Vassilopoulos and Department of Family and Community Services

[2001] AATA 97

DECISION AND REASONS FOR DECISION [2001] AATA 97

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2000/703

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      VICKY VASSILOPOULOS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES         
  Respondent

DECISION

Tribunal        Mr J. T. C. Brassil, AM, Member 

Date12 February 2001

PlaceMelbourne

Decision      The Tribunal decides to set aside the decision of the Social Security Appeals Tribunal of 16 May 2000 and substitute therefor a decision that all of the overpayment of family allowance of $1,127.45 was due solely to administrative error, that it was received in good faith by the applicant and hence will waive the right to recover the whole of the debt to the Commonwealth.    

.....…(Sgd) J. T. C. Brassil……..
  Member
CATCHWORDS
SOCIAL SECURITY – overpayment – family allowance – whether a debt to the Commonwealth – applicable income limits – whether overpayment received in good faith – whether overpayment solely due to administrative error – whether appropriate to waive debt
Social Security Act 1991 ss. 841, 872, 1069, 1223(1), 1223(5), 1237A
Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (1997) 50 ALD 186
Abrahamse and Secretary, Department of Family and Community Services [2000] AATA 422

REASONS FOR DECISION

12 February 2001               Mr J. T. C. Brassil, AM, Member  

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") on 16 May 2000 to affirm a decision of a delegate of the respondent to raise and recover a Family Allowance ("FA") debt of $1,127.45 being FA paid to the applicant for the period 14 January 1999 to 25 November 1999.

2. The applicant was present at the hearing on 18 January 2001.  The respondent was represented by Miss Elizabeth King. 

3. Documents submitted pursuant to section 37 of the Administrative Appeals Act 1975 were taken into evidence together with copies of two (2) fax transmission reports of 22 January 1999 and copies of taxation estimates and taxation assessment notices for the applicant and her husband, respectively, submitted by facsimile to the respondent on 8 March 2000.
   Facts

4. The applicant, Mrs Vicky Vassilopoulos had been in receipt of FA in respect of her two children since 1994.  During 1998 she was receiving FA each fortnight.  On 7 December 1998 she was sent a notice (T8) advising the applicable income limits for payment of FA and requiring her to advise Centrelink if her and her husband's combined taxable income for the 1997/98 financial year was in excess of the applicable limit.  The date of effect of the income limits and also the new payment levels was 1 January 1999.

5. On 6 January 1999 a letter was sent to the applicant from Centrelink (T9) requesting her to provide the 1996/97 tax assessment notices for her and her husband.  On 22 January 1999 the applicant contacted a customer service officer named Clara at Centrelink and by facsimile sent to the attention of that officer copies of the relevant tax assessment notices which are marked in her own hand-writing as pages 2 and 4 of the facsimile transmission (T10).

6. FA continued to be paid to the applicant at the rate of $47.40 per fortnight until 25 November 1999.

7. Following a data match Centrelink decided that the applicant was not entitled to FA for the period 14 January 1999 to 25 November 1999 and that payments for this period were recoverable as a debt under subsections 1223(1), 1223(5) and section 1224 of the Social Security Act 1991 ("the Act").  This decision was affirmed by an authorised review officer on 10 March 2000.  On appeal to the SSAT the decision of the review officer was affirmed on 15 May 2000.
   Issues before the Tribunal

8. There is no issue that the applicant received FA during the relevant period nor that the combined taxable income of the applicant and her husband was above the applicable income limit. The Tribunal has to consider pursuant to subsection 1237A(1) of the Act whether the whole or part of the debt was due solely to administrative error and, if so, whether the FA payments were received by the applicant in good faith.
   Legislation

9. The Act provides that where there is a debt to the Commonwealth that in certain circumstances the debt must be waived:

   "1237A(1)       Subject to subsection (1A) the Secretary must waive the right to recover the proportion of the debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt."

Evidence

1. The applicant acknowledged that she was familiar with the system of FA payments and that there were limits to the combined income level which would permit FA to continue to be paid.  She agreed that she would have received the general notification in December 1998 which set out the various combined income limits and she was aware there was a possibility that the combined income of her and her husband may be close to the limit for two children.

2. On receipt of the letter of 6 January 1999 she contacted a Centrelink officer named Clara and agreed to send by facsimile transmission copies of the 1996/97 taxation assessment notices together with the estimate she had just received from the family accountant of incomes for 1997/98.  These were sent on 22 January 1999.  The Centrelink officer rang to say only one page had been received and Mrs Vassilopoulos re-transmitted the four pages at 12.38 pm on that day.  Exhibit A1 comprises the two fax reports showing a transmission of one page only at 12.35 pm and four pages at 12.38 pm.

3. In the T documents at T10 are copies of pages 2 and 4 of the later transmission marked thus numerically by the applicant.  A search of the files at Centrelink has not been able to locate anywhere in its records the cover sheet or the hand-written estimates of the incomes for 1997/98.

4. Mrs Vassilopoulos recalled that at that point she could not remember so she had enquired of Clara the relevant income limit for a claim for two children but was told that the officer did not have the precise figure.  She recalls she was advised simply to send in the estimates and Centrelink officers would deal with it, they would check the figures to ascertain whether FA could be continued to the applicant.

5. The respondent produced, Exhibit R1, facsimile copies sent by the applicant from her workplace of the detailed estimates of their accountant of taxable income for 1997/98 for both parents and the later assessment notices.  These show a combined income of about $81,000 considerably above the limit for two children.  These were transmitted on 8 March in what is presumed to be the year 2000 although the fax print on the pages has a date of 08/03/2020.

6. The applicant stated these had been sent after a later request by Centrelink, obviously after the data match.  They had not been provided earlier as they were exactly the same as provided to Clara on 22 January 1999.
   Submissions

7. Mrs Vassilopoulos submitted that she had relied on the Centrelink officer who had assured her that if she gave the taxation information then Centrelink would decide whether she would continue to be entitled to FA payments in 1999.  She had enquired what the relevant limit was but was not given this information.  She had not been able to locate the notification received previously and consequently sought the limit from the Centrelink officer.  The officer Clara said she did not know the limit and did not refer to the letter previously sent to the applicant.  She was then assured that if the combined taxable income was below the limit the payments would continue, which they did.

8. The applicant had during the rest of 1999 thought that she was entitled to the payments because she had accepted the assurances of the Centrelink officer.

9. On behalf of the respondent Miss King submitted that the applicant was familiar with the system, admitted she did know there were relevant limits and had been put on notice by the December letter.  She submitted there was no need for the applicant to rely on further advice from any Centrelink officer.

10. While there was no adequate explanation for the missing sheets from the facsimile transmission of 22 January 1999 it is possible that they could have been divided but as Centrelink does not have the page 3 on file and nothing was done as a result of receipt of such information it can only be presumed that it was not received.

11. Miss King submitted that Exhibit R1 showed that the applicant had the detailed information on 28 January 1999 and the assessment notices early in February thus these documents should have been made available at the time of receipt to confirm the preliminary information the applicant claims she provided on 22 January by facsimile.

12. She submitted that in the circumstances that the applicant was put on notice of the limits in the letter of 7 December and she had in late January the confirmed taxable income levels she must have known she was no longer eligible for FA payments.  She could not claim to have received those payments in "good faith".

13. The attention of the Tribunal was drawn to the decision of Finn J in Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (1997) 50 ALD 186 which had been followed in the Tribunal in May 2000 in the case of ReAbrahamese and Secretary, Department of Family and Community Services [2000] AATA 422.  The SSAT had found that the applicant had not received the payments in good faith and the Tribunal should affirm that decision.

14. Mrs Vassilopolous rejected the application of Re Abrahamese to the facts of this application as the applicant therein did know the limits and in that case telephoned Centrelink to inform them she was no longer eligible.  In this case the situation was she did not know the precise limits, had asked what they were, was not told but then relied on the assurances of the Centrelink officer.
    Consideration of the Issues

15. The applicant was a creditable witness who was frank in her evidence.  She acknowledged that she knew there were income limits but accepted the assurances of the relevant Centrelink officer that all she had to do was provide the information and her entitlement would be decided.

16. Her version of what happened on 22 January 1999, substantiated by the material in Exhibit A1 that four pages were transmitted on the second attempt, is accepted by the Tribunal  particularly as there is no contradictory evidence.  The Centrelink officer telephoned immediately to tell the applicant that only one page had been transmitted but did not telephone again three minutes later when the four pages were transmitted.  The applicant was entitled to assume all four pages had been received as there was no further telephone call.

17. Having accepted the applicant's evidence on this matter the only conclusion possible is that Centrelink was notified of the estimated income levels for the 1997/98 year on that day.  Further the Tribunal accepts that as the confirmed figures and the final assessment were no different there was no responsibility on the applicant to notify Centrelink when she received the formal documents.

18. That Centrelink did not act on the information freely supplied by the applicant on 22 January 1999 was clearly an administrative error to which the applicant did not contribute. 

19. It should be noted that this issue of possible administrative error was not decided by the SSAT as it considered "good faith" as the threshold issue deciding against the applicant.  Consequently the SSAT refused to waive the debt.

20. But the new evidence available to this Tribunal in Exhibit A1 puts a different light on the question of administrative error.  On the basis of this new evidence the Tribunal, on the balance of probabilities, finds that the applicant had notified the relevant combined income level and that the whole of the over-payment was due to administrative error within Centrelink.

21. It is necessary now to consider whether the applicant received the FA payments in "good faith", that she actually believed she was fully entitled to be receiving them, following Prince.  The respondent argues she was put on notice by the December letter.  The applicant responds by saying she was aware the limits were in that correspondence but did not have the letter at hand so she asked the relevant officer who was dealing with her application.  She received no information in response but was given assurance that if the combined income level was above the limit then Centrelink would take the appropriate action.

22. The Tribunal is satisfied that the applicant's position is distinguishable from that in Re Abrahamese because she did not know the precise limits.  Mrs Abrahamese actually notified that she was over the limit and requested the payment to be stopped.

23. If Mrs Vassilopoulos had not made the effort to ask what these limits were it could be argued that she was reckless but she did make that specific enquiry of the relevant officer.  The Tribunal is satisfied that she was entitled to rely on the assurances of the officer and therefore finds that she received the payments in "good faith".
    Conclusion

24. The Tribunal will set aside the decision of the SSAT of 16 May 2000 and substitute therefor a decision that the whole of the over-payment of Family Allowance of $1,127.45 was due solely to administrative error, that it was received in good faith by the applicant relying on the assurances of the Centrelink officer and will, pursuant to section 1237A(1) of the Act, waive the right to recover the whole of the debt to the Commonwealth.

    I certify that the thirty-three (33) preceding paragraphs are a true copy of the reasons for the decision herein of

    Mr J. T. C. Brassil, AM, Member

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  18 January 2001
    Date of Decision  12 February 2001
    Solicitor for the Applicant         The applicant was self-represented
    Solicitor for the Respondent    Ms E. King, Centrelink