Davis and Department of Family and Community Services [2000] AATA 38 (28 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/61

GENERAL ADMINISTRATIVE DIVISION )

Re LISA DAVIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J.T.C. Brassil, AM, Member

Date 28 January 2000

Place Melbourne

Decision The decision under review be affirmed but because of the special circumstances the whole of the debt will be waived.

(Sgd.) J.T.C. Brassil

Member

CATCHWORDS

SOCIAL SECURITY - Supporting parent pension -- marriage-like relationship --overpayment -- special circumstances -- waiver

Social Security Act 1991 - Section 1237 AAD

REASONS FOR DECISION

28 January 2000 Mr J.T.C. Brassil, AM, Member

1. This is an appeal against a decision of the Social Security Appeals Tribunal (SSAT) on 2 December 1998 which determined that an overpayment had been made and directed the Chief Executive Officer of Centrelink to recalculate the debt. The original decision being reviewed by the SSAT was one to raise and recover a debt of $5,501.20 being overpayment of sole parent pension payments from 6 February 1997 to 22 August 1997 which had been varied by the authorised review officer to an amount of $5,022.90 setting the commencing date for overpayment as 6 March 1997.

2. The appeal was heard at Frankston on 17 June 1999. The applicant was self-represented and departmental advocate Terry Baker appeared for the respondent.

3. The documents lodged under Section 37 of the Administrative Appeals Act 1975 were taken into evidence and a medical report from the applicant's treating psychiatrist, Dr P C Farnbach, was received and, by consent, the Tribunal ordered that it be treated as confidential.

Facts

4. On 20 August 1997 a decision was made to cancel Ms Davis sole parent pension as she was held to be a member of a couple. Appeal to the SSAT was not successful and further appeal to this Tribunal was eventually withdrawn by Ms Davis as she was again being paid sole parent pension.

5. On 9 January 1998 a decision was made to raise and recover the overpayment. The amount was varied as a result of review by an authorised review officer, being reduced to $5,022.90. Although the SSAT on 2 December 1998 affirmed that an overpayment had been made it directed Centrelink to recalculate the amount of overpayment to cover a reduced period being 6 March to 8 July in the year 1997. In the event the amount of overpayment the subject of this appeal is $3192.80.

6. Ms Davis had been married to William Knight but they had separated on 1 June 1994. The divorce decree absolute was issued on 11 October 1997. The children had been with their father who was residing in Colac but they returned to reside with her at Frankston on 2 January 1997.

7. Following an incident involving alleged molestation of her children by a neighbour in Frankston Mr Knight commenced residing in the applicant's home for a period commencing on or about 6 March 1997. Ms Davis believes she notified this as she is required, and certainly by 8 July 1997 with an explanation of the circumstances, but Centrelink did not have any record of the notification.

Submissions

8. Ms Davis submitted that the report of her treating psychiatrist, Dr Farnbach, confirmed that she was suffering from post traumatic stress disorder, panic disorder and major depression. He was treating her, as was psychologist, Jillian Cowan, in early 1997. His report indicates that she is seriously and adversely affected when there are incidents of physical or sexual assault involving herself or members of her family.

9. She submitted that when the children, a girl (then 12 years) and a younger son (then 8 years), resumed residence with her in January 1997 a male neighbour assisted her in caring for the children on the occasions when she was able to get work. The children reported that he had interfered with them and she reported it to the police on 4 March 1997. After concluding that there was little chance of obtaining a conviction as the neighbour denied the children's allegations the police decided not to prosecute. Ms Davis then feared for her own safety as she had to remain living opposite the man she had accused.

10. Dr Farnbach reports that Ms Davis was suffering panic attacks every few weeks in the period prior to the alleged sexual assault of her children. Since then she was increasingly depressed, felt considerable self-blame as a result of the sexual interference and had worsening panic attacks one of which resulted in collapse and urgent medical intervention. He reported that the children had exhibited serious behavioural problems and that Ms Davis was not able to cope.

11. Ms Davis submitted that she was never in a marriage-like relationship in the relevant period. She was awaiting the divorce, the proceedings were on-going at the time, and a period of co-habitation would have affected her divorce application. However, because of her serious health problem and the apprehension of violence from her neighbour, she had accepted Mr Knight's offer to take up residence in her house for several months. She said that he slept in her son's room who moved in with her in this period.

12. She submitted that it was such a traumatic period for her, she had virtually a nervous breakdown and she could not function properly. In the circumstances she should be excused if she had not made the notifications expected of her as soon as Centrelink wanted but she thought she had done so.

13. Mr Baker submitted that the report of the psychiatrist provided a better view of the whole circumstances which was not available to the SSAT. He stated that if the Tribunal found the special circumstances of the applicant would satisfy the requirements of Section 1237 AAD of the Social Security Act 1991 ("the Act") the respondent would accept that a decision could be made in favour of the applicant.

Consideration of the Issues

14. The Tribunal does not have to decide whether or not the applicant was in a marriage-like relationship in the relevant period as this application does not raise that issue. It was the subject of a previous application which was withdrawn. However the Tribunal is not convinced from the evidence in this hearing that there was a marriage-like relationship at the time between Ms Davis and Mr Knight. Nevertheless that decision remains and it justifies the raising of a debt to the Commonwealth in respect to payments made between 6 March 1997 and 8 July 1997.

15. What the Tribunal can do is examine the circumstances presented to it in relation to the provisions of Section 1237 AAD of the Act set out as follows:

"1237 AAD 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 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."

16. The Tribunal finds that while there was an omission on the part of the applicant to notify in the required period that Mr Knight was temporarily residing in her home this was not done "knowingly" in view of her medical condition as described by her treating psychiatrist.

17. The "special circumstances" described by the applicant and Dr Farnbach are found by the Tribunal to be sufficient to make it desirable to waive the outstanding debt raised by the respondent and the Tribunal has formed the view that it is more appropriate to waive than to write off the debt or a part of the debt.

Decision

18. The Tribunal will affirm the decision under review but in view of the special circumstances will waive the whole of the debt.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.T.C. Brassil, AM, Member

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

Associate

Date of Hearing 17 June 1999

Date of Decision 28 January 2000

Applicant Self-represented

Respondent Mr T. Baker, Administrative Law Team,

Centrelink