Williams and Secretary, Department of Family and Community Servic Es
[2003] AATA 346
•16 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 346
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1002
GENERAL ADMINISTRATIVE DIVISION )
Re WENDY WILLIAMS Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr EK Christie, Member Date16 April 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor decides to waive part of the overpayment for the period 1 July 2001 to 18 February 2002. The balance of the overpayment for the period 19 February 2002 to 30 June 2002 remains a debt to the Commonwealth to recover.
(Sgd) EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – whether overpayment can be waived for “administrative error” or for “special circumstances”.
A New Tax System (Family Assistance) (Administration) Act 1999 ss 97, 101
Re Callaghan and Secretary, Department of Social Security (1996-1997) 45 ALD 435
Re Beadle v Director-General of Social Security (1984) 6 ALD 1WRITTEN REASONS FOR ORAL DECISION
16 April 2003 Dr EK Christie, Member 1. This is an application for review of a decision of the Social Security Appeals Tribunal made on 29 October 2002 for Centrelink to raise and recover an overpayment of family tax benefit (FTB) in the sum of $1,493.20 for the period 1 July 2001 to 30 June 2002.
2. At the hearing the applicant represented herself with the assistance of her husband, Mr Wayne Williams. The respondent was represented by Ms T Shea, Departmental Advocate.
3. On the basis of the evidence before it, the Social Security Appeals Tribunal made the following findings of fact:
(i) Ms Williams was, at all material times in receipt of family tax benefit.
(ii)On 10 April 2001 she made an estimate of income of $nil for her and $27,440 for her partner.
(iii)On 18 February 2002 she provided a revised estimate of $8,551 for her and $12,133 for her partner.
(iv)She was paid on the basis of those estimates at the relevant times.
(v)Her taxable income for the 2001/2002 year was $9,158 and her partner’s, $13,525.
4. At the hearing, Ms Williams acknowledged the above findings of fact.
Issues to be Decided
5. There were three issues for the Tribunal to consider:
(a)whether the overpayment of FTB could be waived under the administrative error provisions of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Act”);
(b)whether the overpayment of FTB could be waived under the special circumstances provisions of the Act; and
(c)whether the overpayment of FTB could be written off under the Act.
Consideration of the Issues
6. The first issue for the Tribunal to consider is the credibility of Ms Williams as a witness. The Tribunal finds her to be a witness of truth and to have acted consistently and honestly in all her dealings with Centrelink as a social security recipient over time.
7. The next issue for the Tribunal to consider is whether the debt could be waived under the administrative error provisions of the Act (section 97). The Tribunal found that Ms Williams has contributed, in part, to the overpayment in failing to complete the income details form (T6) upon which her entitlement was calculated. As a result, the overpayment cannot be waived for administrative error.
8. The next issue for the Tribunal to consider is whether the debt could be waived under the special circumstances provisions of the Act (section 101).
9. The first requirement to satisfy under section 101 is whether Ms Williams “knowingly failed or omitted to comply with a provision of the family assistance law”.
10. The Tribunal finds by applying the principles set out in Re Callaghan and Secretary, Department of Social Security (1996-1997) 45 ALD 435 that Ms Williams has not “knowingly” failed to comply with a provision of the Act. The Tribunal finds that Ms Williams did not have “actual knowledge” that she was failing to comply with the Act. The omission to insert estimated taxable income from government pensions or benefits (Question F) on the FTB Income Details Form (T6) arose in circumstances because of complete uncertainty as to the extent of her entitlements over the financial year. The Tribunal also considered it significant in this regard that Ms Williams has adhered to all her obligations over the preceding seven year period she has been a recipient of social security.
11. The next requirement to be satisfied is whether special circumstances apply in the facts of Ms Williams’ application for review. The Tribunal has applied the leading case of Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where the Tribunal referred to special circumstances as meaning “circumstances” that were either “unusual, uncommon or exceptional”.. The Tribunal concludes that the circumstances in which the overpayment of FTB benefits were paid to Ms Williams were sufficiently “unusual” or “uncommon” to justify the description “special circumstances” because of:
(a)Ms Williams completed the FTB Income Details Form (T6) on 29 March 2001 but failed to respond to Question F which required “an estimate of taxable income from government pensions or benefits”. Social security entitlements were Ms Williams’ sole source of income. The question was left unanswered because of complete uncertainty of the actual amount of her entitlement.
(b)The incomplete form was then relied upon by Centrelink to calculate entitlements. No follow-up action was taken by Centrelink to clarify with Ms Williams the missing information contained in this form.
(c)On 10 April 2001 a notification notice (T5, Folio 13) was sent to Ms Williams in which it stated her assessed income was $nil. This amount was correct for the financial year 2000/2001.
(d)A further notification notice (T15, Folio 64) was sent to Ms Williams on 28 June 2001 which stated that her FTB entitlements were to be calculated on the basis of her receiving $nil income. This amount was correct for the financial year 2000/2001.
(e)However, there were no further notices sent to Ms Williams until 1 May 2002 (T12, Folio 55). At this time, Ms Williams was advised that her FTB was being calculated on her estimated income of $8,551. The source of the latter amount of estimated income arose from Ms Williams phoning Centrelink on 18 February 2002 and providing Centrelink with an estimate of income. The notation of the phone record (T8, Folio 43) indicates that “the customer is satisfied with the estimate and has agreed to its use”.
12. Based on the above findings of fact, the Tribunal concludes:
(a)that it accepts Ms Williams’ oral evidence that she did not expect Centrelink to proceed on the basis of incomplete details in the FTB form in calculating her entitlement; and
(b)the failure of Centrelink to provide Ms Williams with notification notices over time in the financial year 2001/2002 to keep her informed as to the basis of estimates of her FTB entitlements led to a situation where the overpayments arose and continued over time. This situation would have continued for longer had not Ms Williams’ made her telephone enquiry to Centrelink on 18 February 2002 (T8).
13. For all of the above reasons, the Tribunal decides to waive part of the overpayment for the period 1 July 2001 to 18 February 2002. The balance of the overpayment for the period 19 February 2002 to 30 June 2002 remains a debt to the Commonwealth to recover.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 16 April 2003
Date of Decision 16 April 2003The applicant appeared in person assisted by her husband
Counsel for the Respondent Ms T Shea, Departmental Advocate
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