Stewart and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 775

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/746

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RODNEY STEWART
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date6 September 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
  ..........Sgd. Mr J. Handley............
  Senior Member
CATCHWORDS
Social Security - New Start Allowance - applicant travelled overseas without notifying the respondent - whether overpaid - whether knowingly made a false statement or representation - whether debt should be waived - decision affirmed.

REASONS FOR DECISION

6 September 2001 Mr J. Handley, Senior Member

The applicant applies to review a decision made by the Social Security Appeals Tribunal ("SSAT") on 22 May 2000. The SSAT then decided to affirm a decision previously made by the respondent where it was decided to raise and recover a debt of $712 being New Start Allowance paid to him between 21 March 2000 and 3 May 2000.
Mr Stewart appeared without representation. Mr Todd appeared on behalf of the Department.
The documents prepared by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act were received into evidence and were referred to in the proceedings.
The circumstances may be briefly summarised as follows-
Mrs Stewart has been in receipt of New Start Allowance for some years. On 15 February 2000 Mrs Stewart learnt that her mothers husband had died in Hawaii. Her mother asked Mrs Stewart to travel to Hawaii to comfort her and forwarded monies to cover the cost of airfares. Tickets were purchased on 24 March and on 31 March the applicant and his wife travelled to Hawaii. Mr Stewart returned to Australia on 3 May 2000.
On 13 June 2000 Mr Stewart notified the Centrelink office at Wangaratta by a letter (attached to his renewal application for New Start Allowance) that he had been overseas for the above period. At the hearing, Mr Stewart said he notified the Department of his absence overseas because of a provision in the application form requiring applicant's to notify Centrelink if "you or your partner have been overseas".
The respondent subsequently decided (having paid New Start Allowance throughout the above period) that there had been an overpayment because the applicant had failed to notify it of his intended departure.
At the hearing Mr Stewart acknowledged that the legislation required him to notify of any departure overseas however he said that his circumstances were special and the overpayment should be waived.
Mr Stewart relied on s.1237AAD of the Social Security Act and said that the debt did not result wholly or partly from him "knowingly" making a false statement or representation or knowingly failing or omitting to comply with the legislation.
Additionally, it was put (in support of the application for special circumstances) that the application form (found at T-10 p.30-31) is ambiguous. The reporting period defined by the application is 22 March 2000 to 13 June 2000. Whilst Mr Stewart could not recall when he received that form he interpreted its meaning as having to report events if applicable at 13 June 2000. It was on this date that he wrote the letter that is referred to above. Mr Stewart referred to a part of the form at the conclusion of paragraph 8, which refers to changes or events that happened 'in the future'. Those changes or events are described. One such event is "intending to go overseas". Additionally, he said the form was ambiguous because an "event" could be either the act of intending to go overseas or actually having been overseas as is recorded on the form or it could be the actual submission of the form. With respect to his later concern he said that if the "event" was referable to the return of the form itself, and on the basis that he understood the form was to be submitted on 13th June, he could not notify the department of "intending to go overseas" or having "been overseas within 14 days after the event". That is to say if the event was referable to the event of being overseas, he could not report that event within 14 days of having been overseas when the reporting date was 13 June and he had returned from being overseas on 3 May.
In early 2000 Mr Stewart said that he and his family had become homeless when they were then living in Korumburra. Correspondence was subsequently directed to his sister's residence in Vermont. Ultimately Mr Stewart and his family relocated to Euroa where they now reside. He acknowledged that he had previously received a number of letters from the Department but he could not recall whether he had read them.
Mr Todd on behalf of the respondent submitted that Mr Stewart would have received a number of letters from the Department prior to travelling overseas. Samples of the letters appear within the T-documents. The letters typically record that recipients must notify the Department of any one of a number of events that might occur (specified events). One such event is "you or your partner leave or decide to leave Australia (including holidays)". Copies of the letters that were forwarded to Mr Stewart are found also within the T-documents and had similar notification provisions.
It was submitted by Mr Todd that persons who are in receipt of New Start Allowance are required to satisfy the activity test as defined by the legislation. One such provision is actively seeking employment. It followed, he submitted, that if a person is not actively seeking employment by having travelled overseas, they are also in breach of the activity test and it follows also that there is no qualification for New Start Allowance. It was noted that Mr Stewart was apparently exempt from the activity test because of his medical circumstances but he is required to report specified events.
Mr Todd submitted in conclusion that the debt cannot in these circumstances be waived because the applicant in fact did knowingly fail to comply with the legislation.
Conclusion & Reasons For Decision
Mr Stewart referred to the ambiguity (as he perceived it) of the claim form found at T-10. He said that he in fact did comply with the reporting requirements as recorded in that form and in those circumstances he did not "knowingly" make a false statement or representation or fail to comply with a provision of the Act (s.1237AAD).
With respect I do not agree.
The contents and the interpretation of the form cannot prevail in isolation from the legislation. The reporting obligations were also recorded in the letters he received.
Section 593(1(g)(iii)) provides that a person is qualified for New Start Allowance in respect of a period if the person "is in Australia". (refer also s.593(1B(b)(iii)).
Section 1211 of the Act provides that "social security benefits …. are not payable to a person who is outside Australia because presence in Australia is specified as an essential condition of qualification ….".
It therefore follows from the above legislation that the qualification for New Start Allowance is (having regard to the circumstances of Mr Stewart) conditional upon a person being "in Australia" throughout a period of payment of New Start Allowance. In the circumstances of the present application, the applicant was not in Australia during a period of time that he was paid New Start Allowance. He was not then qualified for New Start Allowance. It follows therefore that there has been an overpayment.
Additionally I am satisfied that the correspondence previously forwarded to Mr Stewart did require him to notify the Department of certain events that might affect his continuing qualification. One such event was "you or your partner leave or decide to leave Australia".
The authority for notifications of this type is recorded in the correspondence as s.657 of the Social Security Act. That section has subsequently been repealed but a similar provision is now found at s.68(2) of the Social Security (Administration) Act 1999. That provision requires a person to notify the Department of a specified event or a change of circumstances. One such specified event is leaving Australia to travel overseas. Mr Stewart did not notify the Department of that event, in contravention of the legislation. I would accept that the period between 24 & 31 March would have been distressing and much preparation probably was needed to permit the overseas departure. However, whilst this is not put on a basis for the failure to report, there was a period of 7 days available to either write to or telephone the respondent and give notice of the departure.
Mr Stewart may not have "known" of the legislation but the prior correspondence having been sent to him advised on a number of occasions of his reporting obligations (as determined by the legislation). I am satisfied that the correspondence was received and it put him on notice of his reporting obligations. A 'false representation' was made by his failure to notify the respondent, namely that he remained qualified for New Start Allowance.
It follows that the debt cannot be waived under s.1237AAD.
The decision under review must be affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         .......C. Irons.................................................
  Secretary
Date/s of Hearing  22 August 2001
Date of Decision  6 September 2001
Counsel for the Applicant        Mr R. Stewart
Solicitor for the Applicant
Counsel for the Respondent    Mr M. Todd, Departmental Representative
Solicitor for the Respondent

[2001] AATA 775

6 September 2001

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Overpayment

Reporting Obligations

Qualification for Benefits

False Representation