Shepherdson and Secretary, Department of Family and Community Services

[2005] AATA 262

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 262

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/345

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANGELA SHEPHERDSON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J Campbell

Date30 March 2005

PlacePerth

Decision

The decision under review is set aside and in substitution thereof I determine that:

A.       Mrs Shepherdson’s owes a debt of $5,964.39, with that calculation to be checked for accuracy by the Respondent; and

B.       Special Circumstances exist whereby 50% of the debt amount is waived.

........ (sgd J Campbell)........

Dr J Campbell, Member

CATCHWORDS

Social Security – Parenting Payment – Overpayment – Debt – Sole Administrative Error – Special Circumstances – decision set aside

Social Security Act 1991, ss 503, 1068, 1223, 1237A(1), 1237AAD

REASONS FOR DECISION

30  March 2005 Dr J Campbell       

1.      In this matter, Mrs Angela Shepherdson (“the Applicant”) seeks a review of the decision of the Social Security Appeals Tribunal (‘SSAT’) dated 27 August 2004 which affirmed the decision of an Authorised Review Officer (“ARO”) dated 14 June 2004 to raise and recover a debt of $5788.86 (adjusted to $5964.36 on 25 August 2004), arising from an overpayment of parenting payment made during the period 8 September 2000 to 10 July 2001.  The decision of the ARO had affirmed an earlier decision made by an authorised Centrelink Officer on 9 November 2001.

Background

2.      Mrs Shepherdson was in receipt of parenting payment at the partnered rate when her partner commenced work with E G Green on 8 September 2000.  Mrs Shepherdson’s rate of parenting payment from 8 September 2000 to 10 July 2001 did not take into account Mrs Shepherdson’s partner’s fortnightly income from his employment.

Issues

3.      The relevant issues in this matter are whether:

(a)Mrs Shepherdson received an overpayment of parenting payment paid at the partnered rate between 8 September 2000 and 10 July 2001; and

(b)whether this is a debt owed by Mrs Shepherdson; and

(c)if so, whether all or part of this debt should be waived because of either sole administrative error and/or special circumstances.

Decision

4.      For the reasons nominated later in this decision, I find that:

(a)Mrs Shepherdson was overpaid parenting payment between 8 September 2000 and 10 July 2001 in the amount of $5964.34.  This amount (subject to verification by the respondent) is a debt due and owed by Mrs Shepherdson; and

(b)the debt should not be waived because of sole administrative error made by the Commonwealth; and

(c)special circumstances exist whereby 50% of the debt amount is waived.

Evidence

5.      In oral evidence and in written submissions Mrs Shepherdson, while acknowledging the overpayment of parenting payment between 8 September 2000 and 10 July 2001, argued that her partner had notified Centrelink of his employment with E G Green and that she had rung Centrelink on three or four occasions in the weeks following his employment seeking to be assured that she was receiving the correct amount of fortnightly parenting payment.  Mrs Shepherdson stated that she made such calls as she was aware from past experience that fortnightly parenting payment amounts would vary downwards with an increase in her partner’s fortnightly earnings.

6.      Mrs Shepherdson detailed the following evidence in support of her position:

(a)from June 2000 she was receiving parenting payment at the maximum rate as neither she nor her husband (Newstart Allowance) were employed;

(b)that the parenting payment notice (T9) forwarded to her on 5 September 2000 stated amongst other matters:

(1)that you must tell us about events or changes in circumstances affecting your payment within the 14 days period which starts on the day after the day on which they happen or are likely to happen;

(2)your partner’s total income goes over $62 a fortnight.  If your partner has to give a form to Centrelink on a regular basis, you can tell us about any changes on that form.  This means that you and your partner do not have to tell us more than once.

(c)that Mr Shepherdson advised Centrelink of his employment by completing and forwarding his “Application for Payment of Newstart Allowance” to Centrelink on 20 September 2000 (T15);

(d)that Mr Shepherdson’s Newstart Allowance was suspended on 21 September 2000 (T16);

(e)that Ms Conlon (ARO) in her letter of 14 June 2004 (T47) and the SSAT in their decision of 27 August 2004 (T2) did conclude that Mr Shepherdson had advised Centrelink of his employment (fax of 2 June 2004 T15, T45 being a copy of the original document forwarded), and that Centrelink did not update Mrs Shepherdson’s record to reflect this;

(f)that upon continuing to receive parenting payments at the maximum rate she rang Centrelink four to six times over a four to six week period to question whether the amount was correct.  In support of her contentions Mrs Shepherdson states that she would leave her children with her mother to mind while she would make such calls, her own phone having been disconnected;

(g)that she believed that she received documents from Centrelink which showed they had Mr Shepherdson’s correct level of income stated in their records:

T19 p50 – 6 April 2001 – estimated income for 2000/01 financial year $30888 (T4 nominates such an estimate)

T20 p52 – 2 May 2001 – a document from Harvey Beef which nominates Mr Shepherdson’s earnings to date for the financial year at $18248.08 – a document which Mrs Shepherdson believes was forwarded to Centrelink.

(h)that her relationship with her husband has been strained for some years and more so during this period of his employment,  when she was not told exactly the amount of his earnings, with money being handed to her in cash on payday, with most of the household expenses met from her Centrelink payments.  Mr and Mrs Shepherdson separated on 11 September 2002 and he pays no maintenance support at this time;

(i)that she received the parenting payment review form dated 15 May 2001 at a time that was close to its return date, and she believes that she did forward a completed return (T22), dated 8 August 2001, with an attachment (T22 p60) showing Mr Shepherdson’s income between 1 May 2001 and 31 July 2001.  Mrs Shepherdson believes she had returned a completed form prior to the date of lodgement of a similar document with Centrelink on 22 August 2001 (T260), and which is also dated by Mrs Shepherdson on 8 August 2001.  It is to be noted that both forms dated 8 August 2001 are internally inconsistent as to material nominated and attachments included.  Mrs Shepherdson also noted that she was having difficulty in collecting the necessary information as to her husband’s earnings,  with documents indicating that a weekly summary of earning was provided by E G Green and Sons Pty Ltd on 12 June 2002 for the period 12 August 2000 to 28 May 2002 (T31);

(j)Mrs Shepherdson stated that she was sent a reminder notice to complete her Parenting Payment Review Form on 26 June 2001.  Mrs Shepherdson stated that on 10 July 2001 she phoned Centrelink to advise difficulty in collating necessary documents, with Centrelink recording advice to Mrs Shepherdson to return review form as soon as possible (p 16/22 Exhibit A3);

(k)Mrs Shepherdson was forwarded a suspension of parenting payment notice on 24 July 2001 (T24).  Mrs Shepherdson rang Centrelink on 26 July 2001 to let Centrelink know that a fax of the review forms would be sent in the near future.  Mrs Shepherdson stated that she rang again on 22 August 2001 to advise of income estimates which are noted at p 15/22 Exhibit A3;

(l)Mrs Shepherdson pointed out that document T26 dated for signature on 20 August 2001 and document T26A dated for signature on 8 August 2001 were received by Centrelink on 22 August 2001, while T22 with overnight delivery run had still not been received by 22 August 2001.

7.      In relation to issues of special circumstances, Mrs Shepherdson detailed her circumstances in four particular areas:

(a)      Financial

(i)provided an income and expenditure statement which detailed a monthly income of $1740, an expenditure profile which included rent ($280), car lease payments ($220), telephone ($170), utilities ($60), insurance ($56), food ($800), car costs ($40), schooling and tuition ($50) and other ($48).  Amounts in arrears include schooling ($30), rent ($300), phone, electricity and gas ($350), veterinary fees ($60);

(2)assets include a car (net value after outstanding lease nil), furniture and other household assets ($20,000).  Outstanding capital amounts include lease and loans ($2000) from a friend.

(b)Family circumstances

(a)Mr and Mrs Shepherdson had been married for fourteen years prior to separation on 11 September 2002.  They have three children aged 9, 7, 5 and Mrs Shepherdson receives no maintenance support for the children from Mr Shepherdson.  Mrs Shepherdson and the three children all suffer from asthma, with the winter months being the most difficult;

(b)her relationship with Mr Shepherdson had been fragile for a number of years, with Mr Shepherdson prone to outbursts of abuse and temper but with no physical violence directed towards Mrs Shepherdson or the children.  In the two years prior to their separation Mr Shepherdson became extremely difficult and secretive to her about his earnings.  Much of his earnings were, in Mrs Shepherdson’s belief, used to support a cannabis habit, which on one occasion resulted in the police searching the house for illicit substances;

(c)Mrs Shepherdson, mindful that her clerical and record keeping activities are at times less than she would desire believes Centrelink were appropriately notified of Mr Shepherdson’s employment on 20 September 2000 (T15); that subsequently by way of phone calls she sought and was given assurance that her rate of parenting payment was correct; that Centrelink received a telephone call from Mr Shepherdson on 6 September 2000 that went for eleven and a half minutes and accessed a wide variety of screens with no further details of the conversation recorded; that on 13 November 2000 Mr Shepherdson rang to cancel his appointment as he had found employment.  Mrs Shepherdson believes that because of Centrelink errors, it is unfair that she wear the consequences and as such constitute special circumstances.

Respondent

8.      The respondent contended that the following sequence of events occurred:

(a)that Mr Shepherdson was in receipt of Newstart Allowance, when requested to attend a meeting on 20 September 2000 (letter of 5 September 2000 T10);

(b)Mr Shepherdson’s Newstart Allowance for 6 to 19 September 2000 was $126.60 (T12, T13) – Notification of 6 and 7 September 2000;

(c)that Mr Shepherdson did ring Centrelink on 6 September 2000 and an eleven and a half minute conversation was held during which a number of screens were accessed, but no record of conversation was made;

(d)on 21 September 2000 Mr Shepherdson’s Newstart Allowance was cancelled because he did not attend for interview on 20 September 2000 (T16, T17);

(e)on 13 November 2000 Mr Shepherdson is recorded as cancelling appointment for 15 November 2000 as he had found employment (T18);

(f)that the Parenting Payment Period Review form dated 15 May 2001 (T22) and a similar form dated 26 June 2001 were not received by Centrelink at that time and that Mrs Shepherdson’s parenting payment was suspended on 24 July 2001 (T24);

(g)on 22 August 2001 the Parenting Payment Review form dated 15 May 2001 (T26a) was received which declared Mr Shepherdson’s employment with E G Green & Sons Pty Ltd;

(h)Mrs Shepherdson’s parenting payment was restored on 22 August 2001 and then cancelled on 28 August 2001 because of average earnings of $691 per week by Mr Shepherdson from E G Green & Sons Pty Ltd (T27);

(i)the application for payment of Newstart Allowance (T15, 45) was not received by Centrelink until 2 June 2004, although it is dated as being signed on 20 September 2000.

Consideration and Findings

9.      The factual issues in this matter are somewhat obscure in that both Mrs Shepherdson and Centrelink would wish to have one believe that the other party is the one which has failed to provide and/or record the necessary and appropriate information despite the apparent obfuscation as to cause.  It is evident and I so find the following facts:

(a)that Mrs Shepherdson was in receipt of parenting payment from 8 September 2000 to 10 July 2001, the former date being the date on which Mr Shepherdson commenced work with  E C Green Sons Pty Ltd and the later date being the date on which Mrs Shepherdson’s parenting payment was suspended for failure to return a parenting payment review form dated 15 May 2001.

(b)that Mrs Shepherdson was advised that her parenting payment had been suspended on 26 July 2001 and that such suspension would stay until the parenting payment review form of 15 May 2001 was returned.  Mrs Shepherdson is recorded as having stated that the delay in returning the form was due to her having trouble in finding the payslips.  The form in question was lodged with Centrelink on 22 August 2001, with this form nominating Mr Shepherdson as earning an average of $691 per week while employed with E C Green & Sons Pty Ltd from 8 September 2000.

(c)that Mrs Shepherdson did provide an estimate of $30,888 for taxable income from government pensions or benefits for the financial year 2000/01 in response to a request by Centrelink on 25 May 2000 (T4).  No other estimate was provided during the period in question.

(d)that Mr Shepherdson’s Newstart Allowance was cancelled from 21 September 2000.

(e)that Mr Shepherdson did advise Centrelink on 13 November 2000 that he was in employment and that he would not be attending an interview on 15 November 2000.

(f)that there is no record of Centrelink receiving the Application for Newstart Allowance signed as being completed on 20 September 2000 until 2 June 2004 (T16, 45).

(g)that Mrs Shepherdson was overpaid parenting payment in the amount of $5,964.36 during the period 8 September 2000 to 10 July 2001.

10.      Mrs Shepherdson presented in my view as a individual beset with many difficulties and trying to carry an argument forward that has been bothering her for some years.  I would conclude that some of her arguments contain an element of hindsight reconstruction in an effort to further her contentions.  In this regard I found her evidence surrounding the submission of the parenting payment review form of 15 May 2001 difficult and less than persuasive.  On the other hand I am of the view that she believes she made some four to six phone calls to Centrelink to enquire as to whether she was receiving the correct rate of parenting payment post 20 September 2000.  Further, the weight of Mrs Shepherdson’s evidence was in part lessened by the processes she apparently uses to file and submit material, which includes seemingly maintaining signed copies of a document upon which she makes further annotations, having faxed the document to Centrelink (T22 and T26a refers).  Despite these shortcomings I consider Mrs Shepherdson to have presented her evidence with diligence and to the best of her knowledge and ability.

11.     I have already concluded that Mrs Shepherdson has received an overpayment of $5,964.36, a calculation which is to be further checked by the Respondent, and I further find that this is a debt owed by Mrs Shepherdson to the Commonwealth pursuant to section 1223 of the Act.

waiver – sole administrative error

12.        Waiver pursuant to section 1237(A)1 of the Act requires the existence of the conditions precedent, namely the error that caused the debt being solely due to an error by the Commonwealth and secondly that the individual received such payments in good faith.

13.     In the circumstances of this matter it is evident that both Mr and Mrs Shepherdson were receiving Centrelink benefits prior to Mr Shepherdson commencing work with E C Green & Sons Pty Ltd on 6 September 2000.  It is also evident that both were aware of the requirement to notify any earnings to Centrelink on a fortnightly basis.  Mrs Shepherdson stated that she was aware that any earnings by her husband would be taken into account in calculating her rate of parenting payment.

14.     While Mrs Shepherdson was aware of her obligations in ensuring notification of the fortnightly earnings of her husband, she relied upon a belief that Mr Shepherdson had informed Centrelink as per his application for Newstart Allowance dated 20 September 2000 (T15).  However, it is evident from all records before the Tribunal that this document was not received by Centrelink until 2 June 2004.  I further note that Mr Sheperdson’s Newstart allowance was cancelled from 21 September 2000 because of his failure to attend a meeting.  As a consequence of such a cancellation, no fortnightly notification forms for Newstart Allowance would further be completed by Mr Shepherdson.

15.     I note that on 13 November Mr Shepherdson advised Centrelink that he was in employment and that Centrelink, in the light of his already cancelled Newstart Allowance did not undertake any further action.

16.     In such circumstances it is not surprising that Mrs Shepherdson when she rang Centrelink on the four to six occasions over the four to six weeks following the 20 September 2000, received the assurances that she did for Centrelink at that time had no knowledge of Mr Shepherdson’s employment details, with the only relevant detail noted that his Newstart Allowance had been cancelled.  Mrs Shepherdson was unable to detail the exact content of her telephone conversation with Centrelink on those occasions, other than she was assured her rate of parenting payment was appropriate.  I have difficulty in accepting a proposition that on four to six occasions Mrs Shepherdson detailed that her husband was in employment and that he was earning so much per week and that Centrelink did neither record nor act upon such information.  It also in evidence that Mrs Shepherdson had great difficulty in finding out how much her husband was earning at that time.

17.     I further note that there was a telephone call by Mr Shepherdson to Centrelink on 6 September 2000 that went for some eleven and a half minutes and accessed a number of screens.  No detail of what was discussed on that occasion is in evidence and hence I can draw no inference from the telephone call other than it occurred.

18.     From 26 June 2000 to 22 August 2001 I note that there are only six recorded details of telephone conversations between Mrs Shepherdson and Centrelink and only two between Mr Shepherdson and Centrelink (6 September 2000 and 13 November 2000).  This is certainly less than for like periods before and after the period in question and for both husband and wife.  I draw no inference from such.

19.     With the request for the parenting payment review form to be completed by Mrs Shepherdson forwarded by Centrelink on 15 May 2001, I do conclude that in relation to the completion and lodging of the completed form Mrs Shepherdson was slow in returning this completed form to Centrelink.  I accept the documentary evidence that the form was lodged at Centrelink on 22 August 2001, and that throughout this period from request to lodgement, Mrs Shepherdson had difficulty in obtaining the information necessary to complete the form.

20.     I also accept that throughout the period during which the debt was accumulated, Mrs Shepherdson had little knowledge of what her husband was actually earning.  While an average figure was able to be collated by the time the review form was completed and lodged in August 2001, any notification of amounts by Mrs Shepherdson prior to that time would have on her evidence been somewhat speculative, as she stated she did not know.     

21.     From the rendition of circumstances I am satisfied that both parties contributed to the circumstances which gave rise to the overpayment of parenting payment to Mrs Sherpherdson.  In so stating I acknowledge that there was communication between Mr Shepherdson and Centrelink on 6 September 2000 (details unknown) and on 13 November 2000 when it is clearly recorded by Centrelink that he was in employment, and no further action initiated, as he had had his Newstart Allowance cancelled.  Again more diligence demonstrated by the Centrelink Officer would have resulted in more information as to earnings and the effect on Mrs Shepherdson’s rate of parenting payment.  On the other side of the equation there is no documented evidence of Mr Shepherdson being in employment until 13 November 2000, the details of which are nominated in the parenting payment review form lodged on 22 August 2001.  Further throughout the period in question Mrs Shepherdson’s evidence is particular in stating that she did not know how much her husband was actually earning and hence any capacity for her to notify actual earnings must remain in question.  Similarly I, also would not undervalue the family circumstances that existed at that time, which in turn may have caused difficulties for Mrs Shepherdson in complying with notification obligations in the light of her somewhat disordered and unusual approach to record keeping.  It is clear that Mrs Shepherdson had such notification obligations as her husband was no longer completing his fortnightly Newstart documentation, as it is evident that while she may have believed that Centrelink had been notified of her husband’s employment, it is also evident that variable fortnightly earnings as a revised estimate should have been notified to Centrelink, unless it was Mrs Shepherdson’s intention (unstated) to rely upon the estimate for the financial year of $30,888.  

22. Further it is also evident that Mrs Shepherdson did not receive documents from Centrelink during the period in question which would indicate that Centrelink were aware of her husband’s earning. The documents to which Mrs Shepherdson referred included the document of 6 April 2001 (T19 P50) which clearly states that the estimate for financial year 2000/01 was $30 888, an amount provided by Mrs Shepherdson at T4. Similarly, the document of 2 May 2001 from Harvey beef is a document initiated by that company and if the notation is accurate may have been forwarded at a later date to Centrelink.

23.     From the foregoing analysis I am satisfied that both parties contributed to the circumstances that gave rise to the overpayment of parenting payment to Mrs Shepherdson.  In such circumstances I find that the administrative error in the matter which gave rise to the debt was not the result of sole administrative error of the Commonwealth.  Pursuant to such a finding, waiver of the debt pursuant to section 1237(A) 1 of the Act cannot occur.

special circumstances

24.     I have detailed the circumstances of the debt accrual and noted that errors were made by Centrelink in this matter, as indeed errors were made by Mrs Shepherdson.  I have detailed Mrs Shepherdson’s financial circumstances.  I have noted the many requests for financial support and general assistance she has made.  I conclude that Mrs Shepherdson manages to survive with her three children in financially tightened circumstances.  I also note the asthmatic conditions of Mrs Shepherdson and the three children, and a suspected learning disability of one of the children.  More importantly, I note the domestic circumstances during the period in which the debt was accumulated and thereafer.  In such circumstances I consider the situation was extremely difficult for Mrs Shepherdson to ascertain as to the earnings of her husband.  I also note the circumstances of her husband’s behaviour during that time, and the later separation, together with an absence of financial child support from the former partner.

25.     I also observe that while it may be argued that there was a failure by Mrs Shepherdson to comply with her duty of notification, I am satisfied that in the circumstances of this matter that have been outlined, it is evident and I also find that she did not knowingly fail to do so, in that she believed that appropriate notification had been attended to.

26.     In reviewing all the circumstances together I am satisfied that strict application of the legislation would result in an unfair and unjust imposition on Mrs Shepherdson, in that she would end up responsible for a debt to which she, her partner and Centrelink have made a contribution.  This when coupled with her financial and domestic circumstances constitutes special circumstances and I so find.

27.     In addressing the issue of waiver pursuant to section 12374AD I conclude that 50% of the debt should be waived, this fairly representing a recognition of the various contributions to the misunderstanding that led to the debt accumulation, and the circumstances that have resulted from these misunderstandings.

determination

28.     The decision under review is set aside and in substitution thereof I determine that:

A.Mrs Shepherdson’s owes a debt of $5,964.39, with that calculation to be checked for accuracy by the Respondent; and

B.Special Circumstances exist whereby 50% of the debt amount is waived.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member

Signed:         ......................(sgd N Wee)..............................
  Associate

Date/s of Hearing  14 March 2005
Date of Decision  30 March 2005
Solicitor for the Applicant          Self represented
Advocate for the Respondent  Ms Rhonda Bradley,
  Service Recovery Team Centrelink