Shore and Secretary, Department of Family and Community Services

[2004] AATA 304

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/653

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LESLIE JAMES SHORE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J A Shead, Member

Date24 March 2004 

PlaceSydney

Decision The decision under review is set aside and substitution therefor the Tribunal decides that the debt is to be waived.

[sgd] J A Shead
  Member

CATCHWORDS

SOCIAL SECURITY – overpayment of carer allowance – special circumstances – decision set aside

Social Security Act 1991 sections 954, 1223(1), 1237A(1)

REASONS FOR DECISION

24 March 2004  Ms JA Shead, Member      

1.      This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by Leslie James Shore (“Mr Shore”) of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 24 March 2003. The SSAT affirmed a decision made by a Centrelink delegate of the Secretary of the Department of Family and Community Services (“the Department”) on 14 August 2002 to raise and recover a debt of $3,860.40 in overpaid carer allowance. This earlier decision was reviewed and affirmed by an Authorised Review Officer (“ARO”) on 11 October 2002.

2.      Mr Shore gave oral evidence to the Tribunal.  A departmental advocate, Mr James Larcombe, represented the Department.  

2. The Tribunal took into evidence documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents”, T1 – T20). Mr Larcombe provided the Tribunal with the Department’s Statement of Facts and Contentions dated 9 September 2003. The following exhibits were also tendered to the Tribunal:

Exhibit	Description	Date
A1	“A Shore Line”  Glenorie & District Gazette	November 2000
R1	Extract computer record of questions	2 April 2002
R2	Extract computer record of telephone call	12 April 2002

3.      By way of background, the Tribunal extracts the history of the matter from the SSAT decision:

“1. Mr Shore was receiving carer allowance in relation to his mother, Mrs Eileen Shore. In October 2000, Mrs Shore went into a nursing home but Mr Shore continued to receive carer allowance in respect of his mother until 12 August 2002, when the payment was stopped and a debt raised.

2. On 11 October 2002 an authorised review officer affirmed the decision. The review officer’s decision was based on the following findings and evidence:

·     letters were sent to Mr Shore on 12 May and 13 June 2000 and on 2 and 12 April 2002;

·     these letters required Mr Shore to advise Centrelink within 14 days if the person you care for stops living with you, … or temporarily stops receiving your care and attention to enter hospital or for another reason (even if it is just overnight) ;or permanently stops receiving your daily care and attention;

·     during 30 October 2000 to 12 August 2002, Mr Shore received carer allowance totalling $3,860.40;

·     due to not providing daily care to her in the family home, none of this was payable and this amount is a debt;’

·      Centrelink records only show that Mr Shore contacted on 9 June 2000 regarding his mother’s cataract operation. However, she did not enter the nursing home until October 2000;

·     there was no further contact in this regard until 12 April 2002;

·     there was a series of questions asked and the Call Centre recorded that Mrs Shore was still living with Mr Shore and the amount of care given had not changed; and.

Mr Shore did not receive the carer allowance payments in good faith as he was aware of the obligation to notify.”

4.      The SSAT recorded Mr Shore’s evidence to it at paragraphs 5 to 13 of its Statement of Reasons for Decisions, as follows:

“5. By way of background, Mr Shore said that he had looked after his mother for 40 years, since his father died in the early 1960’s. In April 2000 Homecare convinced him to apply for carer allowance. In May 2000 his mother had an operation on her cataracts and unfortunately, this was unsuccessful and she became blind. She was already deaf and in a wheelchair.

6. Mr Shore needed to decide what was the most appropriate care for his mother. He said he first considered building a granny flat and employing a full-time nurse, but this did not go ahead. When he spoke to Centrelink on 9 June 2000, it was in relation to this possibility.

7. A position eventually came up in the Curie Nursing Home. Mr Shore said he had to pay from 11 October 2000, but she did not actually begin her residence until 17/18 October as they went to Coffs Harbour.

8. In relation to contacting Centrelink at that time, Mr Shore said that he rang Ms Sue Vardon, Chief Executive Officer of Centrelink, as he knew her as she had been a social worker at the council many years ago. This seemed to be in connection with an amount of $12.33 a day Mr Shore had to pay for his mother’s care in the nursing home. Ms Vardon was not available and her secretary put him through to someone.

9. Mr Shore said he spoke to a person, to whom he explained everything, and also told of how much care he was providing his mother even though she was in the nursing home. He said the person to whom he spoke said that he could keep the $85 a fortnight and it could be offset against the $12.33 per day cost. After this conversation, Mr Shore said he thought no more of the payment, as he believed he was entitled to it.

10. As to who this person was, Mr Shore said he did not make any enquiries; it was someone whom he had been put through to who knew about the issue. He could not say where they were located, what their position was and was not certain whether he had rung, or had been put through to this person by Ms Vardon’s secretary. He believed they were in Sydney but it was not his local office. Mr Shore also said that he told the review officer of his contacting Ms Vardon’s office in October 2000.

11. Events then moved forward to 2002. Mr Shore showed newsletter items he had written about his mother being in a nursing home in that time; he was not trying to hide this. He then got a letter on 2 April 2002 asking him to ring as Centrelink needed some information about the care provided to his mother. He said he rang and there were a series of questions. Mr Shore said he was asked every question, including the one asking whether his mother received a Centrelink payment, as opposed to being asked whether anything had changed. Mr Shore said that he answered “Yes” to the question of whether his mother was in a nursing home, despite the fact that the officer had recorded “No”. Mr Shore said that he had no reason to be dishonest.

12. Mr Shore showed the tribunal the letter of 12 April 2002, which said that:

‘We have reassessed your carer allowance for Eileen Shore using the information you recently provided.’

and that Centrelink continued to pay him $85 a fortnight, so he believed he was entitled to this money.

13. As to his personal circumstances, Mr Shore has had deep vein thrombosis and also clots in the lung and heart problems. He is also suffering great loss from his mother’s recent death. He said he has been on Council for 34 years and has been mayor. His integrity and truthfulness is of great importance to him and he would not have remained on council for so long if he did not have these qualities. Mr Shore was not claiming financial hardship, and says it is wrong that he should now have to repay theses monies and have a debt when it is Centrelink’s error.” 

5.       The SSAT did not alter that decision, for the reasons set out in paragraphs 25 29 and 30 of its decision.

6.      In the Application for Review to the Tribunal for review of the SSAT decision, Mr Shore’ reasons for the Application were:

“Disagree with the tribunal’s assessment. Tribunal appears to accept Centrelink’s evidence without support but refuses to accept my statements.” (T1)

ISSUES BEFORE THE TRIBUNAL

7.      The issues in this matter relate to whether Mr Shore has a debt of $3,860.40 as a result of an overpayment of carer allowance and if so, whether there are any grounds not to recover this amount.

LEGISLATION

The legislation relevant to the Tribunal’s determination of this matter are sections  954, 1223(1) and 1237A(1) of the Act which relevantly provide:

“954(1) A person is qualified for carer allowance for a disabled adult (the care receiver ) if:

(a) the care receiver is an Australian resident; and

(b) the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

(c) the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

(d) because of the disability from which the care receiver is suffering, the care receiver receives care and attention on a daily basis from the person, or the person together with another person, in a private home that is the residence of the person and the care receiver; and

(f) the person is an Australian resident.

954(2) If a person is qualified for carer allowance for a disabled adult, the disabled adult is not able to qualify for carer allowance for another disabled adult.

954(3) A person may qualify for carer allowance under this section for 2, but no more than 2, disabled adults.

…

1223(1) Subject to this section, if:

(a) a social security payment is made; and

(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

…

1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.”

EVIDENCE

8.      Earlier in his evidence, the Tribunal discussed the SSAT Statement of Reasons for Decision (T2) with Mr Shore and in particular its record of his evidence at paragraphs 5 to 13, and he agreed that it fairly accurately records his evidence to the SSAT except as to two aspects.  Firstly paragraph 11 referred to a newspaper article which he was unable to produce to the SSAT but which he now produced (Exhibit A1) and secondly, the record omitted some of his evidence.

9.      The Departmental representative cross-examined Mr Shore.  Concerning the telephone call of 12 April 2002, the evidence was to the effect:

Ms Garcia: “To the question  ‘Has the person you care for claimed or is she receiving a payment paid by Centrelink’, you said ‘Yes’”

Mr Shore: “I said ‘She is receiving a full pension’”

Ms Garcia: To the question “Has the person’s disability/illness changed? You said ‘No’”

Mr Shore: “I said ‘No’”

Ms Garcia: “To the question ‘Has the amount of care provided changed?” you said ‘No’”

Mr Shore: “I said ‘The care has not changed because she is still in the nursing home’”

Ms Garcia: “To the question ‘Is the person living at home with you now?’ you said ‘Yes’”

Mr Shore: “I deny that, I said ‘No’”.

10.     Mr Shore went on to state that his mother had been a resident of Curie Aged Persons Facility since 17 October 2000.  Mr Shore stated that the Centrelink operator had been a female, had offered no identification and Mr Shore did not ask for any acknowledgement receipt number. Asked when he made the telephone call, Mr Shore said words to the effect “… around lunch time, as I made the call I didn’t question and I was responding to a letter, I had a number to quote”.  Mr Larcombe to Mr Shore: “If I put to you that the call was about 8.12 am, would that surprise you?” and Mr Shore replied “Yes it would.” 

11.     The Tribunal discussed with the Departmental representative the written requests of Mr Shore for a copy of the record of telephone calls including the call of 12 April 2002 which records is now produced as Exhibit R2. 

CONSIDERATION OF THE ISSUES

12.     The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and the legislation.

13.     The Tribunal accepts Mr Shore is a person of credit and although he sometimes did not answer a question as directly as he might that was more a matter of his speaking style; the Tribunal accepts that he is not engaging in obfuscation.

14.     Turning to consider Mr Shore’s evidence, especially about the telephone discussion with the Centrelink operator on 12 April 2002, the Tribunal was prepared to accept that the Exhibit R2 did not accurately record the circumstances or the nature of the conversation between the parties. 

15.     Turning to the T documents, the Tribunal notes there is no note of contact or copies of correspondence between the Department and Mr Shore between June 2000 and 2 April 2002.  The letter said to be dated 12 April 2002 and referred in the SSAT decision at paragraph 12 is not before the Tribunal.  Paragraph 12 states:

“Mr Shore showed the tribunal the letter of 12 April 2002, which said that:
We have reassessed your carer allowance for Eileen Shore using the information you recently provided.
and that Centrelink continued to pay him $85 a fortnight, so he believed he was entitled to this money.

The Tribunal accepts Mr Shore’s evidence that he did not state that his mother was living at home.

16.     Turning to consider Mr Shore’s earlier October 2000 telephone call to the office of Centrelink’s Chief Executive Officer, the Tribunal notes the finding of the SSAT at paragraph 20 and the limited concession made by the Departmental representative in the Statement of Facts and Contentions presented to the Tribunal.  Paragraph 20 states:

“Considering Mr Shore’s evidence, the tribunal finds that he spoke to someone in Centrelink in October 2000. However, it was not made clear that his mother was in a nursing home permanently. There is therefore no sole administrative error by Centrelink in this matter.’

17.     On balance the Tribunal is prepared to accept that the circumstances of the whole of the matter are so unsatisfactory and that of themselves, the circumstances warrant the Tribunal to find that it is desirable under section 1237AD of the Act to waive the debt in the special circumstances of this case.

CONCLUSION

19.      The Tribunal’s determination is that the decision under review is set aside and substitutes its decision that the debt is to be waived.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.

Signed: Guy Moloney            .....................................................................................
  Associate

Date of Hearing  7 November 2003
Date of Decision  24 March 2004
Representative for the Applicant    Self

Advocate for the Respondent        Mr James Larcombe