Saleh and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 813

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 813

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2008/1741

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOUSSA SALEH

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date12 September 2008

PlaceSydney

Decision The tribunal affirms the decision under review.

....................[Sgd]...................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – newstart allowance – overpayment – debt cannot be written off – debt cannot be waived – no financial hardship – no special circumstances – decision under review affirmed.

Social Security Act 1991 (Cth) ss 1223(1), 1236(1), 1236(1A), 1237A(1), 1237AAD

Social Security (Administration) Act 1999 (Cth) ss 68(2), 72(1)

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

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

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Ivovic and Director-General of Social Services (1981) 3 ALN No 61

REASONS FOR DECISION

12 September 2008 Ms Robin Hunt, Senior Member

introduction

1.      Moussa Saleh has queried a reviewable decision that he was overpaid unemployment benefits, known as newstart allowance. I have to decide whether overpayments did occur and whether a debt to the Commonwealth arose in consequence.

issues for the tribunal

2.      The issues are:

(a)did Centrelink overpay Mr Saleh a total of $857.11 under the Social Security Act 1991 (‘the Act’);

(b)was a debt to the Commonwealth in this amount recoverable by Centrelink; and

(c)are there grounds under the Act to waive or write off all or part of any such overpayment?

3.      Mr Saleh argued that no overpayment (or overpayments) of newstart allowance had occurred as he had not worked the hours the Secretary took into account in making calculations of the payments to which he was entitled.

contention of the applicant

4.      The period over which the disputed amounts of newstart allowance occurred is 23 May 2007 to 28 August 2007. Mr Saleh said he had duly completed and submitted to Centrelink all necessary application forms for payment of newstart allowance during the relevant period.  He contended that he was not overpaid during the period but that his former employer, Arncliffe Freezer, had furnished to Centrelink incorrect records about the number of hours he had worked.  

findings on overpayment

5. Under subsection 68(2) of the Social Security (Administration) Act 1999 (‘the Administration Act’), a person who is receiving the unemployment benefits known as newstart allowance may be given notice requiring the person to inform Centrelink of any change of circumstances or matter that might affect the payment of social security benefits. Subsection 72(1) of the Administration Act sets out what information should be included in the notice. Notices sent to Mr Saleh, copies of which are before me, explain the kinds of information the person must give to Centrelink. Section 1223 of the Act sets out the circumstances where a recoverable debt arises from the receipt of a social security payment. Newstart allowance is such a payment.

6.      In his claim form dated 20 June 2007, Mr Saleh set out, with his daughter’s help, that he had worked for 3 hours and earned $54 over the period 6 June 2007 to 19 June 2007. The completed form shows that he worked for the former employer for one day in this period, 12 June 2007. By comparison, the former employer provided information that Mr Saleh worked for several days from 4 June 2007 to 29 June 2007 and was paid $450 per week.

7.      I have copies of various employer records furnished to Centrelink and other material kept on the Centrelink file about Mr Saleh’s claim for the period in question. The employer records include a PAYG Non Business employee payment summary information sheet about Mr Saleh created for income tax purposes. This shows Mr Saleh earned $1800 and tax of $236 was deducted for the financial year 2006/2007.

8.      The former employer’s records furnished show that Mr Saleh worked for the number of hours on which Centrelink based its calculations. Centrelink wrote to the employer’s payroll officer on 20 February 2008 when it conducted a review and asked for confirmation of the information supplied. A file note made on 23 February 2008 sets out that the payroll officer responded and was adamant that Mr Saleh was employed and paid as shown in the material sent to Centrelink. There is no independent evidence to corroborate Mr Saleh’s claim that these records are wrong.

9.      Mr Saleh gave oral evidence that he was paid in cash and had no payslips or other documents to substantiate what he earned until he changed jobs later in 2007. He also was confused by a later Centrelink letter which dealt with his earnings from 18 June 2007 to 28 July 2007. He had received at least 2 statements from Centrelink concerning accounts payable. Mr Saleh further said he had been engaged in the Work for the Dole scheme between 4 June 2007 and 29 June 2007 and could not have put in all the hours the former employer recorded.

10.     A breakdown of his hours of Work for the Dole advised by the Work Solutions provider showed that on those days when Mr Saleh attended, he worked from 9.00am to 2.30pm. He was absent for 3 days and could not recall why he did not attend and for several more days it was raining and he was not expected to attend. The Secretary’s solicitor handed me a printout from the Bureau of Meteorology’s rainfall statistics for June 2007 which showed there had indeed been heavy rainfall on the days when Mr Saleh did not attend Work for the Dole.

11.     When compared to the days on which the employer recorded his attendance, there was no conflict with work days on the Dole scheme. Mr Saleh also told the tribunal that the area where he worked for the former employer was under cover. Further, the Centrelink note of the conversation with the former employer’s payroll officer mentioned above indicated that Mr Saleh was offered shift work. After considering these particulars, I have concluded on balance that Mr Saleh could have performed both his Work for the Dole obligations as detailed by Centrelink while still performing the hours of work set out by the former employer.

12.     As well as the disputed hours and payments for the period 4 June to 29 June 2007, which was the period Mr Saleh said he could not have worked the hours his former employer claimed, Mr Saleh disagrees with Centrelink’s calculation that he was overpaid during 23 May 2007 to 5 June 2007, 6 June 2007 to 19 June 2007 and 20 June 2007 to 3 July 2007.

13.     On or about 27 August 2007, Centrelink determined that Mr Saleh had a debt to it of $758.03. This was confirmed on review on 13 November 2007. On 11 February 2008, however, an Authorised Review Officer made a detailed examination of Mr Saleh’s payments and entitlements and increased the debt amount to $857.11. The Social Security Appeals Tribunal (‘the SSAT’) affirmed this decision on 7 April 2008.  While Mr Saleh has said that he is confused about the situation, he has not presented any arguments about how the amount should be calculated other than to dispute his actual earnings for the period in question.

did mr saleh incur a debt through overpayments?

14. Pursuant to subsection 1223(1) of the Act, a person who obtains the benefit of a social security payment to which he is not entitled incurs a debt to the Commonwealth. On balance, I am satisfied after hearing from Mr Saleh and considering the Secretary’s records and investigations that Mr Saleh did understate his income and that he did therefore receive payments to which he was not entitled. This did lead to his incurring a debt to the Commonwealth. This may have been due in part to his receiving cash payments and not having a proper record to assist his reporting to Centrelink at the time he filled claims for continuity of payments of unemployment benefits. Mr Saleh had been receiving these payments since 2005 and the dispute concerns a relatively short time. I accept that Mr Saleh may have been confused by the circumstances that arose.

15.     The debt is not outstanding as Mr Saleh has repaid Centrelink in full. In his application for the present review, he stated that he was deeply stressed that money he had not earned had lead to money being taken away from him.

should the debt be written off or waived?

16. A debt may be written off under subsections 1236(1) and (1A) of the Act if it is irrecoverable at law, the debtor has no capacity to repay, the debtor’s whereabouts are unknown or it is not cost effective to recover the debt. Clearly, Mr Saleh’s debt meets none of these criteria as he has already repaid it.

17. The Secretary may waive a debt due to the Commonwealth pursuant to subsection 1237A(1) or section 1237AAD of the Act, in some circumstances. Subsection 1237A(1) requires the Secretary to waive a debt where it has arisen solely due to administrative error. There is no suggestion of administrative error in Mr Saleh’s case. The problem arose because Mr Saleh understated his income or was confused about how much he earned. It was only when the former employer supplied information to Centrelink that Centrelink discovered discrepancies in the information Mr Saleh supplied. Therefore, the section 1237A provisions do not assist Mr Saleh.

18. Under section 1237AAD of the Act, the Secretary may waive a debt in special circumstances. Several cases have interpreted the phrase “special circumstances” and the consensus is that only situations that are unusual or uncommon qualify for waiver under this provision: see Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9; Groth v Department of Social Security (1995) 40 ALD 541; Re Beadle and Director-General of Social Security (1984) 6 ALD 1; and Re Ivovic and Director-General of Social Services (1981) 3 ALN No 61, among others.

19.     Mr Saleh’s evidence was that he and his wife own the house in which they live and have no mortgage. He has four children, of whom only the youngest, aged 16 is still at school. His oldest child is working despite having had a serious health problem which has left her with some difficulties still requiring attention. The other two adult children have been working or are currently looking for work. Mr Saleh did not tell me of any other health problems or circumstances which might be considered unusual, exceptional, particularly troublesome or concerning. Consequently, I have not found that any special circumstances exist that might warrant exercise of discretion in his favour.  

20.     It follows that I find the reviewable decision of the SSAT should be affirmed.

decision

21.     The tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: ..........................[Sgd]............................
  Jennifer Wong, Associate

Date/s of Hearing:  1 September 2008
Date of Decision:  12 September 2008
Solicitor for the Applicant:         Self-represented

Solicitor for the Respondent:     Mr M Nicoletti, Centrelink Legal Services