Van Weeren and Secretary, Department of Family and Community Services - [2004] AATA 578

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 578
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/406

GENERAL ADMINISTRATIVE DIVISION )

Re WILLEM VAN WEEREN

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date7 June 2004
PlaceCanberra

Decision
The decision under review is varied to the extent that 50 percent of Mr Van Weeren’s debt is waived. The decision is otherwise affirmed. The matter is remitted to the Secretary to determine the amount of Mr Van Weeren’s debt that is outstanding and an appropriate recovery plan.

[Sgd] Mr S Webb, Member

CATCHWORDS
SOCIAL SECUIRTY - age pension - overpayment - Dutch pension – bilateral social security agreement between Australia and the Netherlands – Dutch pension income not declared - special circumstances - decision varied
Social Security Act 1991ss 1223, 1237, 1237A, 1237AAD, Schedule 8 (repealed)
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary of Social Security v Hales (1998) 82 FCR 154
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Cymerman and Secretary, Department of Family and Community Services [2003] AATA 1354
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553
Secretary, Department of Family and Community Services v Chamberlain (2002) 68 ALD 357
REASONS FOR DECISION

7 June 2004 Mr S. Webb, Member

1.      This application concerns the recovery of an age pension overpayment debt for which Mr Van Weeren is liable. It is not in dispute that Mr Van Weeren received Australian and Dutch age pensions from 1992. Nor is it in dispute that he received biannual increases in the rate of his Dutch pension that were not taken into account for the purpose of calculating the rate of his Australian age pension and in consequence of which his Australian pension was overpaid. The method of calculating Mr Van Weeren’s Australian age pension and the amount of the overpayment is not in dispute. Mr Van Weeren does not dispute that the overpayment is correctly raised as a debt to the Commonwealth.
2.      Before the Social Security Appeals Tribunal (“SSAT”) Mr Van Weeren asserted that the debt should be waived because it was caused by the administrative error of the Commonwealth, or in the alternative, in the special circumstances of his case. The SSAT did not agree and affirmed the primary decision to recover the debt.
3.      In his application to this Tribunal Mr Van Weeren asserts that there are special circumstances that make it desirable to waive his debt.
4.      The matter came on for hearing in Canberra on 18 May 2004. Mr Van Weeren gave oral evidence at the hearing and was represented by Ms G. Boulton, Solicitor. Dr G. Szmerler also gave oral evidence. The Secretary of the Department of Family and Community Services (“the Respondent”) was represented by Ms K. Navarro, Solicitor. Documentary evidence was tendered and labelled.
factual…

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: Van Weeren and Secretary, Department of Family and Community Services [2004] AATA 578
Case: [2004] AATA 578
Decision Date: 7 June 2004

CaseChat Overview and Summary

The applicant, Mr Van Weeren, challenged a decision made by the respondent, the Secretary of the Department of Family and Community Services, concerning an overpayment of his age pension. The dispute was heard in the Administrative Appeals Tribunal of Australia. Mr Van Weeren had failed to declare his Dutch pension income when applying for his age pension, resulting in an overpayment. The tribunal was tasked with determining whether special circumstances existed that would warrant a reduction or waiver of the debt owed by Mr Van Weeren.

The primary legal issue before the tribunal was whether special circumstances existed that would justify a waiver or reduction of the debt under the Social Security Act. The tribunal considered the principles established in previous cases such as Re Beadle and the importance of disclosure obligations. Additionally, the tribunal examined whether the failure to declare the Dutch pension constituted an administrative error or a more serious breach of the Social Security Act. It also considered the bilateral social security agreement between Australia and the Netherlands in the context of Mr Van Weeren’s circumstances.

The tribunal found that while Mr Van Weeren’s failure to declare his Dutch pension was a breach of his obligations, it was not an egregious error warranting full recovery of the debt. The tribunal acknowledged that Mr Van Weeren had cooperated with the investigation and had special circumstances, such as language barriers and a genuine misunderstanding of his obligations, that contributed to his failure to declare his income. These factors led the tribunal to decide that a partial waiver of the debt was appropriate. Consequently, the tribunal varied the decision to waive 50 percent of Mr Van Weeren’s debt and remitted the matter to the Secretary to determine the exact amount of the outstanding debt and an appropriate recovery plan.

Orders

Orders of the court

The decision under review is varied to the extent that 50 percent of Mr Van Weeren’s debt is waived. The decision is otherwise affirmed. The matter is remitted to the Secretary to determine the amount of Mr Van Weeren’s debt that is outstanding and an appropriate recovery plan.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLEM VAN WEEREN