"VZN" and Department of Family and Community Services [2000] AATA 379 (18 May 2000)

Last Updated: 25 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 379

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº V99/943

GENERAL ADMINISTRATIVE DIVISION)

Re "VZN"

Applicant

And SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal: Mrs H.E. Hallowes, Senior Member

Date: 18 May 2000

Place: Melbourne

Decision The decision under review is affirmed.

(sgd) Elspeth Hallowes

Senior Member

SOCIAL SECURITY -- rent assistance -- whether liable to pay rent -- issue as to where applicant living during relevant period -- whether overpaid rent assistance -- whether debt should be waived

Administrative Appeals Tribunal Act 1975 ss.35, 37

Social Security Act 1991 ss.11, 13, 1064, 1224, 1237AAD

Social Security (Administrative) Act 1999

Social Security (Administration and International Agreements) (Consequential Amendments)

Act 1999

REASONS FOR DECISION

18 May 2000 Mrs H.E. Hallowes, Senior Member

1. The Tribunal notes that relevant provisions with respect to its jurisdiction have changed under the Social Security (Administrative) Act 1999 and the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999.

2. When the matter first came on for hearing before the Tribunal, the applicant who was representing herself, appeared by video link. Mr D. Perdon, of Centrelink, appeared in person representing the Secretary to the Department of Family and Community Services ("the Secretary"). The Tribunal made an Order under section 35(2) of the Administrative Appeals Tribunal Act 1975 ('the AAT Act") being satisfied that the applicant should not be identified due to the nature of some of the evidence.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the AAT Act ("the T documents") together with a considerable amount of other material provided to the Tribunal by both parties during the two days of hearing. The applicant had provided documents to the Social Security Appeals Tribunal ("the SSAT") which were not included amongst the T documents and Mr Perdon obtained copies of these for the Tribunal. The applicant faxed copies of some documents to the Tribunal on the first day of hearing and on the second day of hearing she provided it with a large number of further documents with respect to payments she said she had made with respect to a house she said she was renting during the relevant period. The second day of hearing took place in a provincial centre close to where the applicant resides and she was able to attend. The parties were given leave at the end of the second day of hearing to make written submissions with respect to the further documents which had been provided to the Tribunal.

4. The applicant is paid disability support pension under the Social Security Act 1991 ("the Act"). It was the applicant's contention that she was entitled to be paid rent assistance. The Act provides, so far as is relevant to that issue:

11(4) For the purposes of this Act:

(a) a person who is not a member of a couple is a homeowner if:

(i) the person has a right or interest in the person's principal home; and

(ii) the person's right or interest in the home gives the person reasonable security of tenure in the home; and

. . .

13(1) In this Act, unless the contrary intention appears:

. . .

"ineligible homeowner" means a homeowner other than:

(a) a person who is a homeowner by virtue of paragraph 11 (4) (c) (proceeds of sale of principal home disregarded for 12 months); or

(b) a person who:

(i) is absent from the person's principal home, in relation to which the person is a homeowner; and

(ii) is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary's opinion is likely to need, that level of care in a private residence for at least 14 consecutive days; and

(iii) has been absent from the principal home for less than 2 years while providing care as described in subparagraph (ii); or

(c) a person who is in a care situation but is not residing in a retirement village; or

(d) a person who pays amounts for the use of a site for a caravan or other vehicle, or a structure, that is the person's principal home; or

(e) a person who pays amounts for the right to moor a vessel that is the person's principal home;

. . .

"rent" has the meaning given by subsections (2) and (4);

. . .

13(2) Amounts are rent in relation to the person if:

(a) the amounts are payable by the person:

(i) as a condition of occupancy of premises, or of a part of premises, occupied by the person as the person's principal home; or

. . .

1064-D1 An additional amount to help cover the cost of rent is to be added to a person's maximum basic rate if:

(a) the person is not an ineligible homeowner; and

(b) . . .

(c) the person pays, or is liable to pay, rent (other than Government rent); and

. . .

5. The T documents disclose that on 28 April 1999 a decision was made by a delegate of the Secretary that the applicant had been paid rent assistance between 30 May 1996 and 9 March 1999 of $5453.80 to which she was not entitled (T18) and that she owed a debt to the Commonwealth under section 1224 of the Act, which provides:

1224(1) 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 a false representation; or

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

(c) (Omitted)

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

Note: if the person does not pay the debt or enter into an agreement to pay the debt within a certain time, interest may become payable on the debt (see section 1229). If the person enters into an agreement to pay the debt and breaches the agreement, interest may become payable on the debt (see section 1229A).

The decision was affirmed by an Authorised Review Officer ("ARO") on 28 June 1999 and also by the SSAT on 10 August 1999. In asking the Tribunal to review the decision of the SSAT the applicant stated that the SSAT had used a statement from a person who was unreliable and that some major mistakes had been made.

6. The T documents include a hand-written advice, purportedly to be signed by the applicant's mother, that the applicant paid her $100 per week rent for her house (hereinafter referred to as WB) on 22 May 1996 (T3). A further hand-written advice was provided to Centrelink on 12 November 1997 over a name by which the applicant was also known at some stage, that the applicant was paying rent of $110 per week due on 13 November 1997 (T5). At the hearing the applicant explained that she had changed her name following her marriages. The T documents include an advice from an employer of the applicant's son dated 1 February 1999 (T6) that the applicant was the person to contact in case of emergency. The telephone number recorded was the telephone number the respondent contends was connected to a house which is owned by the applicant and where it is contended she lived (hereinafter referred to as SB). There is also a copy of a receipt with respect to rent received from the applicant over a signature which the applicant said was that of her mother, dated 3 February 1999 (T7). On 17 February 1999 a city rates department provided advice to Centrelink with respect to the owners of SB and WB. It is recorded that WB is owned by the applicant's mother and that SB is owned a person bearing the applicant's name.

7. The documents also include a statement by JT, a former friend of one of the applicant's sons, that she had resided at WB since December 1997 and that the telephone, gas and electricity accounts were in her name. In 1996 she had lived at SB with the applicant's son. The applicant had asked her if she wanted to rent her mother's home as her mother had moved to a nursing home. The applicant's mother died on 29 December 1998. JT stated that she paid the applicant rent of $80.00 per week for WB. At the hearing it was noted that the receipt, which was purportedly signed by the applicant's mother (T7), was dated 3 February 1999. The applicant advised Centrelink that she signed the receipts for rent as administrator of her mother's estate. File notes indicate that "tip-offs" were received by Centrelink with respect to where the applicant resided during the relevant period.

8. A considerable amount of material before the Tribunal points to the applicant as residing at SB, the house which the City Council advised was owned by somebody bearing the applicant's name. It includes a copy of a letter from solicitors to the applicant at that address (T20); a further statement signed by JT on 9 March 1999 (T32) stating that JT had not shared her accommodation at WB with anyone since moving there in December 1997; WB was the home address provided by JT to a finance company; the applicant's brother signed a statement on 6 May 1999 advising that his mother's house at WB was rented by the applicant's son who shared it with his girlfriend, JT.

9. On the first day of hearing two friends of the applicant were in attendance to give evidence. Time did not allow them to be called. On the second day of hearing the applicant attempted to make arrangements for her witnesses to be present but they did not appear to give evidence. In giving oral evidence to the Tribunal the applicant said that, although it was the contention of the Secretary that she owned SB, where she currently resides, that property, although once owned by her, is now owned by somebody else with the same name as one of the names she is known by. The applicant said that the other person who now owns the property SB had ". . . used my name, my licence, forwarded my name to the police on speeding fines". However, she said that her son is able to stay at SB. She explained the change of ownership as follows. As a result of matters in the Family Court, she owed a large sum of money by way of legal fees which had been paid by the other person who has the same name as her and, as she was unable to repay the sum owing, she made SB over to that person during the 1980s. She contended that throughout the relevant period she lived at WB, which was owned by her mother. She said that she moved to WB in approximately April 1996. She paid rent of $110 per week. She paid rent into her mother's bank account when she was able to. She had her mother's bank book. She was her mother's administrator, having been appointed by the Guardianship Board. She sometimes paid for her mother's nursing home accommodation, and in her opinion, those payments represented rent she was paying her mother in respect of WB. Her mother was in receipt of age pension under the Act. The cost of her mother's accommodation at the nursing home was "far greater than her pension" and she would make up the difference. The applicant said that her mother's bank account still has a balance of approximately $2000 to $3000 which would not be possible if she had not been paying rent to her mother. The applicant then said that her mother's accommodation took all but $18.00 of the age pension, which was inconsistent with her earlier evidence that the cost of her mother's accommodation at the nursing home was far greater than her pension.

10. The applicant faxed some extracts from her mother's basic account statement to the Tribunal on the first day of hearing, contending that amounts of $400.00 recorded as deposits during the first half of 1997 were rent paid by her to her mother and that other deposits of cash also represented rent paid by her. The applicant provided the Tribunal with a statement by Ms H. R, social worker at a Health Services, dated 15 December 1999. Ms R advised that, to the best of her knowledge, the applicant rented WB. The Tribunal also had before it a document provided by the applicant which she said was an extract from the ledger she was obliged to keep as part of her responsibilities as administrator for her mother which includes two entries of cash deposits identified as "rent".

11. The applicant provided the Tribunal with a letter dated 14 July 1999 from Telstra with respect to an In Contact service, but this letter does not assist the Tribunal in determining whether the applicant did or did not live at WB during the relevant period and whether she paid rent to her mother. It merely confirms an In Contact service at SB since 21 November 1997. However, the applicant did provide the Tribunal with a number of other documents, including letters addressed to her at WB. Statutory Declarations were provided by friends of the applicant declaring that she resided at her mother's property but those people were not available for cross-examination. On questioning by Mr Perdon the applicant conceded that at least two of those friends "moved around" and the Tribunal is satisfied that the friends did not have sufficient knowledge to be able to state where the applicant was residing during all of the relevant period.

12. A considerable amount of the material lodged by the respondent (T41 to T50) included details of services to both WB and SB and records of interview with the applicant. The details disclose that the services provided to SB are in her name and that the services provided to WB have been in the name of JT since 1997 (see paragraph 7 above). A departmental file note dated 31 December 1997 (T40) records that the applicant left a telephone number for her to be contacted on as she could not call from her telephone. The telephone number is that of SB. It appears from the notes that she answered that telephone number when rung on 5 January 1998. It also appears from the documents that the applicant's mother may have had two accounts at the same bank (T66). An application for a unit appears to have been signed by the applicant giving her address as SB on 8 November 1996.

13. The applicant gave further evidence that, if she had not paid her mother rent during the relevant period, she would not have been able to purchase luxuries for her mother or enable her mother to go on outings from the nursing home or have her hair done as her mother's pension only covered the basic cost of her mother's accommodation. When Mr Perdon put to the applicant that there were no entries of deposits disclosed in her mother's bank book for the period 31 March to 26 May 1998, other than pension payments, the applicant said that the rent money went directly towards paying for her mother's accommodation. There are a number of deposits disclosed in the bank statements of $160.00 and $240.00, but the applicant denied that they were payments of rent made by JT for WB (see paragraph 7 above). Mr Perdon noted that the deposits in the applicant's mother's bank account were multiples of $80.00. The applicant conceded that council records disclose somebody of her name as the owner and occupier of SB, but the applicant insisted before the Tribunal that her son, who sometimes resides at SB, pays rent to the other person with the same name and that her son had sent rate notices to the other person for payment, although the applicant said that she had paid rates for SB in 1999 because Centrelink told her that the property was still hers.

14. On being referred to document T3 (paragraph 6 above), the applicant said "I wrote that and I signed it". The applicant said that she was paying $110.00 rent per week, not $100.00. The applicant agreed that she told the ARO that she no longer had access to the bank account into which rent was paid. She did so because the account is frozen following her mother's death. Mr Perdon drew the applicant's attention to her Certificate of Marriage dated 26 October 1996 where she had recorded her usual place of residence as SB. She advised the Tribunal that she recorded that address because she was getting married there and some of her mail goes to that address. She said she thought her mother would be coming "straight home" at that time. The person she was marrying recorded the same address although the applicant contended that she did not know where he was living at that time. When it was pointed out to the applicant that, when claiming mobility allowance on 8 July 1997 (T4), she had asked for the form to be sent to SB, she said that she did so because she had been staying at that address for four to five days looking after the property for her son who was away. She said she was at SB at least once or twice a week. She conceded that she had written the letter dated 10 November 1997, lodged with Centrelink on 12 November 1997 (T5). She said that she used a different signature on that document as she was referring to herself in the body of the document and also because that was the name under which she held authority to sign documents on behalf of her mother. Other documents before the Tribunal disclose that this was not necessarily so.

15. The applicant appeared to be contending that she provided telephone numbers where she was at any particular time to authorities, rather than the telephone number of the property where she lived. The applicant could not explain why, in December 1997, the services at WB were changed into JT's name. She contended that JT was not living there. She said that she wanted the services out of her mother's name after her mother had been admitted into care. The applicant conceded that she no longer paid rent to her mother's estate after her mother died. She said that she could no longer access her mother's bank account, rather, she had paid some of her mother's outstanding bills after her mother's death. The applicant said that she ceased living at her mother's home when JT moved to WB in January 1999 and, she could not put up with JT any longer. When asked to comment on the document dated 5 February 1999 (index at T7) (see paragraph 6 above) the applicant said, "I did still pay it because I was paying her rates and everything else, yes that's right". It having been brought to her attention that she had said she did not pay rent into her mother's bank account after her mother died, she told the Tribunal that instead she paid her mother's bills. That was where the rent money went. She had instructed a solicitor to write to her at SB because JT was stealing her mail which was addressed to WB.

16. The applicant's cross-examination continued on the second day of hearing. She advised the Tribunal that she had owned SB jointly with her then husband since 1983 and that in March 1991 she became the sole proprietor of the property when the Family Court "put it in my name". She signed documents making the property over to the other person bearing the same name as her at a solicitor's office. The solicitor has closed down and she has not been able to trace him. A caveat was placed on the property on 3 April 1996 by a person to whom she was once engaged. The caveat lapsed on 31 July 1997. The applicant conceded that there was only one payment of $110.00 into her mother's bank account which could possibly be identified as rent during 1996 (T66). She told the Tribunal that she "did Mum's affairs my way, not via a bank". She insisted that JT had not lived at her mother's home nor paid rent during 1998. She denied that the receipt indicating that her son had paid rent had been signed by her (T82) although the Tribunal observes that the two receipts appear to come from an identical receipt book. On the other hand, the receipt dated 3 February 1999 bears the number "96" whereas the one dated 16 February 1999 bears the number "85". The applicant expressed the opinion that the name on the application for a moveable unit (T70) was not hers. The Tribunal notes that the original family name recorded on the document was the same name as the applicant's spouse. It was crossed out and replaced with the surname she was known by during part of the relevant period.

17. Having had an opportunity to peruse the further material lodged by the applicant, Mr Perdon noted in a written submission that the accounts indicated the expenditure of approximately $17,200.00 during the relevant period. He advised that the applicant's mother had been paid age pension of approximately $25,800.00 during the same period. If the applicant's contentions are correct, she would have paid her mother rent of approximately $15,000.00 for the period between May 1996 and March 1999. Having perused the documents, the Tribunal is satisfied that the receipts are for sums not necessarily expended on behalf of the applicant's mother and the Tribunal accepts Mr Perdon's contention that accounts with respect to services for WB would normally be the responsibility of a tenant. A number of the accounts are addressed to the applicant at SB.

18. The Tribunal is satisfied that, during the period 30 May 1996 to 9 March 1999, the applicant was not qualified for rent assistance. The Tribunal finds that she was not an ineligible home owner as she probably had a right or interest in SB, giving her reasonable security of tenure and even if that were not so, the Tribunal finds that she was not liable to pay rent. The Tribunal accepts that the applicant cared for her mother during her mother's lifetime by ensuring that accounts with respect to her mother's care and accommodation were paid and that funds were available so that her mother could go on outings and have her hair done, or get the cigarettes she needed. The Tribunal makes no finding as to where JT lived during the relevant period, but it finds that the applicant, even if she spent some time at her mother's home WB, did not pay rent to her mother. Even if she contributed to her mother's costs during the relevant period, these payments were made as a daughter taking care of her mother rather than by way of rent. There were no regular payments made into her mother's bank account by way of rent. The Tribunal does not accept her evidence that she disposed of SB. To qualify for rent assistance, a person must satisfy the provisions of the Act. They are not entitled to rent assistance just because they are of the opinion that contributions they make should be accepted as rent by the respondent. There are too many inconsistencies in the applicant's evidence for it to be accepted.

19. Turning to subsection 1224(1) of the Act, the Tribunal finds that an amount has been paid to the applicant by way of social security payment, rent assistance, which was paid to the applicant because she made false statements and representations to the Secretary, and the amount so paid is a debt due to the Commonwealth.

20. Section 1237AAD provides:

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 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.

Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

The Tribunal will not exercise its discretion under this provision as it is satisfied that the applicant knowingly made a false statement and representation above. Nor did she put to the Tribunal that there were special circumstances other than financial hardship alone that make it desirable for the Tribunal to waive the debt.

21. It is for these reasons that the decision under review will be affirmed.

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of

(sgd) Catherine Thomas

Personal Assistant

Dates of Hearing: 15.12.99, 25.02.00

Date of Decision 18.05.00

Solicitor for the Applicant IN PERSON

Solicitor for the Respondent Mr D. Perdon, Officer of Centrelink