Sukumaran and Secretary, Department of Family and Community Servi Ces

[2004] AATA 80

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1048

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SAM SUKUMARAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal M.A. Griffin

Date30 January 2004

PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes therefor the decision that Mr Sukumaran was entitled to a top-up payment of $134.97 for Family Tax Benefit for the 2000-2001 financial year.

[Sgd]  M.A. Griffin, Member

CATCHWORDS

SOCIAL SECURITY - Family Tax Benefit - overpayment - administrative error - special circumstances - decision affirmed

A New Tax System (Family Assistance (Administration)) Act 1999 sections 71(2), 102

Family Assistance Estimate (Transition) Determination 2001

REASONS FOR DECISION

30 January 2004 M.A. Griffin            

1.      This is an application by Mr Sam Sukumaran for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 17 June 2003 (T2). The SSAT affirmed the decision of an authorised review officer (“ARO”) of Centrelink dated 10 March 2003 that Mr Sukumaran received a Family Tax Benefit (“FTB”) overpayment of $119.21 during the period 1 July 2000 to 30 June 2001 representing a debt to the Commonwealth and that the debt was fully waived under the transitional waiver provisions which operated during the 2000-01 financial year.

2.      At the hearing of this matter on 26 November 2003 Mr Sukumaran represented himself and Mr Emerson Thistlethwaite, a Centrelink advocate, represented the Secretary, Department of Family and Community Services (“the Respondent”).

3. The Tribunal received into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act1975 (T1-40) as well as exhibits marked A1 for the Applicant and R1 for the Respondent. Following the hearing Mr Sukumaran sent further documentation to the Tribunal.

BACKGROUND

4.      Mr Sukumaran received maintenance payments for his sons and daughter from his ex-wife.  These payments affected the amount of his entitlement to FTB. On 21 February 2002 Centrelink advised him that he was entitled to receive $1686.92 for the 2000-2001 financial year  but he had, in fact, received $2389.67, an overpayment of $702.75. Mr Sukumaran asked that these figures be checked. The figures were checked and on 8 March 2002 Centrelink wrote again asking Mr Sukumaran to disregard the previous letter. Centrelink had re-calculated the figures deciding that Mr Sukumaran was entitled to $2270.46 for the period and that he had been paid the previously stated amount of $2389.67 resulting in an overpayment of $119.21.  This amount was waived under the transitional waiver provisions, which were then operating.

5.      Four days later, on 12 March 2002, Centrelink paid arrears to Mr Sukumaran in the amount of $2680.08. This sum consisted of $830.56 for the period 4 October 2000 to 30 June 2001 and $1849.52 for the period 1 July 2001 to 1 March 2002. The latter sum was paid as part of the 2001-2002 financial year, which is not the subject of this application for review.

6.      On 23 October 2002 Centrelink wrote again telling Mr Sukumaran to disregard the two previous letters on this subject. The import of this letter was to adjust the entitlement for the 2001-2002 financial year to reflect the arrears payment of $830.56, giving a total of $3220.23 received for the period in question. This re-calculation did not affect the amount of the overpayment figure and it was again waived under the transitional provisions. Mr Sukumaran challenged the accuracy of these calculations and the amounts actually paid to him. Centrelink conducted an internal review and affirmed its decision on 15 January 2003. Mr Sukumaran sought a further review and an ARO affirmed the decision on 10 March 2003. The SSAT affirmed that decision, although not without some difficulty in dealing with the figures involved.

ISSUES

7.      Was there an overpayment of FTB to Mr Sukumaran? If so, was the amount of overpayment a debt to the Commonwealth? If so, has it been waived?

EVIDENCE

8.      This Tribunal has experienced similar difficulties to those expressed by the SSAT in reviewing the evidence in this matter. The Respondent’s documentary evidence consists of a series of calculations and re-calculations by several of its officers not all of which are clear. Mr Sukumaran has made numerous written submissions before, during and after the hearing involving calculations and statements, which I have not found easy to understand.

9.       At the opening of the hearing Mr Thistlethwaite said the situation had changed since the SSAT decision. He said the matter had been reconsidered. He said the previous calculations were not correct due to a system error which had caused a failure to collect all the information required. He said that all the relevant information was now at hand (T40, pp.138-140) and the new figures had resulted in a finding that Mr Sukumaran was actually owed some money by the Respondent, which had been paid to him one week ago.

10.     I asked Mr Sukumaran how this new finding affected his application for review. He said words to the effect of, “I don’t know. I want the payment to me removed. They have upset my reconciliation.”

11.     I asked Mr Sukumaran what he considered the correct position should be concerning his FTB entitlement. He said he was entitled to $3113.41. There followed a confusing sequence of evidence from Mr Sukumaran. Mr Sukumaran referred to the ARO’s decision (T31) and the figures given (at p.93) in that document. He said he was entitled to $3113.41 but would accept the figure of $3355.06 as calculated in the Respondent’s most recent calculation. He then said “they owe me $3113.41 but they have not paid it”.  The Respondent put to Mr Sukumaran that the full $3355.06 had now been paid to him with the recent payment of $134.97 on 17 November 2003.  Mr Sukumaran said he had received $2270.46 in instalment payments, a lump sum of $830.56 and an excess payment of $119.21, a total of $3220.23.  I asked him if he had received those sums. He said yes. However he then said he did not receive $3113.41. I asked again if he had received the $2270.46 in instalments. He said he had. I asked if he received the $830.56 lump sum. He said he had. I asked again if he had received the excess payment. He said he had. The evidence continued along these lines with no clear position being established as to what it was that Mr Sukumaran was actually seeking.

CONSIDERATION OF ISSUES

12.     The relevant legislation is A New Tax System (Family Assistance (Administration)) Act 1999 (“the Act”), section 71 of which provides that any amount paid to a person greater than the amount that should have been paid to the person under the family assistance law is a debt due to the Commonwealth.  It is not in dispute that Mr Sukumaran was entitled to payment of FTB during the 2000-2001 financial year.  The Respondent originally concluded that Mr Sukumaran had been overpaid an amount, which was waived under transitional provisions then in place (see Family Assistance Estimate (Transition) Determination 2001). Mr Sukumaran did not accept the Respondent’s calculations and the matter was reviewed by the Respondent. There have been several further reviews of the calculation of his entitlement and of the payments made to him, which finally concluded that he was in fact underpaid his entitlement. Perhaps not surprisingly in these circumstances, Mr Sukumaran is not satisfied with the accuracy of the calculations and the process to which he has been subjected.

13.     However I was not able to ascertain with any precision the substance of Mr Sukumaran’s claim for the purposes of this review other than his belief that all of the Respondent’s calculations to date are wrong.  A recurring feature of his many written submissions is an amount of $540.15, which he describes as the “unpaid sum”.  I understood him to be claiming variously, that this amount was owing to him, that the amount of $3113.41 was owing to him and that no money was owing to him. Indeed, he said he wanted to give back the recent payment of $134.97, which had been found to be owing to him.

14.     I have in evidence Mr Sukumaran’s various written calculations and the Respondent’s latest figures.  Mr Sukumaran’s written and oral evidence was not entirely clear and I have had some difficulty understanding it. The Respondent’s latest calculations set out in substantial detail the FTB entitlements Mr Sukumaran had, at various times during the relevant period, with reference to his care of his children and to the maintenance he received from his ex-wife. I accept that evidence and I am satisfied those calculations are correct.

DECISION

15.     The Tribunal sets aside the decision under review and substitutes therefor the decision that Mr Sukumaran was entitled to a top-up payment of $134.97 for Family Tax Benefit for the 2000-2001 financial year.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         Neil Glaser
  Associate

Date of Hearing       26 November 2003
Date of Decision       30 January 2004
Representative for the Applicant    Sam Sukumaran (Self Represented)
Solicitor for the Respondent          Emerson Thistlethwaite