Yorke and Secretary, Department of Family, Community Services and Indigenous Affairs

[2006] AATA 909

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos N2006/568

& N2006/569

GENERAL ADMINISTRATIVE DIVISION		)
Re		MR DONALD YORKE & MRS GERALDINE YORKE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS  

Respondent

DECISION

Tribunal MS N BELL, Senior Member

Date26 October 2006   

PlaceSydney

Decision The decisions under review are affirmed.

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

Ms N Bell  
  Senior Member

Centrelink – Overpayment of Age Pension – Debt Payable to Commonwealth - Should Debt be Recoverable – Administrative Error – Receipt of Overpayment in Good Faith – Special Circumstances –  Decision Under Review Affirmed

Social Security Act 1991

Social Security (Administration Act) 1999

Acts Interpretation Act 1901

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

REASONS FOR DECISION

Ms N BELL, Senior Member         

1.      In 1990 Mr Yorke retired from his full-time work as an art teacher.  For a few years, he and his wife, who had not worked for a long time, survived on his earnings from casual teaching and from a small British pension they each receive.  On the recommendation of a financial adviser, Mr Yorke claimed the age pension, as did Mrs Yorke.

2.      Mr Yorke continued to earn income from irregular, but reasonably frequent, casual teaching.  These earnings, though of great assistance, have created problems over the years.  Debts of overpayment of age pension were raised against Mr and Mrs Yorke in 2003.  Ultimately, the debts were waived, because Centrelink considered it had given Mr Yorke some incorrect advice that meant he did not understand his obligation to advise Centrelink about his income.

3.      However, further debts of overpayment were raised by Centrelink for the period 17 February 2004 to 5 October 2004.  Initially, the amount for each Mr and Mrs Yorke was $4060.04, in respect of the period 18 June 2003 to 5 October 2004.  On review, an officer of Centrelink decided to waive the part of each debt that had arisen prior to 17 February 2004.  This left debts of $1775.53 each.  These debts, and the decisions to recover them, were affirmed by the Social Security Appeals Tribunal.  Mr and Mrs Yorke seek review of that tribunal's decision.

issues

4. Although Mr Yorke, who spoke at the hearing on his and his wife’s behalf, said he does not understand how the overpayment amounts have been calculated, he does not dispute the amount. The officer of Centrelink who calculated the amounts was available to give evidence of how the calculation was made, but when offered, Mr Yorke did not require his attendance. I am satisfied, in the absence of any other evidence, that the calculations are correct. I am also satisfied that, as payments in excess of entitlement, the overpayments are debts due to the Commonwealth under section 1223(1) of the Social Security Act 1991.

5.      The only issue that remains is whether the debts should be recovered.  There is no question of the debts being written off, given Mr and Mrs Yorke's continued receipt of age pension.

6.      There are two provisions of the Act that may allow for waiver in the circumstances of Mr and Mrs Yorke's case.  Section 1237A allows waiver of the debt where the debt was caused solely by an administrative error made by the Commonwealth and the payments were received in good faith.  Section 1237AAD allows for waiver where the person concerned did not knowingly fail to comply with a requirement of the Act and there are special circumstances that make it desirable to waive.

7.      The questions raised by these provisions are the issues in this application.

were the debts caused solely by administrative error?

8.      The answer to this question is no.

9.      Two letters were sent to Mr Yorke on 12 March 2004 and 19 March 2004, noting a combined annual income amount of $3539.50 and advising Mr Yorke that he must notify Centrelink if, among other things, his income increases.  Mr Yorke said he did not receive these letters.  However, he agreed they had been sent to his correct address.

10. In any event, the notices are deemed to have been given by virtue of the operation of section 5 of the Social Security (Administration) Act 1999 and section 28A of the Acts Interpretation Act 1901.

11.     Had Mr Yorke responded to the letters with advice of his actual income, then his rate of age pension, and that of Mrs Yorke would have decreased and the overpayment debt and would not have arisen.

12.     Mr Yorke said that, in relation to the previous debt raised, he had given permission to Centrelink to contact his tax agent for the purpose of obtaining information about his taxable income.  He said he thought this was an ongoing arrangement and that Centrelink would simply obtain the information from the tax agent when necessary.

13.     I also note that, on 18 February 2004 and 10 March 2004, an officer of Centrelink discussed with Mr Yorke the requirement for him to advise of all income received by him so that he would not be overpaid.  These discussions took place in the context of the earlier debt that had been raised.

14.     On this basis, I am satisfied that Mr Yorke was properly and fully advised by Centrelink of his notification obligations and the overpayment between February and October 2004 did not arise out of an error by Centrelink.  Waiver on the basis of administrative error is therefore not available.

15.     I noted Mr Yorke's concern that he has been misunderstood by Centrelink on many occasions and that in some instances, Centrelink has made errors.  While I am sympathetic to the difficulties that can arise in dealings with a large bureaucracy, the misunderstandings and areas identified by Mr Yorke did not give rise to the overpayment.

are there special circumstances?

16.     Mr Yorke described his current financial circumstances.  It is clear that he and Mrs Yorke must manage their budget very carefully and it is not surprising that, on their very limited income, they are sometimes unable to make ends meet.  In particular, Mr Yorke described a $7,000 credit card debt that he services with his and his wife's British pension. He also noted that continual increase in the value of his unencumbered home gives rise to increases in council rates.

17.     Mr Yorke now does little casual teaching and so his income is reduced.

18.     Mr Yorke also gave evidence of his health problems, including major heart surgery in 1997, the removal of a cancer and arthritis.  He said Mrs Yorke has severe depression but has not sought medical treatment.

19.     Mr and Mrs Yorke have a daughter who lives overseas and with whom they have little contact.  Their son passed away tragically years ago.

20.     The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 is often quoted in relation to the interpretation of "special circumstances". In that decision, the Tribunal said at 6 ALD 3:

"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."

21.     While Mr and Mrs Yorke’s circumstances are difficult, given their health problems and their tight financial situation, their circumstances are not unusual, uncommon or exceptional for people of their age.  There is no aspect of their circumstances that could be regarded as “special”.

22.     Having reached this conclusion, it is unnecessary for me to consider whether either of them knowingly failed to comply with their obligations under the Act.

23.     Recovery of the debts should not be waived.

decision

24.     The decisions under review are affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed          .................. [ Sanjiv Shah ]………………
  Associate

Date of Hearing  20 September 2006
Date of Decision  26 October 2006

Representative for the Respondent        Pankaj Sharma