Ryde and Secretary, Department of Family and Community Services

[2005] AATA 130

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 130

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1019

General Administrative Division		)
Re		Mrs Elna Ryde

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms Narelle Bell, Senior Member

Date21 January 2005

PlaceSydney

Decision The decision under review is varied and in substitution therefor the Tribunal decides that there is a debt of $777.22 for the period 12 October 2000 to 21 November 2000 and that the debt should be recovered.

......................................

Ms N Bell
  Senior Member

SOCIAL SECURITY – whether applicant was overpaid widow allowance – whether overpayment should be considered a debt due to the commonwealth – whether the applicant’s circumstances ought to be considered ‘special’

Social Security Act 1991

Re Beadle and Director General of Social Security  [1984] 6 ALD 1

REASONS FOR DECISION

21 January 2005 Ms Narelle Bell, Senior Member  

1.      Mrs Elna Ryde is a 55 year old woman was formerly in receipt of a Widow Allowance from Centrelink.  Mrs Ryde was said by the Respondent to be overpaid due to income received by her between 3 August and 21 November 2000 from her then employers Spotless Group Limited and KAH Australia Pty. Ltd.

2.      At issue in this matter is whether Mrs Ryde was overpaid Widow Allowance in the amount of $683.07 and whether that debt is a debt to the Commonwealth that ought to be recovered.  The Departmental Advocate, Ms Garcia tendered, a recent re-calculation of the outstanding debt which arrived at a figure of $777.22.  I will address this later in my decision.

3.      Ms Garcia also contended that the relevant debt period ought to be 12 October 2000 to 21 November 2000 (inclusive).  This varies from the Social Security Appeal Tribunal’s (“the SSAT”) conclusion that the relevant period commenced on 14 October 2000.  Ms Garcia then pointed out that as Mrs Ryde made no earnings on the two days concerned, no difference arises.  I accept Ms Garcia’s submission.

4. Mrs Ryde provided no evidence to dispute the earnings advised to Centrelink by her employers or the amounts of Widows Allowance paid to her during the relevant period. Therefore, there is no material to refute the Respondent’s calculation of the amount of the overpayment. The Respondent’s calculations show an overpayment to Mrs Ryde. Section 1223(4) of the Social Security Act 1991 (“the Act”) provides that if a person receives payments in excess of the person’s entitlement then the amount of the excess is a debt due to the Commonwealth. 

5. The question for me to decide then is whether the debt should be recovered from Mrs Ryde. The relevant provisions of the Act are sections 1236, 1237A and 1237AAD.

the evidence of Mrs ryde

6.      Mrs Ryde readily agreed that she worked for the two employers concerned and that she was in receipt of Widow’s Allowance during the period in question.  Mrs Ryde is no longer in receipt of a Centrelink allowance as she was granted a War Widows Pension in February 2001 and is still in receipt of this pension of around $501 per fortnight.  She receives rebates for her telephone, gas and electricity bills and has a hospital ‘Gold Card’ which entitles her to free hospital and ambulance cover.  Mrs Ryde pays $105 rent per fortnight and pays about $60 per month off a personal loan provided to her by a friend whom she owes $27,000.  She also pays $25 every fortnight off her David Jones account. 

7.      Mrs Ryde is not employed.  She explained that this is largely due to her suffering arthritis in her hands.  Mrs Ryde also mentioned to the Tribunal that she has trouble with her eyes and is scheduled for an operation in July this year for corrective surgery that will cost her approximately $5,400.  She takes medication for high blood pressure.  Mrs Ryde has a son who is employed as a Graphic Designer and who helps her sometimes.  She also told the Tribunal that on occasions she cooks food for her friends for which they pay her. 

8.      Mrs Ryde’s current assets consist of a home in the Phillipines that was valued in 1992 at approximately $680,000.  At the moment there is a tenant living in this house who pays enough rent to cover local taxes and the maintenance of the house.  Mrs Ryde owned property in Australia previously but due to a an unsuccessful business venture that she contributed to on advice from an American friend, she lost these investments.  The unfortunate passing of her father and mother in 2000 and 2002 respectively led to significant financial burden for Mrs Ryde, which is the reason she has an outstanding obligation to her friend in the amount of $27,000. 

9.      Mrs Ryde told the Tribunal that she did not suspect, at any time, that she had been overpaid.  She was aware of the fact that the pension amount would change each fortnight and she understood that this was due to the income received from her respective employers.  Mrs Ryde stated that she was familiar with the procedure that required her to report her estimated earnings and told the Tribunal that when she was sent forms, she filled them out properly and was never advised that she had been overpaid.  Mrs Ryde also exhibited the understanding that she was able to undertake paid work but that once her income from an employer reached a certain limit, her pension payment would be reduced.  Mrs Ryde’s Centrelink payments were paid into the same account as her income from her employers.

10.     Mrs Ryde suspects that an administrative error was made by Centrelink in that they confused her with a friend that she had living with her throughout the relevant period.  She had no further details to provide to the Tribunal on this point. 

consideration

11.     It is not in dispute that Mrs Ryde has been overpaid.  On re-calculation and with the benefit of more information from Mrs Ryde’s past employers, the respondent has arrived at a revised calculation of the debt amount.  The debt, as decided by the SSAT was $683.07, and the debt submitted by the respondent as the correct debt amount is $777.22.  I have been taken through the revised calculation by Ms Garcia for the respondent and am satisfied that $777.22 is the correct debt amount.

12. In respect of s1236 (1A) of the Act under which the Secretary may decide to write off a debt, I am satisfied that Mrs Ryde’s circumstances do not satisfy any of the requirements of this section. It is therefore not appropriate to write off the debt amount.

13.     Mrs Ryde has asked me to consider that the debt should not be recovered by the Commonwealth on the basis of possible administrative error and/or the day to day hardships she faces due to her ill-health and her current financial situation. 

14. Considering the issue of possible administrative error, I had regard to s1237A of the Act. Mrs Ryde contends that the respondent has made an error by confusing her with a friend living with her, who was also in receipt of Centrelink benefits. Ms Garcia for the respondent submitted that the debt amount arose out of Mrs Ryde’s failure to report her earnings as requested in numerous letters sent to her. Given that Mrs Ryde was unable to elaborate any further on her suspicion and that the respondent was not in possession of any information that would suggest such a mistake could have been made, I am not prepared to accept Mrs Ryde’s claim that such an error was, in fact, made. I am thus unable to waive the debt under this provision.

15. The final section that is open to me to consider is 1237AAD of the Act which provides for a discretionary power to waive part of or all of a debt in “special circumstances”. As explained in the case “Re Beadle and Director General of Social Security” [1984] 6 ALD 1 Mrs Ryde’s circumstances must be “unusual, uncommon or exceptional” in order to qualify as “special”. While her circumstances may be difficult, they do not differ from those of many income support recipients. At the outset, there is nothing to be gleaned from Mrs Ryde’s evidence that could be described in those terms. The other requirements of the section, that is, whether Mrs Ryde knowingly made a false statement or representation or failed or omitted to comply with a provision of the Act.

decision

16.     The decision under review is varied and in substitution therefor the Tribunal decides that there is a debt of $777.22 for the period 12 October 2000 to 21 November 2000 and that the debt should be recovered.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Narelle Bell, Senior Member

Signed:         ..........[Linda Blue].........................................
  Associate

Date of Hearing  6 December 2004
Date of Decision  21 January 2005
Solicitor for the Respondent     Ms A Garcia