Younan and Secretary, Department of Employment and Workplace Relations

[2006] AATA 738

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 738

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2006/171

GENERAL ADMINISTRATIVE  DIVISION

Re:         ROBINSON YOUNAN

Applicant

And:       SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             29 August 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

(sgd) Regina Perton

Member

SOCIAL SECURITY – Newstart Allowance – failure to inform Centrelink of overseas travel – overpayment – medical treatment overseas – whether eligible for payment while overseas ‑ waiver of debt – whether special circumstances exist – decision under review affirmed

Social Security Act 1991 ss 1212, 1212B, 1217, 1223(1), 1223(1AB), 1237A(1), 1237(1A), 1237AAD

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005

Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

REASONS FOR DECISION

29 August 2006  Regina Perton, Member

1.      Robinson Younan, who is 52 years old, has faced health and employment difficulties for a long time.  He has been receiving income support for much of the last 20 years.  He is currently on Newstart Allowance (NSA).  He went overseas to seek work but in March 2004, while in Malaysia to explore possibilities, he had an accident and was hospitalised.  He has required extensive dental work as a consequence.  In December 2004, he went to Thailand for treatment.  Unfortunately, he did not inform Centrelink, which is the agency representing the respondent, that he was travelling overseas.

2.      The rules governing whether a person is eligible to be paid NSA when out of Australia is complex.  Eligibility for payment is affected by a person’s age, his/her status in relation to a requirement to seek work and the reason for the travel overseas.  Regardless of the reason for the travel, all income support recipients are informed that they must advise Centrelink, before they travel overseas, that they are doing so.

3.      Mr Younan left Australia on 19 December 2004.  He was paid NSA for 19 and 20 December 2004 but did not receive his next fortnightly payment as he had not lodged the requisite claim form.  He returned to Australia on 14 January 2005.  Mr Younan’s NSA payments were recommenced on 17 January 2005 with a resumption date of 13 January 2005, the date he left Thailand.  He was also incorrectly paid a second time for 19 and 20 December 2004.  On 24 January 2005, Centrelink realised its error and raised a debt for $114.39 which was the amount it calculated Mr Younan had been overpaid.   Mr Younan sought review of the decision to raise the debt.

4.      An authorised review officer (ARO) determined that the debt had to be repaid and that it had been incorrectly calculated.  The debt was increased to $143.00 to include the double payment of 19 and 20 December 2004 and 13 January 2005.  Further debts were subsequently raised for periods when Mr Younan was out of Australia on earlier trips had been out of Australia but these are not the subject of this review.

5.      On 20 January 2006, the Social Security Appeals Tribunal (SSAT) affirmed the decision.  Mr Younan applied to this Tribunal for review of the decision on 6 March 2006. 

6.      The specific issues to be considered by the Tribunal are:

·Was Mr Younan eligible for NSA while overseas?

·Does Mr Younan owe a debt to the Commonwealth?

·Should the debt be waived?

Was Mr Younan Eligible for NSA while Overseas?

7. Section 1217 of the Social Security Act 1991 (the Act) sets out the circumstances in which Centrelink benefits can be paid if the recipients are out of Australia.  In relation to NSA, all recipients are eligible for a maximum period of 13 weeks in limited circumstances, namely:

1217.(4)…

A temporary absence for any of the following purposes:

(a)       to seek eligible medical treatment;

(b)       to attend to an acute family crisis;

(c)      for a humanitarian purpose.

…

8.      The term eligible medical treatment is defined in s 1212 of the Act:

…

eligible medical treatment, in relation to a person, means medical treatment of a kind that is not available to the person in Australia.

9.      The term humanitarian purpose is defined in s 1212B of the Act:

For the purposes of this Part, a person’s absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:

(a)for the purpose of involvement in custody proceedings, criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person) or other legal proceedings; or

(b)for purposes relating to the adoption of a child by the person; or

(c)for a purpose specified in the regulations for the purposes of this paragraph.

10.     There is no suggestion that Mr Younan went overseas in relation to an acute family crisis.  He has not claimed, nor is the Tribunal satisfied, that his reason for leaving Australia was for humanitarian purposes.

11.     Mr Younan submitted that he should be paid NSA as he had gone overseas for dental treatment as it was cheaper and more accessible to him in Thailand.  Furthermore, he preferred the manner in which the dental treatment was undertaken in Thailand to that in Australia.  He had not gone away for a holiday.

12.     Mr Younan told the Tribunal that he was not required to look for work while on NSA due to his health.  He had been exempted from the activity test on the basis of his doctor’s certification that he was not fit for work.  He was in Malaysia exploring the possibility of working part-time in an import/export business when he was struck by a motor bike.  He was hospitalised.  His injuries included broken teeth.  He was unable to travel back to Australia for some time due to the nature of his injuries.  He had no travel insurance to cover the cost of his treatment overseas.  He eventually received a small amount of compensation to cover medical costs resulting from the accident.

13.     Mr Younan said that he had been quite excited in December 2004 when, on short notice, the opportunity arose for him to go to Thailand to have dentures made.  Given seasonal factors, it was not easy to get a ticket.  He did not let Centrelink know before he left but said that he tried unsuccessfully to contact Centrelink from Thailand.  There was a slight setback in his treatment that resulted in him staying a few days longer than he had anticipated; but he was very happy with the dentures and his treatment there.  He said that it would have cost significantly more in Australia with a private dentist and he would have found difficulty in meeting the cost.  There is also a considerable waiting period to access public dental treatment.  Mr Younan said that his dental injuries resulted in ongoing pain which has now been resolved through the extraction of his teeth and the supply of dentures. 

14.     Mr Younan submitted that as he was overseas for medical treatment, he should have remained eligible for NSA while undertaking that treatment.  Ms J Hume, representing Centrelink, submitted that there is no evidence that the treatment received by Mr Younan was not available in Australia.

15. Section 1212 of the Act requires that the medical treatment for which the person went overseas is medical treatment of a kind that is not available to the person in Australia.  While the dental work required by Mr Younan may well have been more expensive and/or may have been delayed had it been undertaken in Australia, there is no evidence that treatment of that nature was not available to him in Australia. Hence, the Tribunal finds that the medical treatment in Thailand does not meet the narrow definition of that term in s 1212 of the Act.

16.     At the time that Mr Younan was in Thailand having treatment there was a further concession in place which allowed certain persons aged 50 or more to be paid NSA while overseas.  That provision was repealed in December 2005 by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005, N°. 154, 2005, but it is still applicable to this matter. Item 15A of s 1217(5) of the Act allowed for NSA payments, for a temporary absence from Australia for up to 13 weeks, to persons aged at least 50 years who were subject to a NSA Activity Agreement. Mr Younan indicated that he had not been required to enter into an NSA Activity Agreement because of his state of health and upon his doctor certifying that he was not fit for work. He expressed the opinion that it was unfair that someone who was well enough to look for work could go overseas for up to 13 weeks and still be paid NSA whereas he had no such entitlement. The Tribunal agrees that it is somewhat odd that there was a more generous concession available to those whose job network provider decided they should enter into a Newstart Activity Agreement, than to those who were not required to do so. Nonetheless, that was the legislation at the time. Special provisions for portability of NSA for those 50 years of age are no longer available. The Tribunal finds that Mr Younan did not meet Item 15A of s 1217(5) of the Act at the time he went to Thailand.

17.     Therefore, the Tribunal finds that Mr Younan was not eligible to be paid NSA while in Thailand for dental treatment.

Does Mr Younan have a debt to the Commonwealth?

18. Section 1223(1) of the Act allows the Commonwealth to raise a debt if a person is paid a social security payment to which he is not entitled. Section 1223(1AB) provides that a debt can be raised whether the payment was due to a computer or administrative error on the part of Centrelink or due to the actions of the recipient.

19.     Centrelink has calculated the debt for 19 and 20 December 2004 as $114.39 and for 13 January 2005 as $28.60 on the basis that Mr Younan was not eligible for NSA on those dates.  The Tribunal is satisfied that the Centrelink calculations are correct and that Mr Younan owes a debt to the Commonwealth of $143.00 for NSA incorrectly paid to him while he was overseas. 

20.     Mr Younan was paid twice for 19 and 20 December 2004 due to an administrative error by Centrelink.  This constituted part of the total debt. 

Should the Debt be waived? 

21. Section 1237A(1) of the Act provides for waiver of a debt arising from solely from administrative error:

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).

1237A(1A)  Subsection (1) only applies if:

(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

22.     Mr Younan conceded that he had not informed Centrelink that he was travelling overseas prior to going to Thailand.  Therefore, the debts incurred for the initial payments for 19 and 20 December 2004 and 13 January 2005 are not due to administrative error and cannot be waived pursuant to s 1237A of the Act. 

23.     Centrelink has conceded that the second payment for 19 and 20 December 2004 of $57.20 was the result of an administrative error on its part.  However, it has submitted that Mr Younan is not entitled to waiver of that debt because the debt was raised promptly after the incorrect payment.  The duplicate payment of $57.20 was made on 19 January 2005 and the debt was raised on 24 January 2005.  This was less than 6 weeks from the date of payment.  The Tribunal accepts the respondent’s submission and finds that Mr Younan is not eligible for waiver of the debt for the duplicate payment.

24. The only other waiver provision in the Act applicable to Mr Younan is s 1237AAD of the Act which provides for waiver of the debt in special circumstances:

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.

25.     The term special circumstances is not defined in the legislation.  For the Tribunal to use its discretion to determine that Mr Younan’s situation constitutes special circumstances, it must be satisfied that there is something to make the case stand out from the usual or the ordinary.  In Ryde v Secretary, Department of Family and Community Services [2005] FCA 866, Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases.  Branson J stated that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.

26.     The Tribunal accepts that Mr Younan has health and financial problems.  However, the Tribunal is not satisfied that the situation that Mr Younan finds himself is vastly different from other social security recipients who have incurred debts due to either misunderstanding or overlooking legislative requirements.  The hardship or unfairness Mr Younan may have suffered is not sufficient to justify departure from the general rule in this particular case.  Mr Younan remains on a social security benefit and is able to repay the debt in instalments taken out of his fortnightly payments.  The amount to be withheld per fortnight is negotiable. 

27.     The Tribunal is not satisfied that the circumstances in this case constitute special circumstances (other than financial hardship alone). Hence, the waiver provisions of s 1237AAD of the Act do not apply.

28.     The Tribunal finds that Mr Younan owes a debt to the Commonwealth for the NSA he received while he was out of Australia in December 2004 and January 2005.

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  22 June 2006
Date of decision:  29 August 2006
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms J Hume, Centrelink