Ramplin and Department of Family and Community Services [2002] AATA 74 (8 February 2002)

Last Updated: 22 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1302

GENERAL APPEALS DIVISION )

Re Roslyn Maree Ramplin

Applicant

And Department of Family and Community Services

Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date 8 February 2002

Place Sydney

Decision The decision under review is affirmed.

..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY - overpayment of Parenting Payment (Single) - income precluded receipt of payment - debt recoverable - administrative error by Centrelink - failure to record notification of commencement of earnings and request for cessation of payments - waiver of debt - waiver not available despite Centrelink administrative error - administrative error not sole cause of overpayment - moneys not received in good faith - debt raised within six weeks of first incorrect payment - no special circumstances.

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re De Neumann and Secretary, Department of Social Security (AAT 11280, 4 October 1996)

Social Security Act 1991 - sections 1223(5), 1236(1), (1A), 1237A(1), (1A), 1237AAD.

Social Security Administration Act 1999 - sections 68(1), (2)(b), 72(1), (2), (3)(b), (d).

REASONS FOR DECISION

8 February 2002 M J Sassella, Senior Member

History of application

1. On 7 January 2000 Ms Roslyn Maree Ramplin ("the applicant") lodged at Centrelink a claim form (T3) seeking Parenting Payment (Single) ("PPS"). Her claim was granted on a date not disclosed to the Administrative Appeals Tribunal ("the tribunal").

2. On 23 February 2001 Centrelink issued a notice (T17) advising the applicant that her PPS was suspended.

3. On 14 March 2001 Centrelink issued a notice (T21) advising the applicant that her PPS had been cancelled.

4. On 16 March 2001 a delegate of the Secretary, Department of Family and Community Services ("the respondent") raised a debt in the amount of $656.98 (as calculated in T23) which was repayable by the applicant (T19). This was for overpaid PPS. The Section 37 Statement and T documents do not show how repayment of this debt was demanded of the applicant.

5. On 24 April 2001 the applicant sought a review by an authorised review officer ("ARO") of the debt decision (T26). This request was renewed on 30 April 2001 (T28).

6. On 1 May 2001 the original decision-maker reviewed the decision to recover the debt and decided not to alter the decision (T29; T30). This decision was notified to the applicant on 1 May 2001 (T29; T30), however the available documents do not include this notification.

7. On 17 May 2001 the ARO varied the original decision by finding that the applicant was liable to repay the debt but that the quantum was $588.15.

8. On 29 May 2001 the applicant lodged an application for review of the ARO's decision by the Social Security Appeals Tribunal ("SSAT").

9. On 25 July 2001 the SSAT affirmed the decision of the ARO (T2).

10. On 16 August 2001 the applicant received notice of the SSAT's decision (T1).

11. On 29 August 2001 the tribunal received from the applicant an application for review of the SSAT's decision (T1).

Decision under review

12. The SSAT affirmed the ARO's decision on the basis of the following reasoning.

13. From 29 January 2001 to 20 February 2001 the applicant's income from earnings was sufficient to preclude her from payment of PPS. That income was not taken into account by Centrelink in assessing the applicant's PPS rate during that period. As a result Centrelink paid the applicant $588.15 in excess of what she should have been paid. Section 1223(5) of the Social Security Act 1991 ("the Act") results in that sum being a debt due to the Commonwealth.

14. Generally a debt due to the Commonwealth must be recovered unless it can be written off or waived. The debt here was not appropriate for write off as the debt was not irrecoverable. It could not be waived. It could not be waived under s 1237A of the Act on the basis of administrative error by Centrelink because it was raised within six weeks of the date of the first payment that caused the debt (ie the period from 8 February 2001 until 16 March 2001). Administrative error may have occurred on Centrelink's part if it is accepted, as it was by the SSAT, that the applicant had notified Centrelink of her commencement of earnings on 2 February 2001. The respondent in the present appeal is adamant that there was no such notification.

15. There was no waiver under s 1237AAD of the Act because the applicant had not demonstrated the presence of any special circumstances.

Relevant legislation

16. The relevant provisions from the Act are sections 1223(5), 1236(1), (1A), 1237A(1), (1A), 1237AAD.

17. From the Social Security Administration Act 1999 ("the Administration Act") the following provisions are relevant: sections 68(1), (2)(b), 72(1), (2), (3)(b), (d).

Social Security Act, 1991

...

Incorrectly paid amount

1223 (5) If:

(a) an amount (the received amount) has been paid to a person by way of social security payment on or after 1 October 1997 or by way of fares allowance; and

(b) because the received amount had not been correctly calculated using the relevant rate calculator or other provision for calculating the amount, or for any other reason, the received amount is greater than the amount (the correct amount) of social security payment or fares allowance that should have been paid to the person;

the difference between the received amount and the correct amount is a debt due to the Commonwealth.

...

Secretary may write off debt

1236 (1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236 (1A) The Secretary may decide to write off a debt under subsection (1) if,: and only if:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt.

...

Waiver of debt arising from error

Administrative error

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.

...

Waiver in special circumstances

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.

...

Social Security Administration Act, 1999

...

Person receiving social security payment or holding concession card

68 (1) Subsection (2) applies to a person to whom a social security payment is being paid. is being paid.

(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

...

(b) give the Department a statement about a matter that might affect the payment to the person of the social security payment.

...

Provisions relating to notice

72 (1) A notice under this Subdivision:

(a) must be given in writing; and

(b) may be given personally or by post or in any other manner approved by the Secretary; and

(c) must specify how the person is to give the information or statement to the Department; and

(d) must specify the period within which the person is to give the information or statement to the Department; and

(e) must specify that the notice is an information notice given under the social security law.

(2) A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).

(3) Subject to subsections (4), (5), (6) and (7), the period specified for the purpose of paragraph (1)(d) must:

...

(b) in the case of a notice under section 67, 68 or 69 that requires the giving of any other information, or a notice under section 70--be the period of 14 days after:

(i) the day on which the event or change of circumstances occurs; or

(ii) the day on which the person becomes aware that the event or change of circumstances is likely to occur;

as the case may be; or

...

(d) in the case of a notice under section 67, 68 or 69 that requires the giving of a statement, not being a notice to which paragraph (c) applies--end not earlier than 14 days after the day on which the notice is given;

...

Background

18. The applicant was born on 26 November 1956 (T1). In her oral evidence the applicant explained that she works on a casual basis as a teacher for the NSW Department of Education and Training ("the department"). The department customarily pays the applicant only after she has worked for it for a period of days. It provides her with a pay slip at that time. Her rate of pay will vary with each assignment and the applicant does not know her pay rate for a particular assignment until she receives her first payment. This causes difficulties in her relationship with Centrelink.

19. The applicant has a daughter, aged 14, in respect of whom she qualifies for family payments and PPS.

20. The applicant is prone to recurrent bouts of pneumonia, especially in the second half of the calendar year.

21. The applicant has had a number of unfortunate experiences with Centrelink over the years. These have ranged from irritations such as the loss of letters sent by the applicant to Centrelink, to more serious matters such as a review of the applicant's entitlements because Centrelink queried whether her daughter was still in the applicant's care. This led to suspension of payments for a period during which the applicant was required to obtain a birth certificate. The applicant had particular difficulties with an officer in the Newcastle customer service centre whose approach was intimidatory. She has had her file relocated at Charlestown customer service centre and she finds that far preferable. However, in recent months she has incurred yet another debt for reasons akin to those in this case.

22. The debt under review has been recovered from the applicant's ongoing PPS payments.

23. The ARO's decision deserves some attention. The ARO, unlike the SSAT, did not accept that the applicant had told the Centrelink telephone operator on 2 February 2001 that she had recommenced work on 29 January 2001 and that she wished payment of her PPS to stop. The ARO saw that call as relating only to the question the applicant had raised about having been underpaid since mid-December 2000.

24. The ARO took it that the applicant first notified Centrelink of her post-29 January 2001 income situation on 1 March 2001 when she returned a review form (T18) to Centrelink. The notification was required within 14 days of the increased income (T33/77), ie by 12 February 2001.

25. The ARO considered that the debt was caused by the applicant's failure to notify her income every four weeks as required orally and later in a notice (T4; T10; T11). There was no administrative error by Centrelink.

26. The period of the overpayment was from 29 January to 20 February 2001. The correct calculation of the debt was $588.15.

Hearing and appearances

27. The tribunal convened a hearing in this matter in Newcastle on 22 January 2002. The applicant represented herself and Mr G Lozynsky of the Centrelink Advocacy and Administrative Law Team in Sydney represented the respondent.

28. At the hearing the following documents were accepted into evidence and marked as follows:

* Exhibit TD1 - Section 37 Statement and associated T documents provided by Centrelink on 2 October 2001.

* Exhibit A1 - Applicant's notes of telephone conversation on 2 February 2001 with Centrelink telephone operator.

* Exhibit R1 - Respondent's statement of facts and contentions, 14 January 2002.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

29. The tribunal finds that the applicant did tell the Centrelink telephone operator of her return to work in the conversation that occurred by telephone on 2 February 2001. The applicant produced contemporaneous evidence that this was so in Ex A1. Ex A1 is a letter from Centrelink dated 21 December 2000 notifying the applicant of her rate of PPS. On it she made notes relating to her telephone conversation. These read:

"9/2 - call Centrelink last 2 wks earnings.

"Called 2/2/01 spoke to Renay.

*Haven't been paid correctly since before Xmas and worse since then

*Only paid from 15/12 Why not 13/12.

*Starting work again

*Cease payments please.

*work 'allowance'

"This [woman] wont cancell [sic] payments. Angry I am. This will be another debt. Have to wait to send in pay slip. Told her Ive done this before and I want to avoid debts. No listening!"

30. In her oral evidence the applicant said that she did not feel responsible for this debt. She had had to repay another caused in like fashion.

31. The tribunal asked the applicant if she could enlarge on any special circumstances that might apply to her, that being a possible basis for waiver of the debt. She explained her propensity to suffer from pneumonia. She was able to avoid this in August-December 2001 by use of long-term antibiotics. She had had a bad case of pneumonia in late 2000, accompanied by rheumatoid arthritis, asthma and difficulty breathing. Even moving from one room to another would cause her breathing difficulties. Centrelink had refused her home visits at this time.

32. Ms Ramplin said that she is very much alone in bringing up her daughter.

33. In cross-examination the applicant said that she had not notified Centrelink in writing of her commencement of work on 29 January 2001 because of her experience of letters going astray in, or not being acted on, by Centrelink. She had provided the requested pay slip but was unable to say when.

34. Mr Lozynsky asked the applicant for her comments on certain T documents. These were:

* T9 - a computerised file note dated 2 February 2001 of the applicant's telephone discussion with Centrelink on 2 February 2001. This addressed only the applicant's query about her underpayment since 13 December 2000. It mentioned that the applicant was feeling victimised and was having her situation investigated.

* T10 - another computerised file note dated 2 February 2001 stating that the applicant had spoken with an officer at Newcastle to whom she had said she felt victimised. The applicant had used all of her savings because of her underpayment. Arrears were to be paid. The applicant was advised to call every four weeks about her earnings. It was noted that the applicant was having the situation investigated.

* T19 - another computerised file note dated 14 March 2001 recorded the applicant's income from her teaching from 29 January 2001 as notified in her PPS review form received on 1 March 2001. It noted the applicant's belief that she advised the call centre on 2 February 2001 to cease her payments. It was noted that all documents relating to that conversation refer only to the arrears issue. The writer stated, "I spoke personally with call centre officer MRZ on that day and no mention was made to me about a/n requesting cancellation of her payments either".

* T20 - another computerised file note dated 14 March 2001 to much the same effect as T19.

35. Ms Ramplin responded that it would seem that the Centrelink officers did not record the full details of the telephone call of 2 February 2001. She queried how the call centre operator to whom she spoke on 2 February 2001 could be so confident about the content of the conversation six weeks later. The tribunal thought these responses to be fair comment. The tribunal considers it more likely that the applicant's own notes of the conversation (Ex A1) are a reliable version of the conversation. There was no evidence before the tribunal calculated to suggest that the file notes of call centre conversations such as this conversation are invariably faithfully summarised. It is noteworthy that the matter requiring immediate action by Centrelink, ie seeing to the arrears, was recorded. The other matters raised by the applicant were said to be not actionable until she produced a pay slip.

36. The applicant could not recall the length of the telephone conversation. She had made a subsequent call to the call centre but could not recall when.

37. The applicant said that she advises Centrelink of her income on a four-weekly basis except where she has a block of teaching. She then advises of the fixed income she will receive over the entire period of work.

38. Mr Lozynsky asked the applicant about T13, a file note dated 9 February 2001, recording that the applicant failed to report her earnings for the four weeks ending 12 January 2001. In the tribunal hearing Ms Ramplin explained that she had had no earnings in that period, hence the non-report. She was also recovering from pneumonia. Basically, she felt it unnecessary to report.

39. Mr Lozynszky asked about the late provision of the PPS review form (T18). This was due for submission on 23 February 2001 but was not received by Centrelink until 1 March 2001. It was not received by the applicant until 19 February 2001. It was signed as completed on 26 February 2001. It would seem that the applicant could have lodged the completed form by 23 February 2001 if she had made its completion and return, possibly delivering it by hand, a matter of the highest priority. However, the form was issued on 9 February 2001 and for some unknown reason took 10 days to reach the applicant. This was a notice affected by ss 68 and 72 of the Administration Act which have the effect of requiring Centrelink to allow a recipient of such a notice at least seven, or fourteen, days in which to respond to the notice. The form is about seven pages long and for some recipients would require some work in addition to filling it in. However, it is not a complicated form. Given the late receipt of the notice in the context of the scheme in the Administration Act, the tribunal considers that the applicant complied substantially with the requirements of the notice.

40. Mr Lozynsky informed the tribunal that Centrelink had, by the date of the hearing, recovered the $588.15 from the applicant. Should the applicant succeed in this application she would receive a refund.

41. In view of the above evidence, the tribunal now proceeds to make further findings.

42. The tribunal finds that the applicant was paid $588.15 which was not payable to her between the dates of 29 January 2001 and 20 February 2001. The tribunal finds that the amount was not payable to the applicant because her income was such as to qualify her for a nil rate of PPS during that period. The tribunal finds, in that respect, that the applicant's income in that period was $2,000 a fortnight gross (T18). The tribunal finds that the amount of $588.15 is a debt due to the Commonwealth under s 1223(5) of the Act.

43. The tribunal notes its agreement with the SSAT that the Act provides for a scheme whereby the starting point in dealing with such a debt is the proposition that any debt due to the Commonwealth should prima facie be recovered. However, the Act permits non-recovery in certain defined circumstances. There are two possible such circumstances in this case. The first is that Centrelink committed administrative errors in failing to act on certain of the information that the tribunal has found that the applicant provided on 2 February 2001. In this regard Centrelink did not end Ms Ramplin's PPS payments as requested and did not record and act on her information that she had commenced work. Section 1237A of the Act deals with such cases.

44. Section 1237A requires the Secretary to waive recovery of a debt where the conditions are met. All of the conditions must be satisfied. The conditions, and how they are met in this case, are as follows:

* There must be an administrative error made by the Commonwealth (s 1237A(1) of the Act). The tribunal has found that Centrelink made such an error in not recording the applicant's request to cease payments and in not recording her notification that she had recommenced work.

* The debt must be attributable solely to the error made by the Commonwealth (s 1237A(1) of the Act). The applicant was obliged to report her earnings every four weeks starting on 12 January 2001 (T13). She was next due to report on 9 February 2001 (T14). She did not do that, presumably in part because she considered that she had reported on 2 February 2001, but also because, as she says in T18/56, "I was asked to contact Centrelink re my earnings on 9/2/01. It is impossible to contact anyone at Centrelink. The phones are constantly engaged". However, had she reported again on 9 February 2001 it is likely that Centrelink would have recorded that advice. Thus an argument can be made that the applicant's failure to abide by the strict requirements imposed by Centrelink helped to contribute to the debt. If accepted, that argument would prevent waiver.

* The debtor must have received the payment(s) in good faith (s 1237A(1) of the Act). That requirement means that the recipient must receive the payments in the belief that he/she is entitled to them. The applicant wrote (T18/56), "As indicated earlier I fully understand my earning [sic] are too high to remain on the pension, as experienced in earlier years". In oral evidence the applicant confirmed that she knew that she was not entitled to the PPS being paid to her in February 2001 but her several attempts to have it stopped had failed. The tribunal finds on this evidence that the applicant did not receive the PPS moneys in good faith. The tribunal hastens to add that this is a technical legal finding and reflects no discredit on the applicant. The tribunal is entirely convinced that the applicant wishes to avoid incurring debt and has taken steps to try and avoid debt.

* Centrelink must have delayed longer than six weeks from the date of the first payment that caused the debt before it raised the debt (s 1237A(1A) of the Act). The tribunal finds that Centrelink took only 36 days to raise the debt, ie from 8 February 2001 (T15) until 16 March 2001 (T19). Therefore, this requirement is not met.

45. The tribunal therefore finds that the debt cannot be waived under s 1237A of the Act because several requirements are not met, and in spite of the error on Centrelink's part.

46. The Secretary may waive in a case where there are special circumstances. Section 1237AAD of the Act is relevant. The requirements in that section, and their status in this case, are set out below. All must be satisfied.

* The debtor or another person must not have knowingly made a false statement or false representation, or have failed to comply with a provision of the Act which has contributed to the accrual of the debt (s 1237AAD(a) of the Act). The tribunal finds that the applicant may satisfy this provision, however it depends to a considerable degree on the consequences of her failure to notify her earnings as required on 9 February 2001.

* It must be more appropriate to waive recovery of the debt than to write it off (s 1237AAD(c) of the Act). The tribunal finds that this is not a case where write off would be appropriate. Section 1236 of the Act deals with write off. For write off to apply the debt must be irrecoverable at law (which Ms Ramplin's debt was not), or the applicant must have no capacity to repay (which was not the case with Ms Ramplin as she had $5,000 in savings as at 26 February 2001 [T18/53]), or the debtor's whereabouts must be unknown (which is not Ms Ramplin's situation), or it must be not cost effective to recover the debt (which is not the case here).

* There must be special circumstances (other than financial hardship alone) that make it desirable to waive (s 1237AAD(b) of the Act). The tribunal finds no such special circumstances in this case. It is well established that circumstances, to be special, must be "unusual, uncommon or exceptional" (Re Beadle and Director-General of Social Security (1984) 6 ALD 1). The applicant suggested that her recurrent bouts of pneumonia might qualify as special circumstances. An illness of particular severity or accompanied by other unfortunate incidents might qualify as a special circumstance (Re De Neumann and Secretary, Department of Social Security (AAT 11280, 4 October 1996). However, in the applicant's case, she had had pneumonia up until about December 2000. The illness was well past by February 2001. Neither the applicant nor the tribunal was able to identify any circumstances prevailing in or about February 2001 that might fit the description of "special".

Conclusion

47. The consequence of the findings in this case is that the debt owed by the applicant to the Commonwealth, with Centrelink as agent for the Commonwealth, cannot be waived. There will therefore be no order that Centrelink is to refund the money paid by the applicant to liquidate the debt.

48. However, the applicant made clear that her purpose in bringing this application was to indicate that she has repeatedly been made responsible to repay debts accrued as a result of Centrelink's errors. Ideally, she would prefer to avoid disputes with Centrelink and avoid accruing debts. The tribunal, although unable to waive the debt in this case, sought to try and improve matters for the applicant in her future dealings with Centrelink. She has already had her Centrelink business moved from the Newcastle customer service centre to the Charlestown centre and considers that an improvement. She volunteered that a number of Centrelink staff have been prepared to give her their direct telephone numbers so that she can obtain direct assistance. However, she was unaware of anyone at Charlestown who had been assigned to be her main contact with Centrelink. As the tribunal understands it, Centrelink has been committed for several years to providing customers with a main contact person in the organisation who is responsible for the customer's relationship with the agency. In Ms Ramplin's case a main contact officer would be invaluable in assisting both her and the organisation to cope with the peculiarities of her fluctuating and spasmodic income situation. Mr Lozynsky undertook to pursue this with the manager of the Charlestown customer service centre.

Decision

49. The decision under review is affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member

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

Associate

Date/s of Hearing 22 January 2002

Date of Decision 8 February 2002

Counsel for the Applicant Self represented

Counsel for the Respondent Mr G Lozynsky, Centrelink Advocacy and Administrative Law Team