Williams; Department of Family and Community Services [2000] AATA 23 (21 January 2000)

Last Updated: 25 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 23

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/165

General Administrative DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And DANIELLE WILLIAMS

Respondent

DECISION

Tribunal Deputy President TE Barnett

Date 21 January 2000

Place Perth

Decision 1. The decision of the SSAT dated 12 April 1999 is set aside. The decision made by a delegate of the Secretary, Department of Social Security on 17 November 1995 and affirmed by an authorised review officer on 6 August 1997 to raise and recover an overpayment of sole parent pension for the period 17 November 1994 to 2 November 1995 be reinstated. However, under s.1236(1C), the debt due to the Commonwealth is hereby written off from the date the original decision was made by the delegate of the applicant on 17 November 1995.

.....(Sgd) TE Barnett......................

Deputy President

CATCHWORDS

Social Security - Overpayment of Sole Parent Pension - Whether living in a marriage like relationship in the period under review - lack of credibility and corroborative evidence - waiver of debt inapplicable - write off appropriate under s.1236(1C) due to severe financial hardship

Administrative Appeals Tribunal Act 1975 - s.37

Social Security Act 1991 - ss 4, 249, 284, 1224, 1236(1A) & (1C), 1237AAD.

REASONS FOR DECISION

21 January 2000 Deputy President TE Barnett

2. This is an application by the applicant for a review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 12 April 1999 which set aside a decision by the Department to raise and recover an overpayment of sole parents pension for the period 17 November 1994 to 2 November 1995 amounting to $ 8,612.50. The matter was sent back to the Department for reconsideration and re-calculation in accordance with the direction that the (then) applicant was not living as a member of a couple between the above dates, except for a four week period in February 1995.

3. Mr S Ellis represented the applicant and the respondent represented herself. The Tribunal heard evidence from the respondent and had before it the T documents produced by the applicant in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.

factual background

4. The crux of this matter is that the applicant contends that the respondent was living in a marriage-like relationship with her then partner, Mr Neale Claydon, throughout the entire period under review. This would mean that the respondent was ineligible for sole parents pension pursuant to s.249 of the Social Security Act 1991 ("the Act") and that all monies received during that period were recoverable pursuant to s.1224(1) of the Act. The respondent claims that she only lived in a marriage-like relationship with Mr Claydon for a total of four weeks in the period under review and thus was entitled to receive the sole parents pension throughout that time (apart from the four weeks of cohabitation as a member of a couple).

5. The respondent, now aged 28, first met Mr Claydon when she was 17 years of age. She left her parent's home to travel with him around Australia in a van. At the time, the couple had $50 in cash for the trip. The respondent gave evidence that this period of time was marked by constant drug use (including heroin) on the part of Mr Claydon and a lifestyle that revolved around lying and deceit in order to "hustle" money from unsuspecting people. The respondent stated that Mr Claydon taught her "the art of lying", to the point that it became a source of income for them. She had her first child Jamie, now aged 10, within a year of commencing the relationship with Mr Claydon. The child was born in Melbourne and the respondent temporarily split up with Mr Claydon just prior to or soon after the birth. They remained separated for about one month and then resumed cohabitation and returned home to Perth, as the respondent had no support networks in the Eastern States.

6. In 1991 the respondent claimed that she separated from Mr Claydon for a time, when he was arrested and jailed for drug offences whilst she was pregnant with her second child Stephanie, now aged 8 years. During this time she applied for and received a Homeswest home in Langford in her own name in which to raise her family. Mr Claydon returned to the relationship for a short period of time and they stayed together again as a couple for a period. The respondent stated that it had become apparent to her by this stage that Mr Claydon was never going to support her or the children, because of his drug-centred lifestyle. According to the respondent, he had pawned almost all possessions of value that she owned. She also claimed that she was a victim of domestic violence on 7 or 8 occasions at the hands of Mr Claydon. She said that she continued to lie in order to get by and that her morals had "stooped very low" in order to put food on the table for her children. The respondent also admitted that she had arranged for friends to falsely state that she was living at their addresses when she was really living elsewhere.

7. The couple separated again and the respondent moved house to Armadale where she rented privately. Mr Claydon joined her for a four-month period. The respondent then moved to Queensland for 8 months where she stayed with her friend, Caroline Southern. Ms Southern was the partner of Mr Claydon's brother. Mr Claydon also went to Queensland, but the respondent says he tended to stay at places where he could readily obtain drugs, rather than staying with her.

8. The respondent said that in October 1994 she advised the Department that she was residing at her brother's property in Forrestfield and Mr Claydon was residing in High Wycombe (with her father).

9. In November 1994, the respondent's father had finished building a new home in Merriwa for the respondent, Mr Claydon and the children to live in. All the utilities were put into the respondent's name (which the respondent explained was because Claydon had a poor credit rating). According to the respondent, by the time they were meant to move in, they had yet again separated. The respondent initially told the Department that she never lived in the Merriwa property but had lived elsewhere with a girl friend, Francine Bingham. Mr Claydon was supposedly occupying the Merriwa property by himself throughout the period under review. The respondent has since admitted that this was untrue and that she herself, not Mr Claydon, had lived at the Merriwa address for the entire time, except for one week. She said that she lied about this because, even though she was genuinely renting the home from her father at $ 130 per week, her father had registered the house with the Department of Land Administration in the names of his three children (including the respondent). The respondent feared that, as a part-owner of the home, she would have been ineligible to receive rental assistance had she admitted to the Department that she was living there.

10. The respondent said that although Mr Claydon did not live there, he continued using the Merriwa address in order to receive mail, as he had no fixed address at the time. In addition, the respondent had been putting Mr Claydon's name down as the father on her children's school enrolment papers using the Merriwa address. The respondent also admitted lying to the school on another occasion by giving them a false address (a friend's address) in order to transfer her son from Merriwa Primary to Ocean Reef Primary School.

11. The respondent stated that Mr Claydon regularly visited the Merriwa address in order to see his children and that there was a brief period of reconciliation, which lasted approximately 4 weeks (January/February 1995). During this reconciliation period, the respondent's third child Ashley, now 4 years of age, was conceived. She stated that the relationship broke down again after following a familiar pattern of arguments, drug abuse and fights and Mr Claydon moved out within a month of the reconciliation at the Merriwa property. The respondent admits that she did not notify the Department of the brief period of cohabitation.

12. Following the period under review the respondent and Mr Claydon reconciled, cohabited and separated on a number of occasions. The couple had a fourth child (Lyndon) in October 1997, who tragically died of Sudden Infants Death Syndrome 10 weeks later. Following Lyndon's death, the couple reconciled for a time and Mr Claydon became involved with the SIDS Foundation. This was a very bleak time for the respondent and due to the anti-depressant medication she was taking, she spent much of her time barely aware of her surroundings and unable to properly care for, or interact with, her other children. The couple was evicted from their house after Mr Claydon defrauded the SIDS Foundation.

13. Sometime in 1988, the respondent ceased taking her anti-depressant medication and ejected Mr Claydon from the house in Wilson, which they were renting. She claims that she has not had anything to do with him since, apart from parental involvement because of the three children.

14. The respondent has been charged with fraud a number of times and currently has four fraud charges pending. These charges concern writing a number of cheques knowing she had insufficient funds in her account, in order to buy goods for her children. She acknowledges that she is responsible for these acts and will either be fined or have to undertake community service work.

15. The respondent is currently studying a full time course in Human Services at TAFE and intends to seek work in the welfare industry upon completion of her course in approximately two years time. She has been drawn to this area following the death of her son, Lyndon.

the legislation

16. Section 249(1) of the Act states that :

"... a person is qualified for a sole parent pension if: the person

(i) is not a member of a couple; "

17. In order to qualify as a member of a couple, section 4(2) of the Act states that the couple must be in a marriage-like relationship. The Secretary must have regard for the factors listed in section 4(3). These include, amongst others, cohabitation, sexual relations, the joint ownership of assets or property, the pooling of financial resources, the sharing of day to day household expenses, joint responsibility for the care of children and the perception that others have of the couple.

18. Section 284 of the Act states that a person in receipt of a Sole Parent Pension must give the Department notice of certain events occurring in their circumstances within 14 days. These "events" are ones that may have an effect on the ongoing eligibility to and payment of the pension. One such event is the requirement to notify the Department when a recipient of the pension commences living with a member of the opposite sex.

19. Section 1224(1) states that if:

" (a) an amount has been paid to a recipient by way of social security payment; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or false representation; or

(ii) failed or omitted to comply with a provision of this Act or the 1947 Act

the amount so paid is a debt due by the recipient to the Commonwealth".

20. In deciding whether such a debt should be recovered it is necessary to consider whether it should be waived or written off.

waiver

21. Section 1237AAD states :

"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 a 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."

22. The applicant therefore contends that as the respondent made a deliberate false statement to the Department regarding her accommodation and living circumstances, she is not entitled to the benefit of this section.

write off

23. Section 1236 states that:

" 1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.

....

1236(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of deductions from a person's social security payment, the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

1236(3) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section."

findings

24. The respondent's history of lies, deceit and fraud perpetuated whenever she felt it was in her best interests means that she has virtually no credibility in this matter. Over the years she has clearly spent some time living in a defacto relationship and some time living separately from Mr Claydon.

25. In the period under review, the applicant relies on the evidence of the respondent's own written statements that Mr Claydon was living at Merriwa where she now admits she was living herself. The only evidence that Mr Claydon was not living there with her is the evidence of her own statements made in support of her case. As previously stated, in light of her history of opportunistic dishonesty, the Tribunal is not able to give much weight to any uncorroborated self serving statements which she now makes.

26. It was open to the respondent to call evidence from friends, family or neighbours at Merriwa or from Mr Claydon himself (who did give evidence in the SSAT) in support of her claim that she lived alone at Merriwa except for one period of 4 weeks cohabitation which she now admits (possibly to explain how her child was conceived). The fact that without explanation she chose to call no such witnesses entitles the Tribunal to conclude that any such evidence would not have supported her case and it does draw that conclusion.

27. The result is that the respondent was not entitled to the sum of $8,612.50 received during the period under review and it is therefore a debt due to the Commonwealth. As previously stated, the fact that the debt arose as a result of false statements made by the respondent precludes the Tribunal from ordering that the debt be waived. With regard to write off, however, s. 1236(1A) states that:

" The Secretary may decide to write off a debt under subsection (1) if, and only if: ... (b) the debtor has no capacity to repay the debt..."

Section 1236(1C) further states that:

" For the purposes of paragraph (1A)(b), if a debt is recoverable by means of deductions from a person's social security payment, the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship."

28. The respondent gave evidence that she has previously been declared bankrupt. The respondent gave unchallenged evidence that her income from Centrelink, after paying outstanding debts, including funeral expenses, school fees and fines, is approximately $ 520 per fortnight net. After paying rent, bills, groceries and other expenses for the three children, she is generally left with $0 - $10 per fortnight with which to meet all other expenses (eg the costs of school swimming lessons for the children, TAFE fees etc). The respondent appears to be making a genuine effort at bettering her present situation by studying at TAFE in order to obtain future employment in the field she believes she can best assist others and obtain an income from which she can support her family. She has also been successfully raising her three children on her own over the past 18 months after resolving that Mr Claydon has been a negative influence in her life and that a future relationship between them is not in her interests. Despite this, the respondent has been fair in permitting regular access visits by Mr Claydon so that he may have a enjoy a relationship with his children. For these reasons, the repayment of the debt ($8,612.50) in any instalment from the respondent's income at this stage would cause her and her children severe financial hardship.

decision

29. The decision of the SSAT dated 12 April 1999 is set aside. The decision made by a delegate of the Secretary, Department of Social Security on 17 November 1995 and affirmed by an authorised review officer on 6 August 1997 to raise and recover an overpayment of sole parent pension for the period 17 November 1994 to 2 November 1995 be reinstated. However, under s.1236(1C), the entire debt due to the Commonwealth is hereby written off from the date the original decision was made by the delegate of the applicant on 17 November 1995. (As stated in s. 1236C, a debt that is written off under the Act can be "revived" at any future time, especially if there is a change in the respondent's circumstances.)

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President TE Barnett

Signed: ...............(Sgd) C O'Hara..............................

Associate

Date/s of Hearing 15 November 1999

Date of Decision 21 January 2000

Counsel for the Applicant Mr S Ellis

Solicitor for Applicant Secretary, Department of Family and Community Services

Counsel for the Respondent In Person

Solicitor for the Respondent