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

[2008] AATA 311

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 311

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600292

GENERAL ADMINISTRATIVE DIVISION		)
Re		KELLY SEATER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date16 April 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..............Signed..............

Deputy President

CATCHWORDS

SOCIAL SECURITY – overpayments and debt recovery – failure to inform Centrelink of a change in income – overpayment of youth allowance and Newstart allowance – overpayment not due solely to administrative error – no evidence of special circumstances – decision under review affirmed.

Social Security Act 1991 – ss 1223, 1236, 1237A, 1237AAD

REASONS FOR DECISION

16 April 2008 Deputy President P E Hack SC    

1.This is an application by Miss Kelly Seater to review a decision made by Centrelink on 31 January 2006 to raise and recover a debt in the amount of $14,084.44. The debt arose, it was said, because, in the period between 24 November 2001 to 21 October 2005, Miss Seater was paid more youth allowance or Newstart allowance than the amount to which she was entitled.

2.The background to the matter is not in dispute. On 6 November 2001 Miss Seater lodged a claim for youth allowance. The amount of youth allowance payable will vary depending on a number of circumstances including, relevantly, the amount of earnings from employment. In her application for youth allowance Miss Seater indicated that she was employed by Dimmeys Stores Pty Ltd and earned approximately $50.00 per week.

3.On 20 December 2001 Centrelink wrote to Miss Seater advising her that she would be paid youth allowance with effect from 29 October 2001. That letter informed her that the rate at which youth allowance was being paid might need to be adjusted if there were changes in her circumstances, and that there were a number of matters of which Centrelink need be informed, including if she had increased income. It is relevant to note that the letter forwarded to Miss Seater contained a significant detail of the matters of which Centrelink had to be informed, what amounted to income, what amount to assets and the like.

4.In a letter of 11 January 2002 Miss Seater was informed by Centrelink that she could earn up to $236.00 per fortnight gross before her income affected the amount of her payment.

5.In the period during which Miss Seater was paid youth allowance, that is up until October 2005, she consistently earned substantially more than $50.00 per week, and, indeed, more than $236.00 per fortnight. At no time did she inform Centrelink of the amount of her weekly earnings. In November 2003 she provided Centrelink with a notice of assessment which showed that her taxable income for the year ended 30 June 2003 was some $17,396.00. It appears, and it is one of the complaints of Miss Seater, that Centrelink did not take note of the taxable income disclosed on that document and conclude, as Miss Seater suggests it ought, that she was earning considerably more than $50.00 per week.

6.On 14 September 2005 Miss Seater ceased to be eligible for youth allowance and registered for Newstart allowance. The entitlement to Newstart allowance is also dependant upon the extent of earnings and on 7 October 2005 Miss Seater was advised that her payment would be reduced if her income exceeded $62.00 per fortnight. Miss Seater declared some of her earnings from her employment in the period between September and October 2005 but seemingly did not do so with complete accuracy. On some occasions she declared greater earnings than she had in fact received and on other occasions lesser earnings than she had in fact received.

7.As a result of its own enquiries, Centrelink determined on 31 January 2006 that Miss Seater had been overpaid an amount of $14,084.44 in the period November 2001 and October 2005.

8.Miss Seater sought internal review of that decision and subsequently by the Social Security Appeals Tribunal. That Tribunal affirmed the decision on 11 April 2006. Miss Seater now applies to this Tribunal for a review.

9.It is relevant as well to note that on 11 September 2007 Miss Seater pleaded guilty in the Southport Magistrates Court to the following counts:

“1. between the tenth day of June 2002 and the twenty-seventh day of September 2004 at Tallebudgera and elsewhere in the said State KELLY SEATER did, contrary to Section 135.2(1) of the Criminal Code (Commonwealth) obtain a financial advantage, namely social security payments, for herself from the Commonwealth knowing or believing that she was not eligible to receive that financial advantage

2. between the twenty-eighth day of September 2004 and the ninth day of September 2005 at Palm Beach and elsewhere in the said State KELLY SEATER did, contrary to Section 135.2(1) of the Criminal Code (Commonwealth) engage in conduct and as a result of that conduct she obtained a financial advantage, namely social security payments, for herself from the Commonwealth knowing or believing that she was not eligible to receive that financial advantage. ”

10.The Magistrate required Miss Seater to perform 165 hours of community service and to make reparation to the Commonwealth in the sum of $5,912.53, the balance then outstanding.

11.It is not disputed by Miss Seater (or her father who appeared for her) that she has been overpaid. Miss Seater has received a Social Security payment to which she was not entitled because of the income that she was earning at the time. Thus, and by operation of s 1223(1) of the Social Security Act 1991 (the Act), the amount of the overpayment is the debt due to the Commonwealth. The scheme of the Act is that overpayment debts will be required to be repaid unless capable of write-off or waiver. There is no suggestion that writing-off the debt pursuant to s 1236 of the Act is apposite here.

12.There are two bases upon which the debt might be waived: by operation of s 1237A of the Act, dealing with administrative error, and by operation of s 1237AAD of the Act, dealing with special circumstances.

13.Section 1237A of the Act obliges the Secretary to waive the right to recover a debt “attributable solely to an administrative error made by the Commonwealth” provided the overpayment was “received in good faith”. Here, as it seems to me, it is plain that the overpayment was not attributable solely to an administrative error on the part of the Commonwealth. The overpayment is attributable to Miss Seater’s failure to inform Centrelink, as she was obliged, of the amount of her earnings. It might have been desirable if Centrelink had given more thought to the information disclosed in November 2003 regarding the earnings that Miss Seater had received in the year ended 30 June 2003. But the Act does not proceed on the footing that it is the responsibility of Centrelink to analyse information of this nature. The obligation that is imposed is on recipients of Social Security payments to report their income and changes to it. Miss Seater did not do so, hence the overpayment, and the debt that arose as a consequence of the overpayment, were not attributable solely to an administrative error.

14.Accordingly, in my view, there is no room for the operation of s 1237A of the Act.

15.It will suffice for present purposes to notice that a debt may be waived under s 1237AAD of the Act where the debt did not result wholly or partly from the debtor failing or omitting to comply with a provision of the Act and there are special circumstances.

16.It seems difficult to conclude that Miss Seater, having pleaded guilty to the offences – of which receipt of benefit, knowing or believing that there was no eligibility to receive that benefit – was an element, could be said not to have knowingly failed or omitted to comply with a provision of the Act. Miss Seater submits that that conclusion ought be reached because, as her father put it, she was “innocent” and pleaded guilty because of inept legal representation. I do not find it necessary to decide whether that is so or not and I certainly make no judgment about the quality of the legal representation that Miss Seater enjoyed in the Magistrates Court at Southport, but there are in my view no circumstances of the present case that warrant the description special circumstances. There are about this case no features that in my judgment take it outside or make it different to the usual or common case of this type. Thus even if I were satisfied of the matters in s 1237AAD(a) I am not satisfied that there are special circumstances that make it desirable to waive the debt in the present case. Miss Seater’s circumstances are quite comfortable compared to many in similar circumstances and the fact of her having had family upsets of recent times does not alter that.

17.It follows that I would affirm the decision under review.  

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................Signed.............................................
  Jacqueline Woods, Associate

Date of Hearing  8 April 2008
Date of Decision  16 April 2008
The Applicant’s father appeared      
Solicitor for the Respondent     Departmental Advocate