De Nittis and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 77 (14 January 2011)

Last Updated: 29 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2010/2377

GENERAL ADMINISTRATIVE DIVISION )

Re: ELIZABETH DE NITTIS

Applicant

And: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT, AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr G. D. Friedman, Senior Member

Date 14 January 2011

Place Melbourne

Decision

The Tribunal affirms the decision under review.

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

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2010/2377

DE NITTIS

and

SECRETARY, DEPARTMENT OF EDUCATION,

EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

FRIDAY, 14 JANUARY 2011

MS E. DE NITTIS appears in person

MS S. KOYA appears for the respondent
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN: The matter before the Tribunal is a decision of the Social Security Appeals Tribunal of 3 May 2010. That Tribunal affirmed a decision, made by Centrelink, to recover from Ms De Nittis a debt of $2941.99, being a debt for overpayment of parenting payment single during the period 16 June 2007 to 14 November 2008 and the Social Security Appeals Tribunal also waived recovery of the debt from 30 ...[July] 2007 to 14 December 2007. So the issues before me are, firstly, whether Ms De Nittis was overpaid parenting payment in the amount of $2941.99 during that period because of earnings and, secondly, whether I should, as the Social Security Appeals Tribunal did, waive the debt from 30 July 2007 to 14 December 2007 and, lastly, whether, if I find there was a debt, the remaining part of the debt should be waived or written off.

Now, there is no dispute that Ms De Nittis received parenting payment single in the relevant period. In July 2007, she contacted Centrelink and advised she had commenced work at Prahran Mission and that her gross income was $1000 per fortnight. Acting on that, Centrelink sent to her, on 17 July 2007, an information notice informing her that Taxation Office records showed that she had signed a tax file number declaration and she was asked to provide copies of her payslips and on 30 July 2007 she advised that she had commenced work at Prahran Mission and her gross income was $1000 ... [per] fortnight.

On 14 December 2007, Centrelink sent her an information notice confirming that her income was taken to be $1000 per fortnight as she had previously advised, and she was asked to inform Centrelink within 14 days if anything contained in that information was incorrect, was missing, or needed updating. [O]n 18 February 2008, they requested copies of payslips for the period 25 December 2007 to 19 February 2008, which she provided on 29 February 2008, and there was a debt raised in the amount of $670.92 as a result of earnings not being taken into account for a period between December 2007 and March 2008.

She contacted Centrelink on 26 May 2008 informing them that she had ceased work and provided a separation certificate and, in November 2008 and January 2009, Centrelink sent Ms De Nittis information notices requiring her to report to Centrelink every two weeks. She was also sent an information notice on 6 January 2009 and Centrelink wrote to Depressionet seeking information about her employment details from July 2008 to October 2009 and Centrelink raised a parenting payment debt on 25 January 2010.

The legislation that is relevant to this matter is ... [the] Social Security Act 1991 ... [and the] Social Security (Administration) Act 1999. ... [S]ection 503 of the Social Security Act provides that parenting payment is dependent on whether the person is a member of a couple or not and sets out the calculator – the rate calculator – in accordance with section 106A of the Act and Module E contains the income test for parenting payment, and the definition of income is set out in section 8.

I am satisfied that during the period 16 June 2007 to 14 November 2008, Ms De Nittis received income from Prahran Mission and Depressionet. She ceased work at Prahran Mission on 22 May and supplied her separation certificate but did not inform Centrelink of income she received when she ceased work. She commenced work at Depressionet on 27 October 2008 until 26 November 2008. I am satisfied that in the period in question, she received parenting payment totalling $10,708.93 and her entitlement during that period was $7766.94.

Section 123(1) and (3) of the Administration Act provide ... that Social Security payment continues until a further determination has been made in relation to that payment and section 100(1) of the Administration Act provides for the situation that a notice is given under section 68(2) and the person does not inform Centrelink of the required information. I am satisfied that Ms De Nittis did not comply with the Centrelink information notices under the Administration Act and that she was overpaid parenting payment single in the amount of $2941.99 and under section 1223(1) of the Act I find that the overpayment constitutes a debt which is legally recoverable as a debt to the Commonwealth in the amount that I’ve already stated.

The question then remains as to whether the debt should be waived or written off. Section 1236 of the Act provides for the possibility of writing off the debt. In this particular case, Ms De Nittis is in a situation that, although her financial situation is not particularly favourable, it is feasible that she make payments from her current Social Security benefits and, as I understand from evidence given today, she has already repaid a large proportion, if not most of the debt. Accordingly, I find that the debt should not be written off under section 1236 of the Act.

On the question of whether the debt can be waived under section 1237A(1) this requires that waiver of a debt is possible if the debt is attributable solely to administrative error made by the Commonwealth for payments received in good faith. I accept the submission by Ms Koya that the sole administrative error by Centrelink, in not coding information provided by Ms De Nittis in relation to two payslips sent to Centrelink on 30 July 2007, justify waiver of the debt from 30 July 2007 to 14 December 2007 of the Social Security Act. In relation to the remainder of the debt, Ms De Nittis stated her belief that Centrelink had not recorded all her contacts with them accurately and that, although they have in general been of assistance to her, she believed that Centrelink did not record all contacts with her that would have prevented some of the debt being incurred by her, although she acknowledged, as she did before the Social Security Appeals Tribunal, that there may have been some confusion on her part as to the requirement to notify Centrelink of gross amounts of income received rather than net amounts received.

I accept this evidence from her and find that there was some confusion on her part in that she did not understand fully the requirement to notify the entire gross amounts she received instead of the net amounts. I appreciate Ms De Nittis’ comments that she found some of her dealings with Centrelink to be unsatisfactory, however, because I accept her admission that she may have been confused in not notifying the full amount of her gross income. I find that the debt was not solely caused by Centrelink error. Accordingly the remainder of the debt cannot be waived under section 1237A(1).

The remaining provision for waiving a debt is section 1237[A]AD, which provides that the debt, or part of the debt, may be waived if the debt did not result wholly or partly from the debtor ... making a false statement or failing or omitting to comply with a provision of the Act and there are special circumstances other than financial hardship alone that make it desirable to waive. I have taken into account Ms De Nittis said that she was confused about her obligations. I have also taken into account she said she’s a single mother, she said she’s had difficulty bringing up children on the amount that she’s had made available to her to make ends meet. She also outlined problems with losing a tooth, with heart palpitations and she emphasised to the Tribunal all she has been trying to do is to be honest and to meet her requirements under the legislation.

In relation to special circumstances, the term is not defined in the Act but in a number of decisions of this Tribunal and the Federal Court, such as Beadle, Groth, Ivovic, Angelakos and Davey, it’s clear that for a matter to be considered to be special circumstances there have to be circumstances that are out of the ordinary, unusual or uncommon, not just for the applicant personally, but in relation to other applicants in similar positions in the context of Social Security payments. Although I have taken into account all the matters raised by Ms De Nittis, I find that none of those matters, either individually or collectively, constitutes special circumstances because they are not sufficiently unusual or uncommon that ...[they] would justify waiving the debt under that section of the Act.

Accordingly, I find that I cannot waive the debt under section 1237AAD of the Act and, for the reasons that I have already mentioned, I find that the Social Security Appeals Tribunal decision, to affirm the Centrelink decision regarding the debt for the relevant period, and also to waive recovery of the debt for the period 30 July 2007 to 14 December 2007, was correct and I affirm that decision.

END OF EXTRACT