Treloar and Secretary, Department of Social Services (Social services second review) - [2017] AATA 571

Treloar and Secretary, Department of Social Services (Social services second review) [2017] AATA 571 (5 April 2017)
Division:GENERAL DIVISION
File Number(s): 2016/1310 & 2016/4052
Re:Geoffrey Scott Treloar
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Britten-Jones
Date:5 April 2017
Date of written reasons: 28 April 2017
Place:Adelaide

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review
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Senior Member Britten-Jones
CATCHWORDS
SOCIAL SECURITY - sickness allowance – overpayment – whether overpayment is a legally recoverable debt – whether all or part of the debt should be waived or written off - whether special circumstances - whether eligible for a disability support pension from an earlier date - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Edwards v Secretary, Department of Employment and Workplace Relations [2007] AATA 16
REASONS FOR DECISION
Senior Member Britten-Jones
28 April 2017

At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant by email on 12 April 2017, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by DTI Corporation Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

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Administrative Assistant
Dated: 28 April 2017

Date(s) of hearing: 5 April 2017

Applicant: In person

Advocate for the Respondent: Ms E Moran

Solicitors for the Respondent: Sparke Helmore Lawyers
EXTRACT OF TRANSCRIPT
SENIOR MEMBER: From November 2008 until 30 July 2010 the applicant Mr Treloar received social security benefits, some which now have to be repaid because of a receipt of payments under an income protection insurance policy held with Super SA. Mr Treloar has applied to review the decision that was made to raise and recover the overpayments of those benefits. Mr Treloar also seeks a review of the decision granting him a Disability Support Pension from 11 March 2009 on the basis that it should have been paid from 23 October 2008.
The facts, many of which are not in dispute, are as follows. Mr Treloar received payments under his income protection insurance policy held with Super SA. He lodged a claim under that policy on 28 June 2008. He received some fortnightly payments under that policy from 4 July 2008 to 23 October 2008. Further payments under the policy were provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Treloar and Secretary, Department of Social Services (Social services second review) [2017] AATA 571
Case: [2017] AATA 571
Decision Date: 5 April 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the appeal of Ms. Treloar against a decision by the Secretary of the Department of Social Services concerning a social security overpayment. The core of the dispute revolved around whether the overpaid amount constituted a legally recoverable debt and, if so, whether it should be waived or written off due to special circumstances. Additionally, the Tribunal was asked to determine if Ms. Treloar was eligible for a Disability Support Pension from an earlier date than previously determined.

The primary legal issues before the Tribunal were: firstly, whether the identified overpayment of social security benefits was a debt recoverable by the Secretary; and secondly, if it was a recoverable debt, whether there were special circumstances that warranted the waiver or write-off of all or part of that debt. The Tribunal also had to consider the retrospective eligibility for a Disability Support Pension.

In its reasoning, the Tribunal applied the relevant provisions of the *Social Security Act 1991* (Cth) concerning overpayments and the criteria for waiver or write-off. The Tribunal found that the overpayment was indeed a recoverable debt. Regarding the waiver, the Tribunal assessed whether the circumstances presented by Ms. Treloar met the threshold for "special circumstances" as contemplated by the Act, considering factors such as her financial situation, the impact of the debt, and her understanding of her obligations. The Tribunal also examined the evidence relating to Ms. Treloar's eligibility for a Disability Support Pension, comparing it against the statutory requirements for the period in question.

The Tribunal affirmed the decision under review, concluding that the overpayment was a recoverable debt and that the circumstances did not warrant its waiver or write-off. Furthermore, the Tribunal determined that Ms. Treloar was not eligible for a Disability Support Pension from an earlier date.

Orders