Editors --- "Disability support pension debt: waiver and part administrative error" [2007] SocSecRpr 16; (2007) 9(2) Social Security Reporter, Article 3

• SECRETARY TO THE DEWR and ANGELOSKI
• Background
• Discussion
• Formal decision

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Disability support pension debt: waiver and part administrative error

SECRETARY TO THE DEWR and ANGELOSKI

(2007/1261)

Decided: 26th April 2007 by E.A. Shanahan

Background

Mrs Angeloski lodged a claim for disability support pension (DSP) with Centrelink on 12 May 2003. She included information regarding her income from working 12 hours per week. Centrelink granted her DSP based on an estimated annual combined income of $9762.16. Her husband had been receiving DSP since August 2002 and had no other income.

On 11 July 2003 they leftAustralia to visit family inMacedonia. Centrelink had been notified of their intended travel on 7 July 2003 and had been advised that the Angeloskis would be absent for three weeks during the period of Mrs Angelovski’s annual leave. She returned toAustralia on 8 August 2003.

When Mr Angeloski attended Centrelink on 7 July 2003 to advise that they were going overseas, he also advised he has stopped worked (sic) and earnings updated. As a result of this advice, Mrs Angeloski’s declared annual earning of $9762.16were deleted from Centrelink’s records as they were attributed to Mr Angelovski.

The Angeloskis were sent information notices from Centrelink quoting combined actual income of varying amounts ($556.04, $799.04, $667.26) per annum. Both spoke little English and had little education and were puzzled by the notices. They did not act on the notices as Mrs Angeloski’s original claim for the DSP had declared their combined annual income as assessed by Centrelink at $9762.16. In November 2003, at Centrelink’s request, the Angeloskis updated their combined actual income to reflect Mrs Angeloski’s continued earnings of $346 per fortnight. Throughout the period under review Mrs Angeloski worked 12 hours per week maximum and she ceased all work when she was sacked two months after the settlement of her workers’ compensation claim in August 2006.

On 7 November 2005 a Centrelink officer made a decision that both Angeloskis had been overpaid their DSP entitlement. A debt was raised to the Commonwealth, of $2225.59 each.

The SSAT reviewed the decision on 24 April 2006 and waived both debts as it found that the debts had arisen solely due to administrative error by Centrelink. The Secretary sought review by the AAT.

Discussion

The Tribunal found both Angeloskis to be truthful witnesses and noted their poor comprehension of the English language.

In her claim for DSP Mrs Angeloski declared her income to be $176.16 per week for 12 hours work. Her employer independently confirmed this on 12 May 2003. On 19 November 2003 a further declaration regarding her income was provided to Centrelink with her earnings unchanged.

The Tribunal found that Centrelink’s estimates of the combined actual income in May 2003 and on 6 June 2003 bore little or at least no readily discernible relation to declared earnings.

The Tribunal also noted that the exact nature of the advice given by the Centrelink officer in May 2003 was unknown. Both Angeloskis claimed they were told to report any increase or decrease in hours worked. The Tribunal noted that this interview was conducted with the assistance of a Macedonian interpreter and there was no way of knowing exactly what was conveyed to them. The Tribunal did not reject their interpretation of the advice given. The Tribunal also noted that the Secretary had not elicited the Centrelink officer’s recollections of the meeting. The Tribunal did not consider this to be an important oversight given the passage of time and the interposition of an interpreter at the interview.

The Tribunal found that on 7 July 2003 a Centrelink officer cancelled Mrs Angeloski’s declared combined actual income of $9762.16 after a recorded interview with her husband who confirmed he was not working.

The Tribunal accepted that both the Angeloskis did not alert Centrelink to the combined actual income errors in their information notices as they did not understand the sums of money quoted in letters, and because they had provided Mrs Angeloski’s earnings on 12 May 2003. The employer had confirmed this on the same date and a further declaration of earnings was made on 19 November 2003. The Tribunal accepted that they felt secure that they had provided all the requested documentation regarding their combined income on three occasions. The Tribunal noted that they did however find the figures quoted puzzling and agreed with this view. The Tribunal considered that information notices taxed the Tribunal’s understanding, let alone that of someone whose command of English is minimal. It was difficult to infer a duty on the part of the Angeloskis to inform Centrelink ofit’s mistakes, after correct information had been provided and Mrs Angeloski’s earnings had never exceeded the baseline established on 6 June 2003 by Centrelink. The Tribunal agreed with and followed the reasoning of Justice Mathews in Vitalone and Secretary, Department of Social Security [1995] AATA 188; (1995) 38 ALD 169 regarding the subject of notice.

The Secretary submitted that despite the presence of acknowledged administrative errors, the majority of the DSP payments were not received in good faith as both the Angeloskis failed to query the Centrelink estimate of their combined actual income, had failed to report Mrs Angeloski’s two pay rises of approximately $7.00 per week in 2003 and 2005 and should have known that their DSP entitlements were affected by the latter. The Tribunal did not accept this argument as at no time did Mrs Angeloski’s earnings from employment exceed the 6 June 2003 estimate of $9762.16.

The Tribunal accepted that Centrelink incorrectly deleted Mrs Angeloski’s combined income from her record on 7 July 2003 and it was not restored in her computer file after the further income declaration of 19 November 2003.

The Tribunal noted that online records were at times attributed to either Angeloskis regardless to whom the recorded data related. The Tribunal noted the failure of Centrelink officers to accurately record the data were further administrative errors.

The Tribunal found that the debts raised had resulted from repeated and cumulative administrative errors solely by Centrelink and waived all debts in accordance with s.1237A of the Act.

Formal decision

The Tribunal affirmed the decision under review.

[S.P.]