Zuijderwijk and Secretary, Department of Family and Community Ser Vices

[2003] AATA 258

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 258

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/716

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WESLEY ZUIJDERWIJK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date10 March 2003          

PlaceBrisbane

Decision The Tribunal affirms the decision to raise and recover an overpayment of Youth Allowance in the sum of $735.35 and to refuse to waive the right to recover the debt.

..............(Signed).................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – overpayment of Youth Allowance – waiver – administrative error – whether received in good faith – whether special circumstances

Social Security Act 1991: s1237A, 1237AAD

REASONS FOR DECISION

Deputy President Don Muller       

1.This is an application to raise and recover an overpayment of Youth Allowance to the applicant, in the sum of $735.35.

2.The facts are not in dispute and the Tribunal finds that:

(i)In the year 1999, Wesley Zuijderwijk was in receipt of “Youth Allowance”.

(ii)In October 1999, the applicant informed his local Centrelink office that he would be required to live away from his home for a two week period between 30 October 1999 and 13 November 1999, to do examinations in Charters Towers.  He applied for, and was granted, a “Living Away from Home Allowance” for the period he was to live away from home.

(iii)Due to an administrative error, the extra payment continued to be paid beyond the fortnight which the applicant had applied for.

(iv)On 13 December 1999, the applicant’s father notified his Centrelink office that the extra allowance was still being paid.

(v)The Living Away From Home Allowance continued to be paid to the applicant after 13 December 1999.

(vi)On 21 March 2000, the applicant’s father again contacted his Centrelink office to tell the Centrelink officer that his son was still receiving the extra allowance.

(vii)The extra allowance was stopped on 22 March 2000.

(viii)On 22 March 2000, Centrelink advised the applicant that he had been overpaid the away from home part of the Youth Allowance from 14 November 1999 to 21 March 2000 and that a debt of $821.86 was owed.

(ix)There was a later re-evaluation of the situation which led to an extension of the period for the extra allowance to 17 November 1999.  This reduced the overpayment period and consequently the overpayment itself to $735.35.

3.Franz Zuijderwijk, the applicant’s father, submitted on behalf of his son that the debt should be waived due to administrative error pursuant to section 1237A(1) of the Act and/or the debt should be waived due to special circumstances pursuant to section 1237AAD of the Act.  Those sections provide as follows:

“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.

Waiver 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.”

4.On or about 26 March 2002 the Applicant agreed to repay the debt by instalments at the rate of $10.00 per fortnight.  The debt as at 27 February 2003 was $311.08.

5.There is no doubt and indeed it was conceded by the Respondent’s representative, that the debt is attributable solely to an administrative error made by the Commonwealth.

6.Nevertheless, the applicant knew at all times that he was not entitled to the away from home allowance beyond 18 November 1999.  He never at any stage beyond 18 November 1999 received the extra allowance with any belief that he was entitled to it.  Consequently, he cannot claim to have received the payments in “good faith”, within the meaning of that term in s.1237A of the Act, set out above.

7.Consequently, the provisions relating to waiver of the right to recover the debt contained in s.1237A do not apply to the Applicant.

8.In relation to special circumstances, Franz Zuijderwijk claimed that he and his family had dealt with Centrelink over many years and that their dealings were regularly acrimonious.  He claimed that Centrelink employees had subjected him and his family to abuse, stand-over tactics, mistakes in calculating allowances, loss of return forms, failure to acknowledge faults and many other problems.  He submitted, in effect, that in the circumstances of this case, Centrelink should be held accountable for the errors because if they are not so held, they will continue to behave in the reprehensible way that they have been.

9.The Tribunal did not embark on an enquiry to attempt to determine whether or not Mr. Zuijderwijk’s claims about Centrelink employees were true and makes no findings one way or the other about them.

10.The Tribunal takes the view that the circumstances claimed by the Applicant, even if true, would not be the special circumstances contemplated by s.1237AAD set out above.

11.The Tribunal affirms the decision to raise and recover the overpayment of Youth Allowance in the sum of $735.35 and to refuse to waive the right to recover the debt.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  28 February 2003
Date of Decision  28 February 2003
Written Reasons for Decision   10 March 20003
Applicant  Mr. F. Zuijderwijk, applicant’s father 
Respondent  Mr. T. Ffrench, Departmental advocate