Stuart and Secretary, Department of Social Services (Social services second review)

[2021] AATA 2171

Stuart and Secretary, Department of Social Services (Social services second review) [2021] AATA 2171 (11 May 2021)

Division:GENERAL DIVISION

File Number:2019/8357          

Re:Neil Stuart  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member 

Date:11 May 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 28 November 2019. In substitution, it is decided that the Respondent’s right to recover the debt for the period of 5 June 2018 to 24 December 2018 is waived under section 1237AAD of the Social Security Act 1991.

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

Catchwords

SOCIAL SECURITY – aged pension debt – whether legally recoverable – whether any part of that debt should be waived or written off – correspondence nominee – debt adjusted – debt partially waived

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

REASONS FOR DECISION

Mr A. Maryniak QC, Member

11 May 2021

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons therefore were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.
   

4.          I certify that the following 14 (fourteen) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

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

Associate

Dated: 4 June 2021

Date of hearing:	20 January and 11 May 2021
Applicant’s Representative:	Mandy Stuart
Solicitors for the Respondent:	Tim Noonan, Services Australia

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. This is the applicant’s application for a review of a decision of this Tribunal made on 28 November 2019 which affirmed the decision of an authorised officer of the respondent’s department on 27 September 2019 that the applicant had a recovered Aged Pension debt at $54,620.48 for the period 28 July 2015 to 24 December 2018.

2. The Tribunal has considered the material in the T-documents and also other documentary evidence, including the supplementary T-documents and the exhibits, and also the oral evidence of Ms Stuart, the Applicant’s representative.  The Tribunal has also considered the written and oral submissions of both the Respondent and the Applicant.

3. The Tribunal finds that there was an overpayment of Aged Pension in the amount of $54,620.48 in the period 28 July 2015 to 24 December 2018 and finds that the overpayment was a legally recoverable debt. 

4. The further question for the Tribunal is whether it or any part of that debt should be waived or written off. 

5. The Applicant’s representative, namely his daughter, Ms Mandy Stuart, was appointed the applicant’s nominee on 10 September 2019.

6. On 27 July 2014 the applicant’s wife passed away.  On 19 August 2014 the department issued an information notice that relevantly stated:

You must tell us within 14 days if the value of your assessable assets change by $1000 or more.  Changes include receiving assets, assets include real estate.

7. On 20 October 2014 the Department issued to the applicant an information notice that included a summary of the Applicant’s income and assets as at 20 October 2014.  The summary of the income and assets report are in the names of the Applicant and the Applicant’s wife at 27 July 2014.  The Applicant’s wife share of real estate was noted at $752,000.  No real estate was reported in the applicant’s name.  The notice relevantly requested that such information be checked and if it was incorrect that the department be updated.  Further notices were sent to the Applicant on 15 October 2015 and 3 December 2016.

8. There is no record of the Applicant’s advice of his interest in the property which still remains in the name of the Applicant’s wife at 25 Valentine Street, Ivanhoe.  The Applicant does not live in the property.  The Applicant’s daughter and representative lives in the property.  The estimated market value of that property is $977,000.  That was back in October 2017 and the property is not encumbered.

9. The Tribunal notes the evidence given on behalf of the Applicant and notes the medical evidence as to the cognitive challenges that the Applicant has had over the relevant period.  The overpayment of pension occurred, namely 28 July 2015 to 24 December 2018.  The state of the evidence is not great but the Tribunal can infer or can find that there were some difficulties of a cognitive nature within the Applicant from or during the latter period of overpayment.

10. The complicating factor is the fact that a correspondence nominee was acting for the Applicant, namely Mr Poly, and in fact notices were issued to Mr Poly dated 19 August 2014, 20 October 2014, 15 October 2015 and 3 December 2016.  Those notices were in the same terms as the notices issued to the Applicant.

11. The Tribunal notes that by letter dated 14 December 2017 Mr Poly lodged a real estate details form which the agency of the respondent received on 16 February 2018, and by letter dated 30 May 2018 Mr Poly lodged the will and power of attorney of the late Carol Stuart, the Applicant’s now deceased wife with the relevant agency, and that letter was received on 5 June 2018.  As the correspondence nominee failed to comply with the information notices the Applicant was taken to have failed to comply with those notices.

12. As a matter of first principles, overpayment of pension should not occur and there is an ongoing obligation of recipients of benefits to keep the department informed, however there are circumstances in this case where the Tribunal is minded to use its discretion based upon an overall assessment of the evidence before it.

13. Mr Noonan for the Respondent quite fairly pointed out that there could be an administrative error of sorts under section 1237A, and whilst the Tribunal does not find that any proportion of the debt can be attributed solely to that administrative error, the Tribunal does find that that was a partial administrative error working against the interests of the Applicant, and that that combined with the difficulties that the Applicant has faced that have gradually unfortunately become more difficult up to the current time but way beyond the period of the overpayment, and the difficulties that the Applicant’s daughter has faced, (although not strictly relevant, noting that Ms Stuart only became the nominee in 2019).

14. It is the view of the Tribunal in its discretion and all the circumstances in this matter that special circumstances be applied because of the evidence of cognitive challenges, but accepting of course that the Applicant had a correspondence nominee, and noting the partial administrative error, that special circumstances should mean that the debt should be adjusted in the sense that debt occurring after 5 June 2018 should be waived under section 1237AAD, and that is the decision of the Tribunal.