White and Secretary, Department of Family and Community Services

[2005] AATA 304

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/337

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRIAN WHITE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date17 March 2005  

PlaceAdelaide

Decision For reasons given orally the Tribunal affirms the decision under review.  

D.G. Jarvis
  (Signed)
  Deputy President

CATCHWORDS

SOCIAL SECURITY – disability support pension – overpayment – recoverable debt – waiver – special circumstances alcohol dependency – decision under review affirmed.

Social Security Act 1991, s 1237AAD

Re Beadle and Director General of Social Security (1984) 6 ALD 1

Riddell v Secretary, Department of Social Security (1993) 30 ALD 31

Secretary, Department of Social Security v Smith (1991) 30 FCR 56

Re Speed v The Secretary, Department of Family and Community Services (2002) 70 ALD 266

REASONS FOR DECISION

17 March 2005   Deputy President D G Jarvis

1.      This matter is an application by Mr Brian White for review of a decision of the Social Security Appeals Tribunal made on 13 September 2004.  That decision affirmed an earlier decision that the applicant has a disability support pension debt of $6,656.87 and an aged pension debt of $1,215.44.  The Social Security Appeals Tribunal determined that the debts were recoverable and that it was not appropriate to waive the debts.

2. When this matter came on for hearing before me this morning, the parties confirmed that certain facts had been agreed; these facts are set out in Exhibit R1. This exhibit records the parties’ agreement that the applicant had been overpaid disability support pension for the period 18 December 1997 to 18 December 2001 in the amount of $6,656.87, and that he had been overpaid aged pension for the period 19 December 2001 to 2 July 2002 in the amount of $1,215.44. Mr White has sought a waiver of the debts under s 1237AAD of the Social Security Act 1991 (the “Act”).

3.      The issues before me are whether the debts are recoverable by the Commonwealth and if so, are there grounds to waive recovery of all or part of the debts under the legislation.

4.      As to the first issue, I am satisfied that the debts are recoverable for the reasons explained by the Social Securities Appeals Tribunal, and I will now summarise the facts of the matter as appeared from the evidence produced during the hearing this morning.

5.      Mr White is 68 years old.  He became an alcoholic, and in the late 1980s he sought help from a number of agencies, including the Joslin Detox Unit, Alcoholics Anonymous and the Salvation Army.  He produced for my consideration a number of medical records from the Lyell McEwin Hospital and also other medical records, including records from Tregenza House.

6.      It is apparent from those records that Mr White was affected by his alcoholism for a number of years, and that his alcoholism produced conditions of alcoholic liver damage and other conditions, including depression.  I accept Mr White's evidence that for most of the 1990s and in the years 2000, 2001 and 2002, he cannot remember much of his life and that (as is important for the present purposes) he was unable to manage his own affairs.  And I also accept that his condition was a major factor which gave rise to the existence of the debts to which I have referred.

7.      Mr White's condition was also complicated by a longstanding addiction to Diazepam and that aggravated his condition during the relevant years.  Over the last two years he has recovered from his alcohol dependency, but he still suffers very poor health.  He gave evidence that he had a laminectomy in 1969.  This involved a spinal fusion, and has resulted in continuing pain ever since that operation.  He also suffers from ulcers and had a partial gastrectomy in 1981 and still has medication for his ulcerative condition.  He also suffers from deafness, and has a mild asthmatic condition, the beginnings of Parkinson's disease, and bulges in his cervical cord as detected by an MRI examination.

8.      Mr White has had assistance through Metropolitan Domiciliary Care, and at times needs a walking frame to help him get around.  He is able to use subsidised taxis, but is unable to use public transport unless accompanied by another person.  He has been in receipt of a pension from the United Kingdom Government as a result of service-related injuries, and he has received a 50 per cent pension since 1971.  He came to Australia in 1963.

9.      Evidence was also produced before me this morning as to Mr White's financial circumstances.  He receives the war pension from the United Kingdom Government to which I have referred.  He explained that the amount of this pension varies according to the exchange rate, and the pension is not at the moment as great as the figure referred to in the respondent's statement of facts, issues and contentions (namely, $433.18 per fortnight).  Mr White also explained that the respondent's statement of facts, issues and contentions had understated the amount of rent which he is liable to pay, and the present amount of rent that he pays is $148.00 per week.

10.     Evidence was also given as to the situation of Mr White's son who has unfortunately recently gone through a failed marriage.  Mr White said his son has lost his car, his house, his furniture and his children, and he has also lost his sense of direction.  Mr White's son is aged 37 and Mr White and his wife are supporting their son financially, because the Centrelink benefits which he is receiving are not sufficient to meet his commitments. 

11. The issues which arise in this matter must be determined by reference to s 1237AAD of the Act. That section provides as follows:

“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)        making a false statement or a false representation; or

(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt.”

12. In the present matter the parties have agreed that Mr White has not knowingly made a false statement or false representation and has not knowingly failed or omitted to comply with a provision of the Act. And certainly on the evidence before me that is a very proper concession by the respondent, and a proper matter to have been agreed between the parties. It is therefore necessary for me to consider paragraph (b) of s 1237AAD of the Act, that is the question of whether there are special circumstances other than financial hardship alone that make it desirable to waive the debt.

13.     The question of what constitutes special circumstances has been discussed in various decisions of the Federal Court and of this Tribunal.  The decision which is often referred to, and indeed which Ms Powell for the respondent referred to, is the matter of Re Beadle and Director General of Social Security (1984) 6 ALD 1. At page 3 of the report of that case, Toohey J made the following statements:

“An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend upon the context in which they occur.  For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases.  This is not to say that the circumstances must be unique, but they must have a particular quality of unusualness that permits them to be described as special.”

14.     In a later case, namely Riddell v Secretary, Department of Social Security (1993) 30 ALD 31, the Full Court of the Federal Court said, at page 38:

“Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.”

15.     I now turn to consider the facts of this matter by reference to the principles laid down in those cases.  I take into account first of all that Mr White has suffered from a number of disabling conditions and has experienced poor health for a considerable period of time.  In particular, over the period from the late 1980s, he suffered from alcohol dependence, and that interfered with his ability to manage his own personal affairs and left him in a position where he was virtually unable to do that.

16.     I also take into account the other disabilities from which Mr White is suffering, including those from which he suffered before the onset of his alcohol dependency.  It is also necessary to take into account that Mr White has recovered from his alcohol dependency, although he has been left with various other disabilities to which I have referred.  Nevertheless, Mr White was able to address the issues which arose in the course of the hearing before me this morning in a way that indicated to me that he understands the issues, and he was able to clearly present his case to this Tribunal.

17.     I also take into account the financial position of Mr White.  I have referred already to matters that are relevant to his financial position.  Mr White’s wife is working but her income fluctuates from time to time according to the amount of work she does with her present employer.  Her wages at the present time are in the order of $747.00 per fortnight or more, and Mr White said that usually his wife’s wages would not be less than that figure, and at the moment her level of wages is pretty low.  It appears that he and his wife have a combined income which consists of Mr White's pension from the UK, his wife's income and a small balance of an age pension paid by Centrelink (although the amount of this pension is normally applied in reduction of Mr White’s debts).

18.     In considering the matters of Mr White's health and financial position which he relies upon to show special circumstances, I must also compare those matters with the position of other persons receiving Centrelink benefits, and consider how Mr White's situation compares with that of other people.  I must also take into account further considerations which are referred to in other decisions of the Courts.  The first of these considerations is that the community has an interest in the recovery of public moneys which have been overpaid to any citizen.  The second consideration was referred to by von Doussa J in a case of Secretary, Department of Social Security v Smith (1991) 30 FCR 56 at 61.5, where his Honour referred to other similar provisions of the social security legislation and said that the relevant provisions:

“… are intended to operate together as a fair balance of the interests of the recipient of the payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures.”

These remarks reinforce the principle that the community has an interest in the recovery of moneys that have been overpaid. That consideration must, of course, be considered in conjunction with the discretion conferred by s 1237AAD to waive recovery in special circumstances.

19.     I have considered the case to which Mr White referred, namely the matter of Re Speed v The Secretary, Department of Family and Community Services (2002) 70 ALD 266 which was a decision of this Tribunal in 2002. However, the facts of that case were somewhat different, having regard to the fact that there were three young children who were dependent on their parents' income, and it seems to me that Mr White's financial position is stronger than that of Mr Speed.

20.     Of course, all of these cases depend on their own facts.  I have not overlooked the fact that Mr and Mrs White are helping their son.  However, they are not legally liable to support their son, and he is also receiving Centrelink benefits, and therefore the community is also lending its support to Mr White's son, presumably at the level provided for in the legislation.

21.     Taking into account all of the evidence before me, I consider that although Mr White's health is poor and he has had a very difficult period as a result of his alcohol dependency, his present circumstances, including his financial position, are not so unusual, uncommon or exceptional compared with other persons receiving social security benefits that it would be appropriate in this matter to waive the debts. 

22.     In the circumstances of the present matter, I have concluded that the debt should not be waived, and I affirm the decision under review.

I certify that the 22 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G Jarvis

Signed:         .....................................................................................
           J. MacIntyre  Associate

Date/s of Hearing  17 March 2005
Date of Decision  17 March 2005
Counsel for the Applicant         In Person
Solicitor for the Applicant           
Advocate for the Respondent  Ms J Powell