Walsh and Secretary, Department of Employment and Workplace Relations

[2007] AATA 37

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 37

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/405

GENERAL ADMINISTRATIVE DIVISION		)
Re		NOLA WALSH

Applicant

And

SECRETARY, DEPARTMENT

OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date25 January 2007 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.........[Sgd]...............

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension - overpayment – debt owed to Commonwealth - debt written off or waived – ‘special circumstances’ – decision affirmed

Social Security Act 1991 (Cth) ss1237A, 1237AAD

Re Beadle and director General, department of Social Security (1984) 6 ALD 1; (1984) 1 AAR 362
Groth v Secretary, Department of Social Security (1995) 40 ALD 541; (1996) 2 SSR 10a

REASONS FOR DECISION

25 January 2007 Dr M Denovan, Member   

Application

1.      Nola Walsh (the applicant) received income support payments under the Social Security Act1991 (the Act) in the form of a disability support pension since 2001. On 8 February 2006, a Centrelink officer, on behalf of the Secretary, Department of Employment and Workplace Relations (the respondent), determined that she had been overpaid in relation to disability support payments during the period 13 April 2002 to 22 October 2004 and that the overpayment, totalling $11,185.19, was a debt due to the Commonwealth.  That decision was affirmed by an authorised review officer on 23 March 2006. On 12 May 2006 the Social Security Appeals Tribunal (SSAT) set aside the decision and remitted the matter to the respondent with instructions that the debt be recalculated. On 13 June 2006, the overpayment was calculated as being $10,572.29. On 19 June 2006, Mrs Walsh sought review of that decision by the Administrative Appeals Tribunal (the Tribunal). 

2. Mrs Walsh was not represented at the hearing. She was accompanied by Ms E Gamer. Mr R McQuinlan appeared for the respondent. The material before the Tribunal included documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.

Issues for Determination

3.      It is not disputed by Mrs Walsh that she was paid disability support pension for the period noted above, or that during the period in question, her husband intermittently received various amounts of income protection payments. She accepted the decision that she was overpaid during the relevant time frame, and by the amount calculated by the respondent. However, she considered that the part of the debt that accumulated after 13 August 2002 should be waived, because on that date she notified Centrelink that her husband was in receipt of income protection payments.

4.      The issue for the Tribunal’s determination is whether the debt owed by her to the Commonwealth may be written off or waived under the provisions of the Act.

Applicant’s case

5.         Since 1967 Mrs Walsh’s husband has operated his own trawler business. He suffered an injury to his hand in January 2002 and on 14 April 2002 his benefits under an income protection policy began to accrue.

6.        Mrs Walsh advised Centrelink that her husband was receiving disability benefits for the first time when she attended a Centrelink office on 13 August 2002. She acknowledges that she had an obligation to notify Centrelink earlier and she accepts that she should repay the debt relating to the period up to that date. Mrs Walsh said that because she was not directed to provide any further reports or updates at that time, she assumed that she had fulfilled all of her obligations to Centrelink. She assumed that because the income support payments pertained to her husband’s business, it was not necessary for her to notify Centrelink of any increase in these payments.

7.        Mrs Walsh provided Centrelink with an updated Statement of Income and Assets on 3 August 2004. That statement included information about the income protection her husband had received. Mrs Walsh also provided Centrelink with a copy of tax returns as soon as they were available. She said that most years her tax returns were lodged by October or November of the same year, however, she acknowledged that there was one year that the returns were prepared late and she was unable to provide Centrelink with a copy of the completed returns until February of the following year. Because of the delay, she provided Centrelink with an updated Profit and Loss statement. These tax returns and Profit and Loss Statements all contained the details of Mr Walsh’s income protection payments.

8.        Mrs Walsh acknowledges that she was sent many letters from Centrelink during the relevant period that included information about her obligation to report variations in her husband’s income. She further acknowledges that she misunderstood her obligations in relation to her husband’s income protection payments, and that her error partly contributed to her overpayment. It is her belief that Centrelink also contributed to the debt in that they were given notice that her husband was in receipt of income support payments when she gave verbal notice in August 2002, and also when she provided various tax returns and financial documents. Mrs Walsh contends that had Centrelink made appropriate enquires; overpayment of her disability support pension would not have occurred.

Consideration

9.        The right to recover a debt can be waived in some circumstances. Relevantly, the debt can be waived if it arose solely due to administrative error on the part of the Commonwealth (s1237A) or where there are special circumstances (s1237AAD).

10. The debt is not attributable solely to administrative error. Mrs Walsh acknowledges that she erred when she did not notify Centrelink of her husband’s changed circumstances. Each notice that she received from Centrelink imposed a fresh obligation upon her to comply. I accept that she was acting in good faith; however, that does not change the fact that her error contributed to the overpayment. It follows that s1237A does not assist the applicant.

11. The waiver provisions in section 1237AAD are not available where the debt arose partly or wholly due to the debtor or other person knowingly making a false statement or knowingly failing to comply with the provisions of the Act.

12.      The respondent accepts that that is not the case here. I agree. Mrs Walsh was a cooperative and credible witness who provided evidence to the Tribunal in a straightforward and forthright manner. I accept her evidence that she failed to notify Centrelink about her husband’s changed circumstances due to a misunderstanding she had about the requirements.

13.       The term ‘special circumstances’ is not defined in the Act, but it is accepted that it means ‘unusual, uncommon or exceptional’ (Re Beadle and Director General, department of Social Security (1984) 6 ALD 1 at 4. For special circumstances to apply, the case must be markedly different from the usual run of cases (Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545).

14.      Mr Walsh is very unwell and unfortunately has recently had one lung removed and is receiving chemotherapy for the treatment of lung cancer. Mrs Walsh has Addison’s disease and Parkinson’s disease. She has difficulty with mobility and requires permanent medication for stress management.

15.      Mr and Mrs Walsh own their own home and also a car. They have no debts and do not own a credit card. Mr Walsh is currently in receipt of $3,500 a month income support. Mrs Walsh receives a pension of $680.83 a month. Mrs Walsh is also receiving carer’s allowance. Their position, with respect, is not out of the ordinary. Their financial situation is better than many people of their age. Their health issues are unfortunate, however, are not exceptional for people their age.

Decision

16.      The Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed:         .....................................................................................
  F. Kamst, Legal Research Officer

Date/s of Hearing  15 November 2006        
Date of Decision  25 January 2007
For the Applicant  Ms Gamer 
For the Respondent                  Mr R McQuinlan, Departmental Advocate