Speed and Secretary to the Department of Family and Community Services - [2002] AATA 868

DECISION AND REASONS FOR DECISION [2002] AATA 868

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/554
GENERAL ADMINISTRATIVE DIVISION
  Re:         PAUL SPEED
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             3 September 2002
Place:            Melbourne

Decision:For reasons given orally at the hearing, the decision under review is set aside and the following decision is substituted that the debt of disability support pension paid to the applicant in the period 21 December 1999 to 1 January 2002, being a debt in the sum of $3269.89, is waived with effect from the date that the debt was raised.

(sgd) M.J. Carstairs
Member
SOCIAL SECURITY – disability support pension - failure to supply information – debt to Commonwealth – whether appropriate to waive rather than to write off – whether debt should be waived – write off debt - exercise of discretion - special circumstances
Social Security Act 1991
Re Keeley and Secretary to the Department of Family and Community Services
[2002] AATA 867
Re Beadle and Director-General of Social Services (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1996) 40 ALD 541
Secretary, Department of Social Security v Hales (1998) 51 ALD 695

REASONS FOR DECISION

3 September 2002 M.J. Carstairs, Member

This is an application by Paul Speed for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 16 April 2002. The SSAT affirmed the decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) that an amount of disability support pension paid to the applicant should be recovered.
At the hearing the applicant was represented by his partner, Katrina Keeley. Ms C. McInnes, an advocate with Centrelink, represented the respondent.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, as well as exhibits marked A1 and A2 for the applicant.
BACKGROUND
The applicant's partner filed an application, which was heard and decided on the same day as this application. The factual background in this matter is set out in the Tribunal's decision in that matter: Re Keeley and Secretary to the Department of Family and Community Services [2002] AATA 867.
The respondent made a decision on 8 January 2002 to raise a debt of $1564.32 for the period 26 February 2001 to 18 December 2001. The applicant sought review of that decision. The authorised review officer varied the amount of the applicant's debt, increasing it to $3269.89, and extending the period in which the debt accrued to the period 21 December 1999 to 1 January 2002.
The SSAT affirmed that decision as varied by the authorised review officer. The applicant then sought review with this Tribunal on 27 May 2002.
EVIDENCE
The evidence was substantially that as given by Ms Keeley in her matter and the evidence as set out in Ms Keeley's decision is incorporated by reference in these reasons. It was clear from the evidence that Ms Keeley looks after financial matters and all matters dealing with Centrelink, on behalf of the applicant. The applicant said that, while he reads the letters that come in from time to time from Centrelink about his disability support pension, he passes them to his partner to deal with.
CONSIDERATION OF THE ISSUES.
The legislation applying to the question whether the debt exists in regard to the disability support pension received by the applicant in the relevant period is the same as set out in the Tribunal's decision in Keeley.
In the period prior to 1 July 2001, the Tribunal finds that there is a debt of disability support pension that arose from the applicant's failure to supply information when requested, and in response to notices sent to him. It was not disputed that he received these notices (T3, T4 and T5). The Tribunal finds it was the applicant's responsibility to respond to the notices. No provision was made for his partner to be his nominee for social security purposes. The Tribunal further finds, apart from s1224 of the Social Security Act 1991 (the Act) applying at that time, the debt would have arisen under s1223 (1) of the Act, as then in force. From 1 July 2001, the Tribunal finds that the debt arose under s1223 (1) of the Act.
Turning to the question of whether the overpayment, which is a debt under the Act, should be waived, the evidence in this matter shows that there are substantial difficult financial circumstances for this young family. The Tribunal is particularly mindful that there are three young children, and the family is struggling to deal with the difficult medical conditions for which the applicant receives disability support payment. The Tribunal is well aware of the limited circumstances where the discretion for special circumstances is to be exercised (Re Beadle and Director-General of Social Services (1984) 6 ALD 1, Groth v Secretary, Department of Social Security (1996) 40 ALD 541).
However, taken globally, the applicant's case is an appropriate one, taking into account the medical evidence of the severity of the applicant's condition (exhibit A2); and taking into account, particularly, the evidence before the SSAT where the applicant was granted his disability support pension. The SSAT said at that time:
…
All the medical evidence stated that the applicant suffers from epilepsy and from alcohol dependence. The medical evidence also agrees that Mr Speed is drinking to a harmful level, and that his alcohol consumption is contributing to precipitating his epileptic seizures, as well as contributing to other organ damage. The Tribunal is satisfied that Mr Speed is leading a destructive lifestyle, and that his medical condition is substantially limiting his capacity to undertake almost all tasks and activities of a routine nature, and significantly interferes with his ability to perform persistent work-related tasks.
The SSAT commented upon the entrenched nature of the applicant's alcohol dependence. While the Tribunal takes note of the respondent's submission that much of the expenditure on alcohol and cigarettes is discretionary in nature, the fact that the applicant has an alcohol abuse disorder (accepted for disability support pension) is relevant and to be taken into account. The Tribunal accepts the evidence given at the hearing that rehabilitation attempts have been made. While the applicant has lowered his alcohol consumption to light beer to control the problem, the Tribunal does not accept the submission that the applicant's consumption is merely a matter of his discretion.
Importantly in this case, if the debt is allowed to stand, along with the debt of parenting payment (partnered), incurred by the applicant's partner; the family unit would be at risk. It is a family unit that provides support for the applicant in his disability, and it is a family unit in which three young children rely on their parents' small income for their well being. Importantly, it is part of the applicant's condition that has led to him relying on his partner to handle social security matters for him. In terms of the exercise of the discretion, this is a matter the Tribunal has taken into account, and the Tribunal finds that the applicant did not knowingly fail or omit to comply with the provisions of the Act.
The Tribunal also finds that it is more appropriate to waive than to write off the debt. The Tribunal has decided to exercise the discretion to waive the whole of the debt in the applicant's case. In Secretary, Department of Social Security v Hales (1998) 51 ALD 695 the Federal Court said:
…
From time to time in the administration of social security benefits, overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise.

For these reasons, the Tribunal decides that this is an appropriate case to exercise the discretion for special circumstances.
DECISION

For reasons given orally at the hearing, the decision under review is set aside and the following decision is substituted that the debt constituting disability support pension paid to the applicant in the period 21 December 1999 to 1 January 2002, being a debt in the sum of $3269.89, is waived with effect from the date that the debt was raised.
I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  28 August 2002
Date of Decision:  3 September 2002
Solicitor for the Applicant:           Nil — IN PERSON
Advocate for the Respondent:     Ms C. McInnes, Centrelink