Kupcinskas and Department of Family and Community Services [2000] AATA 569 (5 July 2000)

Last Updated: 21 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 569

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q 2000/531

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT KUPCINSKAS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal WJF Purcell, Senior Member

Date 5 July 2000

Place Brisbane

Decision The Tribunal refuses the application by the applicant to extend the time for lodging an application for review of the decision of the Social Security Appeals Tribunal to 14 June 2000.

(Sgd) WJF Purcell

Senior Member

CATCHWORDS

SOCIAL SECURITY - extension of time - special circumstances - merits of application

Social Security Act 1991 - ss 1237A, 1237AAD

REASONS FOR DECISION

5 July 2000 WJF Purcell, Senior Member

1. This is an application for an extension of time for lodging an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 7 February 2000. Separate copies of the decision were forwarded by the SSAT to the applicant and his representative Ms Parkinson at their home address on 7 February 2000. The applicant lodged his application for review on 14 June 2000. He stated in support of his application that he had been advised of the decision by telephone by "Margaret", and that he did not receive a copy of the decision until after 3 May 2000. He nominated Ms Parkinson as his representative. Mr Foster represented the Department. At the conclusion of the telephone Hearing I informed the parties that the application was refused, and that I would provide written reasons for that decision.

2. During the course of the Hearing Ms Parkinson stated that she was advised by a person from the SSAT, in February 2000, that the application had been unsuccessful. Neither she nor the applicant received the letters from the SSAT dated 7 February 2000 enclosing the Reasons for Decision. There have been problems with non receipt of mail. She stated also that the applicant had been so ill that she has been unable to leave the house to post letters or to keep in contact with her family or the applicant's family. She had too much to do, to pursue matters outside the home. In May 2000, however she made extensive inquiries of the Department and received a letter dated 23 May 2000 enclosing a copy of the SSAT decision. The application for review was lodged on 14 June 2000.

3. As to the merits of the application, Ms Parkinson submitted that it was she who alerted the Department, on about 25 October 1999, to the fact that the Applicant (a recipient of a Disability Support Pension and paying government rent) had been paid $583.30 in arrears of rental assistance, to which he was not entitled. In these circumstances she asserted, she had saved the Department a lot of money, and was entitled to a "finder's fee" - a reward, which should be paid to the Applicant.

4. The Department argued that there is no such "finder's fee" payment available under the legislation. The Applicant was not qualified for rent assistance, because he was paying government rent. The overpayment was raised on 27 October 1999, two days after the sum was paid, and waiver of the debt was not available under section 1237A of the Social Security Act 1991 (The Act). This section allows waiver where there is administrative error, but does not apply in this matter because the debt was raised within 6 weeks of the incorrect payment. The SSAT found that there were no special circumstances warranting waiver under section 1237AAD of the Act. The SSAT decision is plainly correct. The Applicant's application to this Tribunal does not point to any new evidence which would warrant a different finding. The merits of the Applicant's appeal therefore do not warrant the granting of an extension of time.

5. Section 1237A of the Act as far as is relevant provides:

1237A.(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

1237A.(1A) Subsection (1) only applies if:

(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

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 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.

6. I consider that even if neither the applicant nor Ms Parkinson received the letter dated 7 February 2000 enclosing the Reasons for Decision, the applicant was aware in February 2000, that his application to the SSAT had not been successful. On Ms Parkinson's account of the events, it was not until May 2000 that inquiries were undertaken and a copy of the Reasons for Decision obtained, on about 23 May 2000. The explanation for the delay in lodging an application was the applicant's illness, and the pressure of too many other things outstanding at the time.

7. There is another important factor in addition to the reasons for delay, which I must be take into account when deciding whether an extension of time would be appropriate; that factor is the merits of the application. The applicant does not maintain that any new evidence has arisen since the SSAT Hearing which could warrant a different finding. He was not entitled to the moneys paid to him in error. The debt was raised within 2 days, Section 1237A of the Act does not apply therefore. There is no "finder's fee" or reward applicable in the circumstances. The applicant, through Ms Parkinson, honestly and correctly notified the Department of its error. Such honesty does not translate, however, into an entitlement to retain moneys to which the applicant was not entitled, as some sort of "reward" for honest behaviour.

8. I consider that if the extension of time were granted, the application would not succeed, because it lacks merit. In all the circumstances of the matter, I do not consider it appropriate that an extension of time be granted.

9. For these reasons the Tribunal refuses the application by the applicant to extend the time for lodging an application for review of the decision of the SSAT, to 14 June 2000.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of WJF Purcell, Senior Member

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

Associate

Date/s of Hearing 5 July 2000

Date of Decision 5 July 2000

Representative for Applicant Ms A Parkinson

Advocate for the Respondent Mr N Foster, Departmental Advocate