Troubetas; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1942

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1942

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1384

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And ARTHUR TROUBETAS

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date13 November 2007

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal made on 9 March 2007 is set aside.  The Tribunal decides instead that Mr Troubetas lost his entitlement to parenting payment (single) on 27 August 2006 when he married, and that any debt that has arisen as a result of the overpayment of the benefit from that date cannot be written off or waived.  The Tribunal remits the matter to the Secretary to assess the amount of overpayment.

.................sgd.............................

S E Frost
  

Member

CATCHWORDS

SOCIAL SECURITY - parenting payment - "member of a couple" - person receiving payment at the single rate marries but does not start living with new spouse - overpayment - debt to the Commonwealth - advice given by Centrelink officers - question of administrative error - no write-off or waived – decision under review is set aside.

Social Security Act 1991 - sections 4(2), 1236 and 1237A.

REASONS FOR DECISION

13 November 2007 Mr S E Frost, Member        

INTRODUCTION

1.       Parenting payment is one of many social security entitlements that are paid at different rates depending on whether the person eligible for the payment is “single” or “partnered”.  Because the single rate is higher than the partnered rate the question of when a person moves from the “single” category to the “partnered” category can often be of critical importance.  It is this question that is at the heart of this matter.

2.       Arthur Troubetas was receiving the parenting payment at the “single” rate.  He married Rebeca Martinez on 27 August 2006 but they did not start living together immediately.  The Secretary says that Mr Troubetas became “partnered” on the day that he married.  Mr Troubetas does not now dispute this, but claims that he was told something different by Centrelink – that he would not become “partnered” until he and his new wife started living together.  He says that he acted on this advice, and as a result he did not lodge a written notification with Centrelink about his changed marital status until they moved in together some months later.

3. The Secretary raised a debt in respect of the claimed overpayment of the benefit. Mr Troubetas appealed to the Social Security Appeals Tribunal (SSAT) which found that the debt was attributable solely to administrative error and waived the debt pursuant to section 1237A of the Social Security Act 1991 (the Act). The SSAT also found that the overpayments of parenting payment (single) were received by Mr Troubetas in good faith. Dissatisfied with the SSAT decision, the Secretary has appealed to this Tribunal.

The evidence

4.        Mr Troubetas’ file indicates that he contacted Centrelink on 29 August 2006, only two days after his marriage.  He said he had a vague recollection of the telephone conversation with a Centrelink officer on that date.  He thought that the purpose of the call was to discuss something about his children.  However, the file note of the telephone discussion indicates that the purpose of his inquiry was to discuss his parenting payment.  This seems the more likely case, since at the end of the discussion the Centrelink officer sent to Mr Troubetas a form called Change of Marital Status – Becoming Partnered.  It is not likely that the officer would send Mr Troubetas a form of that kind if the purpose of the discussion had been something about his two children.

5.        Mr Troubetas had a further interaction with Centrelink on 26 September 2006.  This time he attended in person, at the Ingleburn Customer Service Centre.  Mr Troubetas said that the specific purpose of the visit was to talk about the fact that he had married.  At the end of the interview he was given a form, and apparently the form was the same one as had been sent to him, according to the officer’s file note, on 29 August 2006.

6.          Mr Troubetas did not complete either of the forms that had been given to him.  This is because, he says, he was told by the officers not to lodge the forms until he and his new wife had moved in together.  For personal reasons the couple did not start to live together until some time early in December 2006. 

7.        Once they started living together Mr Troubetas notified Centrelink, by lodging the completed form, that he had married Ms Martinez.  Because he noted in the form that the date of marriage was 27 August 2006, Centrelink took the view that parenting payment had been overpaid and a debt was raised accordingly.

8.        Statements were provided to the Tribunal by two Centrelink Customer Service Advisors (CSA’s), who had the dealings with Mr Troubetas on 29 August 2006 and 26 September 2006.  Neither of the CSA’s could specifically remember the discussion or interview with Mr Troubetas.  However, they both gave written evidence as to their understanding of the entitlement to the parenting payment and as to the advice that they have been trained to give upon being notified by a customer that he or she had married.  They both indicated that they would have sent a Becoming Partnered form to the customer.

9.        Those statements were made for the purposes of these proceedings.  (They were not available to the SSAT which allowed Mr Troubetas’ appeal against the raising of the debt).  Both CSA’s stated their understanding of standard procedures rather than the content of the discussions or interviews that they had with Mr Troubetas.  For example, one of the statements contains language such as:

I usually give customers a Becoming Partnered form …

As I understand the Centrelink procedure …

It is my understanding that a person would not be entitled …

10.     Another one concludes that Mr Troubetas could not have mentioned that he had been given incorrect information in an earlier conversation because “I certainly would have noted this in my document.  I am certain that I would not have given the customer any indication …”.

11.     The statements leave me in little doubt that Centrelink’s enquiry officers, whether working at a call centre or handling over-the-counter enquiries, are trained to err on the side of caution when a question arises about a change of marital status.  They are evidently trained to indicate that a person who is married is automatically a “member of a couple” for the purposes of section 4(2) of the Act and therefore not entitled to benefits at the single rate.

12.     What is clear from the documentation before me is that Mr Troubetas was sent a Change of Marital Status – Becoming Partnered form as a result of the discussion he had with the Centrelink call centre on 29 August 2006, and he was given another copy of the same form after the interview at Ingleburn on 26 September 2006.  What is unclear, even surprising, is why neither of the Centrelink CSA’s immediately suspended Mr Troubetas’ entitlement to parenting payment at the single rate, or at least made a note that his entitlement might need to be examined, if he notified them that he was already married.  Given the standard procedure in relation to such a notification, it is more likely that he spoke in general terms about getting married, rather than indicating to them that he was already married.

13.     It became clear during the hearing that the circumstances that led to the delay in this newly married couple living together caused Mr Troubetas a good deal of stress.  The stress that he experienced undoubtedly made it difficult for him to understand fully the information that he was being given by the Centrelink CSA’s. I find that Mr Troubetas was entirely truthful in the evidence that he gave to the Tribunal, but the stressful nature of his life at the time casts doubt on the accuracy of his recollection of what he said to Centrelink and what Centrelink said to him.

14.     I find that Mr Troubetas was not told at any stage that he could delay lodging the Change of Marital Status – Becoming Partnered form until he and his wife moved in together. 

The debt to the Commonwealth

15.     Mr Troubetas became partnered as soon as he married Ms Martinez on 27 August 2006.  The fact that he continued to receive parenting payment at the single rate when he was entitled, if at all, only to the partnered rate, means that he has been overpaid.  The amount overpaid is a debt due to the Commonwealth.  It is recoverable unless there are grounds to write it off or to waive it.

Write-off

16.     A debt may be written off only in limited circumstances: section 1236 of the Act.  Mr Troubetas’ circumstances do not meet any of the criteria for write-off.  The debt is not irrecoverable; Mr Troubetas has the capacity to repay the debt from his current family tax benefits; his whereabouts are known; and it is not the case that it would not be cost effective to recover a debt of this size.  The debt cannot be written off.

Waiver

17. The waiver provisions are also very limited: section 1237A of the Act. A debt that is solely attributable to administrative error by the Commonwealth must be waived if the debtor received the payments in good faith. There has been no administrative error here and for that reason the debt cannot be waived.

Conclusion

18.     I therefore set aside the decision of the SSAT made on 9 March 2007 and decide instead that Mr Troubetas lost his entitlement to parenting payment (single) on 27 August 2006 when he married, and that any debt that has arisen as a result of the overpayment of the benefit from that date cannot be written off or waived.  I remit the matter to the Secretary to assess the amount of overpayment.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         ..............................sgd.......................................................
  Associate: Felicia Daniele

Date/s of Hearing  23 August 2007
Date of Decision   13 November 2007
Counsel for the Applicant          
Solicitor for the Applicant          Ms  J. Maclean of Centrelink Legal Services
Counsel for the Respondent     Self represented
Solicitor for the Respondent