Steger and Secretary, Department of Family and Community Services [2003] AATA 699 (25 July 2003)

Last Updated: 25 July 2003

DECISION AND REASONS FOR DECISION [2003] AATA 699

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/768

GENERAL ADMINISTRATIVE DIVISION	)
	Re	LYNETTE STEGER

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Mr B J McCabe, Member

Date 25 July 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

(Sgd) B J McCabe

Member

CATCHWORDS

SOCIAL SECURITY - benefits and entitlements - disability support pension - overpayment - whether debt properly raised - whether right to recover the overpayment should be waived - whether administrative error - whether special circumstances exit

Social Security Act 1991

Social Security (Administration) Act 1999

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

REASONS FOR DECISION

25 July 2003

Mr B J McCabe, Member

INTRODUCTION

1. Ms Lynette Steger is the applicant in these proceedings. She was paid a disability support pension from Centrelink. The respondent determined that Ms Steger had been overpaid in the period 4 February 2002 to 9 May 2002 as a result of a failure to take proper account of the income of her partner. The Secretary raised a debt in the amount of $1273.73 (the amount of the overpayment) pursuant to s 1223 of the Social Security Act 1991 and says the debt is recoverable.

2. There is no dispute that Ms Steger was overpaid in light of information about her partner's fluctuating income. The dispute before the Tribunal revolves around the Secretary's refusal to exercise his discretion to waive the debt under ss 1237A or 1237AAD. The applicant says she acted in good faith and any misunderstanding as to her partner's income was the product of Centrelink's mistakes.

THE MATERIAL BEFORE THE TRIBUNAL

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. Ms Steger appeared on her own behalf at the hearing in Toowoomba on 20 December 2002. Ms Dwyer represented the respondent. The applicant sought a further opportunity to explain her case because she said she did not feel she had done justice to her submissions at the hearing. A further telephone hearing was held with the agreement of the respondent on 10 March 2003.

THE FACTS

4. Ms Steger was in receipt of social security payments from June 1998 after health problems emerged in the early 1990s. She received disability support pension (DSP) from 13 November 2001, and during the period 4 February to 9 May 2002, the period in question.

5. She was employed at the Department of Social Security over a period of about 15 years, and dealt with members of the public in the course of her duties. She suffered a breakdown during 1992-1993. She left work with the respondent in 1997 and worked for a short while at the state Department of Health. She no longer works full time.

6. The applicant's partner is Mr Michael Nugent. He was employed during the relevant period at the Dairy Farmers' plant in Toowoomba. His weekly pay fluctuated, depending on the number of hours worked.

7. The respondent wrote to Ms Steger on three occasions informing her of her obligation to provide full and accurate information about her income and that of her partner, and about any changes that might affect her entitlement. The respondent says these letters were notices under s 68 of the Social Security (Administration) Act 1999.. Section 68 permits the Secretary to require a recipient of benefits to provide information to the Department. Ms Steger says she did not receive at least one of the three letters. She confirmed, however, that she read and understood one of the letters dated 30 November 2001. In any event, as a former employee of the respondent, Ms Steger clearly understood her obligation to provide Centrelink with information about changes to her circumstances.

8. Ms Steger said she was completely open about her partner's fluctuating income. She says she spoke with Centrelink officers regularly about her situation as she said she was not always clear what her partner was earning. On at least one occasion she complained that the amount she was receiving was less than the amount to which she was entitled.

9. She referred in particular to a discussion with a Centrelink officer in Toowoomba on 4 February 2002. She says she explained she was having trouble working out exactly what Mr Nugent was being paid. She gave the Centrelink officer a figure but then invited the officer to contact Dairy Farmers' direct to be sure. The record of the conversation is found in the T documents at T9. It includes a figure supplied by the applicant and used by Centrelink for calculating her entitlements, but there is no reference to an arrangement under which Centrelink would contact Dairy Farmers'. The respondent did write to Dairy Farmers' seeking information about Mr Nugent's pay early in May. That information confirmed Ms Steger was being overpaid.

10. Ms Steger did not appear to have contact with anyone from Centrelink for some time after the discussion on 4 February 2002. She did not regularly read correspondence arriving from Centrelink (she was uncertain how much mail reached her - the mail was unreliable, she claimed) or her bank statements to determine precisely what she was being paid, or overpaid.

11. The position is complicated because Ms Steger said staff at the Centrelink office in Toowoomba agreed to contact Dairy Farmers' directly to check her partner's income details. Ordinarily, of course, the Centrelink client would be expected to attend to that herself. The Centrelink officers were going above and beyond the call of duty if they agree to do that on her behalf. Ms Steger may have developed a false sense of security from the helpful attitude of the officers with whom she dealt. Regrettably, the details of any arrangement were not recorded on the computerised information system, so it was impossible to verify the extent of any undertaking made by Centrelink officers. In any event, the income details on which Centrelink was making its assessments were incorrect.

12. I am satisfied Ms Steger did not intentionally deceive the respondent. The inappropriate figures appeared to have been used as a result of a communication failure between Centrelink and the applicant. The applicant appears to have assumed she satisfied her obligations by being open with Centrelink (for example, by inviting Centrelink to approach Dairy Farmers'). She was probably encouraged in that view by the helpful attitude of staff at the Toowoomba office who may have been motivated by a desire to help a former colleague who had fallen ill.

THE LEGISLATION

13. Section 1223 of the Social Security Act 1991 provides that an overpayment becomes a debt due to the Commonwealth. I have already concluded there is no reason to doubt that an overpayment was made in this case. Ms Steger received benefits that she was not entitled to receive.

14. The question in this case is whether she is entitled to relief from the debt. Section 1237 of the Social Security Act 1991 permits the Secretary (or the Tribunal) to waive a debt in limited circumstances. The relevant waiver provisions are ss 1237A and 1237AAD.

15. Section 1237A permits the Secretary to waive a debt where the debt was attributable solely to an administrative error by the Commonwealth. That section cannot apply here since I think Ms Steger is at least partly responsible for the mistake. If she had checked her accounts she would have realised she was not being paid the correct amount in light of what she knew her partner must have been earning. There was evidence that she contacted Centrelink on several occasions to complain if the amount she received was less than she was expecting to receive. She should not have left it to the good-will of Centrelink officers to collect the information necessary to work out her entitlements. As a former employee of the respondent, she must have been aware of her obligation to keep the respondent fully informed of changes in her circumstances. She must have known better than most of Centrelink's clients that it is difficult enough to keep track of all of the information provided by clients without having to make special arrangements to look after individuals. I do not accept - and I do not believe Ms Steger accepted - that Centrelink would find everything out for itself by talking to Dairy Farmers'.

16. It follows that s 1237A cannot apply, since the overpayment was not solely due to the Commonwealth's administrative error.

17. I do not think the applicant can succeed under s 1237AAD either. The section permits a waiver of the debt where there are special circumstances apart from financial hardship alone. The SSAT, citing the decision in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, suggested there were no circumstances in this case that were "unusual, uncommon or exceptional". I accept Ms Steger is obviously facing some financial hardship. She gave evidence that she has had to call on funds from an insurance policy that she had set aside for retirement. She says her pension is used up making repairs to her house and paying bills. She also referred to her continuing inability to work, and her knee condition that required treatment and might ultimately see her confined to a wheelchair.

18. I do not doubt that Ms Steger is in financial difficulty and has problems with her health, but it is difficult to distinguish her case from those of many other recipients of social security benefits. I do not think there are special circumstances that would justify the exercise of the discretion.

CONCLUSION

19. The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed: Sarah Oliver

Associate

Dates of Hearing 20 December 2002 and 10 March 2003

Date of Decision 25 July 2003

T he Applicant appeared in person

For the Respondent Ms J Dwyer, Departmental Advocate