THBC and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 399 (3 June 2009)

Last Updated: 4 June 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 399

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1377

GENERAL ADMINISTRATIVE DIVISION		)
	Re		THBC

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Ms Robin Hunt, Senior Member

Date 3 June 2009

Place Sydney

Decision

The decision under review is set aside and substituted is a decision that the remainder of the debt owed by the applicant be waived.

...................[Sgd]....................
Ms Robin Hunt
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – overpayments – mental and psychiatric disabilities – mother was payment nominee and correspondence nominee over various periods – debts to Commonwealth – consideration of waiver and write off – special circumstances established – decision under review set aside.

Administrative Appeals Tribunal Act 1975 s 35

Social Security Act 1991 ss 1223(1), 1236, 1237A(1), 1237AAD

Social Security (Administration) Act 1999 ss 68(2), 94, 123B, 123C, 123G, 123I(1), 123J

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

REASONS FOR DECISION

3 June 2009

Ms Robin Hunt, Senior Member

SUMMARY

1. On 4 March 2009, the tribunal, being satisfied that it is desirable to do so by reason of the confidential nature of the evidence, directed pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, that the hearing take place in private and the publication of the name of the applicant and any evidence or information contained in documents lodged with the tribunal which might identify the applicant or his family members is prohibited.
2. The applicant was not present at the hearing on 4 March 2009 and was unrepresented by any legal practitioner. His mother appeared on his behalf and claimed that her son is intellectually disabled and incapable of managing his own affairs. The Secretary concedes that the applicant is in receipt of a disability support pension (‘DSP’) but not necessarily that he is incapable of managing his own affairs. At the same time, the Secretary argued that the applicant’s mother was her son’s nominee and as such, if her son was incapable, she was responsible for allowng the debts to arise when her son was overpaid disability support pension over 3 periods. The Secretary did not accept any responsibility for the situation that arose in view of the mother’s involvement and instructions received from time to time from the applicant.

ISSUE

3. I must decide whether the applicant was overpaid a total of $5,254.21 in DSP over 3 separate periods, and if so, whether this constitutes a debt to the Commonwealth, which he should be required to repay.

CONSIDERATION

4. The reviewable decision is the decision of the Social Security Appeals Tribunal (‘the SSAT’) made on 26 February 2008. The SSAT affirmed a Centrelink authorised review officer’s decision that the applicant was overpaid DSP in the amounts of $1,607.43, $3,380 and $266.78 during the periods 6 June 2002 to 6 November 2002, 22 May 2003 to 16 June 2004 and 10 March 2005 to 6 April 2005 respectively. Each of these debts arose out of the applicant’s casual employment with the same organisation. On 1 April 2008, the applicant, through his mother as nominee, applied to this tribunal for review of the SSAT decision.

The debts claimed by the Secretary

5. According to the Secretary’s Statement of Facts and Contentions, lodged with the tribunal, the applicant has been receiving DSP since 31 December 1992. During some of this period, according to the Secretary, since 22 February 1999, the applicant commenced casual employment with a company (‘the first employer’), which continued to employ him until at least 14 June 2006. On 7 August 2004, the applicant commenced employment with another employer and worked from 10 August 2004 to 30 November 2004 for that organisation.
6. On 12 August 2002, Centrelink records show the applicant advised Centrelink that he would have nil earnings from 23 August 2002 onwards. Centrelink subsequently updated his earnings information to nil from that date. While this may have been correct when first advised, the applicant subsequently received some earnings income.
7. On or about 1 June 2007, the Australian Taxation Office (‘ATO’) notified Centrelink that the applicant’s earnings from salary was $5,183 in 2002/2003, $10,648 in 2003/2004, $5,490 in 2004/2005 and $1,582 in 2005/2006. Based on the information provided by the ATO, Centrelink raised a debt against the applicant in the amount of $4,036.85.
8. On 28 September 2007, the first employer advised Centrelink of the applicant’s earnings for the period from 25 June 2002 to 30 April 2006. Based on the information supplied, Centrelink recalculated the applicant’s original debt resulting in the current debt amounts stated in paragraph 4 above.

Legislative provisions affecting the position

9. Sections 123B and 123C of the Social Security (Administration) Act 1999 (‘the Administration Act’) allows the Secretary to appoint a person to be the “payment nominee” and “correspondence nominee” of another person for the purposes of social security law.
10. Subsection 123I(1) of the Administration Act empowers the Secretary to give to a correspondence nominee any notice that the Secretary is authorised or required to give under social security law to a benefit recipient. “Benefit recipient” is defined in section 123G to mean a person who is receiving a social security payment.
11. Subparagraph 123J(1)(a)(i) provides that where a notice is given to a benefit recipient’s correspondence nominee, the notice is taken to have been given to the benefit recipient. Subparagraph 123J(1)(b) further provides that any requirement that the notice makes of the benefit recipient may be satisfied by the correspondence nominee. If the correspondence nominee fails to satisfy a requirement of the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement pursuant to subparagraph 123J(1)(d).

Was the mother always the applicant’s nominee?

12. Before 1995, the applicant’s mother was the payment and correspondence nominee for the applicant. Centrelink records indicate that, at some point in 1995, the applicant’s mother was removed as his nominee and subsequently reappointed as his correspondence nominee from 30 September 1998. The applicant’s mother told the tribunal that her son did not always agree to her managing his affairs and sometimes gave counter instructions to Centrelink about whether she should be his nominee. This was something she could not control. In July 2004, the applicant’s mother was again appointed as both his payment and correspondence nominee.
13. Between 3 January 2002 and 12 April 2005, Centrelink sent the applicant and his mother numerous information notices issued under subsection 68(2) of the Administration Act. The applicant did not respond as required.
14. The applicant’s mother gave oral evidence that she did see letters addressed to her son arrive at her home address when he moved back to live with her during this period, but she did not read them or discuss the contents with her son. She told the tribunal that she considered it inappropriate for her to treat the correspondence as anything less than private to her son as they were addressed to him. Had the letters been addressed to her, she would have taken any necessary steps raised by the contents.

ARE THERE DEBTS FOR THE 3 PERIODS CONTESTED?

15. Subsection 1223(1) of the Social Security Act 1991 (‘the Act’) provides that where a person receives social security payments to which he or she is not entitled, the amount of the payments made constitutes a debt owing to the Commonwealth. The applicant and his nominee have not provided evidence that the amount of the debts claimed is incorrect. I therefore find on balance that the amounts calculated by Centrelink are correct.
16. According to the Secretary’s Statement of Facts and Contentions, the debts are currently being recovered at a rate of $15 per fortnight and, as at 19 February 2009, a total of $4,714.21 remains outstanding.

SHOULD THE DEBTS BE WAIVED OR WRITTEN OFF?

17. Under section 1236 of the Act, the Secretary may write off a debt, for a stated period or otherwise, in circumstances where the debt is irrecoverable at law or the debtor has no capacity to repay the debt. The applicant continues to earn a modest income and is in receipt of DSP but has financial responsibilities in respect to his daughter. However, he has been able to repay some of the outstanding debts by way of small instalment deductions from his present pension. Thus I find that the debt should not be waived under this provision.
18. A debt also may be waived where it is solely attributable to administrative error, pursuant to subsection 1237A(1) of the Act, but there is little evidence of error occurring here. The applicant’s mother gave evidence that at times when she was not the nominee, according to Centrelink records, she tried to approach Centrelink about her son but employees she approached were not prepared to discuss her son’s affairs with her. It may be that Centrelink should bear some of the responsibility for continuing to send notices directly to the applicant when his mother says that she tried unsuccessfully to inform Centrelink that she had concerns about the situation. Nevertheless, Centrelink was not solely responsible for errors that occurred and was placed in a difficult situation when given conflicting instructions by the applicant and his mother and also bearing in mind that no formal orders have been made by any court enabling the mother or any other person to administer his affairs. The applicant’s mother agreed she has not sought an order in the protective jurisdiction. This left Centrelink in a quandary about with whom to deal in relation to the applicant’s affairs.
19. Centrelink records indicate that the applicant’s mother was her son’s nominee for part of the periods in question but for some of the time she was his correspondence nominee only. I consider the applicant’s mother imprudent in ignoring letters addressed to her son care of her as correspondence nominee other than by simply passing them on to him without discussing the contents. Her own evidence is that despite claiming that her son cannot manage his financial affairs, she allowed his mail to remain unanswered over a long period.
20. The applicant’s mother gave further evidence that she or her son had heard an automated Centrelink telephone message that he need not report to Centrelink. This may have been because Centrelink thought her son had ceased working when in fact he meant to convey that he had no income on some days when he was taking casual work only. This still does not make resulting debts solely attributable to Centrelink as the applicant directly or through his mother as nominee had a continuing obligation to report correct information to Centrelink.
21. Accordingly, in my view, Centrelink is not solely responsible for the debt situation arising out of the applicant’s affairs and I find the debt should not be waived on this ground.

Are there special circumstances for waiver of the debt?

22. Section 1237AAD of the Act enables a flexible response to a wide range of situations which could give rise to hardship or unfairness due to rigid application of a requirement for recovery of debt. Under section 1237AAD, the Secretary may waive the right to recover all or part of a debt if there are special circumstances that make it desirable or appropriate to waive. I have examined whether the applicant’s debt might be excused under this provision.
23. The term, “special circumstances”, is not defined in the Act, but has been judicially considered on numerous occasions in connection with the above provision and similar provisions. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the tribunal suggested:

... that the circumstances ... must have a particular quality of unusualness that permits them to be described as special.

24. There is no doubt that the applicant is intellectually disabled. He suffers severe expressive language disorder, anxiety and post traumatic stress disorder as a result of past traumas and abuse, according to the report of Dr Marilyn Dyson, psychiatrist, dated 6 November 2007. She opined that when the applicant becomes anxious, stressed, rushed and/or is given auditory input at a fast rate, he cannot process the content of the input and his expressive language problems deteriorate rapidly. This means that he will inaccurately hear what is being said and provide erroneous responses. She also reported the applicant would need careful preparation and support to be able to cope with a situation like giving evidence in court. In addition to a form of report in the Secretary’s documents, which were supplied for the hearing, Dr Dyson furnished more information to the tribunal about the applicant’s condition after the hearing.
25. As well as suffering a disability himself, the applicant has a 13 year old intellectually disabled daughter who goes to a special school designed for such students. Dr George Williams, consultant paediatrician, has been treating her and reported, on 7 November 2006, that the girl has attention deficit hyperactivity disorder, conduct disorder and oppositional defiance disorder. He suspects she has a significant learning disability and a language disorder with auditory processing difficulties and suggested she would benefit from a teacher’s aide at the school. The applicant’s mother gave evidence about some of the difficulties this causes the applicant. She told the tribunal that he tried to assist his daughter in many ways and that he used some of his limited funds in this way.
26. The applicant does not have custody of his daughter but does have access rights. His mother gave evidence that he takes her to his parents’ place when he has access but this is not always satisfactory as the girl’s mother objects to her seeing the grandparents. The applicant further lives in unsatisfactory State owned accommodation for a man who has a young daughter. His mother told the tribunal about some of the unsavoury people who live in her son’s building and some of the worrying activities of certain occupants. She explained that the applicant feels he cannot take his 13 year old daughter home with him although he has 2 bedrooms at his disposal. The applicant’s mother further says the girl is neglected and her son pays for a lot of things for her although he is not obliged to do so pursuant to any court order. She gave further evidence that the applicant gives his daughter’s school $25 per week to pay for her lunches. She said he also has bought his daughter 2 pairs of spectacles and leaves a pair at the school with her teachers because the girl’s mother tries to stop her wearing the pair the applicant gave the girl to keep with her. According to the applicant’s mother, the girl’s clothes are unkempt and her shoes have no soles and are cracked and worn. She went on to give evidence that her son is saving to buy her another pair of school shoes. Her further evidence is that he has paid for his daughter to join girl guides and has bought her part of the uniform, a shirt, and is saving to buy the rest.
27. The mother told the tribunal about various problems the applicant is experiencing which cause him financial difficulties as well. For example, he would like to take his daughter for a camping holiday but has difficulties with his driver’s licence that are no fault of his own. The applicant and his father took the girl away to stay in a caravan on a recent access visit but the applicant’s father drove with the caravan as the applicant had no current licence. After great efforts, due to his disabilities, the applicant recently acquired a P-plate licence but has been fined and lost points because vandals in his building have taken his plates or he has put them inside the car for safe keeping and forgotten to display them.
28. In view of all these difficulties experienced by the applicant and his particular problems in dealing with his disabilities, I consider that special circumstances exist in this case sufficient to warrant waiver of the reminder of the debt owed by the applicant.

DECISION

29. The decision under review is set aside and substituted is a decision that the remainder of the debt owed by the applicant be waived.
    

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]...........................

Jennifer Wong, Associate

Date of Hearing 4 March 2009

Date of Decision 3 June 2009

Representative for the Applicant Applicant's mother

Solicitor for the Respondent Mr M Nicoletti, Centrelink Legal Services and Procurement Branch