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Scheibel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 22 (21 January 2011)

Last Updated: 21 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 22

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2762;

GENERAL ADMINISTRATIVE DIVISION
) 2010/2763 and
2010/2786

Re
INGEBORG SCHEIBEL AND JOACHIM SCHEIBEL

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

Respondent

DECISION

Tribunal
Senior Member Dr K S Levy RFD

Date 21 January 2011

Place Brisbane

Decision
The Tribunal determines as follows:
(i) In respect of Mrs Scheibel’s Pension Debt, the decision of the Social Security Appeal Tribunal be set aside and the matter be referred to the Secretary with a direction that the amount not be recovered in the present circumstances of Mrs Scheibel as the Department had originally determined, but that those circumstances
be reviewed periodically to determine if any change in recovery is necessary; and
(ii) All other determinations of the SSAT in respect of both Mrs Scheibel and Mr Scheibel be affirmed.

..............................................
Senior Member

CATCHWORDS


SOCIAL SECURITY – Benefits and entitlements – Overpayment of pensions – Non-disclosure of marital status – Applicants receiving benefits at single rate – Whether applicants were members of a couple – Part of Decision in respect of first applicant not to be recovered at present – Remaining decisions under review affirmed.


Social Security Act 1991 (Cth) ss 4, 24, 1064, 1223, 1224, 1236, 1237

Social Security (Administration) Act 1999 (Cth) s 68


Auckland Harbour Board v The King [1924] AC 318

Beadle v Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225

Jazazievska v Secretary, Department of Family & Community Services [2000] FCA 1484

Lee v Secretary, Department of Social Security (1996) 68 FCR 491

Re Cocks v Centrelink [2000] FCA 1248; (2000) 32 AAR 360

Re Galewski and Secretary Department of Social Security (1998) 54 ALD 569

Re Ward and Secretary to the Department of Social Security (1985) 7 ALN N66

Secretary, Department of Education, Employment, Training and Youth Affairs v Prince [1997] FCA 1565; (1997) 50 ALD 186

REASONS FOR DECISION


21 January 2011
Senior Member Dr K S Levy RFD

INTRODUCTION

1. The applicants, Mr Joachim Scheibel and Mrs Ingeborg Scheibel, have had debts raised for overpayments of Social Security pensions, as a result of not declaring to Centrelink (or the former Department of Social Security) that they had been married between 1993 and 2008. The applicant’s were paid at the single rate rather than at the partnered rate for those years. As a result, Centrelink determined the applicants had been substantially overpaid.

  1. These determinations were originally made on 3 September 2008 in respect of Mr Scheibel’s German pension and on 12 January 2009 in respect of the other four debts owing by Mr Scheibel and Mrs Scheibel. An internal review by an Authorised Review Officer affirmed all five of those decisions. A subsequent appeal to the Social Security Appeals tribunal (“SSAT”) also affirmed the original decisions, with the following exceptions:
  2. The SSAT’s decision was made on 4 June 2010 (despatched to the applicants on 7 June 2010). The applicants now appeal to this Tribunal for further review.
  3. For convenience, it is noted here that the formal debt periods and amounts, taking account of recalculations determined by the SSAT, are as follows:

ISSUES

  1. A preliminary issue was raised at the hearing. This was whether Mr Scheibel, who represented both his wife and himself, wished to continue to challenge the legal power of the Secretary to recover these debts.
  2. Mr Scheibel had challenged the capacity of Centrelink to recover debts resulting from overpayments made by its predecessor organisation, the Department of Social Security (“DSS”). Mr Scheibel declared to this Tribunal that he now accepts the Secretary’s power to pursue the amounts of the overpayments.
  3. There are therefore, five remaining issues in dispute. The respondent submitted and I accept, that these are:

EVIDENCE

  1. Mr Scheibel and Mrs Scheibel both appeared on the date of the hearing. Mr Scheibel represented both himself and his wife. He writes clearly in English and speaks English competently although his spoken English has a very strong German accent. He was provided with an interpreter to facilitate his evidence. Both Mr Scheibel and the interpreter were affirmed at the commencement of the hearing. However, in the early afternoon of the day of the hearing, Mr Scheibel insisted that he would need to take Mrs Scheibel home for lunch and to rest. He indicated that there would not be a convenient time in the foreseeable future when he would be available to return for completion of his cross-examination. The respondent argued that the matter should proceed in the applicant’s absence. Upon further consideration of options, Mr Scheibel conceded he could return the next day at 1pm. The hearing was completed the next day, 19 November 2010.
  2. Mr Hawker, who represented the respondent, altered other commitments to enable this hearing to be completed. The Tribunal noted his cooperation and that his willingness to assist the Tribunal was clearly in the spirit of a model litigant.
  3. A new interpreter was made available for the second day of the hearing.
  4. There was considerable documentary evidence provided. Mr Scheibel gave oral evidence and was cross examined. His oral evidence referred to a “Seniors” document in which he said demonstrated that he and Mrs Scheibel were entitled to be paid at the single rate and that they should be treated as a couple separated due to ill health.
  5. His oral evidence contended there was an investigation in 2000 by Centrelink about people receiving a German pension. He told the Tribunal he had sent letters to the Hobart office of Centrelink to which he received no reply. He said an officer from the Hobart Office told him they were entitled to the German pension. He also had a letter interpreted for the Tribunal which dealt with his entitlements to the German pension from 1 July 2010. He then referred to contact with the Coorparoo office of Centrelink in 2007 where he told staff he was married but living separately. In about August 2007 that his pension was reduced by $100 per fortnight. He made some broad statements about a Mr Timms and a Mr Dickie of Centrelink, alleging impropriety and offers to settle this dispute with Centrelink. He also alleged some suggestions of coercion made to him over the telephone.
  6. In cross examination, the decision of the SSAT was referred to where Mrs Scheibel’s daughter (Ms Johnston) also appeared and represented her mother at that hearing. There have been great divisions between Mr Scheibel and Mrs Scheibel’s daughters. Mr Scheibel was at one time “kicked out” of the home at New Farm owned by Mrs Scheibel. He did not demur to that evidence.
  7. Mr Scheibel told the Tribunal he came to Brisbane in 1990; he was then living in Vulture Street, East Brisbane in 1992 and was granted Disability Support Pension in April 1992. He met Mrs Schonberger (now Mrs Scheibel) that year (either in August 1992 or later in that year) or in 1993. She subsequently invited him to stay at her house in New Farm. They married on 23 July 1993.
  8. He agreed with Mr Hawker that he received a number of letters from DSS before he was married. He said that he understood that he had to report to Centrelink if he got married. When asked whether he understood that he had to report this within 14 days of being married, he said he reported it shortly after the wedding. The applicant was asked if he accepted that Centrelink has no record of him having submitted that he was married, In response, Mr Scheibel referred to a number of issues relating to Mrs Scheibel’s daughter and stated that a social worker from DSS came to the house and that he “may” have given some documents to her, and that the marriage certificate “may” have been amongst those documents.
  9. He then said he may have given many documents to the Annerley office of Centrelink, with an implication the marriage certificate was given to that office. When it was put to him that he had, just prior, given evidence that he had given the marriage certificate to a social worker who provided a home visit, he denied giving that evidence.
  10. Mr Scheibel’s responses to questions were rarely direct answers. Letters to himself and Mrs Scheibel were still sent separately and in Mrs Scheibel’s previous married name for a very long time. Mr Scheibel said he had nevertheless, submitted the marriage certificate. He was asked if he ever tried to correct the record but merely responded that the pensions were paid on a separate basis.
  11. Mr Scheibel was referred to letters or notices sent to him prior to his marriage to Mrs Scheibel in particular to letters of 5 May 1992 (to an address at Vulture Street, South Brisbane), of 10 November 1992 (to Annie Street, New Farm), of 16 January 1993 and of 24 March 1993, all of which adverted to the requirements to report a marriage to Centrelink. After he was married, other letters were sent to Mr Scheibel with the same instructions. He was referred to letters dated 20 September 1993, 9 March 1996 and 29 April 2002. These are not an exhaustive list of notices sent.
  12. Mr Scheibel was also referred to a form completed and signed on 7 September 2006 for transfer to Age Pension[1]. Mr Scheibel agreed he had signed that document as being correct and undertook to notify Centrelink of any specified changes. Relevantly, paragraph 2 asks whether “any person of the opposite sex regularly stay[s] in your home?” to which he answered “No”[2]. He agreed he was married at the date of that declaration.
  13. On the next day of the hearing, Mr Scheibel was referred to a document indicating he was applying for a German pension. This was granted by letter dated 1 November 2006[3]. As at 21 July 2008, Centrelink still had no advice from Mr Scheibel[4].
  14. He was referred to his claim for Carer Payment for his wife. An electronic note shows that in his telephone request, Mr Scheibel referred to his wife by her former name, “Schonberger Ingeborg K”[5]. When again asked about his advising Centrelink of his marriage, he referred to a communication from Centrelink in 2003 – a vague and unspecific answer. He subsequently said he reported it to the Coorparoo office in 1997. Asked why he reported it to Coorparoo, he said it was a “nice area to shop”.

CONSIDERATION

  1. The Tribunal has taken into account all of the oral and documentary evidence presented. The oral evidence of Mr Scheibel was not always easy to follow. At times, he seemed evasive and often did not answer questions directly. He also seemed angry and dogmatic. He seemed to cut off any attempts at communication by Mrs Scheibel on the first day of the hearing. It was clear he was uncooperative when he attempted to elongate the process of hearing by pleading unavailability for the afternoon of the day set for hearing and for some time into the future. He agreed to a resumption of the hearing the next afternoon only after persistence and an attempt to deal logically with his assertions of unavailability.
  2. I note in the SSAT decision dealing with the debts of Mrs Scheibel, she was represented by her daughter Ms Johnston, who told that Tribunal that she and her sister Gerlinde Jones hold powers of attorney to deal with their mother’s affairs. That power was provided to the Tribunal. It also saw fit to hear Ms Johnston separately from, and in the absence of, Mr Scheibel. She described Mr Scheibel as a “very domineering person, while their mother is rather gullible”[6]. Ms Johnston said her mother had always been honest, and if she did break the law, Ms Johnston and her sister Ms Jones believed it would have been because of Mr Scheibel’s influence or at his instigation. Their mother “always had a strong belief that a woman should defer to her husband”[7]. Mrs Scheibel had a stroke in 1995 which has left her severely disabled.[8]
  3. Mrs Scheibel appeared pleasant and agreeable to everybody at the hearing of this Tribunal. It is apparent from evidence provided to the SSAT that Mrs Scheibel had been hospitalised from 10 October 1995 to 8 December 1995. Mr Scheibel moved out of the home some time after 8 December 1995,”and was absent for some weeks or months.[9]” He was then absent again for a lengthy period, which the SSAT found to be 1 May 1996 to 31 December 1997. I am prepared to make a finding of fact consistent with the SSAT findings as its evidence was similar to evidence presented to this Tribunal and was probably more detailed. It also had the benefit of the evidence of Ms Johnston, who was not called as a witness in this hearing.

FINDINGS OF FACT

  1. I make the following findings of fact:

Issue 1 – Were each of the applicants a “Member of a Couple” from 23 July 1993 to 11 November 2008?


  1. The relevant laws governing this issue in dispute are contained in sections 4 and 24 of the Act. As far as is relevant, Section 4 provides:
Member of a couple — general
(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; ...
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)...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 joined 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
(iiii) 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, or in a de facto relationship with, 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 or a de facto relationship.
Note: section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances.

Social Security Act 1991 – Section 24
Person may be treated as not being a member of a couple (subsection 4(2))
(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.
(3) A determination made under subsection (1)...is not a legislative instrument.

  1. Prima facie, Mr and Mrs Scheibel satisfy s 4(2)(a) as they are legally married. This requirement is subject to subsection (3). This of course is Issue 2 for determination but is a condition precedent for satisfying Issue 1. Therefore, the Secretary or decision maker must also be satisfied the applicants are “not...living separately and apart from the other person on a permanent or indefinite basis...”[10]. This is answered by considering the factors in s 4(3).
  2. The financial relationship between the parties shows there is no jointly owned real estate or assts. But there is a sharing of household expenses between the applicants and while the real estate is owned by Mrs Scheibel, there is evidence that Mr Scheibel pays most of the household expenses. That was the evidence of Mr Scheibel on the second day of the hearing when Mrs Scheibel was not present. It was not clear if that was a physical undertaking only or whether expenses were paid using both Mr Scheibel’s and Mrs Scheibel’s pension monies, or only from his own pension. From the context of the evidence, it seems that it is the former. As she cannot communicate well, this assertion could not be tested with Mrs Scheibel (perhaps non verbal communication might have revealed a different perspective) or with her daughter, Ms Johnston. Mr Scheibel stated in evidence he did not look after Mrs Scheibel’s finances but said he pays the rates and deals with “all the paperwork”. The SSAT was told by Ms Johnston and Ms Jones that Mr and Mrs Scheibel did have a loan together some years ago but were unaware if the house was mortgaged. I find that the financial relationship is one where there is nevertheless, a significant pooling of income resources (not capital assets) and sharing of day-to-day expenses.
  3. The nature of the household is important also. The living arrangements are that Mr and Mrs Scheibel each have separate bedrooms, at least now. They share a kitchen and there are two bathrooms. Given Mrs Scheibel’s disability, Mr Scheibel appears to look after her personal needs and accepts the whole responsibility for the housework. For people of their age (Mr Scheibel is 65 and Mrs Scheibel is 75 years old) and their respective capacities, there is a semblance of a household of a couple who are married and not living separately within the meaning of these criteria.
  4. The social aspects of the relationship are necessarily limited. The applicants live together and have few social contacts other than each other. The social relationship appears more closely connected to each other than to others outside the marriage, despite a difficult marriage. If the physical health of each of the applicants was different, the social relationship may be different, but no finding of fact can be made in this respect. There is an appearance based on their very limited external social relationships, that they are a member of a couple.
  5. The sexual relationship between the applicants is non-existent and has been for some years. Mr Scheibel suggested that was not always the case, at least before 2003, but presently and for some years, there has not been a sexual relationship. However, that is not definitive of a marriage like relationship[11].
  6. The nature of the people’s commitment to each other is a revealing factor. Despite difficulties in the marriage and some earlier separations, the length of time together shows a strong degree of support for each other. Mrs Scheibel has ownership of most of the permanent assets but Mr Scheibel has certainly shown a degree of physical and emotional support particularly for most of the period since Mrs Scheibel’s stroke. There is evidence of previous violence in the marriage and the Tribunal formed the view that Mr Scheibel has an obsessive personality, based on evidence to the SSAT and observations of his interaction with Mrs Scheibel at the hearing of this tribunal. However, he has still been a strong support for Mrs Scheibel over a lengthy period. Mrs Scheibel has been described as deferential and she allowed him to return after a lengthy separation.
  7. Their commitment is also seen in their pre-nuptial agreement. This seems to have been made in the context of two German immigrants meeting later in life in Australia and Mrs Scheibel having four children who do not have any feelings of warmth towards Mr Scheibel. The pre-nuptial agreement shows an intention to grant Mr Scheibel a home for some time after Mrs Scheibel’s death if she pre-deceases him. Although the evidence is not absolutely altogether clear, it appears that Mr Scheibel is to be allowed to live in the house for a year after Mrs Scheibel’s death, or on his account, it seems to be a life estate in the house. That evidence is not critical for the determinations of the issues in dispute here. However, it is not in dispute that the real estate is to pass to Ms Johnston on the death of both applicants (and perhaps earlier if Mrs Scheibel dies first).
  8. There seems to be ample evidence that in the circumstances of the applicants, they are not living separately and apart as defined in s 4(3) of the Act. Equally, they are not an illness separated couple as envisaged by s 4(7).
  9. I also do not consider there any special reasons as provided in s 24 of the Act to declare them not to be a member of a couple. They are not separated in any practical sense and there is no inability to pool resources[12].
  10. I therefore find each of the applicants are a “member of a couple”.

Issue 2 – Were the applicants living separately and apart for the period 23 July 1993 to 11 November 2008?


  1. Given the reasoning in Issue 1 to the relevant factors here, the answer to this question is No, with the exception of the period 1 May 1996 to 31 December 1997.

Issue 3 – Have the applicants been overpaid? If so, is there a debt due to the Crown?


  1. The calculation of entitlement is contained in s 1064 of the Act. The calculation based on marital status is authorised by s 1064-B1. It is higher for a single person than a married couple. It is therefore apparent that the applicants have been overpaid. For the relevant periods the applicants were each paid as a single person but were in fact married. I exclude from that period of their marriage, when they were separated from 1 May 1996 until 31 December 1997.
  2. Notices were forwarded to the applicants of their obligations to advise Centrelink of a change in their circumstances. This was previously contained in sections 132-133 of the Act and is now provided for in s 68 of the Social Security (Administration) Act 1999 (Cth).
  3. Any payment of public monies not authorised by Parliament is an overpayment[13]. The overpayments are a debt due to the Commonwealth by virtue of s 1224 of the Social Security Act (in respect of amounts before 1 June 2001) and s 1223 (in respect of amounts overpaid after 1 June 2001). Therefore, the amounts of the payments in the decisions under review are overpayments. Those overpayments are debts due to the Commonwealth.

Issue 4 – Should the debts be written off?


  1. The applicants here are still in receipt of Age Pension, although the overpayments are being reduced by deductions from their pensions. To write off the debt, the applicants must show “severe financial hardship”[14]. Mr Scheibel merely states they cannot live on a reduced pension. No further evidence is offered. There is not sufficient evidence to authorise write off of the debts.
  2. Section 1236(1) provides a discretion to the Secretary to write off a debt. This discretion can be exercised only if one of the circumstances in s 1236(1A) apply. From the evidence before me, none of those circumstances apply.
  3. Write off in a commercial environment is frequently applied and a wide discretion is generally applied[15]. But since the decision in Lee, s 1236(1A) has been enacted which places strict conditions on its use. The SSAT has noted that Centrelink is presently withholding an amount from Mrs Scheibel in respect of her Widows Pension Debt. However, it is of the view that to also recover the Age Pension Debt would cause her severe financial hardship. It seems to me that this is a responsible position to take.
  4. The SSAT has determined that the Age Pension Debt should be written off for 12 months. This seems like a reasonable approach and is consistent with the Secretary’s present position. Indeed, it seems to me that it produces the same outcome as Centrelink presently is pursuing. However, while I agree that is a logical and equitable approach, I am not convinced that conditions for write off as specified in s 1236(1A) are satisfied. Indeed, it appears to me that none of those conditions are satisfied.
  5. In my view, the more appropriate course, given my view of the application of s 1236 to this case, is to leave the Secretary’s present administrative course in place. I agree with the SSAT that the matter should be reviewed by Centrelink after 12 months, and indeed, periodically, at the discretion of the Secretary or of his or her delegates.

Issue 5 – Should the debts be waived?

  1. Waiver is authorised by s 1237A(1) of the Act. It is applicable particularly where the debt has arisen solely because of administrative error of the Commonwealth and the amount was received in good faith. Both those conditions should be satisfied.
  2. There is a suggestion that evidence of a marriage certificate being provided by Mr Scheibel on a number of occasions since 1993. There is some inconsistency in that evidence and evidence of Ms Johnston indicates Mr Scheibel may be responsible if there has been non-reporting of this information. The SSAT preferred Ms Johnston’s evidence as being more credible than that of Mr Scheibel and made a finding of fact that the marriage certificate was not provided.
  3. Mrs Scheibel married before her stroke. It is clear that she had reporting capacity for 2 years before her stroke but did not report her marriage within 14 days. There appears to be no basis to waive her debt and particularly her Widow’s Pension Debt (in part).
  4. Mr Scheibel had some issues of credibility which were not overcome by his general evasiveness, by his attempt to prevent an efficient conclusion of the hearing or by his demeanour as a witness. There is also the evidence of him giving false information to Centrelink. I also find that Mr Scheibel’s evidence should not be accepted, as I did not find him to be a witness of truth. Therefore, there is no administrative error due solely to actions of the Commonwealth. Waiver under s 1237A(1) cannot therefore be applied. This is because there was not “good faith” on the part of Mr Scheibel[16].
  5. Waiver may also be granted under s 1237 AAD. That section provides as follows:
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.

  1. Section 1237AAD(a) requires that the debtor must not knowingly make a false statement or fail to comply with a provision of the Act. This disqualifies Mr Scheibel and also Mrs Scheibel (at least for Widows Pension debt). In respect of Mrs Scheibel’s Age Pension Debt, this sub-section may not disqualify him strictly, although on one view, it can be seen to be a continuation of the circumstances applying to the Widow’s Pension Debt which existed up to, and at the time of commencement of the Age Pension. However, she has been severely disabled for a significant part of that period and could not have exercised independent judgment or taken independent action to correct the record since her stroke.
  2. Section 1237AAD(b) is also applicable if “special circumstances” exist.
  3. These circumstances must be other than financial circumstance alone. The circumstances must also be distinguished from “the usual case” [17].
  4. The Secretary acknowledges Mrs Schiebel’s poor health and cognitive disability since her stroke in 1995. The evidence shows she has little capacity for communication. On 11 May 2010, Ms Johnston told the SSAT that her mother could not speak and that she was then too sick to attend the hearing. She said the stress of the hearing “would exacerbate her condition”[18].
  5. In the present circumstances, no fault can be pointed to Centrelink’s administration. In addition, Mrs Scheibel, while unfortunately being seriously affected by ill health, has real estate and could not be said to be destitute. Also, the debt is not a small debt which is dealt with specifically in s 1237AAA. Indeed the debts here are large debts for both applicants.
  6. There is a distinguishing feature in this case in that Mrs Scheibel has been incapacitated since 1995. The certificate by Dr Atkins dated 16 October 1995 attests to her being unable to sign documents in the future[19]. Her daughters have had Power of Attorney since at least 23 September 1996[20]. It seems she was not capable of managing her own affairs from before she was transferred to the Age Pension and her affairs have been managed by others since that time. If, those were all the facts, I would be inclined to order a waiver of the Age Pension Debt but not the Widows Pension Debt.
  7. It is however more complicated. Mr Scheibel has been aggressive and violent in the past towards Mrs Scheibel and her children. While he does not have Power of Attorney over his wife’s affairs, he lives in the same household and is likely to benefit consequentially if the debt is waived. This would be contrary to the principle that a wrongdoer (in the sense that Mr Scheibel has made false statements and failed to declare his marriage for such a long period) should not benefit from his wrongs (or his complicity in Mrs Scheibel’s non-reporting of her marriage).
  8. Taking account of all the circumstances, I am inclined to the view that waiver should not be available to Mrs Scheibel. There is no ground to waive the debt of Mr Scheibel on the basis of special circumstances.
  9. In respect of s 1237AAD(c), this provision applies where there is a more justifiable situation than mere write off. The provision does not have any application in the present circumstances.

CONCLUSION

  1. The Tribunal determines as follows:

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD


Signed: .....................................................................

Alex Seager, Research Associate


Dates of Hearing 18-19 November 2010

Date of Decision 21 January 2011

The applicants were self represented

Solicitor for the Respondent Matthew Hawker, Sparke Helmore Lawyers

[1] Folios 113-132, Exhibit 1, T-documents
[2] Folio 114, Exhibit 1, T-documents
[3] Folio 93, Exhibit 2, T-documents
[4] Folio 89, Exhibit 2, T-documents
[5] Folio 143, Exhibit 1, T-documents
[6] Folio 9, Exhibit 3, T-documents
[7] Ibid
[8] Folio’s 8-9, Exhibit 3, T-documents
[9] Folio 13, Exhibit 3, T-documents
[10] Section 4(2)(a) of the Social Security Act 1991 (Cth)
[11] Re Ward and Secretary to the Department of Social Security (1985) 7 ALN N66
[12] Re Galewski and Secretary Department of Social Security (1998) 54 ALD 569; Re Cocks v Centrelink (2000) 32 AAR 360
[13] Auckland Harbour Board v The King [1924] AC 318
[14] Section 1236(1C) of the Act
[15] Lee v Secretary, Department of Social Security (1996) 68 FCR 491
[16] Secretary, Department of Education, Employment, Training and Youth Affairs v Prince [1997] FCA 1565; (1997) 50 ALD 186; Jazazievska v Secretary, Department of Family & Community Services [2000] FCA 1484 at [41]
[17] Beadle v Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228
[18] Folio 32, Exhibit 3, T-documents
[19] Folio 118, Exhibit 3, T-documents
[20] Folio 125, Exhibit 3, T-documents

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