Waddell and Secretary, Department of Employment and Workplace Relations
[2006] AATA 557
•28 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 557
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/56
GENERAL ADMINISTRATIVE DIVISION ) Re THOMAS WADDELL Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr KS Levy, Member Date28 June 2006
PlaceBrisbane
Decision The Tribunal:
(a) affirms the decision of Centrelink in respect of the period 1 July 2002 to 30 June 2004.
(b) sets aside the decision of Centrelink to raise and recover a debt in respect of the period 1 July 2004 to 27 June 2005 in respect of the applicant; and
(c) refers the matter to Centrelink to recalculate and determine the applicant’s debt (and balance of debt now due) in accordance with this decision in (a) and (b) above.
...................[Sgd]..........................
Dr K Levy
Member
CATCHWORDS
SOCIAL SECURITY: - parenting payment – family tax benefit –overpayment of benefits- failure to disclose and advise – whether debt due to the Commonwealth
Social Security Administration Act 1999 ss 68, 72
Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484
REASONS FOR DECISION
28 June 2006 Dr KS Levy, Member 1. The applicant, Thomas Waddell, was in receipt of parenting payment between 2002 and 2005. On 7 September 2005, Centrelink made a determination to raise a debt and recover an overpayment of $8,527.72 for the period of 1 July 2002 to 27 June 2005. The applicant appealed this decision to the Social Security Appeals Tribunal (SSAT), which affirmed Centrelink’s original decision on 4 January 2006. The applicant now appeals to this Tribunal in relation to the SSAT decision.
Issues
2. The questions for the Tribunal in this case are:
(i)Did Mr Waddell receive parenting payment in excess of his entitlement for the period 1 July 2002 to 27 June 2005?
(ii)If the answer to (i) is “yes”, is the amount of the excess payment, a debt due to the Commonwealth; and
(iii)Are there any circumstances whereby any debt due should not be recovered and be either written off or waived or not recovered because of special circumstances?
Evidence
3. The applicant, Mr Waddell, presented his own case and was accompanied by his wife, Mrs Waddell. The respondent was represented by its advocate, Ms Jasmine Forsyth.
4. The following documents were admitted into evidence:
§Exhibit 1 The T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
§Exhibit 2 The respondent’s Statement of Facts and Contentions dated 11 April 2006
§Exhibit 3 Statement of Financial Circumstances of Mr Waddell
§Exhibit 4 A letter dated 24 October 2005 from Centrelink to the applicant
§Exhibit 5 A letter from the Family Assistance Office dated 26 April 2002 to the applicant.
5. The applicant’s evidence was that he was not informed of the difference between the parenting payment and family tax benefit when he originally made his application. He was advised that he must inform Centrelink of changes in income for his wife, and that she did provide that information on the majority of occasions. He stated at the outset that on one earlier occasion there had been an overpayment when his wife had became redundant, even though he felt that they had notified the Department diligently in regard to this., At that time, he believed the Department had advised him that updating details was necessary only for the family tax benefit. Since that time, he claimed that he was particular in advising Centrelink to ensure that there was not another overpayment to be repaid. He referred to a letter from the Department dated 4 June 2002 and said that he replied every time it was necessary. He mentioned at one stage, that he got 12 letters in one week, and when he rang the Department he was told there was system problem and to ignore the letters. The applicant also stated he always looked at the letters only to find out what he had to do.
6. The applicant had been advised that the Department would update information about parenting allowance from the information provided in relation to the family tax benefit. He said it was now apparent that they shared this information on some occasions but not on other occasions.
7. Evidence was received that the applicant’s perception was that all reports for parenting allowance and family tax benefit were to be made to the same number, 136190. Mrs Waddell told the Tribunal that when she had rung Centrelink to report income, she spoke to “Michelle” and in updating her details was told that the Call Centre could now take information about parenting payment also. Mr Waddell stated that he had been advised that Centrelink used the tax return information at the end of each year to regulate payments. He had also contacted his local member after he was overpaid on this occasion as the system seemed to provide inadequate or conflicting information. The applicant stated that he was honest in his dealings with Centrelink and was not happy that the had been overpaid. However, he emphasised that it was not because of his failing to report, as alleged by Centrelink.
8. The applicant acknowledged that he was required to advise Centrelink of any changes in his wife’s income as the parenting payment was calculated on the basis of her earnings of $912 per fortnight.
9. Mrs Waddell disputed the discussion of evidence in paragraph 8 of the SSAT decision. In particular, she refers to the evidence relied upon that there was no contact by either herself or her husband to Centrelink between 2002 and 2004. In fact, she maintains that she did have contact and updated details during that period. She stated that the last correspondence from the parenting section was from 4 November 2003. As a result of the overpayment and their dispute with Centrelink, together with other requirements for her husband to do community service to maintain eligibility for the parenting allowance, he cancelled the payment on 28 June 2005. Mr Waddell said that he already did put effort back into the community but the recording required was excessive for the amount of the allowance.
10. The respondent, in cross examination, asked the applicant whether he expected with the increase in his wife’s income, that it would be reasonable to expect that the amount of parenting allowance might decrease. The applicant stated that he did not calculate and compare his wife’s earnings and the fortnightly limit specified by Centrelink, on each occasion that he or his wife reported an increase.
11. The respondent referred the applicant to folio 21 (T4) which indicates on 14 January 2002, the applicant phoned Centrelink and advised the new full time earnings for his wife for the financial year ended 2001/02. Mrs Waddell stated however, that they probably did not ring and advise of this increase separately in respect of parenting payment. It was also indicated that in April 2002, updated details were provided from payslips to Centrelink and specifically, to the family benefits section. However, the applicant stated that these new details were not provided to the parenting section.
12. When referred to the record of payments by the Family Assistance Office, (T34, folio 90) the applicant indicated that he did not advise Centrelink specifically in relation to parenting allowance as he understood that because the family tax benefit and parenting payment had the same phone number, that it was the same department and that there was not a requirement for him to do so. The applicant was also referred to the summary of parenting payments and family benefit payments and shown in folio 91 ($87.10 per fortnight from 16 May 2002), folio 92 ($97.30 with effect from 17 October 2002), folio 95 ($106.90 with effect 16 April 2003) and folio 97 ($115.60 with effect 16 October 2003). The applicant was also referred to folio 24, in which he confirmed that the address on that letter was correct and said that he did read the letters sent to him and specifically as to whether he was required to provide any further information. In relation to folio 25, where the letter requires the applicant to advise if his partner’s income exceeded $912.00 per fortnight, he indicated that there was a good chance that he did not in fact, read all of the detail of that letter. The applicant was referred to Exhibit 3 where he stated he pays a child support payment of $80.00 per week for one of Mrs Waddell’s children. Mrs Waddell informed the Tribunal that this amount was correct but that she had agreed to it under “duress”. Their other circumstances are that they have two children (18 years old and 15 years old) and both are now in good health, although one had a period of poor health for 12-18 months until earlier in 2006.
13. Mr Waddell himself is not in good health as he has a 60% blockage in the arteries in his heart and has serious degeneration of the upper and lower spine. The applicant’s doctor has told him to give up work and he is now required to take medication. In fact, at one stage he passed out at Westfield Shopping Centre and was taken to hospital in an ambulance. He explained his situation was that he needs to find employment where he can sleep every third day. He has been informed that he was not sick enough to be on a pension but it was difficult to find work that would fit in with his health condition. Mrs Waddell indicated that she had enquired but her husband is not entitled to a disability pension because of his condition.
14. The current income of Mrs Waddell has now been estimated to be $36,000 for the next financial year. It is estimated to be $35,000 for this financial year. Her net income is now $814 per week.
15. Also, Mr Waddell’s daughter has a two year old daughter herself. She has a part-time job but Mr and Mrs Waddell provide significant support to her. Their actual financial position at present is that they have an income of $770 per week and deductions of $730 per week. There is therefore $40 per week uncommitted. These figures include the repayment of $50 per fortnight to meet the outstanding debt in respect of the debt for parenting payment. The Tribunal was advised that the remaining debt at present is $7,977.26 approximately.
16. In final submissions, Ms Forsyth referred to the quantum of the excess in relation to the debt and stated that in relation to the first issue, there was an amount owing. In relation to the second issue, she argued that this excess amount is a debt due to the Commonwealth. She stated that it was not solely due to administrative error of the Commonwealth because it was due to the applicant’s not advising Centrelink of updated income in relation to his wife. She stated that there was no contact between 2002 and March 2004. She also argued that in the circumstances, the applicant had not received the excess payments in good faith.
17. In relation to the third issue, she argued that there were no special circumstances which would justify writing off or waiving the debt.
Findings of Fact
18. The following findings of facts are made:
(i)The applicant was in receipt of parenting payment in the relevant period;
(ii) Centrelink notified the applicant in relation to parenting payment by notices dated 29 May 2002, 30 October 2003 and 4 November 2003. No further written advice was provided by Centrelink from 4 November 2003 until 27 June 2005;
(iii) In the period where no further written advice was provided by Centrelink, that is between 4 November 2003 and 27 June 2005, Mr Waddell had a heart condition (which has now stablised).and was hospitalised for a period of time;
(iv) In the latter part of the debt period and the Tribunal determines that this is applicable for the period from 1 July 2004 to 27 June 2005, the applicant had received advice from the Centrelink Call Centre that they could accept notification in respect of both parenting payment and family tax benefit, and the applicant and his wife understood that on each occasion they reported a change in income, that they were satisfying their responsibilities;
(v) Mr Waddell diligently advised Centrelink of changes in his wife’s income estimates from 18 March 2004 until the end of the overpayment period. There was no effective updating of Mrs Waddell’s income by the applicant between 15 January 2002 and 17 March 2004. No action was taken by Centrelink until 27 June 2005. At that date, the applicant requested his allowance be cancelled;
(vi) Mr Waddell was unclear about the difference between parenting payment and family tax benefit. On 6 October 2005, Centrelink noted that the applicant was confused about the differences between family tax benefit and parenting payment.
CONSIDERATION
19. The Tribunal has taken account of all the relevant statutory and case law in reaching a decision in this matter.
20. The applicant accepts that there has been an overpayment for the period determined by Centrelink. He only disputes whether he advised Centrelink and not the quantum of the overpayment or the period. The Tribunal has found that Centrelink complied with its obligations under section 72 of the Social Security Administration Act 1999 in providing notices to the applicant. The Tribunal has also found that the applicant did not comply with his obligations under section 68 of the Social Security Administration Act 1999 in responding to and informing the department of changed circumstances for the period 1 July 2002 to 17 March 2004.
21. However, the evidence indicates that the applicant made contact and provided updated details and estimates of Mrs Waddell’s income for the 2004/05 year. Indeed, the applicant advised Centrelink on 18 March 2004 of estimated income of $31,000 for Mrs Waddell with effect from 1 July 2004. On 19 March 2004 he phoned the Family Assistance Office and provided income estimates for Mrs Waddell for 2003/04 year (with effect from 19 March 2004) and for the 2004/05 year (with effect from 1 July 2004). Indeed, he estimated the income for 2003/04 year as being $4,000 for himself and $26,000 per annum for his wife. For the 2004/05 year he estimated income of $3,000 for himself and $31,000 for Mrs Waddell. He advised that his wife’s employer had told her that she would get a pay increase for the new tax year and consequently, this was reported.
22. On 14 September 2004, he again provided income estimates to the Family Assistance Office for the 2004/05 year and estimated his income as $3,000 and Mrs Waddell’s income as $33,000. On 29 November 2004, Mrs Waddell contacted Centrelink and enquired about the effect on the potential for Mr Waddell to obtain three weeks work at $500 per week and the likely effect on both family tax benefit and parenting payment entitlements. Mr Waddell did not avail himself of this employment opportunity.
23. On 8 June 2005, the applicant again phoned the Family Assistance Office and advised of income estimates for that financial year for himself of $4,000 and for Mrs Waddell of $33,000. The reasons for providing that advice was he was not sure what he would receive from the Family Assistance Office so he provided the updated details. He also stated that he then had an amended child support payment of $100 per month. On 28 June 2005 he contacted Centrelink and cancelled his parenting payment as stated in paragraph 9. Mr Waddell also had contact with Centrelink on 5 October 2005 and 6 October 2005 in trying to ascertain the reason for the debt and to advise of his appeal against the decision of Centrelink in relation to the debt, which is the subject of this application.
24. The Tribunal finds that the applicant contacted Centrelink on each occasion that there was an increase in income for his partner. As from 18 March 2004, there were calls to the Family Assistance Office but not to the parenting section and the fact that the Department had the same phone number for each of these two allowances, it was reasonable for the applicant to assume that his record would be updated with respect to both family tax benefit and parenting payment. There was also some advice received from some telephone conversations he had with Centrelink staff which makes that reasonable. In any event, the fact that he contacted Centrelink on five occasions between 18 March 2004 and 8 June 2005, and on each occasion provided information to Centrelink about Mrs Waddell’s earnings or estimated earnings prospectively or retrospectively, and/or enquired about the effect of his potential employment on his family tax benefit entitlements and parenting payments, should have been sufficient for Centrelink to take some action over that period which would have minimised any overpayment. The Tribunal notes that the SSAT also found that Centrelink should have been put on notice over that period.
25. The Tribunal also finds that the applicant and his partner were witnesses of truth. While it is true that there is no evidence of the applicant keeping Centrelink informed of his partner’s income between 2002 and 17 March 2004, there is a clear record of diligent reporting from 18 March 2004 to the end of the debt period on 27 June 2005. The latter period of diligent reporting applies to the period 1 July 2004 to 27 June 2005. Consequently, the Tribunal determines that in relation to issue (i) that there is an overpayment for the period from 1 July 2002 to 30 June 2003. However, for the period 1 July 2004 to 27 June 2005 there was diligent reporting.
26. Therefore in relation to issue (i), there was an overpayment of $8,527.72 for the debt period as claimed by Centrelink. This is also acknowledged by the applicant.
27. In relation to issue (ii), that is, whether any excess payment is a debt due to the Commonwealth, for the reasons set out above, the excess payment for the period 1 July 2002 to 30 June 2003 is a debt due to the Commonwealth. Likewise, for the reasons set out above, the debt arising for the period 1 July 2004 to 27 June 2005 is not a debt due to the Commonwealth as it was solely due to administrative error of the Commonwealth and not due to any failure by the applicant to report changes in Mrs Waddell’s income.
28. In relation to issue (iii), that is, whether the debt ought to be recovered, I accept the respondent’s submission that there is no ground to write off the debt under section 1236 of the Act. Likewise, there is no ground under section 1237 to waive the debt in respect of the period 1 July 2002 to 30 June 2003. However, in respect of the period 1 July 2004 to 27 June 2005, the Tribunal finds that the proportion of debt for that period must be waived as it was due to the sole administrative error of the Commonwealth. In all of the circumstances, the Tribunal finds that the applicant received those payments in good faith as not only did he have a heart condition for that period, but the frequency of reporting and the assumption that Centrelink’s system (which pays both family tax benefit and parenting payments) would have recorded the information provided by the applicant against his entitlements paid by Centrelink was reasonable. It could not be said in this case, that he turned “a blind eye to circumstances which raised doubt”, in the sense that the entitlement of the applicant to receive and retain the payment was associated with a refusal to make reasonable enquiries where some doubt existed. (Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484 at para 41 per Cooper J.
29. I do not find that there are any other “special circumstances” in accordance with section 1237AAD of the Act.
30. Therefore, the Tribunal
(a)affirms the decision of Centrelink in respect of the period 1 July 2002 to 30 June 2004.
(b)sets aside the decision of Centrelink to raise and recover a debt in respect of the period 1 July 2004 to 27 June 2005 in respect of the applicant; and
(c)refers the matter to Centrelink to recalculate and determine the applicant’s debt (and balance of debt now due) in accordance with this decision in (a) and (b) above.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: .....................................................................................
J Mills, Legal Research OfficerDate/s of Hearing 10 May 2006
Date of Decision 28 June 2006
The Applicant was unrepresented
For the Respondent Ms J Forsyth, Departmental Advocate
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