Karparten and Department of Family and Community Services [1999] AATA 51 (2 February 1999)

Last Updated: 11 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/423

GENERAL ADMINISTRATIVE DIVISION

)

Re

PETER VON KARPARTEN

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Deputy President T E Barnett

Date 2 February 1999

Place Perth

Decision

The Tribunal directs that the time for the making of an application for review of the decision of the Social Security Appeals Tribunal dated 6 July 1990, be extended to 20 October 1998.

..............(T E Barnett)..............

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - application for extension of time in which to apply for review of decision - applicant's appeal lodged 8 years after reviewable decision made - applicant overpaid sickness benefits and unemployment benefits - matter remitted to the Department for recalculation of debt - recalculation of debt took six months - applicant not notified of recalculated amount - Department contacted applicant eight years after reviewable decision for repayment of debt.

REASONS FOR DECISION

2 February 1999

Deputy President T E Barnett

1. This is an application by Peter Von Karparten ("the applicant") for the grant of an extension of time to lodge an application for the review of a decision of the Social Security Appeals Tribunal ("the SSAT"), dated 6 July 1990. The decision related to the overpayment of sickness and unemployment benefits.

2. At the hearing the applicant represented himself. The Department of Family and Community Services ("the respondent"), was represented by Mr Alan Jones, a departmental advocate. The Tribunal had before it the following exhibits:

* Application for the continuation of unemployment benefits, dated 8 December 1986 (A1);

* Folio 327 from the bundle of materials on departmental files of the respondent, obtained by the applicant under the Freedom of Information Act 1982 ("the FOI Act") (A2);

* Photocopies of pages 6-9 of the applicant's passport (A3);

* Folio 329 from the bundle of materials on departmental files obtained by the applicant under the FOI Act (R1); and

* Payment records "Employment Verification Report", dated 9 November 1986.

The Tribunal also took into consideration the entire bundle of materials on departmental files of the respondent that the applicant had obtained under the FOI Act.

BACKGROUND

3. On 13 October 1989 a decision was made by a delegate of the respondent to recoup overpayments of $26822.80 paid to the applicant as sickness benefits or unemployment benefits for the period between 18 June 1985 and 8 September 1988. The decision was made on the grounds that throughout that entire period he was not entitled to those benefits. The reason he was not entitled to benefits was said to be that he was receiving work care payments, or compensation payments, was subject to a preclusion period following the receipt of a lump sum compensation payment or he was actually receiving wages from employment.

4. The applicant sought review by the SSAT. At the SSAT hearing on the 21 June 1990 the applicant appeared and gave evidence.

5. In its reasons for decision the SSAT did not summarise the respondent's case. It commented:

"7. The Department's case is set out in its submission.

8. It is common to both parties.

9. It need not be restated."

6. In discussing the applicant's case, the SSAT referred to the applicant's confusion, including confusion about dates and figures. It said the applicant admitted the receipt of $3000 as a "a negotiated order" and that he made some mention of a figure of $49000.

7. The SSAT referred to a notification from the applicant's solicitors that he had received compensation payments totalling $52189 from 8 September 1987 to 3 March 1989. It noted that the applicant claimed to have spent $80000 in medical expenses related to the treatment of his heart condition.

8. In discussing the evidence, the SSAT focussed on "whether or not the applicant was employed at various times". It chose not to inquire fully into "a complete chronology of the applicant's dealing with his former employer and insurance companies."

9. The SSAT, in paragraph 52 seemed to exclude the period August 1986 to September 1988 from its considerations, saying:

"52. We take the view that from August 1986 a new situation arose and, if a claim is to made (sic) against the applicant in respect of the period August 1986 to September 1988 (being the last date for the calculation of the overpayment) then recovery should be sought under the compensation provisions of the legislation and not in respect of the applicant having failed to disclose income. If the Department is to recover under the compensation provisions a good deal of reseach (sic) will have to be undertaken."

10. In its findings the SSAT made some findings of fact relating to specific periods after March/April 1985. It refers to employers records showing continuity of payment through to August 1986 and seems to find that "during these months there was no entitlement to payment under the legislation" but it is not clear exactly which months are being referred to.

11. In paragraph 51 the SSAT says that:

"51. From 11 August 1986 we see from the former employer's records that the applicant was remunerated through Work Care with the payments received by him being very much later than the actual dates when the payments could or should have been made. We believe that it is during this period that the applicant also received lump sums."

but it excludes this period from its findings.

12. In paragraph 55 the SSAT says that "in certain periods the applicant was in a master/servant relationship and was not entitled to be paid under the legislation", but the findings do not make it sufficiently clear what those periods were. In paragraph 56 the Tribunal found that:

"56. There were other times when he was entitled to payment under the legislation and that ought to be credited to him."

13. At the conclusion of these very unsatisfactory written reasons the Tribunal made the following "decision":

"57. The Tribunal decided to set aside the decision under review and remit the matter to the Secretary with a direction that the overpayment be recalculated taking into account the entitlements to sickness benefit from 9 July 1985 to 15 August 1985 and to recalculate the overpayment between 12 August 1986 and 8 September 1988 taking into account the compensation provisions of the legislation."

No part of the delegate's decision was affirmed.

DELAY BY THE DEPARTMENT IN RECALCULATING THE DEBT

14. In view of its comments at paragraph 52 above it seems that the SSAT made no findings about the period between 12 August 1986 and September 1988, as recovery should have been sought under compensation provisions of the legislation. It set aside the whole of the decision under review and remitted the matter to the Secretary to recalculate entitlements to sickness benefits for one short period. Neither the balance of the decision, nor any part of the balance, was affirmed.

15. In this hearing before the Administrative Appeals Tribunal the applicant said he thought that he had substantially won his case before the SSAT and waited to see the Department's recalculation to see if any amount had to be repaid. He says he made several visits to the Social Security Office and discussed the possibility that claims by another man named Fernandez had been included on his file. Each time he inquired he was told that the matter was still being recalculated.

16. He said that in about December 1990 he notified the Social Security Office at Oakleigh that he was going overseas and gave his mother's address for future contact (128 Somerville Road, Hampden Park).

17. The applicant claims that he heard nothing more from the Department until contacted in July 1998 when a debt for $7615.26 was raised against him. He explains his failure to appeal on the basis that until he received the Department's recalculations he did not consider it was a final decision because he did not know what he was appealing against.

18. Having had the benefit of perusing materials on departmental files obtained by the applicant under FOI legislation, the Tribunal has gained some insight into the department's long delay in doing the calculation ordered by the SSAT.

19. File notes show that (understandably) the officers thought that the decision was unsatisfactory and they were considering taking the matter back to the SSAT for further findings to be made. They were also considering instituting criminal prosecutions against the applicant. There were several different calculations made but none finalised within the 28 day period for appeals. By 21 August 1990 a decision was made not to appeal the decision. By 28 November 1990 the file was lost.

20. By January 1992 staff were still trying to decide what to do. By February 1992 a recalculation had been made and on 6 January 1993 a decision was made to notify the applicant but the letter (sent to the address of the applicant prior to him moving overseas) was returned noted "moved". Some attempts were made to trace the applicant but there is no indication that his mother, whose address the Department had been given, was contacted. On 20 August 1993 the debt appears to have been written off.

21. There is an application on file, in the name of Peter Fernandez, applying for unemployment benefits. It is dated 30 September 1992 and notifies of change of address on 19 September 1992 to Unit 3, 1450 North Road, Clayton. There is no evidence that an attempt was made to contact him.

22. Sometime after this the applicant changed his name by deed poll to Von Karparten. There is a note that on 22 August 1996 the file was sent from Victoria to the respondent, then called "the Department of Social Security" ("the DSS") in Western Australia to follow up the overpayment. The follow-up action evidently proceeded in October 1998.

23. The applicant explained that his change of name occurred after his grandfather, of that name, died in Germany leaving him an inheritance. He decided to take his grandfather's name and notified DSS accordingly.

CONSIDERATION OF ISSUES

24. This case is plagued by contradictions and apparent inconsistencies between what the applicant now says and what the documents disclose, particularly his claim not to have received substantial compensation payments.

25. When considering whether to extend time to seek review of the SSAT decision of June 1990, however, the Tribunal is very disturbed by the unsatisfactory nature of that decision. Before the time for appeal begins to run it is essential that a final decision has been made. Because of the tentative, inferential nature of many of the findings it is not clear exactly what final findings were made. The decision under review was set aside without affirming any part of it. A recalculation was ordered, taking into account a short period of sick leave entitlement but leaving out specific findings required for the recalculation. Apparently the very large alleged overpayment related to receipt of compensation payments was excluded. Both parties had the option to seek review to the Administrative Appeals Tribunal but neither did so.

26. The matter was compounded by the fact that the Department mislaid the file for some years and the fact that after about 6 months, the applicant ceased to enquire whether he had a debt to pay and went overseas.

27. Both parties are now seriously disadvantaged in presenting evidence in this matter because of the long period of time which has passed, as essential records, on both sides, have been destroyed.

CONCLUSION

28. In view of the unsatisfactory aspects of the decision referred to above, the Tribunal sees merit in the applicant's claim that until the recalculations were completed and served on him, he did not know the monetary effects of the decision or whether he may wish to seek a review. For these reasons, despite the difficulties caused by the destruction of records and despite apparent inconsistencies in the evidence given in this matter the Tribunal finds that it is in the interests of justice that the time for the applicant to seek review by this Tribunal of the decision of the SSAT be extended to 20 October 1998.

DECISION

29. The Tribunal directs that the time for the making of an application for review of the decision of the SSAT dated 6 July 1990 be extended to 20 October 1998.

I certify that this and the 7 preceding pages are a true copy of the decision and reasons for decision herein of Deputy President T E Barnett

Signed: Catherine Osborn .....................................................................................

Associate

Date/s of Hearing 15 January 1999

Date of Decision 2 February 1999

Counsel for the Applicant In person

Counsel for the Respondent Mr Alan Jones, Department of Family and Community Services