Planing and Secretary to the Department of Family and Community S ervices [2003] AATA 399 (1 May 2003)

Last Updated: 2 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 399

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2002/761

GENERAL ADMINISTRATIVE DIVISION	)
	Re	LOUIS PLANING

Applicant

And

SECRETARY TO THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr J. Handley, Senior Member

Date 1 May 2003

Place Melbourne

Decision

The decision of the Social Security Appeals Tribunal made on 8 April 2002 is varied. The application is remitted to the respondent for calculation in accordance with these reasons.

(Sgd) J Handley

Senior Member

CATCHWORDS

Social Security - Applicant claimed benefits as a single person - later married - paid as a single person - inability to prove income of spouse - later separated - concession applicant was thereafter single - decision varied and remitted for calculation of overpayment.

Social Security Act 1991

Social Security (Administration) Act 1999

Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529

Jazazievska v Secretary, Department of Family and Community Services (2000)

65 ALD 424)

Secretary, Department of Education, Employment, Training and Youth Affairs v Prince

(1997) 152 ALR 127

REASONS FOR DECISION

1 May 2003

Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 8 April 2002. The SSAT was then reviewing a decision made by an Authorised Review Officer ("ARO") of Centrelink to raise and recover an overpayment of $4,659.88 being a payment of New Start Allowance between 1 May 1998 and 15 June 1999.

2. The SSAT made a number of findings of fact and decided that an overpayment had occurred but not for the entire period decided by the ARO. The SSAT remitted the application to the respondent for re-calculation in accordance with its findings.

3. Subsequently the respondent recalculated the amount alleged as a debt and proceeded to recover the sum of $2,382.95.

4. The application was listed for hearing at Wodonga on 6 March. Mr Planing appeared without representation. Ms King appeared on behalf of the respondent.

5. The circumstances giving rise to this application may be briefly summarised as follows-

6. Mr Planing was self employed as a painter and decorator but suffered injury and claimed sickness allowance on 9 February 1998. In his application for benefits he declared that he did not "have a partner" (T-documents, p.16) and the respondent thereafter paid him at the single rate.

7. On 15 February 1998 - that is 6 days later - Mr Planing married.

8. On 12 February 1998 and 6 March 1998 Mr Planing notified Centrelink of a change in his address (p. 32).

9. On 25 May 1998 the respondent wrote to Mr Planing at the address he had most recently notified, advising him that he was obliged to notify Centrelink of any change in his circumstances. One of the circumstances suggested by Centrelink as a change in circumstances is "You marry".

10. On 17 July 1998 - having received sickness allowance at the single rate to that date, Mr Planing notified Centrelink that he was returning to work and benefits ceased.

11. On 19 November 1998 Mr Planing ceased employment and claimed new start allowance. He then declared that he did "have a partner" and declared that he was living with his partner (page 43 & 44). He also provided a copy of his marriage certificate.

12. The respondent thereafter paid Mr Planing new start allowance at the single rate until 10 June 1999 when he returned to work.

13. The respondent initially alleged that there had been an overpayment of sickness allowance and new start allowance by reason of a combination of-

i The applicant being paid at the single rate after 15 February 1998 when he should have been paid at the married rate and

i Income earnt by the applicant and his wife and

i Income of the applicant's wife derived from real estate investments (which were not declared).

14. At the hearing before the SSAT it was learnt that Mr Planing had separated from his wife on 20 January 1999 and was divorced approximately 12 months later. The SSAT found as a fact that beyond 20 January 1999 Mr Planing was not a member of a couple and should be regarded beyond that date as being a single person. It therefore followed that any overpayment to Mr Planing was confined only to the period 16 February 1998 until 17 July 1998 and between 19 November 1998 to 20 January 1999.

15. The SSAT found that Mr Planing in fact did not work at any time whilst he was in receipt of Centrelink benefits but the overpayment arose by reason of him being paid at the single rate when he should have been paid at the married rate (that is, he did not declare his marriage). The SSAT also found that the overpayment "was affected by his wifes income".

16. At the commencement of the hearing it was learnt that the applicant's former wife would not be giving evidence. In the absence of evidence from her and in the absence also of any other documents disclosing her income, I could not foresee how the respondent could prove its case insofar as it alleged an overpayment by reference to spouse earnings. Ms King indicated that calculation sheets prepared by the respondent (page 86) in fact did not take account of "partner income" however on review, after the conclusion of the hearing, I note at page 93 that "partner income" is referred to in other calculation sheets. I note also that the ARO has purported to take account of amounts of monies described by him as being "partner income".

17. On balance, in the absence of evidence from the applicant's former wife and in the absence of any other evidence proving income received from the applicant's former spouse, I am not prepared to find that any overpayment against the applicant should be calculated by reference to spouse earnings during the relevant periods.

18. Additionally, there is nothing within the documents filed or from the evidence heard at the Tribunal indicating that Mr Planing worked at all (and therefore earnt income) during any period that he was in receipt of benefits. I am therefore not prepared to find that any overpayment against him is by reason of his earnings during those periods.

19. To the extent that overpayment has been alleged against Mr Planing beyond 20 January 1999, I am satisfied that the concession made by the respondent, namely, that beyond that date he was not a member of a couple is a concession proper in the circumstances and accordingly there was no overpayment to Mr Planing beyond that date.

20. I am substantially therefore in agreement with the decision made by the SSAT save that for the reasons given above I do not find that any overpayment "was affected by his wife's income".

21. In the context of citizen review and when dealing with welfare legislation, the respondent - if it makes an allegation - must prove it. It cannot prove spouse earnings and its approach to calculating the overpayment is - with respect - confusing. The calculation sheets found at pages 85 - 100 are of themselves inconsistent and the methodology adopted by the ARO, and those advising him (pages 120-129 inclusive) are also confusing and inconsistent.

22. Accordingly, I am satisfied that any overpayment should be considered only by reference to the period 16 February 1998 (being the day after marriage) until 17 July 1998 (when the applicant returned to work) and for the period 19 November 1998 (when he again claimed a benefit) until 20 January 1999 when he and his former wife separated. Additionally, any overpayment of benefits, should only be calculated upon the basis of the difference between the amounts paid within those two periods at the single rate, compared to the amounts which should have been paid within those periods at the married rate.

23. With respect to the first period namely, 16 February 1998 until 17 July 1998 the case put on behalf of the respondent was that throughout that period Mr Planing was a married person, that he should not have been paid at the single rate and despite having married after the date of his primary claim where he declared that he was a single person he should have disclosed to the respondent that his circumstances had changed and that he had become married.

24. The first notification to Mr Planing of his obligations to advise of a change in circumstances was contained in a letter dated 25 May 1998. There is no evidence nor is there anything within the documents lodged which points to any written notification to Mr Planing before that date to advise of a change in circumstances. Ms King indicated at the hearing that there is nothing within the Social Security Act 1991 or the Social Security (Administration) Act 1999 which requires a beneficiary to advise of a change of circumstances before being put on notice. For my part I can find nothing within those Acts which imposes any obligation in law upon Mr Planing to give that notification (c/f S.1061ZZCT, 1061ZZCZ of the 1991 Act & S.69 of the 1999 Act).

25. It was put at the hearing that Centrelink was in error in failing to provide a "notification letter" before 25 May, nonetheless it was submitted that Mr Planing should have volunteered that he had married because he was specifically asked at the date of primary claim whether he had a partner (which should have put him on notice that having a partner was relevant to the question of payments). It was also submitted he had an opportunity in March to notify of his marriage when he notified of the change of address.

26. I am satisfied that the applicant was overpaid between 16 February 1998 and 6 March 1998 but the amount overpaid should be waived. Whilst the applicant did not receive his `change in circumstances' notice until May, he did notify the Department of his change of address on 6 March 1999. He said he also then notified the Department of his marriage. Whilst it would appear the Department was in error by continuing to pay at the single rate, receipt subsequently by Mr Planing of sickness allowance, at the single rate, does not amount to good faith on his part (refer Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127; Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529 and Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424).. I am satisfied therefore that Mr Planing was overpaid between 6 March 1998 and 17 July 1998. The amount overpaid is to be calculated only by the difference between the rate of sickness allowance payable at the single and married rates.

27. With respect to the period of alleged overpayments between 19 November 1998 and 20 January 1999, I am unable to discern from the T-documents whether Mr Planing was paid at the married or the single rate. The summary of calculations completed by Centrelink at page 86 and 90 refer to a payment beyond November 1998 of $294.50 per fortnight but it is unclear to me whether that payment was the amount payable at the single rate or at the married rate.

28. The SSAT in its reasons found (paragraph 31) that new start allowance was paid from 1 December 1998 (the conclusion of the fortnight ending after the date of claim) at the married rate. If that were so there would have been no overpayment of benefits beyond 19 November 1998. If payments were made beyond 19 November at the single rate, I would find, as previously, that despite administrative error, payments would not have been received in good faith. Particularly so, when at interview in November, Mr Planing provided a copy of marriage certificate, as he was asked, to confirm his marital status.

29. The decision under review is accordingly varied.

30. The application should be remitted to the respondent for re-calculation of overpayment in accordance with these reasons.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: Grace Carney

Personal Assistant

Date/s of Hearing 6 March 2003

Date of Decision 1 May 2003

Solicitor for the Applicant Self

Departmental Advocate Ms E King