Akhtarkhavari and Department of Family and Community Services [2000] AATA 54 (2 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 54

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q99/224

GENERAL ADMINSTRATIVE DIVISION )

Re KEIVAN AKHTARKHAVARI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member JA Kiosoglous MBE

Date 2 February 2000

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) JA Kiosoglous

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - applicant required to state partner's income every fortnight - overpayment - fortnightly forms destroyed - whether "reverse maths" could be used to calculate overpayment

Social Security Act 1991 - ss 658,1068,1224,1237

Secretary, Department of Social Security v Danielson (1996) 44 ALD 19

REASONS FOR DECISION

2 February 2000 Senior Member JA Kiosoglous MBE

1. The applicant, Keivan Akhtarkhavari (AAT Ref. No. Q1999/224), seeks a review of a decision of the Social Security Appeals Tribunal (SSAT) of 14 January 1999 (T2), which affirmed the decision of an Authorised Review Officer (ARO) of 16 October 1998 (T19), that he received an overpayment of newstart allowance in the amount of $314.68 for the period 9 January 1995 to 31 July 1995. The applicant's wife is the subject of another application before this Tribunal (AAT Ref. No. Q1999/258), which matter was heard jointly with that of Mr Akhtarkhavari.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T21) and relevant to this applicant, together with the exhibits tendered by the parties. As stated this application was heard jointly with that of the application of Mrs Akhtarkhavari, which overlapped the current matter insofar as the overpayment of Mrs Akhtarkhavari's partner allowance was alleged to be caused by the declarations of her income on the applicant's fortnightly newstart allowance forms. The applicant appeared at the hearing and represented both himself and his wife. They both gave evidence. A Departmental Advocate, Mr Rick McQuinlan, represented the respondent (the Department).

3. The issue before the Tribunal is whether the applicant owes a debt of $314.68 of newstart allowance to the Commonwealth and, if so, whether the debt should be recovered.

4. By way of a letter dated 8 August 1995 (T5) the applicant was informed that his job search allowance (as newstart allowance was formerly known) had been cancelled from 1 August 1995 because he had returned to work. On 28 July 1998 (T11) the applicant was informed that an overpayment of job search allowance of $339.78 for the period 9 January 1995 to 31 July 1995 had been calculated and was a debt owing to the Commonwealth. The advice further stated that the reason for the debt being raised was that the Department had received details of income received by the applicant's partner for the period 9 January 1995 to 31 July. This information was used to calculate the applicant's entitlement to the allowance for the period and an overpayment was found to exist. On 28 July 1998 the applicant requested a review of the decision to raise the debt (T13). By way of a letter dated 1 September 1998 the applicant was advised by a delegate of the Secretary that the debt had been reduced to $314.68 as there were a couple of errors in the original calculation of the debt (T15). The same delegate on 1 September 1998 filled in an "ODM Reconsideration and Authorised Review Officer Referral" form (T16). On the second page of this form (T16/30) the delegate wrote: "Fortnightly Forms for this period have been destroyed." An Authorised Review Officer informed the applicant by way of a letter dated 16 October 1998 that the decision to raise a debt of $314.68 for an overpayment of newstart allowance had been affirmed (T19). The applicant applied to the SSAT for review of this decision on 4 November 1998 (T21). On 14 January 1999 the SSAT affirmed the decision (T2).

5. At the hearing the applicant contended that he had filled in all of the fortnightly forms correctly. He further contended that it was possible that the Officers of the Department who had keyed in the income details he supplied every fortnight had made mistakes in keying in such information. The applicant also contended that special circumstances exist such that part or all of the debt should be waived. These are the financial difficulties he and his family are currently experiencing and the less than ideal health that his wife and children are experiencing.

6. Mr McQuinlan contended that the cause of the debt of $314.68 of newstart allowance was Mr Akhtarkhavari's under declaring his wife's income on his fortnightly forms during the relevant period. Mr McQuinlan contended that although the forms have been destroyed, there is evidence of income being under declared by looking at the record of payments (T9), using reverse maths to work out the income declared on a particular fortnight, and comparing this with Mrs Akhtarkhavari's pay records (T7). Mr McQuinlan contended that the Federal Court decision of Secretary, Department of Social Security v Danielson (1996) 44 ALD 19, is authority for being able to use reverse maths to deduce the amounts of income declared based on payment records. Mr McQuinlan further contended that as there are a number of payments recorded during the period 9 January 1995 to 31 July 1995, it is improbable that keying errors would account for the difference between the amount of newstart allowance the applicant was entitled to and the amount actually paid. Mr McQuinlan contended that the more likely reason for the overpayment was that Mr Akhtarkhavari declared net rather than gross income on the fortnightly forms. Mr McQuinlan further contended that there would be difficulties with the Tribunal making a finding that special circumstances existed to enable waiver of the debt. He stated that the applicant and his wife describe themselves as middle class, their income is average and the applicant's wife is still receiving $170 to $190 a fortnight in social security benefits. Mr McQuinlan further stated that the family seems to be coping with the cost of life, they have 2 cars, one of which was bought 6 months ago, and they own a property at Toowoomba. As such, Mr McQuinlan contended that the applicant's circumstances were not so uncommon, unusual or exceptional to warrant the application of Section 1237AAD of the Act. Consequently, Mr McQuinlan contended that the debt of $314.68 should stand.

7. The Tribunal must determine whether the debt of newstart allowance has been calculated correctly and, if so, whether it should be recovered.

8. Pursuant to Section 658 of the Act, as it then stood, a person who is in receipt of newstart allowance can be given a form requiring the person to advise the Department about changes or certain circumstances that may affect the person's newstart allowance payments. The forms issued to the applicant each fortnight during the period in question were issued under this section of the Act. Section 1068 of the Act contains the rate calculator that is used in determining the rate of newstart allowance payable to a person. Point 1068-G2 provides that the ordinary income of a person who is a member of a couple includes the ordinary income of a person's partner. Ordinary income for the purposes of the Act includes gross income from employment. Section 1224 of the Act is also relevant here and provides:

"(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;

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

9. Whether the debt has been calculated correctly depends on whether it is possible to use reverse maths to calculate a debt where payment records have been destroyed. Mr McQuinlan contended that "reverse maths" could be used to calculate the amount that would actually have been declared using the payment records of the applicant for the relevant period. Authority for this method of calculation was garnered from the case of Secretary, Department of Social Security v Danielson (1996) 44 ALD 19. In particular Mr McQuinlan referred the Tribunal to an extract found at page 10 of the judgment:

"It was open for the AAT to find that, as a matter of mathematical logic, if the respondent received Newstart Allowance benefits in amount "X" for a given fortnight then, having regard to the way in which the amount of benefit payable to the respondent was calculated by the applicant, the respondent must have declared gross income in an amount "Y" in order to receive that benefit "X". By rejecting such method of proof and concluding that there was no evidence upon which to properly base findings as the amounts of gross income declared by the respondent on the continuation forms, the AAT erred in law. "

10. The Tribunal accepts that the debt has been correctly determined by the use of reverse maths and, given that it would be highly unlikely that this debt resulted from serial keying errors on the part of Centrelink staff, the Tribunal finds that the debt should stand pursuant to Section 1224 of the Act. Special circumstances cannot be used to waive this debt as the applicant has knowingly failed or omitted to comply with a provision of the Act (subsection 1237AAD(a)(ii)) by his supplying the wrong income figures for his wife.

11. Accordingly, the Tribunal affirms the decision of the SSAT of 14 January 1999.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member JA Kiosoglous MBE.

Signed: Denise Burton

Secretary

Date/s of Hearing 17.12.99

Date of Decision 2.2.00

Counsel for the Applicant

Representative for Applicant Applicant appeared in person

Counsel for the Respondent

Solicitor for the Respondent Mr R McQuinlan, Departmental Advocate