Aslanidis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 429 (9 June 2010)

Last Updated: 10 June 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 429

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos 2008/5349-50

GENERAL ADMINISTRATIVE DIVISION		)
	Re		THEODORE ASLANIDIS AND VASILIKY ASLANIDIS

Applicants

And

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

Respondent

DECISION

Tribunal

Senior Member K Bean

Date 9 June 2010

Place Adelaide

Decision

The Tribunal affirms the decision under review, consisting of the directions and recommendations of the SSAT. The Tribunal also decides that it lacks jurisdiction to further deal with the matter, and in particular to determine whether the recalculated debts of $12,255.15 have been properly raised, and whether they should be waived or written-off.

..........................................
K BEAN
(Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – Proceedings – Jurisdiction – SSAT set aside decision under review and remitted debts for recalculation – Whether Tribunal can deal with questions of write-off and waiver of debts as recalculated in absence of any further application for review – Tribunal’s jurisdiction limited to recommendations or directions of SSAT – Tribunal has no jurisdiction to consider write-off or waiver of recalculated debts
Social Security (Administration) Act 1999 ss 149, 179

Social Security Act 1991 ss 1236, 1237A, 1237AAD
Re Secretary, Department of Family and Community Services and Owen [2002] AATA 1202
Re Davey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888

REASONS FOR DECISION

9 June 2010

Senior Member K Bean

1. On 1 January 2003, Mrs Aslanidis (one of the two applicants) was injured in the course of her employment. She subsequently sought compensation in respect of the injuries she had sustained, her claim was successful and she received compensation payments both in the form of weekly income maintenance and later a lump sum. At the time Mrs Aslanidis first became entitled to compensation her husband, Mr Aslanidis (the other applicant) was in receipt of Age Pension and Mrs Aslanidis was in receipt of Wife’s Pension.
2. This application concerns the effect on both Mr and Mrs Aslanidis’ respective entitlements of the receipt by Mrs Aslanidis of Workers’ compensation in respect of her injury on 1 January 2003.
3. On 14 May 2008, an officer of Centrelink determined that both Mr and Mrs Aslanidis had been overpaid pension in the period 1 January 2006 to 1 April 2008 because the correct weekly rates of compensation received by Mrs Aslanidis had not been taken into account[1]. The decision to raise and recover a debt of $5,187.92 from each of Mr and Mrs Aslanidis was affirmed by an Authorised Review Officer (ARO)[2].
4. Mr and Mrs Aslanidis subsequently applied for review by the Social Security Appeals Tribunal (the SSAT) of the ARO’s decision and in the course of that review, the SSAT identified further information which was potentially relevant to calculation of the amounts owed by Mr and Mrs Aslanidis. Consequently, on 23 September 2008, the SSAT set aside the decision under review and remitted the matter to Centrelink for reconsideration in accordance with a direction that it be determined whether a payment of $56,142.56 to Mrs Aslanidis on 11 April 2007 had properly been taken into account in calculating Mr and Mrs Aslanidis’ debts[3].
5. The decision of the SSAT was implemented on 31 October 2008 and as a result of the implementation of the decision, it was determined that each of Mr and Mrs Aslanidis had a debt of $12,255.15 for the period 11 August 2004 to 1 April 2008[4].
6. Mr and Mrs Aslanidis lodged an application for review of the SSAT’s decision by this Tribunal on 13 November 2008[5] and on 18 November 2008 this Tribunal extended the time for the making of an application for review to 13 November 2008.

BACKGROUND FACTS

7. There is no dispute that Mrs Aslanidis received weekly payments of compensation representing income maintenance from 17 October 2005. The compensation insurer advised Centrelink that the amounts paid from 17 October 2005 to 22 March 2006 would be $103.32[6] and that amount was taken into account for the purpose of assessing Mr and Mrs Aslanidis’ rates of payment.
8. On 12 April 2007, Mr and Mrs Aslanidis also provided to Centrelink a copy of a further letter from WorkCover dated 11 April 2007, which indicated that for the period 5 April 2007 to 11 April 2007, Mrs Aslanidis would be paid a gross weekly amount of $506.04[7] and Mr and Mrs Aslanidis’ rates of payment were re-calculated, taking into account this amount.
9. However approximately a month prior to that, on 7 March 2007, Mrs Aslanidis’ compensation claim had been settled by consent at the South Australia Workers’ Compensation Tribunal[8]. The terms of settlement provided that from 1 January 2003, Mrs Aslanidis’ average weekly earnings were fixed at $547.00, but that Mrs Aslanidis had no entitlement to weekly payments for any period prior to 15 August 2004. Pursuant to the terms of settlement, Mrs Aslanidis was entitled to arrears of weekly payments as follows:

15 August 2004 – 28 June 2006 $34,811.00
5 July 2006 to 4 April 2007 $13,374.65

15 August 2004 to 4 April 2007 $7,956.91

These amounts, totalling $56,142.56 were paid to Mrs Aslanidis in April 2007[9]. However, for reasons which will be discussed further below, Centrelink did not record the receipt by Mrs Aslanidis of this amount at the time it was received, or take any action in relation to her receipt of that lump sum.

10. Approximately twelve months later, on 14 April 2008, Centrelink was contacted by WorkCover and advised of various changes to the weekly amounts that had been paid to Mrs Aslanidis, as follows:

1 January 2006 to 31 December 2006 $487.98 per week
1 January 2007 to 31 December 2007 $506.04 per week

1 January 2008 $530.33 per week[10]

11. As outlined above, in response to this information, Centrelink determined on 14 May 2008 that Mr and Mrs Aslanidis had each been overpaid the amount of $5,187.92. On reconsideration of this matter by the SSAT however, it transpired that the lump sum amount received by Mrs Aslanidis, of $56,142.56, had not been taken into account in calculating these debts. Now that the debts have been recalculated in accordance with the directions of the SSAT, they are significantly higher, being $12,255.15 in each case.

JURISDICTION ISSUE

12. In light of the fact that this application related to the SSAT’s consideration of the debts which had initially been raised, not the recalculated debts, at the hearing of this matter I raised with counsel for the respondent the question of jurisdiction and written submissions were subsequently filed by the respondent in relation to this issue. The question of jurisdiction arises in part from the terms of s 179 of the Social Security (Administration) Act 1999 (the Administration Act), which defines this Tribunal’s jurisdiction on reviewing a decision of the SSAT. Sub-sections 1 and 2 of that section provide as follows:

“179 Review of decisions by AAT
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2) For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a) where the SSAT affirms a decision—that decision as affirmed; and
(b) where the SSAT varies a decision—that decision as varied; and
(c) where the SSAT sets a decision aside and substitutes a new decision—the new decision; and
(d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.
...”

13. In this matter, the SSAT described its decision as follows:

“On 23 September 2008, the Tribunal decided to set aside the decision under review and send the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the direction that the debts are recalculated with reference to possibly new information provided regarding amounts of arrears of periodic compensation payments and the periods to which they relate. These amounts, totalling $56,142.56 appear to be in addition to payments made during the period of the debt.
Centrelink should therefore:
(i) determine whether the amounts and periods to which they relate, shown below, were included in the debt calculations, ie, if there is a need to recalculate the debt,

• 15 August 2004 to 28 June 2006 $34,811.00
• 5 July 2006 to 4 April 2007 $13,374.65
• 15 August 2004 to 4 April 2007 $7,956.91

and, if it is found that they were not included,
(ii) determine whether Mr and Mrs Aslanidis’ rate of pension could be affected at a date earlier than the start date of the current debt, and if so,
(iii) recalculate the debt and inform the applicants of the revised debt amount and period.”

14. Having regard to the terms of s 179(2), and of the SSAT decision, the issue arises as to whether this Tribunal has jurisdiction only to review the directions or recommendations of the SSAT, and not the other matters addressed in its Reasons for Decision. This issue has some importance for the disposition of this matter, as the matter was prepared and argued on the basis that this Tribunal would have jurisdiction to consider whether the debts which have now been recalculated should be waived or written-off. However, whilst the SSAT addressed the question of whether the debts should be waived or written-off in its Reasons, it did not allude to that issue or make any directions or recommendations in relation to it in its formal decision.
15. In the respondent’s written submissions, it was submitted that a broad view should be taken of the SSAT’s decision and in particular those parts of the SSAT’s decision where it discussed whether the debts should be waived or written-off. The respondent drew this Tribunal’s attention in particular to the paragraph of the SSAT decision where it stated “The Tribunal finds that debts exist however is unable to make a finding as to the amount of the debts”. The respondent submitted that in circumstances where the Tribunal had addressed the issues of waiver and write-off and drawn conclusions in relation to those issues (i.e that the debts should not be waived or written-off) that the SSAT decision should be construed as follows:

“... that the decisions under review were set aside and remitted for reconsideration in accordance with directions only in so far as the amount and period of the debts was concerned; other aspects of the decisions under review were affirmed. In particular, the SSAT affirmed that Mr and Mrs Aslanidis had been overpaid Age Pension and Wife Pension respectively, and that the debts were recoverable.”[11]

16. Quite properly however, counsel for the respondent also directed my attention to some authorities which would support the opposite conclusion, namely Re Secretary, Department of Family and Community Services and Owen [2002] AATA 1202 and Re Davey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888.
17. In Re Owen the SSAT had directed that the matters before it be remitted to Centrelink for reconsideration in accordance with directions that the respondent’s entitlements be recalculated without reference to certain assets. The Tribunal referred to s 179(2) of the Administration Act and observed that:

“The hearing proceeded on the basis that this Tribunal was confined to a review of the directions of the SSAT and could not therefore deal with the respondent’s submissions about other aspects of the calculation of assets not relevant to the directions of the SSAT.”[12]

18. In Re Davey, which appears to be relevantly on all fours with this matter, the Tribunal described the decision under review as follows:

“The Social Security Appeals Tribunal (“the SSAT”) whilst confirming that debts arose and that there was no basis for their being waived, set aside the decisions and remitted the matters to Centrelink for recalculation.”[13]

19. The Tribunal went on to observe:

“The present matters fall within s 179(2)(d) of that provision. This means that the only aspect of the SSAT’s decision that may be reviewed are the SSAT’s directions to the respondent. The Tribunal, on the present application by Mr and Mrs Davey, is not able to review the merits of the decisions relating to whether or not overpayments were made to Mr and/or Mrs Davey, whether any debts were properly raised against them and, if so, whether any such debts may be waived.”[14]

20. I have considered this issue with particular care having regard to the inconvenience which would flow from a conclusion that this Tribunal does not have jurisdiction in the context of the current application to consider whether the now recalculated debts owed by Mr and Mrs Aslanidis should be waived or written-off, in part or in full. As the question of jurisdiction only arose at the hearing, evidence was given and full submissions made directed at the question of whether the debts should be waived or written-off and it would in some respects be unfortunate if this Tribunal could not proceed to determine those issues.
21. On analysis, there are in effect two questions to be determined in this context. The first is the precise effect of s 179(2), and the second is the correct construction of the SSAT’s decision in light of its Reasons.
22. In relation to the first issue, having regard to the Tribunal decisions referred to above, the respondent conceded, correctly in my view, that if the SSAT’s decision was taken to be what is set out under the heading “Decision of the Tribunal”, then by virtue of s 179(2), this Tribunal’s jurisdiction was limited to reviewing its recommendations/directions. Resolution of this issue therefore turns ultimately on construction of the SSAT’s decision.
23. In relation to that issue, I accept that there is some ambiguity surrounding the SSAT decision. From the terms of the decision alone, it appears clear that the effect of the SSAT’s decision was to wholly set aside the decision under review and remit the matter for recalculation of the debts. However, in its Reasons for Decision, there is no doubt that the SSAT did proceed to consider whether there were overpayments, whether the overpayments were debts due to the Commonwealth and it also reached conclusions in relation to each of those issues, and whether those debts should be waived or written-off. In those circumstances, I accept that one available interpretation of the SSAT’s decision is as contended for by the respondent that, in substance what it intended to do was to affirm part of the decision under review, and set aside the other part.
24. On a close reading of its Reasons however, it appears that the SSAT embarked on a consideration of the questions of write-off and waiver having initially identified these as issues to be addressed in the context of the debts under review before it, i.e. the amounts of $5,187.02. It is also apparent from its decision and Reasons that one of the possibilities contemplated by the SSAT was that the lump sum amount it had identified had already been taken into account in calculating the existing debts. In my view, the SSAT’s discussion of write-off and waiver must be seen in that context and is explained by the desirability of the SSAT having expressed a view on that issue, in the event that the debt amounts ultimately remained unchanged.
25. Whilst the SSAT expressed its views against that possibility however, I do not consider that it purported to determine whether, if the debts were recalculated, those debts should be waived or written-off. Rather it recognised that it could not simultaneously affirm that the existing debts should be recovered, and remit them for recalculation. Therefore it elected to wholly set aside the decisions under review so as to allow the debts to be recalculated, but expressed its views in relation to write-off and waiver in case the debts ultimately remained unchanged.
26. As indicated above, I accept that the interpretation of the SSAT’s decision contended for by the respondent is an available interpretation. However, having regard to the content and structure of the written record of its decision and Reasons, on balance I do not accept that the SSAT mistakenly described its own decision, and that it intended to formally address the questions of write-off and waiver of the recalculated debts. On balance, I consider that although it reached conclusions in relation to write-off and waiver in its Reasons (in case the debts remained unchanged), it nevertheless decided to wholly set aside the decisions under review, so as to allow for recalculation of the debts.
27. In reaching that conclusion I have also had regard to s 149 of the Administration Act, which relevantly provides as follows:

“149 SSAT review powers
(1) If a person applies to the SSAT for review of a decision (other than a decision referred to in subsection (5)), the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new decision; or
(ii) send the matter back to the Secretary or the CEO, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.
...”

28. I have some doubt as to whether this provision contemplates a decision by the SSAT setting aside part of a decision under review, and affirming another part. Certainly, if that had been the SSAT’s intention, it would have been more appropriate to vary the decision under review. In my view this is a further factor militating against a conclusion that the SSAT intended to set aside part of the decision under review and affirm other parts, particularly in circumstances where the debts remained to be quantified.
29. I have therefore concluded that this Tribunal lacks jurisdiction to consider the question of whether, in the context of the debts as recalculated, those debts should be waived or written-off. I have reached that conclusion on the basis of construction of the SSAT’s decision, which I consider wholly set aside the decision under review, and remitted the matter for reconsideration in accordance with its directions, and having regard to s 179(2), which limits this Tribunal’s jurisdiction in these circumstances to reviewing the directions or recommendations of the SSAT.
30. I note that in this regard the circumstances and outcome of this matter are relevantly identical with those in Re Davey, in which the SSAT had also dealt in its Reasons with the question of waiver, but wholly set aside the decision under review and remitted the matter for recalculation.
31. Given that I heard evidence and full argument in relation to the issues of waiver and write-off however, it is appropriate that I proceed to make some observations in relation to these issues, notwithstanding that I do not have jurisdiction to determine them.

OBERVATIONS IN RELATION TO SUBSTANTIVE ISSUE

32. Mr and Mrs Aslanidis both gave evidence that whenever they became aware of a change in Mrs Aslanidis’ rate of weekly payments, and also when they received the lump sum, they advised Centrelink immediately. In relation to the lump sum, they said that they went to Centrelink and showed them the cheque and/or Mrs Aslanidis’ pass book showing the amount deposited into her account.
33. As to how she had spent the lump sum amount received by her in April 2007, Mrs Aslanidis said she had given $10,000 to her son, she had fixed her bathroom and gone on a trip to Greece to see family. She also said that she currently had $60,000 in the bank.
34. She was cross-examined about the absence of any record made by Centrelink of her having received the lump sum amount despite detailed records of other communications from her to Centrelink. However, she maintained that she had told Centrelink, and that she and her husband went in together. She also maintained that she had taken her passbook in to show Centrelink when she received the lump sum, and her passbook, which was tendered into evidence, did show a deposit on 20 April 2007 of $34,232.22.
35. Mr and Mrs Aslanidis both also referred to some health issues affecting each of them, and the fact that currently, their daughter, her children and their son are living with them and that their son is currently not working due to a back injury and they are therefore supporting him.
36. The three provisions of the Social Security Act 1991 which would potentially allow waiver or write-off of the debts are s 1236(1A), s 1237A(1) and s 1237AAD which relevantly provide as follows:

“1236 Secretary may write off debt
...
(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.
...
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).
...
1237AAD Waiver in special circumstances
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, the Administration 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 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt.”

37. In relation to waiver based upon sole administrative error, had it been necessary for me to determine this issue, I would not have been satisfied that the debts arose solely due to administrative error. The respondent did not seek to challenge the recollections of Mr and Mrs Aslanidis that they did advise Centrelink of receipt of the lump sum, as well as other changes in Mrs Aslanidis’ rate of payment. However, the respondent submitted that even if their recollections in this regard are correct and Centrelink failed to record this information, this has simply resulted in the deferral of the raising of a debt which has in any event been properly raised. That follows from the fact that Mr and Mrs Aslanidis have each received payments at a rate which was higher than that to which they were entitled to, having regard in particular to the lump sum payment. Whilst it is highly regrettable that Centrelink did not record and action this information earlier, assuming they were advised of it, the respondent submitted that this does not mean the debts were not properly raised or that they were raised solely due to an administrative error. I would have accepted these submissions in relation to the application of s 1237A(1).
38. In relation to “special circumstances” within the meaning of s 1237AAD, I would have accepted that the debts have resulted in significant stress for Mr and Mrs Aslanidis, and that each of them has significant health issues. However, compared with many social security recipients, their financial circumstances are relatively comfortable. Overall, I do not consider that there is anything sufficiently unusual about their circumstances such as to attract the description “special circumstances” as that term has been defined in the applicable case law.
39. In relation to possible write-off pursuant to s 1236, having regard to the evidence as to Mr and Mrs Aslanidis’ current financial circumstances, including the fact that they have $60,000 in the bank, I would not have been satisfied that they have no capacity to repay the debts which have been raised, or that their circumstances otherwise come within the terms of s 1236(1A) such that the debts could properly be written-off.
40. As I have indicated above, if, as appears to be the case, Mr and Mrs Aslanidis advised Centrelink of the receipt by Mrs Aslanidis of a lump sum in April 2007 and Centrelink failed to record or action that information, this is extremely unfortunate as it has resulted in a much higher overpayment than would otherwise have occurred, causing very significant stress to Mr and Mrs Aslanidis. Whilst it is regrettable that this has occurred however, if I had had jurisdiction to determine the issue, I would have concluded that the debts have nevertheless been properly raised and are required to be recovered.
41. I should also add that neither party suggested, and nor was there any material before me to suggest that there was not a proper basis for the SSAT to require the debts to be recalculated.

CONCLUSION

42. As I am satisfied that the SSAT was correct to require the debts be recalculated, I have decided to affirm the decision of the SSAT, which I note has now been implemented. For the reasons set out above, I have also decided that I lack jurisdiction to further deal with the matter and, in particular, to determine whether the recalculated debts should be waived or written-off.

DECISION

43. The Tribunal affirms the decision under review, consisting of the directions and recommendations of the SSAT.
44. The Tribunal also decides that it lacks jurisdiction to further deal with the matter, and in particular to determine whether the recalculated debts of $12,255.15 have been properly raised and whether they should be waived or written-off.
    

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed: ...........J Coulthard...........................................

Associate

Date of Hearing 16 March 2010

Date of Decision 9 June 2010

Advocate for the Applicants Self-represented

Advocate for the Respondent Ms L Odgers

Centrelink Advocacy Branch

---

[1] T12 and T13
[2] T8
[3] T5
[4] T3 and T4
[5] T1
[6] T15
[7] T16
[8] Exhibit 3
[9] T6, p 76
[10] T27
[11] At [26]
[12] At [8]
[13] At [1]
[14] At [4]