SHARON NOTENBOOM and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 274

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5289

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHARON NOTENBOOM

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondents

DECISION

Tribunal Dr J D Campbell, Member

Date23 April 2009

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd]...........................

Dr J D Campbell
  Member

CATCHWORDS

SOCIAL SECURITY – overpayment of social security benefits – debt – waiver – sole administrative error – special circumstances – decision under review affirmed

Social Security Act 1991 – sections 1236, 1237A, 1237AAD

A New Tax System (Family Assistance) (Administration) Act 1999 – sections 95, 97, 101

REASONS FOR DECISION

23 April 2009 Dr J D Campbell, Member

1.      Ms Notenboom was born in Sydney in 1973. Ms Notenboom married in 1991 and moved to Perth in 1993. In September 2001 Ms Notenboom separated from her husband and together with her three children returned to live in Sydney. The reasons nominated for the separation was domestic violence by her husband towards her and the children during the course of the marriage. The then husband was stated to be suffering from particular psychiatric disorders.

2.      On returning to Sydney in September 2001, Ms Notenboom and her three children were accommodated in a refuge for nine months, after which she received assistance from the Department of Housing. Ms Notenboom’s separated husband made many endeavours to discover her whereabouts and was charged at this time with breaching an apprehended violence order.

3.      As a consequence of this turbulent history, Ms Notenboom’s Centrelink file was given a special status known as “deny access” or “protected” in an attempt to keep her and her family’s whereabouts secret. In these circumstances, Ms Notenboom was advised of particular Centrelink officers’ names and their contact numbers. Such officers included “Michael”, with only such officers having access to her Centrelink file, and the ability to make entries/notations on her file. All the remaining Centrelink staff were denied access to such a file, with control of access and data flow controlled by the nominated access officers.

4.      In the early months at the refuge Ms Notenboom had contact with Ms Rush, a Centrelink social worker, who assisted her in securing an exemption in December 2001 from Centrelink from having to claim child support from her separated husband. Ms Notenboom had intermittent contact with Ms Rush from then until 2006, and mainly by telephone.

5.      From 3 September 2001 Ms Notenboom received the following Centrelink payments:

·Parenting payment single,

·Family tax benefit single parts A and B, and

·Pensioner education supplement

6.      Ms Notenboom divorced her first husband in 2003, and met her future husband in 2003, whom she married on 12 February 2005. Ms Notenboom moved to a leased property at Beecroft about a month before the marriage in February 2005, with the lease being in joint names. Ms Notenboom stated that she was aware of her responsibilities to notify Centrelink of her change of address, any change in her marital status or her earnings and that of her partner as she had been receiving social security benefits for some years at the time of her second marriage. Ms Notenboom stated that she did inform Centrelink by way of a letter to Ms Rush. In this letter Ms Notenboom stated that she detailed her intention to marry, their respective incomes, as well as seeking advice as to whether on account of special circumstances, she could continue to be treated as not being “a member of a couple”, once she remarried.

7.      In August 2007 Ms Notenboom separated from her husband. The couple had consolidated their debts before their separation. Ms Notenboom moved subsequently to Carlingford, with her and her husband ceasing their separation in June 2008.

8.      On 4 October 2006 during a telephone conversation with a Centrelink Customer Service Officer, Ms Notenboom advised she was married and had advised Centrelink of her change in marital status when she had previously changed her address (T24).

9.      On 7 November 2006 Ms Notenboom telephoned Centrelink and advised she had married on 12 February 2005, and that she wished to update her income estimate and address details for her husband (T25).

10.     On 25 January 2007 the following debts were raised:

·Family tax benefit $2,311.79 and $10,250.25;

·Parenting payment single $3,257.63; and

·Pensioner education supplement $1,439.64.

11. On 19 July 2007 an authorised review officer affirmed the decision to raise and recover such debts. On 27 September 2007 the Social Security Appeals Tribunal affirmed the decision to raise the debts, but decided that 25 per cent of all debts were to be waived pursuant to section 1237AAD of the Social Security Act 1991 (“the SS Act”) and section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the FAA Act”).

ISSUES

12.     The relevant issues in this matter are:

(a)      Did Ms Notenboom receive such payments in good faith and, if so, should such debts be waived on account of sole administrative error by the Commonwealth?

(b)      Should the debts be written off?

(c)       Did the debts arise wholly or partly from Ms Notenboom knowingly making a false statement or failing or omitting to comply with a provision of the relevant acts and, if not, are there special circumstances (other than financial hardship alone) that make it desirable to waive?

CONSIDERATION AND FINDINGS

13.     I note that there was an agreement between the parties that the debts owed and quantification thereof has been correctly assessed. I so find that Ms Notenboom has accrued the following debts as a consequence of overpayment of various benefits/allowances during the financial years 2004/05 and 2005/06:

·Family tax benefit $2,311.79 and $10,250.25;

·Parenting payment single $3,257.63; and

·Pensioner education supplement $1,439.64.

14.     In this matter, I have been particular in attempting to understand the information, interactions and record keeping in the situation where a “deny access” or “protected” restriction is imposed by Centrelink to protect the whereabouts of a particular client. Centrelink witnesses (Ms Bacusi and Ms Rush) detail that in such a situation only a maximum of four staff members can have access to the particular file, with one of those four staff being designated the “responsible officer” and who will be the primary point of contact for the customer in the Customer Service Centre. There is also an access officer, being an officer from the relevant payment area, who will be responsible for carrying out administrative tasks, for example, assessing payments in relation to the customer. It is also noted that only the Deny Access Facility Manager can grant access to such a customer record (exhibit R7).

15.     I was informed that Centrelink social workers maintained notes of their client interactions with such notes either being stored or destroyed once an appropriate entry has been made on a client’s file. In such circumstances material can be entered into the Social Work Information System (SWIS) and sent to the client’s main file once entered. For more detailed and confidential information, I was informed that there is an appropriate place within the SWIS where such can be entered and stored. Further when a customer record has deny access protection a social worker would need to obtain deny access privilege to record a “DOC” (a text message) or create a record in SWIS. Further, Ms Rush stated that when she received a letter from a client requesting advice about particular payments or raising issues which would affect particular payments, she would direct such a letter to the appropriate officer for action, and also advise the writer to direct her enquiries to the nominated contact officer.

16.     In this matter, despite the need to impose a deny access/protected status there are no social work records available to be placed in evidence before the Tribunal. Further, Ms Rush admitted to having no memory for Ms Notenboom or her circumstances, with any knowledge of Ms Notenboom’s circumstances and her involvement with Ms Notenboom arising as a consequence of a few recorded file notes recorded in the client’s Centrelink file, in which she was recorded as the officer involved. I consider such record keeping to be less than satisfactory. While there is material before me suggesting that such social work records are now maintained on SWIS, it would appear likely that in the past a deny access status may have inhibited such record keeping, either as a consequence of the system design as exampled by the need to access, involving multiple actions by an individual wishing to make a file notation.

17.     Similarly, I note that Ms Notenboom, while having memory for having directed a letter to Ms Rush and the contents thereof and having received a telephone call from Ms Rush a few days later, has little detailed knowledge of her interactions, whether they be at interview or by telephone and very understandably, as much was occurring in Ms Notenboom’s life during the period in question.

18.     Further, while accepting that there are no social work records available to be considered, I have no difficulty in considering Ms Rush to be a responsible officer, who would deal with issues and circumstances arising in her day to day interactions with clients as she detailed in her evidence.

19.     Further, in addressing the evidence before me, it is evident that “Michael” was the nominated responsible officer to serve as Ms Notenboom’s primary point of customer contact. While there is some evidence to suggest that Ms Notenboom had some difficulty contacting Michael around the end of April 2005, Ms Notenboom’s letter of 25 January 2007 (T34) makes no mention of such. Indeed it would appear that Michael continued in the primary contact role until late 2006/early 2007, at which time the role was assumed by Kylie and Jane.

SOLE ADMINISTRATIVE ERROR – SECTION 1237A OF THE SS ACT AND SECTION 97 OF THE FAA ACT

20.     Ms Notenboom was particular in stating that she was aware she had a responsibility to notify Centrelink if there was a change in her marital status, a change in her address or a change in the income of either herself or her partner. Prior to her marriage in February 2005, Ms Notenboom was receiving particular social security benefits, namely, parenting payment single, family tax benefit single and pensioner education supplement.

21.     Ms Notenboom clearly remembers sending a letter to Ms Rush in late 2004 in which she advised of her impending marriage, detailed the earnings of herself and her future partner, as well as seeking consideration that despite the forthcoming marriage, she be considered, because of her particular circumstances, not to be “a member of a couple.” Ms Notenboom believes Ms Rush phoned her a few days later and stated that her request to be considered not to be a member of a couple was unlikely to be approved. Ms Notenboom stated she never received a letter confirming the non-approval.

22.     Ms Notenboom moved to a new address on 12 January 2005 (from Lane Cove to Beecroft). Ms Notenboom acknowledged that “Michael”, being the nominated officer, was the person she would need to advise of a change of address and/or any income changes. Ms Notenboom believed that she must have done this, for there was a reduction in her parenting payments from 14 April 2005, and that there would have been much discussion of her circumstances when she applied for an advance of parenting payment in March 2005.

23.     In addressing the Centrelink records, I observe that there is no file note record that Ms Notenboom notified them of either her marriage on 12 February 2005 or her change of address to Beecroft on 12 January 2005 until 4 October 2006 (T24, T25), by which time she had moved to Carlingford.

24.     Further, I note that the decrease in parenting payment single in March 2005 was a direct consequence of some monies earnt by Ms Notenboom in early 2005, which had been identified as a consequence of a tax declaration form review, and which had an effect on the quantum of pension benefit.

25.     I also note that the Centrelink records continue to record Ms Notenboom at the Lane Cove address, not married and receiving parenting payment single until 4 October 2006. I again note, that while Ms Notenboom believed she had advised Michael of both when seeking an advance of parenting payment single in March 2005, her memory as to the content of such discussions was at best vague and absent of any detail.

26.     My attention was drawn to Ms Notenboom’s application for pensioner education supplement completed and lodged by her with Centrelink on 8 April 2005 (T13). In the document Ms Notenboom detailed her address at Lane Cove and that she was receiving parenting payment single. In evidence Ms Notenboom was unable to explain these two pieces of misinformation, other than to state that it must have been a mistake.

27. In the circumstances I have outlined, I am satisfied that Ms Notenboom has contributed to the circumstances, whereby overpayment of various social security benefits have occurred and a debt accrued. In such circumstances I conclude that the debt in this matter is not attributable solely to an administrative error made by the Commonwealth, with waiver of debt pursuant to section 1237A of the SS Act and section 97 of the FAA Act not an available outcome for Ms Notenboom.

WRITE OFF DEBT – SECTION 1236 OF THE SS ACT AND SECTION 95 OF THE FAA ACT

28. Section 1236(1A) of the SS Act and section 95(2) of the FAA Act provide for a debt to be written off in circumstances where the debt is irrecoverable at law or the debtor has no capacity to repay the debt or the debtor’s whereabouts is unknown or it is not cost effective for the Commonwealth to take action to recover the debt. I note that sections 1236(1B) and (1C) of the SS Act and sections 95(3) and 95(4) of the FAA Act nominate circumstances in which a debt is taken to be irrecoverable or recoverable at law.

29. In addressing the evidence in this matter I conclude that Ms Notenboom fails to satisfy any of the criteria nominated in section 1236(1A) of the SS Act and section 95(2) of the FAA Act. Accordingly, I am unable to write off the debt under this section.

SPECIAL CIRCUMSTANCES – SECTION 1237AAD AND SECTION 101 OF THE FAA ACT

30. I note that section 1237AAD of the SS Act and section 101 of the FAA Act provide for waiver of a debt in whole or part in circumstances where the debt did not result from the debtor knowingly making a false statement or representation or failing or omitting to comply with the provisions of the relevant acts and that there are special circumstances (other than financial hardship alone) that make it desirable to waive.

31.     In this matter I have been particular in outlining the circumstances giving rise to the debt. These circumstances involve Ms Notenboom believing that she had informed Centrelink of her marriage, change of address and the incomes of her and her husband. I note Ms Notenboom acknowledges that she had a duty to do so and that she did so by way of letter to Ms Rush in late 2004 and in conversations with Michael in March 2005 when applying for an advance of parenting payment single. I note that the Centrelink records are silent on these relevant issues until October 2006 when Ms Notenboom mentions such in a telephone enquiry. Despite significant social worker involvement in her case over a five year period there are no Centrelink social work records, nor any report of a letter being forwarded by Ms Notenboom to Ms Rush in late 2004. There is, I observe, a document concerning pensioner education supplement completed and lodged by Ms Notenboom on 8 April 2005 in which she records that she is receiving parenting payment single and that her current address is in Lane Cove – an address that she had left in January 2005.

32.     In addressing the issues raised I note that as a consequence of the non-recording of the change of address from Lane Cove to Beecroft, Ms Notenboom would not have received correspondence from Centrelink concerning her benefits and continuing responsibilities to notify, unless she had made arrangements for her mail to be redirected – an issue about which she is uncertain. Further, I note that Ms Notenboom stated that she did not necessarily read in detail the letters sent to her by Centrelink.

33.     Further, I observe that pensioner education supplement is payable in circumstances where an individual is receiving parenting payment single. While I am able to appreciate the circumstances in this matter which has led to misunderstandings, a failure in communication and a failure in documentation I was concerned about the completion and lodgement of the pensioner education supplement by Ms Notenboom on 8 April 2005. I note that Ms Notenboom has no explanation for the two issues raised earlier, namely, the nomination of parenting payment single and the Lane Cove address other than it was a mistake. In such circumstances I find it difficult to make any other finding than that the completion and lodgement of the form on 8 April 2005 constituted a false representation/statement. Ms Notenboom stated that such a representation was a mistake, from which I am asked to infer that she had no intention to make such a representation, and as such did not knowingly make such a representation, as it was clearly inconsistent with her earlier evidence as regards notification to Centrelink of her marriage, her change of address and the income quantum of her and her spouse by way of letter to Ms Rush in late 2004 and in discussion with Michael in March 2005.

34.     In all the circumstances of the matter I accept that Ms Notenboom did not knowingly make a false representation on 8 April 2005. Such a finding is made on the grounds that the  statements made on 8 April 2005 were made by way of a mistake. In concluding as I have, I place weight on Ms Notenboom’s acknowledgement that she had a responsibility to report such issues as change in marital status, incomes and address. I accept that she believes that she did so do and in the manner which she has described. In such circumstances I find it difficult to conclude that she intentionally set out to misrepresent her circumstances as she believed that she had already provided Centrelink with the correct information.

35.     In addressing the issue of special circumstances, I am mindful of all the material before me. From an analysis of such material I would conclude that:

·The process of interaction and maintenance of records by Centrelink in this matter has been less than satisfactory in that there is a total absence of social work records, when clearly interaction with a social worker was significant.

·Ms Notenboom’s financial circumstances are difficult, but not uncommon or unusual and are best described as requiring careful management.

·The health status of the family (her mother, herself, her husband and three children) is heavily compromised both because of earlier family trauma, ongoing behavioural disorder in the oldest child, depression in mother and husband, and physical disorders in Ms Notenboom and her other two children.

36.     In considering the findings I have made, I am satisfied that when considered together they are uncommon and unusual and constitute special circumstances.

37.     In the light of the finding that special circumstances exist and my earlier finding that a false representation was not knowingly made, I conclude by finding that 25 per cent of the debt should be waived. I observe that such a finding is consistent with the finding made by the Social Security Appeals Tribunal in their decision of 27 September 2007 – this being a decision supported by the Secretaries’ representative during the hearing.

38.     In conclusion, I determine that the decision under review be affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: .......................[sgd]....................................................
  Associate

Dates of Hearing  27 October 2008, 12 December 2008 and 20        February 2009
Date of Decision  23 April 2009
Solicitor for the Applicant               Mr S Hodges
Appearance for the Respondents  Ms J Maclean, Centrelink Legal Services and        Procurement Branch