5), the ARO affirmed the decision to raise a debt of $20,928.97.  In a further review dated 21 January 2004 (T38), the ARO noted that Mrs Robertson’s partner’s earnings “did not pass across on Centrelink’s system” between 19 April 1999 and 25 January 2000 and that such fortnightly income statements had been destroyed. The ARO concluded that current calculations for that period “do not match these scenarios” and that the debt for the period 23 June 1998 to 12 February 2000 should be disregarded.  In so stating the ARO concluded that “considerable work would have to be done to support the raising and calculation of the exact debt amount” for the period 23 June 1998 to 12 February 2000.  The ARO assessed the debt owing and payable at $15, 957.46 for the period 13 February 2000 to 14 February 2003.

ISSUES

5.      The relevant issues in the matter are:

(a)Whether Mrs Robertson owes a debt of $10,464.46 to the Commonwealth as a consequence of overpayment of DSP during the period 13 February 2000 to 14 February 2003; and

(b)Whether the overpayment arose as a consequence of sole administrative error by the Respondent; and

(c)whether special circumstances are found to exist whereby it would be appropriate for all or part of the debt to be waived.

DECISION

6.      For the reasons outlined later in this decision the Tribunal concludes that the debt of $10,464.46 was a debt raised pursuant to section 1223(1) and 1224 of the Act and payable by Mrs Robertson.  Further the Tribunal concludes that the debt was not the result of sole administrative error by the Respondent.  Finally the Tribunal concludes that special circumstances exist; namely the nature of Mrs Robertson’s health disability coupled with existing levels of family debt.  As a consequence the Tribunal exercised a discretion to waive what debt remained payable by Mrs Robertson in relation to this matter as at the date of the decision.  In this regard the matter is remitted to the Respondent to calculate the quantum of the waiver in accordance with such findings.

APPLICANT’S EVIDENCE

7.      Mrs Robertson told the Tribunal that she was married with two children, aged 13 and 14 who both attended selective schools. Mrs Robertson said her husband worked casually for the last eight years at the Opera House and is now employed in the Wollongong area.  Mrs Robertson stated that her husband works on average 30 hours per week, with his salary meeting, rent, food, car and household maintenance expenses.

8.      Mrs Robertson stated that she has received DSP since 1998, which, together with her Family Tax Benefit, meets expenses associated with clothes, shoes, books, travel, utilities, extra food, hygiene, incidentals and schooling.

9.      Mrs Robertson told the Tribunal that her family has lived in three rental properties and were anticipating a further move.  She described the family assets as a television, a video recorder and some aged household furniture, a car valued at $2000 and two donated paintings, which she likes.

10.     Mrs Robertson described her outstanding debts as including $1500 for utilities (phone, incoming calls only and electricity); $1800 bankcard; $3000 owing to family (children and school expenses) and $500 owing to the school. 

11.     Mrs Robertson described her medical difficulties as those contained in the various reports before the Tribunal.  Mrs Robertson admitted that over the time she had experienced difficulties in her ongoing relationship with Centrelink.  Mrs Robertson described her debt situation as her invisible wheelchair, as she found the concept of debt emotionally disabling and attempts to deal with it, dehumanising.

CLINICAL EVIDENCE

12.     In a report dated 30 March 2000 (T13), Ms Handley, a clinical psychologist in training, detailed Mrs Robertson’s measure of anxiety in the extremely severe range, stress in the severe range and depression in the normal range, following the application of two self report questionnaires.  More particularly, her profile of responses in the Trauma Symptom Inventory was valid and consistent with someone suffering from Post Traumatic Stress Disorder (PTSD).  Further, Ms Handley identified four groups of measures which were significantly higher than average, namely “Anxious Arousal”, “Intrusive Experiences”, Defensive Awareness” and “Dissociation”.  Ms Handley concluded that despite the commencement of cognitive behavioural techniques, updated testing did not indicate lower levels of anxiety or stress.

13.     In a report dated 9 August 2000 (Exhibit A1), Mr Gerry Wenzel, a clinical psychologist, detailed Mrs Robertson’s history of ongoing trauma caused by an incident of rape serious assault and being held captive by a former partner which occurred in 1988.  Mr Wenzel noted the psychometric test results undertaken by Ms Handley as well as Mrs Robertson’s gastrointestinal symptoms of stress, which included nausea, stomach pains and general tension in the abdominal region on waking.  He also noted other symptoms which included excessive perspiration, hyperventilation, recurring horrific images of the incidents, biting her tongue in her sleep to the point of bleeding, as well as persisting stabbing pains in her limbs, torso and head since 1988.

14.     Mr Wenzel found that Mrs Robertson’s symptom severity was moderate to severe following the application of the Post Traumatic Stress Diagnostic Scale (PDS); that her anxiety assessment placed her in a severe range of anxiety disorder (application of Beck Anxiety Inventory Test) and that she had mild depressive symptomatology (application of Beck Depression Inventory), with suicidal relocation and stress.

15.     Mr Wenzel concluded that Mrs Robertson suffered from PTSD, superimposed on a chronically compensating personality which existed prior to the incident in 1988.  Mr Wenzel concluded that Mrs Robertson’s psychological symptoms have significantly impeded her ability to work, to undertake formal study as well as compromising her social functioning.

16.     In a report dated 25 June 2004, (Exhibit A2) Dr Morris, a consultant psychiatrist, while noting that Mrs Robertson had seen a number of psychiatrists in the Wollongong area, concluded that Mrs Robertson suffered from PTSD.  Dr Morris noted that Mrs Robertson was pleasant and cooperative at interview, but her mood was very anxious and agitated at times.  Dr Morris concluded that the diagnosis of PTSD arose from the assault in 1988, complicated by a history of physical and sexual abuse as a child.

17.     Dr Morris assessed Mrs Robertson after three weeks during which time he had prescribed Zoloft.  Dr Morris recorded that Mrs Robertson had experienced relief from her anxiety and panic symptoms, was having less self harm thoughts and had been able to reduce self medication with marijuana.

CONSIDERATION AND FINDING

18.     The Tribunal observed Mrs Robertson to be pleasant and cooperative, but on two occasions when dealing with issues she found discomforting, Mrs Robertson became very anxious and agitated.  The Tribunal, in exploring Mrs Robertson’s normal average day, noted the early morning use of marijuana, her satisfaction from artistic endeavours and her desire to maintain a routine for her two children, albeit with some difficulty. 

19.     The Tribunal also noted the frequency of interaction between Centrelink and Mrs Robertson over the relevant period and her expressed difficulties with these interactions.  The Tribunal is not surprised that these difficulties occurred and believes that such difficulties will continue to occur, unless special arrangements are put in place to handle communications with Mrs Robertson. This avenue has previously been explored with Mrs Robertson dealing with Centrelink through a Centrelink social worker, instead of a case officer.  The Tribunal, in noting such an issue concludes that Mrs Robertson’s anxiety and stress levels will continue to cause difficulties when interactions between the parties occur.

20.     Mrs Robertson’s clinical symptomatology has clear features of an underlying PTSD as is evidenced in the reports of the psychologists referred to earlier in this decision and the report of Dr Morris and the Tribunal so finds.  Moreover the Tribunal observes that Mrs Robertson’s clinical symptomatology is centred on both a cluster of anxiety and stress symptoms, and it is these symptoms which the Tribunal finds create difficulty for Mrs Robertson in her interactions with other individuals, including Centrelink.  While the Tribunal notes that Mrs Robertson achieved some therapeutic benefit from Zoloft medication and continued self medication with marijuana, there is no evidence before the Tribunal that her clinical symptomatology will vary significantly. 

21.     ,The Tribunal notes that both parties concur that an overpayment of DSP occurred between 23 June 1998 and 14 February 2003 and concludes that the Mrs Robertson owes an amount of $10,464.46 for the period 13 February 2000 to 14 February 2003 pursuant to section 1223(1) and 1223 of the Act.  In so finding the Tribunal notes the amended determination of the ARO and the decision of the SSAT. 

22.     In considering nominated statutory relief available to Mrs Robertson, the Tribunal notes section 1236 which is concerned with write-off of debt. The Tribunal considers such a relief is not available to Mrs Robertson as the debt is recoverable at law, Mrs Robertson’s whereabouts are known and the debt is theoretically recoverable from ongoing social security payments.

23.     In addressing the issue of sole administrative error pursuant to section 1237A(1) of the Act, the Tribunal is aware that there were issues relating to a failure to code Mrs Robertson’s partner’s declared earnings in the period under review.  Further, Mrs Robertson said that she did receive and did read letters from Centrelink, but that she was mistaken as to what arrangements were in place to report her partner’s earnings.  As a consequence, the Tribunal finds that both parties contributed to the overpayment of DSP during the period, which in turn rules out a finding of sole administrative error in this matter.

24.     In addressing the issue of special circumstance pursuant to section 1237AAD of the Act, the Tribunal notes that the overpayment of DSP in this matter was not the consequence of Mrs Robertson knowingly making a false statement or representation or knowingly omitting or failing to comply with a provision within the Act.  In so finding the Tribunal is aware that evidence suggests that Mrs Robertson did receive and did read correspondence from the Respondent, but equally such evidence suggests that she held a belief that reporting of her partner’s income had been attended to.  While such a belief was in error and arose as a consequence of her difficulties in interaction with various governmental authorities, there is no evidence before the Tribunal to suggest that Mrs Robertson knowingly failed and/or omitted to comply with a provision of the Act, and the Tribunal so finds.

25.     In turning to the issue of special circumstance the Tribunal is aware that for circumstances to be considered special, they must be uncommon, unusual or exceptional.  The Courts have stated that it is not possible to lay down precise rules about what constitutes special circumstances (Beadle vDirector General of Social Security (1985) 60 ALR 225. The Tribunal notes that the purpose of the waiver provisions is to allow a flexible response to the wide range of situations which give rise to hardship or unfairness if the debt is recovered (SecretaryDepartment of Social Security v Hales (1988) 153 ALR 259). Finally the Tribunal notes that what is required is circumstances which take the case out of the ordinary (Jess v Scott (1986) 12 FCR 187; Dranichnikov v Centrelink (2003) 75 ALD 134).

26.     The circumstances of this case are clearly before the Tribunal, with Mrs Robertson suffering physical and sexual assault as a child, followed in 1988 by a serious assault which has resulted in PTSD.  Further the circumstances before the Tribunal clearly indicate that the major clinical symptomatology arising from the accrued psychiatric disorders are significant symptoms pertaining to anxiety and stress.  Further it is evident that such continuing clinical symptomatology causes Mrs Robertson significant difficulties in communication with individuals, including Centrelink.  The Tribunal notes the various clinical reports and observes Mrs Robertson’s cooperative mood change to one of anxiety and agitation, when trying to cope with an information exchange.  The Tribunal concludes that such a mood change was clear evidence of Mrs Robertson’s underlying psychiatric symptoms. 

27.     The Tribunal also observed that the issue of debt, whether it be debt to family, bankcard, utilities, school or to Centrelink was a cause of much anxiety and aggravation to Mrs Robertson and that her existence seems to centre around the management of debt and the anticipation that she will not be able to cope.

28.     In considering the circumstances as presented, the Tribunal concludes that they are out of the ordinary, in that the very activity of trying to consider the issue of debt is highlighted by increasing symptomatology relating to anxiety and stress.  In so doing such symptomatology creates continuing difficulties for Mrs Robertson in dealing with resolution of both the debt issue and other unresolved issues arising from a turbulent and traumatic life.  In succinct terms, maintenance of an ongoing debt issue with Centrelink will continue to aggravate Mrs Robertson’s psychiatric condition, with deterioration in her ability to cope with the day-to-day issues of life.  The Tribunal also notes that appropriate communication arrangements should be made by the Respondent with Mrs Robertson to minimise a subsequent recurrence of like circumstances.

29.     The Tribunal in finding that Mrs Robertson’s circumstances are special concludes that ongoing debt and repayment in this matter is contraindicated for the reasons stated.  The Tribunal is aware that Mrs Robertson has made particular repayments of the debt and that this has occurred over time.  The Tribunal in exercising the discretion contained within section 1237AAD of the Act considers it appropriate to waive any remaining debt, namely the amount that remains from the date of this decision. 

30.     In so finding the Tribunal remits the matter to the Respondent to calculate the amount of of the debt repaid by Mrs Robertson as at the date of this decision.  This amount is to be subtracted from the amount of $10, 464.46, with the residual amount to be waived pursuant to section 1237AAD of the Act.

DETERMINATION 

31.     The Tribunal varies the decision under review and determines that based on the finding that special circumstances are found to exist in this matter, an amount of debt is waived, which is to be recalculated in accordance with the Tribunal’s listed directions.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: A. Krilis       
  Associate

Date of Hearing  6 September 2004
Date of Decision  14 October 2004
Representative for the Applicant    Self
Advocate for the Respondent        Mr Luke Carter