Halikiopoulos and Department of Family and Community Services [2000] AATA 449 (7 June 2000)

Last Updated: 15 June 2000

DECISION AND REASONS FOR DECISION [2000] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/240 & S99/241

GENERAL ADMINISTRATIVE DIVISION )

Re SPIROS HALIKIOPOULOS AND DIMITRA HALIKIOPOULOS

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 7 June 2000

Place Adelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review in respect of the debts in the period 7 May 1992 to 7 March 1996 being disability support pension and wife's pension in the amounts of $12,398.30. The remainder of each debt is waived (by consent).

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Disability Support Pension - Wife Pension - overpayment - failure to notify - administrative error - special circumstances - "knowingly" considered - constructive and actual knowledge - recklessness considered

Social Security Act 1991 ss.132, 133, 172, 173 1224, 1237A, 1237AAD

Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435

Evans v Dell (1937) 53 TLR 310

REASONS FOR DECISION

7 June 2000 Senior Member J.A. Kiosoglous MBE

1. Application by Spiros Halikiopoulos (S1999/240) and Dimitra Halikiopoulos (S1999/241) (the male and female applicants respectively) for review of decisions of the Social Security Appeals Tribunal (SSAT) dated 22 April 1999 (T2) affirming the decision of an authorised review officer dated 21 March 1997 (T17) affirming the delegate of the respondent's decision dated 13 January 1997 (T13) to raise and recover debts of Disability Support Pension (DSP) (in respect of the male applicant) and Wife Pension (in respect of the female applicant) for the period 7 May 1992 to 14 November 1996 inclusive.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T41), together with twelve exhibits, eight lodged by the male applicant (Exhibits AH1-AH8), one lodged by the female applicant (Exhibit AW1) and three lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicants. The male applicant represented himself, the female applicant was represented by Mr R. Cole, of counsel, and the respondent was represented by Ms A. Pugsley, a departmental advocate.

3. As the respondent conceded that the debts for the period 8 March 1996 to 14 November 1996 resulted from sole administrative error, the issues for the Tribunal are whether or not there are debts of DSP and Wife Pension for the period 7 May 1992 to 7 March 1996 inclusive; and if so, whether or not there are grounds to waive the debts.

history of the application

4. The male applicant lodged a claim for DSP on 4 May 1992 (T3) and a claim purporting to be from the female applicant for Wife Pension was received on the same day by the respondent (T4).

5. The respondent sent the male applicant a letter dated 4 May 1992 (T5) requesting the female applicant to sign her form and for income and investment forms to be completed by both applicants. Such forms were lodged in respect of the male applicant on 6 May 1992 (T6/41) and 11 May 1992 (T6/37) and 11 May 1992 in respect of the female applicant (T6/45). The latter form detailed a gross income of $324.69 per week (T6/45).

6. The applicants received pension with effect from 7 May 1992 (T7).

7. Between 4 June 1992 and 11 March 1996 both applicants received notification letters pursuant to sections 132, 133, 172 and 173 of the Social Security Act 1991 (the Act) all containing a requirement similar to or the same as the following (T7, T9 and T10):

"...

WHAT YOU MUST TELL US

... you must tell us within 14 days (28 days if residing overseas) if any of these things happen, or are likely to happen. ...

Income

If your combined weekly income, not including maintenance, becomes more than $331.13 per week;

..."

8. On 5 March 1996 the male applicant was interviewed by a departmental officer in respect of his ongoing entitlement to DSP (T11) at which time he showed the officer several of the female applicant's payslips. An employment verification report was obtained from the female applicant's employer on 10 September 1996 (T12).

9. On 13 January 1997 the delegate raised debts in respect of both applicants (T13) and following various appeals and recalculations the SSAT affirmed the decision to raise and recover debts in respect of both applicants, stating in their reasons for decision (inter alia):

"...

... the Tribunal is unable to find that the overpayment occurred solely through administrative error as clearly the original indication of income provided at the time of claim, that is in May 1992, was inaccurate and neither Mr nor Mrs Halikiopoulos responded to various letters addressed to them indicating a requirement to advise if income figures held by the Department and used to calculate rates of pension were incorrect. ...

The Tribunal is also unable to be satisfied that monies were received in good faith in that it seems to the Tribunal that Mr and Mrs Halikiopoulos should have been aware, if they were not, that they were being substantially overpaid.

The Tribunal is also satisfied that special circumstances do not exist in this case such as to warrant waiver of all or part of the debts. ...

..."

mr halikiopoulos' evidence

10. Mr Halikiopoulos told the Tribunal that he came to Australia from Greece in 1963 and to South Australia in 1982. He worked at Bridgestone from 1982 until 1992, ceasing employment on medical grounds.

11. He stated that he went to Centrelink in May 1992 and believes that he gave them all relevant documents and payslips. He further stated that he received the letter granting him the pension and hundreds of subsequent letters from the Department. He stated that he read both front and back of the letters and in respect of the "What you must tell us" section, that he "had nothing to tell". He told the Tribunal that he did not question the payments he was receiving as he assumed the Department knew what it was doing. He stated that the applicants' earnings was the Department's problem and that once he had passed the doctor's exam he considered that he was finished with the Department and didn't care after that. In his opinion, the letters did not explain anything to him.

12. He stated that the debts were the Department's fault, in that the Department's conduct had been unorthodox in photocopying his wife's 1996 signature and putting it on the 1992 forms and "denying" that they had received any payslips. He further stated that the Department had "forgotten" the applicants. He submitted that the Tribunal should waive the debts due to administrative error or special circumstances and also detailed his current financial circumstances to the Tribunal.

mrs halikiopoulos' evidence

13. Mrs Halikiopoulos told the Tribunal that she came to Australia from Greece in 1961, having left school at age ten, and came to South Australia in 1982. She has had no further education or training in the English language. She does not speak or write English.

14. She referred to her husband as "the boss" and stated that he controls the money and pays bills after having consulted her about such matters.

15. She stated that she was aware of her husband attending Centrelink in 1992 and applying for the pension, that she had never attended a Centrelink office and was simply told by her husband that she was eligible for a pension and would get $126 per fortnight. She further stated that she asked her husband why she would get a pension whilst she continued to work full-time.

respondent's submissions

16. Ms Pugsley submitted, on behalf of the respondent, that the debts were properly raised and resulted from a failure by both applicants to advise of correct income. She submitted that there was no sole administrative error. She further submitted that the applicants had actual knowledge and knowingly failed to comply with sections of the Act, rendering section 1237AAD inapplicable.

discussion and findings

17. The male applicant raised a number of issues such as the different coloured stamps and post-dating of signatures, but could offer no substantive evidence in this regard. Whilst the issue of the signatures may have born some relevance for the criminal proceedings, the Tribunal considers that it has no bearing here. The female applicant received pension soon after the Department received a form that was signed. She continued to do so for a number of years. If it was the intention of the applicants for the wife to never receive pension, then it is nonsensical that they continued to receive her pension for the ensuing years. In her evidence the female applicant conceded that she was aware that she was receiving a benefit. The signature on the claim form (T4/35) does not in and of itself affect any overpayment that arose subsequently, for it merely attests to a desire to receive pension and that the information deposed in that form is correct. In any event, the fact that there are two date stamps on the form (4 May and 11 May 1992) is more consistent with the explanation that the Department returned the form with an accompanying letter (T5) and received it back (signed) on 11 May 1992.

18. Whilst it was not conceded by either applicant, the evidence before the Tribunal overwhelmingly suggests that there has been a failure to notify in respect of earnings, and that this has resulted in the overpayments. The applicants' combined income in the relevant period was clearly too high to enable them to receive pension at the rate they did, and no steps were taken to advise of any income details as required by the notices at the times that the income was in fact higher than that prescribed in each of the notices. Accordingly, the Tribunal finds there to be a debt properly raised pursuant to section 1224 of the Act. At this stage of finding a debt, it is not necessary to consider the reasons why there may have been a failure to notify. It is sufficient that there was a failure to notify resulting in overpayment.

19. Turning to waiver, the Tribunal has had regard for both the sole administrative error and special circumstances provisions of the Act.

sole administrative error

20. The Department has conceded sole administrative error in respect of a portion of the debt, and this Tribunal does not seek to disturb that concession. In respect of the remainder of the debt, it resulted from a failure to notify of income being above the prescribed limits. Whatever the Department's failings in this case, the existence of the failure to notify in respect of properly issued notices means that the debt cannot be considered to have resulted from "sole" administrative error and the Tribunal so finds.

21. Whether or not the Department should have interviewed the wife, treated her separately from the beginning, or taken more steps to verify in respect of her payments, it remains the case that she received a number of notification notices in the relevant period and failed to respond to such notices. Whatever the explanation for such failure, the fact that it contributed to the debt means that the "sole" test in section 1237A of the Act cannot be satisfied.

22. The Tribunal considers that it may have been appropriate for the Department to take more steps than it did in 1992 to ensure that the applicants both understood their entitlements and notification obligations, given the cultural and language background of the applicants. Whilst this ideally should have taken place, the Department's conduct cannot be said to be such as to constitute administrative error in this regard. The Department did then send a number of letters to the applicants, which should have raised at least some response from the applicants, even if such response was to simply ask the Department to explain the letters received.

special circumstances

23. In previous decisions this Tribunal has been prepared to adopt a culturally sensitive and sympathetic approach to debts arising in circumstances where there has been a breakdown in communication between the Department and benefit recipients. Whilst the Department does endeavour to ensure that mechanisms are in place to ensure recipient's compliance with their notification obligations, it is inevitable that the system does at times break down due to cultural and language barriers. In such circumstances it is often appropriate for the Tribunal to exercise its discretionary powers.

24. What this Tribunal cannot countenance however, is the reckless and cavalier attitude displayed by the male applicant in this case. He was an unimpressive witness. By his own evidence he read the notices and was aware of the sections relating to notification obligations. It was not the case that he simply did not comprehend the obligations, but that he chose to ignore the notices completely. He "did not care" and thought it all to be the Department's responsibility.

25. Whilst his conduct may not amount to "deliberate" intent, it is at the very least conduct so reckless as to constitute "knowingly" as that term has been considered by this Tribunal and the Federal Court (Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at p444-445 per Deputy President Forgie). The male applicant read the "hundreds" of letters he received from the Department and even if his evidence is put in its best light, being that he did not understand the letters in their entirety, he still failed to do anything about that. The Tribunal considers it a more likely proposition, given the tenor of the male applicant's evidence, that he understood the letters well enough and "refrained from making inquiries, the results of which he might not care to have" (per Lord Hewart CJ in Evans v Dell (1937) 53 TLR 310 at p313). The wilful blindness displayed by the male applicant takes his state of mind out of that described as "constructive knowledge" (that being what he ought to have known) and satisfies the actual knowledge required by the word "knowingly" as it appears in section 1237AAD of the Act and the Tribunal so finds.

26. Accordingly, the Tribunal cannot waive the debts pursuant to section 1237AAD as the male applicant has knowingly failed or omitted to comply with a provision of the Act in respect of both his benefit, and within the context of being "another person" for the purposes of his wife's pension. In that regard, the Tribunal has immense sympathy for the female applicant in this case, as she has relied solely upon what her husband has said and done, and effectively engaged him in an agency capacity. In all respects, he has let her down by his reckless conduct with regards to the Department.

27. Despite feeling sympathetic towards the female applicant, the Tribunal is bound by the provisions of section 1237AAD and the "knowingly" provisions in particular in this case. It would urge the Department to exercise some compassion in setting a rate of repayment in respect of the female applicant in light of these comments. The Tribunal also suggest that any future dealings with the female applicant should be directly with her, ensuring that independent interpreters are present to explain and assist her to understand her obligations and entitlements.

decision

28. For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review in respect of the debts in the period 7 May 1992 to 7 March 1996 being disability support pension and wife's pension in the amounts of $12,398.30. The remainder of each debt is waived (by consent).

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

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

Personal Assistant

Date/s of Hearing 19 May 2000

Date of Decision 7 June 2000

Counsel for the male Applicant In person

Solicitor for the male Applicant -

Counsel for the female Applicant Mr R. Cole

Solicitor for the female Applicant R.J. Cole & Partners

Counsel for the Respondent Ms A. Pugsley

Solicitor for the Respondent Centrelink