Woodroffe and Department of Family and Community Servies

[2001] AATA 730

DECISION AND REASONS FOR DECISION [2001] AATA 730

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/123

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      PETER JAMES WOODROFFE  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr I R Way, Member         

Date22 August, 2001

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

.................Signed...........................
  I R Way
  Member
CATCHWORDS
SOCIAL SECURITY – rent assistance – failure to advise that no longer paying rent – whether to waive due to administrative error

Acts Interpretation Act 1901 – ss 28A, 29
Social Security Act 1991 – ss 23(IL), 1224, 1237A, 1237AAD, 1302A

REASONS FOR DECISION

22 August 2001           Mr I R Way, Member              

1. This is an application by Peter Woodroffe for review of a decision of the Social Security Appeals Tribunal (SSAT), dated 17 January 2001, which affirmed a decision made by Centrelink on 23 July 1998 to raise and recover an overpayment of disability support pension, namely rent assistance in the sum of $5,895.90 in respect of the period 20 October 1994 to 11 June 1998.  Centrelink's decision of 23 July 1998 was affirmed by an authorised review officer on 5 December 2000.

2. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, marked T1-T45 and S1-S4.  The Applicant was self represented and he presented his case and gave evidence by telephone. Mr Kanowski, a departmental advocate, represented the respondent.
   BACKGROUND

3. The Tribunal accepts the following background facts which were not in dispute and finds accordingly:

• The Applicant was born on 3 October 1953.  He left school at age 17 years, completed an apprenticeship as an electrician and then worked for approximately twenty years in his trade on large development projects.  He went on to sickness benefits because of arthritis for a short time before being granted disability support pension in 1994.

• The Applicant claimed disability support pension on 18 February 1994.  He advised that he was living at "Kandahar", Darkwood Road, Thora (T4/13).  An explanatory note on the claim form said that rent assistance may be payable and Mr Woodroffe advised that he paid $75.00 rent per week (T4/19). 

• On 18 April, 1994 the Department wrote to Mr Woodroffe about the payment of pension, and that the amount to be paid included rent assistance in the sum of $66.60 per fortnight (T7/27-28). The letter contained a notice under s132 of the Social Security Act 1991 (the Act) requiring Mr Woodroffe to tell the Department within fourteen days if he changed his address; if the amount of rent he paid changed from $75.00 per week; or if he bought a house or other residence in which he lived (T7/29).  Mr Woodroffe received this letter.  A copy of the original letter was faxed by Mr Woodroffe to the SSAT in January 2001 (T45/107 and 109).

• On 27 April 1995 a Centrelink officer noted that Mr Woodroffe had advised of a change of address and "paying $70.00/week rent". The source of the information is listed as SS290 (form) (T8/30). The new address recorded was Bean Creek via Old Bonalbo 2469 (T39/95).

• According to the Applicant, his advice to Centrelink at this time was by telephone and was that he had moved to Bean Creek and "other details, aside from address, remain the same", but he denied that he mentioned rent (T2/5, T45/103).

• Further letters were sent to the Applicant on 9 March 1996 (S2), 29 July 1996, and 15 and 29 October 1996 (T10-T12) advising of the amount of his pension from time to time, including the amount of rent assistance. These letters also contained notices under s132 of the Act similar to the one in the grant letter, requiring the Applicant to tell the Department if the amount of rent he paid changed.

• The Applicant said he did not receive the letters reproduced at T10-T12.

• A letter from the Department to Mr Woodroffe dated 18 June 1996 also mentioned the payment of rent assistance (S3).  Mr Woodroffe denied receiving this letter.

• In July 1998 a Centrelink officer, Gregory Pogson, telephoned the Applicant on two occasions to update rent details.  On both occasions the Applicant told Mr Pogson that he was paying $75.00 per week rent to Bert Little who collected the rent on behalf of Ben Cooper (T28/74-75).

• Mr Woodroffe has since acknowledged that he had not been paying rent since he moved to the property he had purchased at Bean Creek on 10 October 1994 and that he had lied to the officer because he did not want to be left with a major debt (T32/85-86).

• The debt was raised on 23 July 1998 (T18, T19) and amounts to $5,895.90.

• On 18 October 1999 Mr Woodroffe was found guilty at Lismore Local Court of an offence of knowingly obtaining a pension which was payable only in part because he owned and resided in his home, between about 4 May 1995 and about 11 June 1998 (T31/83-84).

ISSUES

1. In his application for review Mr Woodroffe stated that he believed Centrelink had made two administrative errors and as a result of these errors "there is no debt by P. Woodroffe" (T1/1).  He said the two errors were: "error 1) – letter dated 18-4-94 Fails to inform clearly that I was receiving rent Ass.; error 2) – in review by Vicky Ludlow she admits to error Page 97 T file centre of page".

2. The second error referred to by the Applicant was the failure of Centrelink, contrary to their internal administrative practice to validate rental payments when the Applicant in April 1995 informed of his change of address to Bean Creek.

3. The issues in this matter are whether or not the Applicant was qualified for rent assistance during the period 20 October 1994 to 11 June 1998 and if not, whether the Applicant had a debt due to the Commonwealth as a result of overpayment of rent assistance during the relevant period.  A further issue arises in the event that a debt is due to the Commonwealth as to whether or not the debt should be waived, in whole or in part arising from an administrative error made by the Commonwealth: or because of special circumstances.
   LEGISLATIVE FRAMEWORK

4. The Act relevantly provides as follows:

   "1224.(1)  If:

   (a)an amount has been paid to a recipient by way of social security payment; and

   (b)       the amount was paid because the recipient or another person:

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

   (ii)       failed or omitted to comply with a provision of this Act or the 1947 Act;

   the amount so paid is a debt due by the recipient to the Commonwealth.

   Note:If the person does not pay the debt or enter into an agreement to pay the debt within a certain time, interest may become payable on the debt (see section 1229). If the person enters into an agreement to pay the debt and breaches the agreement, interest may become payable on the debt (see section 1229A).

   1237A.(1)  Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a 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.

   Note:Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

   1237AAD.  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 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.

   Note:Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

SUBMISSIONS

1. It was the Applicant's contention that the debt arose from Departmental administrative error in that the letter of 18 April 1994 informing him that disability support pension would be paid to him did not clearly state that rent assistance was being paid.  He said that the letter referred to his social security rights which were set out on the back of the letter and as there was no "highlight to him to read this", he had not done so and was unaware that rent assistance was being paid to him or that he had obligations to tell Centrelink about various changes in his circumstances.  He also contended that when he notified the Department of his change of address in April 1995 the Department failed to follow its own procedures of seeking rent validation and if the Department had done so this would have resolved the matter.

2. The Applicant submitted that delivery of mail in his country area was not always reliable and that he had not received any of the five letters the Department claimed to have sent him in 1996.  With respect to the two conversations between the Applicant and a Departmental officer in July 1998 where the Applicant stated that he was paying rent of $75.00 per week, the Applicant agreed he had not told the truth.  He said he did this because he did not want to be faced with a huge debt.  He did not accept the Respondent's contention that if he really had not known about being paid rent assistance his honest response would have been to question what the Department officer was talking about.

3. It was contended for the Respondent that the Applicant was not entitled to rent assistance from 10 October 1994 as he ceased paying rent from that date; and that the overpayment of $5,895.90 is a recoverable debt under s 1224 of the Act because the Applicant failed to comply with the requirement to notify the Department that he was no longer paying $75.00 per week rent, or that he had purchased a property at Bean Creek on which he was living.

4. It was further contended that the debt could not be attributed solely to an error by the Commonwealth; that the payments were not received by the Applicant in good faith; that the Applicant knowingly failed to comply with his notification obligations; that the Applicant on the 27 April 1995 and in July 1998 knowingly made false statements that he was still paying rent; and hence it was not open to the Tribunal to waive the debt pursuant to ss 1237A(1) and 1237AAD of the Act.
   CONSIDERATION

5. The Applicant does not dispute, and the Tribunal accepts the fact that the Applicant ceased paying rent on 10 October, 1994 and that as a result of this he had received an overpayment of rent assistance of $5,895.90.  However, the Applicant disputes that this overpayment is a debt owed by him to the Commonwealth because the overpayment was as a result of administrative errors made by the Commonwealth.

6. Central to consideration in this matter is an assessment of the Applicant's credit.

7. In this regard the Tribunal notes that the Applicant, in making his initial claim for disability support pension also knew, as stated in his oral evidence, that he was making a claim for rent assistance.  The Applicant has stated that he received a letter from Centrelink advising him of payment of disability support pension but that he failed to read the back of the letter which contained information about the break up of his benefit into pension, rent assistance and pharmaceutical allowance; and also informed him of his obligations with respect to notifying Centrelink about changes, such as change of address and change in payment of rent.

8. The Tribunal is of the view that the letter from Centrelink is quite clear and that it would be reasonable to expect a claimant for social security benefits to read all of the letter.  The Applicant is a mature and educated man and the Tribunal has difficulty in accepting that he failed to read all of the letter that he admits receiving.

9. The Tribunal also is concerned that the Applicant notified Centrelink of his change of address (some six months after the change), and on notification failed to correctly state his rental situation.  The Tribunal does not accept the Applicant's contention that this omission was because he was unaware that he was receiving rent assistance.

10. Of further concern is the Applicant's responses, on two occasions, to a Centrelink officer when questioned about rent.  The Tribunal accepts the Respondent's contention that the Applicant's response to questions asked of him are not the responses one would reasonably expect from someone who was totally unaware that he was receiving rent assistance.

11. With respect to the Applicant's conviction in the Lismore Local Court of an offence of knowingly obtaining a pension which was payable only in part because he owned and resided in his home, details of the Court's reasons and findings for this conviction were not before the Tribunal.  However, the Tribunal has accepted the fact of his conviction, and while the conviction is not the foundation for determining this matter, it does provide evidence which goes against the credit of the Applicant.

12. After consideration of all of the material before it and the submissions of both parties, and taking into account the concerns expressed above, the Tribunal finds the Applicant is not a credible witness.

13. For the reasons given above the Tribunal is not satisfied that the Applicant was not aware that he was in receipt of rent assistance after 10 October 1994.  The Tribunal also is not satisfied that the Applicant was unaware of his notification obligations as set out in Centrelink's letter dated 18 April 1994, which the Applicant received.

14. The Tribunal has also considered the Applicant's contention that he did not receive any of the five letters sent to him in 1996 concerning his social security payments and obligations. The Tribunal accepts the Respondent's contention that pursuant to ss 23(IL) and 1302A of the Act and ss 28A and 29 of the Acts Interpretation Act 1901, the letters constitute notices of decision under the Act and recipient notification notices, and that accordingly Mr Woodroffe is to be taken as having received them.

15. The Tribunal finds that the Applicant failed to comply with the provisions of the Act and hence there is a debt of $5,895.90 due by the Applicant to the Commonwealth.

16. The Tribunal also finds, pursuant to s 1237A of the Act, that Centrelink was in error in failing to validate the Applicant's rent when he notified his change of address in April 1995. However, the Tribunal is also satisfied that the principal error in this matter was the Applicant's failure to comply with notification requirements imposed under the Act. It follows that the Tribunal finds that waiver of the Applicant's debt pursuant to s 1237A of the Act is not appropriate. For the reasons already given the Tribunal is also satisfied that, pursuant to s 1237AAD of the Act, there are no special circumstances in this matter which would warrant waiver.

17. The Tribunal affirms the decision under review.

I certify that the twenty four preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way (Member)

Signed:         .....................................................................................
           B. Hitchcock, Secretary

Date of Hearing  16 July 2001
Date of Decision  22 August 2001
Applicant  Self Represented
Advocate for the Respondent       Mr P Kanowski