SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and BRIAN STAPLETON
[2009] AATA 302
•1 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 302
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1357
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
BRIAN STAPLETON
Respondent
DECISION
Tribunal Senior Member M D Allen Date1 May 2009
PlaceSydney
Decision The decision under review is set aside and this matter is remitted to the Applicant with the direction that so much of the debt incurred by the Respondent as a result of the overpayment of Carer payment, as is represented by the amount of Newstart allowance that would have been paid to him in the period 20 July 2004 to 16 January 2006, is waived. ...................[sgd]........................
M D Allen
Senior Member
CATCHWORDS
SOCIAL SECURITY: Overpayment of Carer payment - Whether special circumstances existed to enable debt to be waived – That another social security benefit had been payable to which the Respondent had a notional entitlement was a circumstance to be taken into account.
LEGISLATION
Social Security Act 1991: s1237AAD
Social Security (Administration) Act 1999: s198AAA
Aged Care Act 1997: Ss 86(4) and (5)
CASE LAW
Oberhardt v Secretary, Department of Education, Employment and Workplace Affairs [2008] FCA 1923;
Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659 distinguished
Devriadis v Secretary, Department of Families and Community Services (2000) 62 ALD 145 distinguished
QX05/10 and Secretary, Department of Employment and Workplace Relations [2006] AATA 178
Secretary, Department of Social Security v Ellis (1996-7) 24 AAR 535
REASONS FOR DECISION
Senior Member M D Allen 1. By Application made the 28th day of March 2008, the Applicant Secretary sought review of a decision made by a Social Security Appeals Tribunal (“SSAT”) on 21 February 2008 waiving part of the debt incurred by the Respondent, being an overpayment of carer payment.
2. The facts giving rise to the incurring of the debt are in short compass. The Respondent, who is divorced, moved into the home of his parents in late 2000 in order to care for them. Originally he supported himself but with effect from 6 March 2002 he was granted Carer payment and Carer allowance.
3. The Respondent’s father died on 16 April 2002. Prior to that event, the Respondent’s mother had been admitted to Ryde Hospital for respite care on or about the 6th February 2002 to 27th February 2002 followed by a further period of inmacy from 8 March 2004 to 22 March 2004.
4. Centrelink documents (see T18, pp 80, 81 of the documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975) state that Centrelink was advised of these periods of hospitalisation. An issue arose as to who advised Centrelink. Although the Respondent denied having done so, I accept that not only did he so advise Centrelink but that he was told of the requirement to notify Centrelink if his mother went into permanent care. See the statement of Ms Reeg.
5. Given the Respondent’s apparent psychiatric illness, described by psychologist Ms Collins as a Generalised Anxiety Disorder (“GAD”) which involves some defects of comprehension, I accept that the Respondent has no recollection of these telephone conversations.
6. On 19 April 2004 the Respondent’s mother entered Shalom Nursing Home where she remained until her death on 3 April 2006. It is not disputed that until the Respondent received a review form from Centrelink in January 2006, he did not notify Centrelink that his mother had been admitted to a nursing home.
7. Although the Respondent did continue to visit his mother in the nursing home on a regular basis and assist in her care, particularly making sure she ate her midday meal, the Respondent became ineligible to receive Carer payment and Carer allowance from 27 July 2004, a date 14 weeks after the admission of the Respondent’s mother into the nursing home. See Section 198AAA of the Social Security (Administration) Act 1999 (“Administration Act”).
8. As a result of information provided by the Respondent in January 2006, a debt representing the overpayment of Carer payment for the period 27 July 2004 to 16 July 2006 and Carer allowance for the period 19 April 2004 to 16 January 2006 was raised against him.
9. In evidence the Respondent stated that when his mother was admitted into the nursing home, a social worker attached to Ryde Hospital said to him that she “would contact Centrelink”. He therefore took no action to notify Centrelink of his mother’s admission into the nursing home.
10. The decision of the SSAT records at paragraph 27:
“The Tribunal noted that there was an entry of 31 March 2004 in his mother’s Centrelink file in relation to a caller wanting a change of payment destination.”
Although it is now impossible to say who the caller was, this entry is consistent with the statement by the social worker at Ryde Hospital that she would contact Centrelink. Adding to the Respondent’s belief that Centrelink had been notified was the fact that his mother’s social security benefit was no longer forwarded to her but to the nursing home.
11. Centrelink was notified of the admission of Mrs Stapleton senior into the Shalom Nursing Home. (See Document T11)
12. Whereas the SSAT found that Centrelink was made aware by the Commonwealth Department of Health and Ageing (“DoHA”) (as it was then called) of Mrs Stapleton senior’s admission to Shalom Nursing Home, it was in error in stating that if it had acted on this information the debt would not exist.
13. As at July 2004, Sections 86(4) and (5) of the Aged Cared Act 1997 (“ACA”) read inter alia:
“86-4 A person to whom powers under part 2.3 have been delegated under subsection 96-2(5), or a person making assessments under section 22-4, may make a record of, disclose or otherwise use protected information, relating to a person and acquired in the course of exercising those powers, or making those assessments, or any one or more of the following purposes:
(a) provision of aged care, or other community, health or social services, to the person;
(b) assessing the needs of the person for aged care, or other community, health or social services;
(c) reporting on, and conducting research into, the level of need for, and access to, aged care, or other community, health or social services.
86-5 A person is guilty of an offence if:
(a) the person makes a record of, discloses or otherwise uses information; and
(b) the information is information disclosed to the person under section 86-3 or 86-4; and
(c) the purpose for which the person makes a record of, discloses or otherwise uses the information is not the purpose for which the information was disclosed.
Penalty: Imprisonment for two years.”
14. Although those provisions have now been amended by the Families, Community Services and Indigenous Affairs and Veterans Affairs Amendment (2006 Budget Measures) Act 2006 (“Budget Measures Act”) to permit the exchange of information for the purposes of social security laws, at all relevant times Centrelink could not act on the information provided to it by the DoHA in relation to Mrs Stapleton’s admission to Shalom Nursing Home so as to adjust any Carer payment made to the Respondent.
15. That such a provision existed is, of course, absurd and the taking of privacy provisions to their illogical extreme. I cannot see why an individual should be penalised if the Commonwealth deprives its own organs of State and agencies of the ability to pass information between them.
16. Apart from raising the debt against the Respondent, the Commonwealth also brought criminal charges against the Respondent, alleging that he obtained a financial advantage by deception. The Commonwealth Director of Public Prosecutions did not, however, proceed with these charges.
17. Despite the Respondents denials, I find that he was notified by Centrelink in a series of correspondence dated from the 2nd April 2002 to the 12th June 2005 of the necessity of informing Centrelink if the person in respect of whom Carer payment and Carer allowance was being paid, stopped being cared for in their own home or most importantly:
“ temporarily stops receiving your daily care and attention to enter hospital or for any other reason (even if it just overnight) permanently stops receiving your daily care and attention.”
18. To my mind this instruction, if read, would indicate to any reasonable person the need to notify Centrelink if the person in respect of whom Carer payments were received entered a Nursing Home.
19. I find that at some stage the Respondent must have been aware of these provisions as I am satisfied that he personally informed Centrelink of his mother’s admission to Ryde Hospital for palliative care.
20. The Respondent sought to excuse his failure to notify Centrelink by adducing evidence from his psychologist Ms Collins as to his Generalised Anxiety Disorder and inability to absorb details and his tendency to become confused.
21. I am not prepared to accept Ms Collins report in its entirety. Although I do not doubt her evidence as to the test she performed and accept the administration and interpretation of such tests are entirely within her field of expertise.
22. Diagnosis, on the other hand, is the province of a psychiatrist. Much as I respect Ms Collins’ opinion as to the Respondents medical condition, it can only be tentative in the absence of full psychiatric evaluation.
23. I find that there are internal contradictions in Ms Collins’ report. For example, at page 7 of her report she states:
“ One would assume that Mr Stapleton may have felt confused and struggled to absorb details. Forgetfulness and misinterpretation of facts and events is also highly likely.”
However, earlier in her report under the heading Cognitive Assessment she states:
“These scores reflect reasonable verbal and intellectual skills, and also good short-term memory and attention skills for his age.”
She continued:
“He also completed the verbal component of the Wechsler Memory Scales – Revised (WMS-R) to explore verbal memory. The test comprises two tasks that assess the ability to remember and associate words, and recall of short stories. His performance was good on both tasks and revealed normal learning over time.”
She continued:
“Both his verbal and non verbal memory skills are good and commensurate with IQ, and no deficits are apparent from assessment.”
She does, however, at paragraph 19 of her report state:
“His speech was persistently bumbled and his thought processes were digressive. These were not indicative of a psychotic condition but rather a communication disturbance…”
She went on to diagnose a moderate Generalised Anxiety condition as contained in DSM-IV-TR which she stated was long standing and present between the period of April 2004 and 2006.
24. I deduce from this part of the report that the Applicant is slow to absorb data and to process it, but that instructions, such as those in the Centrelink correspondence, are not beyond his comprehension.
25. Dr Gambrill also referred to the Respondents “anxiety”. I note that Dr Gambrill has no specialist qualification in psychiatry although I have no doubt as to his ability to diagnose the presence of symptoms which would require investigation. Although Dr Gambrill refers to reduced comprehension he does not go so far as to state that the Respondent is incapable of managing his affairs. I contrast his reference to stress and reduced comprehension to Ms Collins’ test results.
26. Having said that, I am nonetheless satisfied having seen and heard the Respondent give evidence and having had the evidence and cross examination of Ms Collins and Dr Gambrill that the Respondent has a definite deficit in cognitive functioning. I am not satisfied, however, that this resulted in a total failure to appreciate the instructions in the Centrelink correspondence or a failure to realise what that correspondence was and why he should read and act upon it.
27. I do accept, however, that the Respondent accepted the statement by the social worker that she would contact Centrelink. I note that whilst his mother was in temporary care the Respondent continued lawfully to be paid Carer payment. This may have affected his thinking.
28. In this matter, no question of write off exists, the Respondent currently receives a social security benefit namely Newstart allowance. Likewise, there has been no administrative error on the part of Centrelink. I would particularly state that if there is a legislative barrier against the exchange of information then error can not be said to have arisen.
29. Section 1237AAD of the Social Security Act 1991 (“SS Act”) states:
“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 a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.”
30. I find that the Respondent did not knowingly make a false representation or statement nor did he knowingly fail to comply with a provision of the social security law. I accept that he accepted the assurance of the social worker in good faith.
31. The term “special circumstances” has been analysed in numerous decisions of both this Tribunal and the Federal Court. In Secretary, Department of Social Security v Ellis (1996-7) 24 AAR 535 at 539, Carr J said:
“In Beadle v Director-General Social Security (1985) 7 ALD 670, a Full Court of this Court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s 102(1)(a) of the Act which provided for an extension of time in which to claim a family allowance “…in special circumstances…”. At 673-674 the Full Court said:
“Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate…it would depend on 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 in precision, is sufficiently understood in our view not to require judicial gloss.”
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Kiefel J, after referring to Beadle, 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 enquiry 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 enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied.”
Later (on the same page) Kiefel J expressly approved the Tribunal’s reasoning in holding that Mr Groth’s circumstances were not out of the ordinary when Pt 3.14 of the Act (in which ss1168 and 1184 are to be found) had the same effect on him as it did on other persons qualified to receive a disability support pension. Her Honour added:
“It [the Tribunal] went on to find that his circumstances and those of his family although difficult, did not constitute hardship and they could not be said to be different from other pension recipients.”
32. In Oberhardt v Secretary, Department of Education, Employment and Workplace Affairs [2008] FCA1923, Spender J specifically decided that a notional entitlement to a social security benefit should not be excluded from the range of relevant considerations in deciding whether there are “special circumstances” to waive a debt under s 1237AAD SS Act.
33. The Applicant submitted that Newstart allowance was excluded from such consideration and referred to the judgement of Weinburgh J in Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 65 as authority for this submission.
34. In my opinion, Kelly supra is distinguishable. In that case, the SSAT and the AAT had both proceeded on the basis that certain action should have been taken by the Appellant Secretary. As His Honour pointed out, there was no head of power pursuant to which the SSAT or the AAT could determine that certain conditions legislatively required to enable the grant of Newstart Allowance had occurred when in fact they had not.
35. His Honour’s judgment said nothing regarding whether a notional entitlement to Newstart allowance was or was not capable of being regarded in the assessment of whether “special circumstances” existed.
36. Prima facie the Respondent had an entitlement to Newstart allowance once his mother had been admitted into the nursing home. I note that he was granted Newstart allowance in January 2006 when Centrelink determined that he was no longer entitled to Carer payment. There is no evidence that the Respondent’s circumstances were in any way different in January 2006 to what they had been on the 20th April 2004.
37. The Applicant also referred to Devriadis v Secretary, Department of Family and Community Services (2000) 62 ALD 145. I regard that case as distinguishable as the Respondent was not constrained to seek to obtain paid work as he was in receipt of a social security benefit, which benefit he believed himself to be properly entitled.
38. In my opinion, special circumstances do exist in this matter. They are firstly the fact that Centrelink had knowledge of Mrs Stapleton seniors admission to a nursing home but were prohibited by legislation from acting on that knowledge. I see no reason why the citizen should be disadvantaged by the Government limiting its own powers and restricting its own ability to act upon information it has received. As stated earlier, I accept the Respondent’s evidence that he accepted at face value the social workers statement that she would contact Centrelink regarding his mother’s admission to the nursing home.
39. Secondly, the Respondent is in ill health as detailed in the report and evidence of Dr Gambrill and I find that it is unlikely that he will be able to attract an employer. This will result in his remaining dependant upon social security for income. Currently his only income is Newstart allowance. In passing, I must say that given the report and oral evidence of Dr Gambrill and Ms Collins, I consider that the Respondent is a candidate for the grant of a Disability Support Pension.
40. The Applicant pointed out the Respondent is permitted to live rent free in the house in which he has a 1/3 share with his siblings and has some $4000 in his bank account. Notwithstanding this, I find there is much force in the reasons for decision by the AAT in QXO5/10 and Secretary, Department of Employment and Workplace Relations [2006] AATA 178 at paragraph 60, namely:
“We appreciate that the Applicant has funds but we consider that it is undesirable that a person who is not in immediate financial hardship should be reduced to long term financial difficulties if special circumstances are not found…”
41. The third circumstance that can be regarded as “special” is that during the period the Respondent was improperly in receipt of Carer payment (not, however, Carer allowance) he was prima facie entitled to Newstart allowance.
42. As I see matters, the decision of the SSAT to offset the notional entitlement to Newstart allowance against the amount of Carer payment (not Carer allowance) paid to the Respondent was the correct and preferable decision.
43. I am, however, not convinced that the method adopted by the SSAT to calculate the sum to be waived was correct. I have no doubt Centrelink could calculate what the Respondent would have been paid had he been in receipt of Newstart allowance and my decision will reflect this.
44. For the reasons set out above, the decision under review is set aside and this matter remitted to the Applicant with the direction that so much of the debt incurred by the Respondent as a result of the overpayment of Carer payment, as is represented by the amount of Newstart allowance that would have been paid to him in the period 20 July 2004 to 16 January 2006, is waived.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: ...............[sgd]................................................................
M.Corcoran AssociateDate/s of Hearing 2 February and 23 April 2009
Date of Decision 1 May 2009
Solicitor for the Applicant Mr J. Larcombe, Centrelink Legal Services
Counsel for the Respondent Ms M. Tibbey
Solicitor for the Respondent Legal Aid Commission
1
5
0