Pinnell and Secretary, Department of Family and Community Services [2000] AATA 119 (18 February 2000)

Last Updated: 1 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/124

GENERAL ADMINISTRATIVE DIVISION )

Re LESLIE PINNELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 18 February 2000

Place Hobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

Social Security - overseas age pension - whether UK Housing Benefit is classified as income under the Social Security Act.

Social Security Act 1991 - s.8

Secretary, Department of Social Security v Davies (1997) 75 FCR 597

REASONS FOR DECISION

18 February 2000 Ms A F Cunningham (Part-time Member)

1. The applicant has sought the review of a decision made by an authorised review officer on 15 February 1999 which affirmed a decision of a Commonwealth Service Delivery Agency ("Centrelink") delegate of the Secretary of the Department of Family and Community Services on 11 December 1998 to recover a debt as a result of an overpayment of pension following advice as to the receipt of a UK Housing Benefit, but which decision varied the amount of recoverable debt from $6,145.70 to $5,696.00.

2. Both parties agreed to the Tribunal deciding the appeal on the basis of the material before it, as the applicant currently resides in England. This material consists of the T documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.

3. As stated above the decision under review was made as a result of information received from the applicant that she was in receipt of a UK Housing Benefit, which Benefit it is contended by the respondent, is classed as income under the provisions of the Social Security Act 1991 ("the Act").

4. It is the applicant's contention that she was at no time aware that this Benefit would be classed as income and had acted in a truthful and honest manner in completing the information requested of her by the respondent Department. The applicant submits that she had worked in Australia from the age of 14 years and apart from a few short years of childbearing, paid taxes until her mid sixties. The applicant also submitted that as she had delayed her overseas pension claim until her mid sixties this factor could be balanced against the alleged debt owed by her to the Commonwealth. The applicant maintains that her financial position is dire, that she has no other sources of income, for example from a superannuation scheme, and asks that the Tribunal take these factors into account in determining the appeal.

5. In the applicant's letter to the Tribunal dated 27 July 1999 she attached a photocopy of a rent book which, she claims, indicates that when she was asked by an officer of the respondent Department on 28 October 1992 about her financial circumstances, she was not in receipt of any benefit. The applicant maintains that according to the documents that she supplied to the Tribunal, her first benefit was posted on 8 November 1992.

6. The issues for this Tribunal to determine are firstly whether the UK Housing Benefit is income for the purposes of the Act; secondly did the applicant have an obligation to advise the respondent Department of the receipt of the UK Housing Benefit; and thirdly has an overpayment been raised which is owed by the applicant to the Commonwealth, or are there special circumstances which allow for a waiver.

7. The issue as to whether the UK Housing Benefit is income for the purposes of the Act was decided in the affirmative by the Federal Court in the decision of Secretary, Department of Social Security v Davies (1997) 75 FCR 597 and there is now no dispute that this is the situation.

8. The definition of "income" under the Act is particularly broad, s.8 states:

"'income', in relation to a person, means:

(a) an income amount earned, derived or received by the person for the person's own use or benefit; or

(b) a periodical payment by way of gift or allowance; or

(c) a periodical benefit by way of gift or allowance;

but does not include an amount that is excluded under subsection (4), (5), (7A) or (8)."

9. The Federal Court concluded that the UK Housing Benefit was not included in the list of exemptions under subsections (4), (5), (7A) or (8).

10. The provisions of s.68 provide that a notice can be issued to pension recipients requiring them to advise of particular changes in circumstances. The T documents reveal and there is no dispute from the applicant that such an "obligation notice" dated 9 June 1992 was forwarded to the applicant. That notice required the applicant to advise the respondent within 28 days if her income became more than $56.19 per week. The T documents reveal and there being no dispute by the applicant, the Tribunal finds that the applicant did not notify the respondent Department of the receipt of her UK Housing Benefit until she completed a questionnaire in August 1998.

11. The income and assets review form contained at T6 completed by the applicant on 28 October 1997, contains a statement by the applicant to the following effect:

"I know I must tell the Australian DSS of any changes in my circumstances".

In that same form when the applicant was asked whether she received any income from the following: "pension or other local Government assistance other than your Australian Social Security pension (e.g. UK Pension, Supplementary benefit, INPS, INAII, AOW/Bisjstand, IKA or other)" the applicant responded "No".

12. Whilst the Tribunal accepts the applicant's contention that she was not aware that her UK Housing Benefit would be classed as income, and it is unfortunate that this type of benefit is not specifically identified on the relevant form, nevertheless the applicant acknowledged her obligation to advise of any change in circumstances and it appears that she failed to do so until she responded to a questionnaire on 2 August 1998. Because of the applicant's failure to notify the respondent of the receipt of her UK Housing Benefit she continued to receive her age pension as previously calculated under s.1064 of the Act and as a result was overpaid. In accordance with the provisions of s.1224 that overpayment amounts to a debt owed to the Commonwealth and must be repaid.

13. The respondent contends that the applicant was in receipt of the UK Housing Benefit since October 1992. Further documents submitted to the Tribunal by the applicant indicate that the benefit was first posted on 8 November 1992, but as the applicant concedes was backdated, presumably to a date in October 1992. Whilst it may be correct that the applicant was not necessarily aware of the receipt of her benefit on 28 October 1992, there is no dispute that she did not advise the respondent of the receipt of this benefit until 2 August 1998, despite having received a notice on or around June 1992 advising of her obligation to notify of any change in her financial circumstances within 28 days of that change occurring. The further information provided by the applicant showing the rent entries does not conflict with the calculations of the respondent which are based on the receipt of the UK Housing Benefit from 8 October 1992. The applicant acknowledges that whilst the first entry did not occur until 8 November 1992 it was backdated and covered an earlier period. There being no further evidence before this Tribunal concerning the calculations of the overpayment, the Tribunal accordingly accepts the respondent's calculations as contained in the T documents.

14. As there is no evidence before the Tribunal of an administrative error in the calculation of the period of the debt, there can be no justification for waiving the debt in accordance with the provisions of s.1237A of the Act.

15. In addressing whether the debt should be waived in special circumstances under s.1237AAD, whilst the Tribunal accepts the applicant's contention that she did not knowingly make a false statement or false representation, the Tribunal is not satisfied that there are special circumstances which must be other than financial hardship alone, that make it desirable to waive the debt. The term "special circumstances" has been interpreted by the courts to mean unusual, uncommon or out of the ordinary. The Tribunal is unable to conclude on the material before it that the applicant's circumstances are sufficiently unusual or out of the ordinary to come within the meaning of the term as interpreted by the courts. Financial hardship alone cannot justify a waiver under this section. The applicant has not disputed that she received advice informing her of her obligation to inform the respondent Department of any change in her circumstances. Whilst the Tribunal accepts that the applicant was unaware that her UK pension would be classed as income, nevertheless it was a change in circumstances of which she was obliged to notify the respondent and failed to do so. It was as a result of her failure to notify within the 28 days as required that resulted in the overpayment. The factors as outlined in paragraph 4 above are not sufficiently unusual, uncommon or out of the ordinary to amount to being "special circumstances" within the meaning of the Act.

16. As the Tribunal is unable to conclude that the present circumstances satisfy the requisite legislative provisions for a waiver, the decision under review is accordingly affirmed. This means that the appeal is not successful.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing Overseas application - matter decided on the papers.

Date of Decision 18 February 2000