Radmilovich; Secretary, Department of Family and Community Services [2002] AATA 779 (9 September 2002)

Last Updated: 10 September 2002

DECISION AND REASONS FOR DECISION [2002] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/125

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Applicant

And ANGELINA RADMILOVICH

Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member

Date 9 September 2002

Place Perth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision of the Social Security Appeals Tribunal of 22 March 2001 under review, is set aside and in substitution therefor the Tribunal decides: (i) that the respondent was not qualified for Widow Allowance for the pay periods set out in paragraph 41 of the reasons for decision, in total of $4,826.63; (ii) the said amount is a debt due to the Commonwealth pursuant to s1223 of the Social Security Act 1991; and (iii) the debt should not be waived.

...........(sgd R D Fayle).................

Senior Member

CATCHWORDS

SOCIAL SECURITY ACT 1991 - qualification for Widow Allowance; married woman geographically separated from husband; whether emotional support by husband; spouses financially independent; whether living separately and apart.

Social Security Act 1991, ss4(1) definition of couple; 4(2), 4(3), 24, 408BA, 1223, 1237, 1237A, 1237AAD

In the Marriage of Todd (No 2) (1976) 9 ALR 401

SRL and Secretary, Department of Social Security (N96/610, 11 May 1998)

Dobbie and Secretary, Department of Social Security AAT No 8661 (1993)

REASONS FOR DECISION

9 September 2002 Mr R D Fayle, Senior Member

1. On 21 March 2001 the Social Security Appeals Tribunal ("SSAT") decided that Mrs Angelina Radmilovich ("the respondent") was overpaid Widow Allowance for a period from 7 July 1995 till 1 March 1999 in the sum of $24,162.56. However, the SSAT decided that as the respondent would have had a notional entitlement to unemployment benefits during the period then to that extent the debt arising from the overpayment should be waived. The Secretary, Department of Family & Community Services ("the Secretary") applied to this Tribunal to review the decision of the SSAT that portion of the debt should be waived. The respondent also contests the SSAT decision that there was an overpayment. The issues before this Tribunal are whether the respondent was overpaid Widow Allowance and if so, whether the whole or a part of the debt arising there from should be waived.

2. The Tribunal adjourned the hearing, which commenced on 23 April 2002, when it became clear that to proceed at that time may not have afforded parties natural justice. The hearing recommenced on 1 August 2002. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("T documents"), a statement by the respondent (Ex. R1), a bundle of documents under cover of letter of 24 July 2002 (Ex. R2) and a statement by Ms Jennifer Breen of 12 November 2001 (Ex. A1). The respondent and Ms Breen each gave evidence.

Evidence of Mrs Radmilovich (the respondent)

3. The respondent was born in Australia. In 1948, when the respondent was aged 10, the family left to live in Yugoslavia. The respondent was married at age 22 to a Yugoslav national. Her husband was studying medicine at the time and later specialised in nephology, eventually working as a renal specialist in the Yugoslavia/Serbian health system. They had two sons. In Yugoslavia the respondent completed a degree in English Literature. The family lived with the respondent's spouse's divorced father. The respondent's evidence is that she always wanted to return to Australia and had made that plain to her husband. Indeed, her brother had returned to Australia in 1986 and her sister was then preparing to return to Australia. The respondent said that whilst her husband was aware of her desire to return to Australia he resisted for reasons to do with the care of his father, who was diagnosed with cancer, the need to remain in Yugoslavia whilst the sons complete their education and for his career reasons, since he held down a responsible position within the hospital system. Her evidence is that in 1990 her father-in-law had recovered from a successful operation for his cancer and her youngest son had finished school and wanted to study in Australia. It was on that basis that in 1990 she and her son came to Australia. Her evidence is that during discussions with her husband before leaving she had offered him a divorce, which she hoped would force the issue. The respondent said that her husband did not want to divorce her and indicated that he would join her in Australia as soon as his responsibilities toward his father permitted.

4. After arriving in Australia in January 1990, the respondent found work as a cleaner. However, her son, who had accompanied her (for her eldest son remained in Yugoslavia pending the completion of his university studies), was unable to find a tertiary course that suited his career choice and ambitions. He therefore returned to Yugoslavia to study. Later in 1990 her eldest son, who had graduated from university in Yugoslavia, came to Australia on a visitor's temporary entry permit (because he had not been registered as an Australian national prior to his turning 18 years). Because her father-in-law died suddenly in October 1990, the respondent and her son returned to Yugoslavia. War broke out in January 1991 preventing her husband and sons from leaving Yugoslavia although she was free to leave. But as it was always her intention that the family should come to Australia, she stayed to lend support and be with them. Before the war ended in late 1994, with the signing of the Dayton Agreement, the respondent's eldest son had married and had a child. The family, including the respondent's daughter-in-law and grandchild all lived in a small flat with little to live on because although her husband was working in a responsible position, in charge of dialysis nationally, he was paid very little in conditions of high inflation. Neither of the two sons nor the daughter-in-law were employed. Meanwhile, the respondent had arranged with the Australian embassy to sponsor her son and daughter-in-law to migrate to Australia, which of course required her to be present in Australia. The respondent again urged her husband to accompany her to Australia to live. Her evidence was that he again resisted. He said that he was concerned about his mother, his specialist skills were needed to maintain dialysis services through Yugoslavia and he needed to stay since their youngest son had just achieved entry to university in Belgrade. The respondent's evidence is that the hardships of the war years had adversely affected her health and she was worried about "her sanity". She said that at that time she needed to come to Australia and in order to force the issue with her husband (because the rest of the family supported her) she bought a ticket to Australia. At the time her husband's job required him to travel throughout Yugoslavia and he was not often home or necessarily contactable. The respondent said that before leaving Yugoslavia she went to Montenegro to visit her mother's grave and relatives to say goodbye and organise certain legal matters. This visit lasted 6 weeks although she had anticipated 4 weeks and when she returned home she found that her husband was away having left her a terse note without any contact details. It was under those circumstances that she left for Australia arriving on or about 27 April 1995.

5. On 28 April 1995 the respondent applied for Job Search allowance. In that application the respondent stated that she was married but did not provide any further information about her husband or his then earnings (T4). Her evidence is that at that time she was not aware of her husband's earnings and as he had never been to Australia, he had no tax file number. These facts she confirmed at an interview relating to her application. The respondent then received a letter dated 12 May 1995 advising that she would be granted Job Search Allowance from 28 April 1995 (R2). However, by letter of 29 May 1995 the allowance was cancelled on the grounds that the respondent had not provided the Department of Social Security ("DSS") with her husband's tax file number (R2). A contemporaneous DSS file note dated 31 May 1995 (T5), confirms the respondent's evidence that she immediately telephoned the DSS to advise them once again of her husband's circumstances. That file note uses the expression "geographically separated" in relation to her and her husband's then living arrangements. The respondent said that she would not have used that term. Ms Breen, the departmental officer who also gave evidence, confirmed that the hand written notation on that file note (T5) indicates that the client's husband was overseas and therefore no tax file number was required. Then followed another letter from DSS to the respondent, of 1 June 1995, advising that her Job Search Allowance was to recommence, backdated from 26 May 1995 (R2). Based on the evidence of Ms Breen, this indicates that DSS was satisfied about the level of the respondent's husband's income being insufficient to affect her entitlement to the allowance (see T5 and transcript p.64).

Circumstances relating to the grant of Widow Allowance

6. Ms Breen told the Tribunal that in July 1995 her duties with DSS included contacting and interviewing female claimant's over 50 years who were then on Newstart (and Job Search) allowances and who had provided no information about their husband. The objective was to determine whether the claimant ought to be on the alternate Widow Allowance, which had no activity test requirements and was therefore viewed as more beneficial. Ms Breen explained that the DSS did this as a matter of a duty of care especially, as she understood it, the Widow Allowance was a relatively new benefit. Ms Breen told the Tribunal that the hand written notation on T6, a statement taken at the time she interviewed the respondent on 13 July 1995, indicates that the record would be altered from "married" to "separated" and to "single person".

7. The Tribunal is satisfied that in 1995 Ms Breen, who then had 9 years experience within DSS, was a competent and experienced officer familiar with the requirements of the Social Security law in relation to whether a person was "separated" from his or her partner (spouse or de facto) and no longer living in a marriage like relationship. It is further satisfied that Ms Breen interviewed a significant number of females who may have potential entitlement for the Widow Allowance. Each interview usually took about half an hour. Ms Breen saw no need to take notes during interviews although the client, in relation to matters discussed during the interview, often called upon her to draft a statement of fact for signature. She maintained that her practice was to have the client read the statement or she would read it aloud before asking the client to sign it. Ms Breen impressed the Tribunal as a conscientious officer who took her responsibilities seriously. On her own admission Ms Breen said that she believed that she was not easily mislead and that she would only record in a statement what she believed to be the essential facts as that was all that was required and indeed her immediate superior only expected the essential facts without embellishment. So, in the present case, it was not unusual that the statement, prepared by Ms Breen and signed by the respondent, reproduced below in full, was captured in seven hand written lines. That statement is:

"I consider myself to be separated from my husband and I know he is Serbia (sic) but I have no idea of his address. I asked for a divorce before I left Serbia to come back to Australia but he refused to agree. I have had no contact from him since I have been back in Australia." (T6)

8. The respondent said that she recalls the interview. She said that Ms Breen showed considerable interest in her situation and encouraged her to make a statement that would change her social security benefit to Widow Allowance. The respondent said that she queried Ms Breen about that benefit because she was not a widow only to be reassured that the allowance was available to persons such as herself who were separated from their husband. The respondent's evidence is that she trusted Ms Breen, who impressed her as a caring and responsible officer, and therefore signed the statement without having checked it. The Tribunal, in the light of the evidence generally, is not prepared to accept that that was the case - especially as the respondent is obviously an intelligent person competent in English. However, the Tribunal accepts that at in July 1995, the respondent regarded herself separated indefinitely from her husband. The supporting evidence in this regard is that the respondent left Serbia without having spoken to her husband for 6 weeks, she had no contact, by telephone, mail or otherwise up to the time of the statement in July 1995, that is for some two and a half months, although she had written to her son during that time. Further, the respondent knew that her husband could be anywhere in Serbia depending on his job and that he would not be easily contactable in the event she tried to contact him urgently, which she did not. At the time, in July 1995, the respondent was quite uncertain about the future of her and her husband's relationship.

9. Having regard to the above, in the Tribunal's opinion, the statement above (T6) records bare facts - that the respondent and her husband were separated; that the respondent did not know her husband's then address; and that since departing Serbia in April 1995 she has had no contact with her husband. However, the respondent's evidence is that the matter of divorce was only once raised with her husband and that was prior to her first trip to Australia in 1990. To that extent the statement is misleading although it may well record what the respondent told Ms Breen during the interview. Whatever the situation, those bare facts as recorded in the statement were sufficient to found a basis for qualification for Widow Allowance, paid from 7 July 1995 instead of the Job Search Allowance.

10. Ms Breen, in her evidence said that there were two essential preconditions to founding a claim for Widow Allowance in the case of a married person such as the respondent. Those are that the claimant and her husband must be separated in the sense that they were living apart, and that the reason for that separation was a permanent or indefinite breakdown in the emotional side of the marriage. Ms Breen said that these factors are distinguished from a mere "geographical separation" where the couple were separated but still committed to the marriage. Her evidence is that it was those considerations that would have been driving her decision in relation to the respondent at the time leading her to encourage the respondent to make a formal claim for the Widow Allowance, which the respondent did the day following the interview (T7). The Tribunal notes that in that claim the respondent stated that her title was "Mrs", that she did not currently have a partner and that she was separated since 15 February 1995, apparently the date when she left Serbia to go to Montenegro before subsequently departing for Australia in April 1995. In the opinion of the Tribunal those disclosures reconcile with the respondent's evidence that as a result of her interview with Ms Breen she understood that she was qualified for Widow Allowance. In that sense, whether the respondent had or had not requested a divorce from her husband is incidental since the other facts alone would have been sufficient to satisfy Ms Breen that the respondent no longer received emotional support from her husband, a situation that was likely to continue indefinitely. And in the Tribunal's opinion, the fact that the respondent had never given up hope of her husband joining her in Australia (as indeed he did eventually) does not alter the essential factual matrix that prevailed in July 1995 when the claim was made.

Evidence of relationship with husband subsequent to grant of Widow Allowance

11. The respondent's spouse visited her in Australia, on Short Stay Tourist Visas in January 1997 and January 1998 each time for about 12 weeks and again in February 1999 (R2). On 23 May 1999, the respondent's husband applied for an Extended Eligibility (Temporary) Class TK visa (R2). He had previously applied, on 28 April 1999, for permanent residency of Australia (R2). Once that had been granted he returned to Yugoslavia in November 2001 for reasons associated with his pension entitlements and to care for his aging mother.

12. On 31 May 2001, the Migration Review Tribunal ("MRT") remitted to the delegate of the Minister for Immigration and Multicultural Affairs his/her decision to refuse to grant the respondent's husband an Extended Eligibility (Temporary) Class TK visa with a direction that [the respondent's husband] is to be taken to have met specified criteria for a Subclass 820 (Spouse) visa. Those specified criteria were that at the time of the application (April 1999) the respondent and her husband "had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them was genuine and continuing and that they lived together." In reaching that decision, the MRT made the following observation and finding relevant to the present case:

"The Tribunal is satisfied in relation to the delegate's concerns with respect to the parties' separation in 1995 and with respect to the circumstances in which the nominator [the respondent] obtained a Widow's pension during the period of separation. The Tribunal notes that submissions provided by the visa applicant and the nominator, supported by statements and statutory declarations from persons who have known the visa applicant and the nominator for many years, indicate that the visa applicant and the nominator have been in a genuine and continuing relationship since their marriage in 1960. The Tribunal also notes that despite their geographical separations they represented themselves to friends and family as being in a committed and continuing spousal relationship. The Tribunal finds that the parties rely on each other for companionship and emotional support to a degree commensurate with a spousal relationship." (para 32)

13. It is not disputed that the respondent's husband's earnings from Yugoslavia (Serbia) were insufficient to provide for the respondent and barely enough for her husband and her son to live on. Certainly, they were insufficient to affect any otherwise entitlement that the respondent may have then had for Job Search Allowance or Newstart Allowance. For that reason, the respondent's husband provided no financial support to the respondent and indeed, when he visited Australia, the evidence is that the respondent contributed toward his living expenses.

14. In her statement (R1), the respondent said that she wrote to her husband in early July 1995 and in August 1995 he telephoned her, which was the first communication that she had had with him since February 1995. It is noted that this was subsequent to the time that the respondent made the statement to Ms Breen referred to above (13 July 1995) (T6).

15. The respondent's evidence is that in relation to the visits by her husband in both January 1997 and January 1998, she contacted the Secretary to ask whether, as a result, her Widow Allowance would be affected. Her evidence is that after discussion of the circumstances she was told to continue to report that she was "separated".

16. The respondent continued to receive Widow Allowance until 2 March 1999 when she became eligible for Age Pension. It is noted that the MRT decision is based on the respondent's circumstances in relation to her relationship with her husband from a date following the transfer to Age Pension. The overpayment period in question ceased on 1 March 1999.

Relevant legislation

17. The relevant provisions of the Social Security Act 1991 ("the Act") are set out below.

4 Family relationships definitions - couples

(1) In this Act, unless the contrary intention appears:

member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A);

(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b) (not relevant)

Member of a couple - criteria for forming opinion about relationship

(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or ..., the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and any joint liabilities; and

(ii) any significant pooling of financial resources especially in relation to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other person; and

(iv) the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

(i) any joint responsibility for providing care or support of children; and

(ii) the living arrangements of the people; and

(iii) the basis on which responsibility for housework is distributed;

(c) the social aspects of the relationship, including:

(i) whether the people hold themselves out as married to each other; and

(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii) the basis on which the people make plans for, or engage in, joint social activities;

(d) any sexual relationship between the people;

(e) the nature of the people's commitment to each other, including:

(i) the length of the relationship; and

(ii) the nature of any companionship and emotional support that the people provide to each other; and

(iii) whether the people consider that the relationship is likely to continue indefinitely; and

(iv) whether the people see their relationship as a marriage-like relationship.

(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

24 Person may be treated as not being a member of a couple

(1) Where:

(a) a person is legally married to another person; and

(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and

(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

(2) (not relevant)

(2) Subject to section 408BB, a woman is qualified for widow allowance in respect of a period if:

(a) she has turned 50; and

(b) she was a member of a couple and since turning 40:

(i) her partner died; or

(ii) she separated from her partner; or

(iii) she divorced from her husband; and

(c) she satisfies the Secretary that she has no recent workforce experience on the day when she makes her claim for the allowance; and

(d) at least one of the following is satisfied:

(i) if the woman entered Australia before 1 April 1996 - the woman has been an Australian resident for a continuous period of at least 26 weeks immediately before the day she lodged the claim for the allowance; or

(ia) if the woman entered Australia on or after 1 April 1996 and before the commencement day - the woman has been an Australian resident for a period of, or periods totalling, 104 weeks before the day she lodged the claim for the allowance; or

(ib) if the woman entered Australia on or after the commencement day-the woman has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks before the day she lodged the claim for the allowance; or

(ii) she has 10 years qualifying Australian residence; or

(iii) she has a qualifying residence exemption for widow allowance; or

(iv) both the woman and her partner were Australian residents at the time when the qualifying event under paragraph (b) occurred; and

(e) throughout the period, she:

(i) is not a member of a couple; and

(ii) is an Australian resident.

1223 Debts arising from lack of qualification, overpayment etc.

(1) Subject to this section, if:

(a) a social security payment is made; and

(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

1237 Power to waive Commonwealth's right to recover debt

Secretary's limited power to waive

(1) On behalf of the Commonwealth, the Secretary may waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD.

When waiver takes effect

(2) A waiver takes effect:

(a) on the day specified in the waiver (whether that day is before, after or on the day on which the decision to waive is made); or

(b) if the waiver does not specify when it takes effect - on the day on which the decision to waive is made.

Note: If the Secretary waives the Commonwealth's right to recover all or part of a debt, this is a permanent bar to recovery of the debt or part of the debt - the debt or part of the debt effectively ceases to exist.

1237A Waiver of debt arising from error

Administrative error

(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).

(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.

Underestimating value of property

(2) (not relevant

Proportion of a debt

(3) For the purposes of this section, a proportion of a debt may be 100% of the debt.

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.

Discussion and Reasons

18. The Tribunal recognises that any judicial decision outside the scope of the Social Security Act is not necessarily binding in relation to decisions made pursuant to the Social Security Act. With that in mind, the Tribunal cites from a judgment of Watson J in In the Marriage of Todd (No 2) (1976) 9 ALR 401. There his Honour examined the concepts of "separation" and "living separately and apart" in the context of a marriage relationship, which concepts are clearly relevant to the Social Security law. His Honour said:

"Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or alternatively, act as if the marital relationship had been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of marriage by both spouses in public and private relationships.

When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.

As to the second element, that of living separately and apart, this element is present and continues to be present unless there is a substantial resumption of the marriage state ... Just as intention (or acceptance) and action are ingredients on the element of separation so intention (or acquiescence) and action thereon are necessary ingredients in the termination of separation."

19. In the Tribunal's opinion, the respondent showed no lack of understanding when she appeared before the Tribunal and was examined for over two hours. The Tribunal does not accept that the respondent has any difficulty understanding English, as would be anticipated having regard to her upbringing as a child and her tertiary studies in English Literature. In the Tribunal's opinion, there are several inconsistencies in the respondent's evidence about her accepting the Widow Allowance on the basis that she understood herself to be separated from her husband. Granted that for the period from her arrival in Australia in April 1995 until her husband telephoned her in August 1995, the respondent had good reason to believe that she was "separated" from her husband. Indeed, that separation was not simply geographic but because of the lack of communication, she was deprived of normal mutual emotional support expected of married couples, whether together or geographically apart, coupled with a reasonable contemporary belief that she may well be in that situation indefinitely. However, in the opinion of the Tribunal, having regard to the MRT decision (supra), by August 1995, when the couple were again in contact, the separation at most, was essentially geographic although even then there was no prospect that the respondent could expect any financial assistance from her husband. The evidence before the MRT was that the respondent's and her husband's family and friends always considered them to be a committed married couple. Further, that the respondent's husband always intended to join her in Australia and moreover, that there was no other person with whom either was emotionally involved. In many respects those facts do not support a reasonable belief on the part of the respondent that at least soon after August 1995 she and her husband were estranged and no longer to be considered as having an exclusive marriage relationship and members of a couple.

20. In the opinion of the Tribunal and having regard in particular to the provisions of s4(3)(e) of the Act, the respondent was not "living separately and apart" (as that term is understood) from her husband although, to use the expression of Ms Breen, they were geographically separated. That geographical separation and the respondent's then impecunious state together precludes the provisions of paragraphs s4(3)(a), (b) and (d) as having any relevance to the judgement of whether the respondent and her husband were members of a couple for the purposes of the Act.

21. In the Tribunal's opinion, at all material times since her interview with Ms Breen, the respondent had a reasonable understanding of the conditions under which the Widow Allowance was payable. Therefore, it is not to the point that she relied on telephone confirmation by the DSS/Centrelink, particularly when her husband subsequently visited her, to continue to report her relationship with him as "separated". In the opinion of the Tribunal, if the Secretary had been apprised of the evidence eventually before the MRT about the contemporary nature of the respondent's then relationship with her husband, at least from August 1995, the advice to report "separated" would not have been given. In the opinion of the Tribunal, in those circumstances there was no error on the part of the Secretary in giving that advice which enabled the respondent to continue to be paid Widow Allowance when it must have been clear to her that she was a "member of a couple" as that term is defined in the Act.

First Conclusion

22. For the above reasons the Tribunal is of the opinion that the respondent was qualified for Widow Allowance from 7 July 1995 to the pay period last occurring in August 1995 but not thereafter.

Can the respondent obtain relief under s24?

23. Having found as fact, at least from some time in August 1995, that the respondent and her husband were not living separately and apart on a permanent or indefinite basis, the Secretary (that is, the Tribunal on review) may determine pursuant to s24 of the Act, that the person is not to be treated as a member of a couple for the purposes of the Act.

24. The provisions of s24 of the Act were considered by Senior Member R P Handley in SRL and Secretary, Department of Social Security (N96/610, 11 May 1998). The Senior Member made the following observations which are relevant to the present case:

55. The first issue for the Tribunal is whether to exercise the discretion under s 24 of the 1991 Act to treat the Applicant as not being a member of a couple. The Tribunal must be satisfied that there is a "special reason" to do so. In Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533, Jenkinson J emphasised that the decision-maker must have regard both to the purpose of the enactment and the facts of the case in giving effect to a just outcome. He considered the meaning of "special reason" with reference to the discussion of "special circumstances" in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, and Beadle v Director-General of Social Security (1985) 7 ALD 670. What emerges from that discussion is that to be "special", the circumstances must be unusual, uncommon or exceptional. (See the Tribunal decision in Re Hawkins and Secretary, Department of Social Security (AAT 11446, 4 December 1996).)

56. The purpose of s 24(1) was discussed by the Tribunal in Secretary, Department of Social Security and Porter (AAT 11804, 24 April 1997). The Tribunal referred to the general expectation that where two people are members of a couple they will pool their resources. (See also Hawkins, cited above, at para 12.) In Porter, the Tribunal said the discretionary power in s 24(1) must:

... be exercised for the purpose for which it was conferred and having regard to the scope and object of the Act as a whole. The Act is welfare legislation whose general object is to make provision, by way of social security payments, for those who are in genuine need thereof. The purpose of s.24(1) of the Act is to preclude the application of the abovementioned general rule in a particular case if, for a "special reason" in that case, such application would not promote, but would instead impair, the welfare of the relevant "member of a couple" in receipt of social security and, therefore, would not accord with the general object of the Act: see Le-Huray (above), at p.542. (para 44)

57. In Porter, the Tribunal also cited an earlier Tribunal decision in Reid and Director-General of Social Security (1981) 4 ALN No. 1 where the Tribunal, in discussing a similar discretionary power conferred by s 29(2) of the 1947 Act said:

... the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Services Act 1947 ... Thus while keeping the general rule laid down by s.29(2) in mind, the decision-maker must nevertheless be prepared to respond to the circumstances of a particular case if for any special reason the application of the general rule would be unjust, unreasonable or otherwise inappropriate having regard to the scope and object of the Act. (para 35)

25. In the present case it will be noted that in arriving at the first conclusion above the Tribunal observed that because of the geographical separation of the respondent and her husband, the provisions of 4(3)(a), (b) and (d) had no relevance in reaching that conclusion. However, that is not to say that those circumstances would not found a basis for special reasons pursuant to s24 of the Act, as that term is discussed in SRL above. Indeed, in the Tribunal's opinion, the mere fact of the respondent's geographic isolation from her husband (except during his 12 week visits in each of January 1997 and 1998 and his return in February 1999 prior to the respondent's entitlement to Age Pension in March 1999) is a relevant consideration in deciding whether special circumstances existed.

26. In the Tribunal's opinion, the fact that the respondent's husband was in no position ever to make any contribution to her welfare when in Australia, is another factor that ought to be considered in this context and in a relative sense, given considerable weight.

27. Except for the 12-week periods in 1997 and 1998 and in February 1999 until 2 March 1999, when her husband was physically present in Australia, the respondent was indeed alone at all material times. That obtained notwithstanding that she and her husband were committed to continuing their normal cohabitation in Australia, as soon as he was able, which was subject to his application for an appropriate visa. The extent of the couples' normal marriage relationships and support during those periods of geographical separation was limited to long distance communications.

28. Further, by reason of the geographical separation the couple was unable to socialise together or enjoy together family and other gatherings.

29. In the Tribunal's opinion, all those factors, particularly geographical separation and financial independence, are tantamount to special reasons in this particular case for the respondent not to be treated as a member of a couple during the relevant period. The fact that the respondent's husband was unable to provide financial support is a factor that should weigh heavily in her favour having regard to the very nature of the benefit for which she had applied. The Tribunal is satisfied that the respondent did, from time to time, earn money but not so much as might be regarded as significant in any relevant sense. The evidence is that the respondent was almost entirely dependent on her Widow Allowance.

Second conclusion

30. On the basis that the Tribunal is satisfied pursuant to s24 of the Act, that the respondent should not have been treated as a member of a couple for the periods of geographical separation as discussed above, the respondent met the requirements of s408BA(2)(e) of the Act. The effect of that decision is that the respondent was overpaid Widow Allowance only for the periods when her husband was in Australia and she was also in receipt of Widow Allowance. That is, for two 12 week periods commencing respectively in January 1997 and 1998 and for the period from February 1999 until 1 March 1999. That aggregate amount of overpaid Widow Allowance ("the remaining debt") is a debt due to the Commonwealth by the respondent pursuant to s1223 of the Act. Therefore the Tribunal now turns its attention to the question of whether the whole of part of the remaining debt should be waived. The statutory provisions contained in the Act circumscribe that question, c/f s1237.

Waiver

31. In the opinion of the Tribunal, and for reasons already provided, the evidence before the Tribunal does not support a conclusion that the remaining debt arose solely from administrative error. Indeed, there is no apparent error on the part of the Secretary unless it was telling the respondent to continue to report that she was "separated" even though her husband was physically present with her in Australia when he visited in January of 1997 and 1998 and February 1999. The Tribunal is not satisfied that the Secretary gave that advice in circumstances that the Secretary was appraised fully of the relevant facts. For those reasons there can be no waiver of the remaining debt pursuant to s1237A.

32. The only other relevant waiver provision is s1237AAD.

33. Mr Jones conceded during the hearing that, in the Secretary's opinion, the respondent did not knowingly make a false statement or representation but rather was reckless in her statement. Mr Jones submitted that the following incidents of incorrect disclosure to the Secretary are examples of this recklessness: the failure to disclose details about her husband in her original Job Search Allowance claim (T4); the respondent's original statement (T6, 13 July 1995) which preceded the claim for Widow Allowance, particularly as it refers to her having "asked for a divorce"; and reporting that she had not reconciled with her husband when completing the Widow Allowance review form in January 1996 (T9). It is relevant to note that in March 2000 the respondent signed another statement prepared as a result of an interview with the Secretary which stated inter alia:

"The intention has always been that my husband would stay in Yugoslavia until our youngest son completed his studies and the (sic) he would come to Australia and we could live together again. We were never separated due to a relationship breakdown. We have only been separated geographically due to our sons living in different countries. ...I have been married to my husband for the last 40 years and although we have had arguments, as any husband and wife do, we have not been separated due to a relationship breakdown..." (T19)

34. Notwithstanding the above statement, the Tribunal is prepared to accept the Secretary's concession in this regard as reasonable since having heard the respondent give evidence it is reasonably satisfied that in April 1995 and for some time thereafter the respondent did not appreciate the nuance or technical meaning, attributed to the word "separated" in the context of qualification for Widow Allowance. Therefore, waiver of the remaining debt pursuant to s1237AAD depends, in this case, on whether there were "special circumstances (other than financial hardship alone) that make it desirable to waive".

Special circumstances

35. It was submitted for the respondent that it was on the Secretary's own initiative that she was encouraged to switch from her then Job Search/Newstart Allowance entitlement to the Widow Allowance. Therefore, in that sense, the Commonwealth lost nothing as a result of the incorrect payment. It was submitted that should the Tribunal decide that a debt arose as a result of overpayment of Widow Allowance, then special circumstances would allow a set-off against that debt of a notional entitlement to the former benefit.

36. In this regard, it was further submitted for the respondent that this is clearly a case where the Secretary has by its own actions contributed toward the respondent's circumstances and that the Commonwealth should not benefit by the amount of the debt, which, if repaid by the respondent would cause her considerable hardship and worry. In this regard, the Tribunal is satisfied that the only way the respondent could repay the remaining debt would be by deduction from her future Age Pension entitlement and given her impecunious circumstances, would cause hardship (R2 - Statement of Income and Expenditure).

37. In regard to a notional alternate entitlement being special circumstances, Mr Jones for the Secretary, made the following submission:

Whilst the courts have clearly endorsed a broad approach to the consideration of the issue of special circumstances the Secretary contends the existence of a notional entitlement to another payment does not of itself invoke special circumstances.

In Re Duncan and SDSS (1988), the Tribunal found that the applicant had misled the Department and had been overpaid benefits as a consequence:

14. It was submitted that if the Tribunal were to find as it has found, the amount of the overpayment should be reduced by the amount of family income supplement (FIS) to which the applicant would have been entitled in respect of the relevant period had he known of FIS and claimed it.

15. I am not impressed by this submission. It appears to me that if a person misrepresents his situation to the respondent, he has to accept that a consequence of his misrepresentation may well be the denial of a benefit of a nature different to that he is seeking. Moreover, if individuals ignorant of entitlements under the Act are to be enabled to claim an entitlement at a later date when they become aware of the entitlement (except where there may be provision in the Act for backdating), the administration of the Act would be made unacceptably difficult.

In Re Dobbie and SDSS (1993), the applicant was found to be in a de facto relationship while in receipt of a widow's pension; she had been entitled to an age pension throughout the period. The Tribunal allowed waiver of 50% of the overpayment commenting:

As the applicant had an entitlement to a rate of age pension that fact should not be ignored despite the fact that she had received public money to which she was not entitled; see Bradley at para 39. On the other hand good administration of the social security system relies in large measure on the honesty of claimants in their dealings with the department. It follows in our opinion that an applicant who, notwithstanding a notional entitlement to a pension, misrepresents her position faces the prospect of having to accept the consequences of her actions. (transcript at p 18-19)

The Secretary contends the SSAT erred in finding that the respondent would have automatically been eligible for [Job Search]/ Newstart allowance. Eligibility for Newstart allowance is dependant on a range of factors including the ongoing satisfaction of the activity test. The activity test is a requirement that Newstart recipients show they are actively looking for full time work. To assume that for the period of the overpayment the respondent would automatically have qualified for Newstart allowance is too great an assumption ...

The waiver provisions of the Act were amended with affect of 1 January 1996 at which time the introduction of specific waiver provision allowing for waiver in cases where a notional entitlement was present. These waiver provisions only allow for waiver if a notional entitlement to Parenting Allowance or Family Allowance .... Eligibility for Parenting Allowance or Family Allowance is not dependant on the ongoing satisfaction of an activity test in order to remain eligible.

The Secretary contends that whilst ... the respondent may have been eligible for Newstart allowance [at all material times] is a factor that the Tribunal may consider, the legislation does not allow the wholesale waiver of debts by the equivalent of an entitlement to another payment other than Family or Parenting allowances.

38. The passage from Re: Dobbie and Secretary, Department of Social Security, AAT No 8661 (1993) cited above, a decision of Deputy President Forrest with Members Brewer and Rodopoulos, is repeated in full below. It follows an observation that "compassionate considerations in the exercise of discretion to recover an overpayment may be taken into account when considering special circumstances." (para. 41) After a consideration of the facts, the Tribunal concluded:

"... the applicant had an entitlement to a rate of age pension during the relevant period having regard to the 'married' income tests. In other words, if the true state of affairs had been disclosed the applicant would have been paid age pension during the relevant period in excess of $20,000. As the applicant had an entitlement to a rate of age pension that fact should not be ignored despite the fact that she had received public money to which she was not entitled; see Bradley at para 39. On the other hand, good administration of the social security system relies in large measure on the honesty of claimants in their dealings with the department. It follows in our opinion that an applicant who, notwithstanding a notional entitlement to a pension, misrepresents her position faces the prospect of having to accept the consequences of her actions." (para 42)

39. In the opinion of the Tribunal the applicant ought to have realised in relation to the periods when her husband was present and living with her in Australia that it did not make any sense to describe their then marital circumstance as separated. In relation to those periods, which give rise to the remaining debt, the evidence of fact and circumstance of this case support the submissions of the Secretary, which the Tribunal adopts as appropriate. The evidence is that the respondent was from time to time in either part-time or casual employment although it is not clear that that was the case during the remaining debt period. Her evidence before the Tribunal was that she was not looking for ongoing work. Never the less, that of itself is not enough for the Tribunal to be satisfied that should the respondent have been in receipt of Newstart Allowance (instead of Widow Allowance) that she would not have met the activity test and not qualified for the benefit.

Third Conclusion

40. For the above reasons, the Tribunal concludes that it is not appropriate, in terms of s1237AAD, that the respondent's possible (but not determined) entitlement to either Job Search or Newstart Allowance during the overpayment period relating to the remaining debt, constitute special circumstances which make it desirable to waive the debt. That obtains even accepting the respondent's financial hardship.

41. By reference to the T 33, a record of payment of Widow Allowance to the respondent, the Tribunal calculates the overpayment for the remaining debt as follows:

7 January 1997 to 31 March 1997 (12 weeks) 1,776.50

6 January 1998 to 30 March 1998 (12 weeks) 1,984.23

fortnight ended 2 February 1999 to 2 March 1999 1,065.90

$4,826.63

Decision

42. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision of the Social Security Appeals Tribunal of 22 March 2001 under review is set aside and in substitution therefor the Tribunal decides for the above reasons:

(i) that the respondent was not qualified for Widow Allowance for the pay periods set out in the previous paragraph, in total of $4,826.63;

(ii) the said amount is a debt due to the Commonwealth pursuant to s1223 of the Social Security Act 1991; and

(iii) the debt should not be waived.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member

Signed: .........(sgd V Wong)...............................

Associate

Date/s of Hearing 23 April, 1 August 2002

Date of Decision 9 September 2002

Counsel for the Applicant Mr A Jones

Solicitor for the Applicant Advocacy & Administrative Law Team Centrelink

Counsel for the Respondent Mr H Christie

Solicitor for the Respondent Christie & Strbac