Samolej and Secretary, Department of Family and Community Service S
[2004] AATA 153
•20 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 153
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2003/1284
GENERAL ADMINISTRATIVE DIVISION )
Re
JOSEPH SAMOLEJ
Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member M D Allen
Date20 January 2004
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2003/1284
GENERAL ADMINISTRATIVE DIVISION )
Re
JOSEPH SAMOLEJ
Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 20 January 2004
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
the Applicant has a Family Tax Benefit debt of $7,769.10, which sum is recoverable from the Applicant by instalments of $50.00 per fortnight.
(Sgd) M D ALLEN
..........................................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Recovery of overpayment of Family Tax Benefit. Administrative error conceded by Department but debt not waived as Applicant unable to show severe financial hardship. Receipt of income in excess of Social Security Benefits negates severe financial hardship. Decision under review affirmed, but rate of repayment reduced.
A New Tax System (Family Assistance) Act 1999 – s.22
A New Tax System (Family Assistance) (Administration) Act 1999 – s.77, s.97, s.101
Secretary, Department of Social Security v. Ellis (1997) 24 AAR 535
Security and Investments Commission v. Donald [2003] FCAFC 318
REASONS FOR DECISION
20 January 2004 Senior Member M D Allen
1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: (K. Wong)
....................................................................................……………………………….Associate
Date of Hearing 20 January 2004
Date of Decision 20 January 2004
Representative for Applicant Self-represented
Advocate for Respondent Mr E. Thistlethwaite, Department of Family and Community Services
DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N03/1284
By MR M.D. ALLEN, Senior Member
JOSEPH SAMOLEJ and DEPARTMENT OF FAMILY
AND COMMUNITY SERVICES
SYDNEY, TUESDAY, 20 JANUARY 2004MR ALLEN: By application made the 5th day of August, 2002 the applicant sought review of a decision by a Social Security Appeals Tribunal made the 17th day of July, 2003, which decision affirmed a prior determination that there be raised and recovered from the applicant a debt for family tax benefit for the period 1 July 2001 to 29 April 2002.
The circumstances giving rise to the debt are as follows:
The applicant originally emigrated to Australia from Poland in April 1981 and at that time was granted Australian permanent residence. He later returned to Poland, married and had two children, and returned to Australia on or about the 19th day of March, 2001.
In March 2001 he made a claim for Newstart Allowance. He then had cause to query the rate of payment of that allowance with a Centrelink office, his query being that he was being paid at the married rate, whereas he thought he should be paid at the single rate as his wife and children were still in Poland.
He was then advised apparently by an officer of Centrelink at the Ryde Office that correct payment was at the partnership rate but he was entitled to family tax benefit. A claim was duly made and that document is reproduced at document T3 of the documents produced for the tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
At document T3 under question 11 the applicant very clearly indicates that both his children were overseas at the time of the claim. The result of this is that he was at that time not entitled to a payment of family tax benefit as pursuant to subsection (2) of section 22 of the Family Assistance Act 1999 a child is not a family tax benefit child unless they are an Australian resident. However, the Department of Family and Community Services continued to pay the applicant family tax benefit.
It was not until April 2002 that the Department, through its agency, Centrelink, became aware that family tax benefit was being paid due to an administrative error on their part. Steps were then taken to raise an over-payment and recover that over-payment. It is quite clear that pursuant to section 77(1) of the Family Assistance Administration Act 1999 that where there has been an over-payment that over-payment is a debt due to the Commonwealth.
samofJ 20.1.04 P-1
©Auscript Pty Ltd 2004The proceedings in this matter have been somewhat disjointed to say the least, inasmuch as the over-payment for the period from April 2001 to 30 June 2001 was subject to separate proceedings and on 24 October 2002 that debt was waived by a Social Security Appeals Tribunal. These proceedings relate to the raising of the over-payment for the period 1 July 2001 to 29 April 2002.
At the outset it has been accepted by the respondent that the debt arose due to administrative error, and that is a concession with which I entirely agree. Section 97 of the Family Assistance Administration Act 1999 states, inter alia, that the Secretary must waive the right to recover the administrative error portion of a debt that is attributable solely to administrative error. However, the conditions upon that are that the debtor receive the payment in good faith, and that is not disputed here, but there is also the requirement that the person would suffer severe financial hardship if it were not waived. The term "severe financial hardship" is not defined in the Act.
The applicant has also referred to section 101 of the said Act which states, inter alia:
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 the Family
Assistance Law;
(b)there are special circumstances other than financial hardship alone that make it desirable to waive;
(c)it is more appropriate to waive than to write off the debt or part of the debt.
Dealing with that section first, it can be seen that what has to be shown is special circumstances other than financial hardship alone. In this case it is difficult to see what those special circumstances might be.
In Secretary, Department of Social Security v Ellis, 24 AAR 535 at 539 Carr J discussed what might amount to special circumstances, and referring to Beadle v Director-General, Social Security, 7 ALD 670 at 673-674 where the Full Court of the Federal Court said:
Presumably in this context "special circumstances" must include events
samofJ 20.1.04 P-2
©Auscript Pty Ltd 2004which would render the six months unfair or inappropriate. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General, bearing in mind the purpose for which the power is given. The phrase, "special circumstances", although lacking precision, is sufficiently understood in our view not to require judicial gloss.
His Honour then went on to refer to the decision of Kiefel J in Groth v Secretary, Department of Social Security, 40 ALD 541, where at 545 her Honour said:
For present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only inquiry to be undertaken in this case. It would, of course, follow that if one were to conclude that something unfair, unintended or unjust had occurred, that there must be some feature out of the ordinary. The inquiry I have referred to would involve considering what would be the effect if the provision in question for the principle of liability it creates is applied.
Her Honour then went on to refer to, with approbation, the tribunal's finding that:
The circumstances of the appellant and those of his family, although difficult, did not constitute hardship and they could not be said to be different from other pension recipients.
In this matter it was somewhat difficult to ascertain just what are the applicant's circumstances. His evidence was that he is earning the sum of $38,000 gross per year. This is in some form of casual employment. I note, as the figure was not provided to me by any party, that the Australian tax tables state that on an income of $38,000 a year the tax payable is $7780, which would leave the applicant with a net income of $30,220. That equates on my maths to $581 per week. In addition to that the applicant said that he receives $150 per week, or in other words $300 a fortnight, family tax benefit. This, I apprehend, gives him a total weekly income of $731.
Various figures are set out at page 3 of document T2, the decision of the Social Security Appeals Tribunal in this matter, and they reveal that the applicant's weekly outgoings are the sum of $798.46 per week. In other words he's proceeding at a net loss. It is difficult to reconcile those figures with the applicant's statement that at the moment he does not have any debts. I further note that I was informed, admittedly from the Bar Table, that Newstart Allowance is payable at the sum of $400 a fortnight, to which is added the sum of $90 rent assistance, making a sum of $490 per fortnight.
samofJ 20.1.04 P-3
©Auscript Pty Ltd 2004Now, when I look at this matter going on the bases of the law as set out in
Secretary, Department of Social Security v Ellis Supra, I cannot find anything out of the ordinary in the applicant's case over and above the fact that there was administrative error on the part of Centrelink. I agree that he is straightened financial circumstances and in some hardship, but that would be the same if he were in receipt of a social security benefit such as Newstart Allowance. But, as stated, he is receiving an income which translates at approximately $581 per week. There is certainly, pursuant to section 97 of the Administration Act, administrative error, and therefore the debt can be waived if the applicant is suffering severe financial hardship.
In re Anne Jones v Secretary, Department of Family and Community Services (2003) AATA 62, the tribunal found that although the applicant's financial situation was not significantly differing from that of people who received social security benefits, the terms of their financial hardship must be seen in the context of the legislation, with income being well in excess of income support payments under the Act so severe financial hardship was not shown. It seems to me that similar provisions apply here. That is to say that although the applicant is certainly in straightened financial circumstances, I cannot be satisfied that he is suffering severe financial hardship.
That is not to say, however, that is an end of the matter. I understand that at present the applicant's total debt is now in the sum of $7769.10, being the debit remaining from the original over-payment and a so-called reconciliation debt which arises from an adjustment of family tax benefit at the end of the year. I was informed that repayments are being recovered at the rate of $100 per fortnight.
As has been pointed out by the Full Court of the Federal Court in Australian Securities and Investment Commission v Donald [2003] FCAFC 318, particularly following re Control Investments Pty Ltd v Australian Broadcasting Tribunal Number 2, 3 ALD 88-92, that for the purposes of reviewing a decision the tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.
In these circumstances therefore, considering that the debt arose out of mal-administration on the part of the respondent, some adjustment should be made. I therefore propose to set aside the decision under review and substitute the tribunal's decision, namely that the applicant has a debt, being an over-payment of family tax benefit, in the total sum of $7769.10, which sum is to be recovered at the rate of $50 per fortnight.
_________________
samofJ 20.1.04 P-4
©Auscript Pty Ltd 2004
0
0
0