[2014] AATA  184

Division	GENERAL ADMINISTRATIVE DIVISION	
File Number	2012/1255	
Re	Nunziatina Andreucci	
	APPLICANT	
And	Secretary, Department of Social Services	
	RESPONDENT	
Decision

Tribunal	Senior Member R W Dunne

Date	4 April 2014	
Place	Adelaide	
The Tribunal affirms the decision under review.
........................[Sgd]................................................
Senior Member R W Dunne

Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – age pension – applicant's change of home address – whether change to value of assets for pension purposes – overpayment of age pension – waiver – special circumstances – decision under review affirmed.

Legislation
Social Security (Administration) Act 1999 (Cth) s 68
Social Security Act 1991 (Cth), ss 1064(1), 1118(1), 1223(1), 1237A(1) and 1237AAD 

Cases
Re Beadle v Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Riddell v Secretary, Department of Social Security (1993) 30 ALD 31
Angelakos v Secretary, Department of Employment Workplace Relations [2007] FCA 25
   
REASONS FOR DECISION

Senior Member R W Dunne

4 April 2014

introduction
1.	This is an application by Ms Nunziatina Andreucci (“applicant”) for review of a decision of an Authorised Review Officer (“ARO”) of Centrelink made on 2 September 2010, which was affirmed by the Social Security Appeals Tribunal (“SSAT”) on 17 March 2011.  The applicant has applied to this Tribunal for review of the decision of the SSAT.  
2.	At the hearing, the applicant was represented by her son, Mr Romano Andreucci, and Mr C Visser (Department of Human Services) represented the respondent.  The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.  Oral evidence was given by the applicant with the assistance of an Italian interpreter, Mr Franco Cassiano.
ISSUES FOR THE TRIBUNAL
3.	The issues for the Tribunal are:
(a)	Was the applicant overpaid age pension in the sum of $41,712.71 under the Social Security Act 1991 (“Act”)?
(b)	Are there any grounds to waive recovery of all or part of the overpayment?
4.	Ms Andreucci did not dispute that an overpayment (or overpayments) of age pension had occurred and had no dispute with the respondent’s calculations that the amount of the overpayment was $41,712.71 (“Debt”).
LEGISLATION
5.	The following are the provisions of the Act and the Social Security (Administration) Act 1999 (“Administration Act”) that are relevant in the present matter:
The Administration Act
6.	Under s 68 of the Administration Act, Centrelink issues notices to a person that set out the events or changes of circumstance that the person must tell Centrelink about within 14 days.  These events are called “notifiable events”.  Section 68 places an obligation on a person to notify Centrelink within 14 days if a notifiable event occurs.
The Act
Section 1064
7.	Pension rate Calculator A in the Act sets out the method for calculating an age pension rate.  Module G deals specifically with the operation of the assets test.  Calculator A and Module G are set out in s 1064 of the Act.
Section 1118
8.	Section 1118 of the Act provides for “certain assets to be disregarded in calculating the value of a person’s assets” for age pension purposes.  It provides that a person’s “principal home” is an exempt asset.
Section 1223
9.	Section 1223 of the Act states that, if a person is paid in excess of their correct entitlement to age pension, then the excess amount paid is a debt due to the Commonwealth, where the person was paid more than either the income test or the assets test allowed.
Section 1237A
10.	Section 1237A of the Act states that the respondent must waive recovery of the Debt if certain requirements are all met.  One requirement is that the Debt was due solely to administrative error by the Commonwealth and the debtor did not know, and/or could not reasonable have known, that they were being overpaid.
Section 1237AAD
11.	Section 1237AAD allows the respondent (and the Tribunal, standing in the shoes of the respondent) a discretion to waive recovery of an overpayment (that is, the Debt) if:
(a)	the overpayment is not due to the debtor knowingly failing to notify of a change of circumstances or failing to comply with a legislative provision; and
(b)	there are “special circumstances” (other than financial hardship alone) that make it more appropriate to waive recovery rather than to write off the Debt.
BACKGROUND FACTS
12.	The material facts in this case are largely extracted from the respondent’s statement of facts, issues and contentions and the SSAT’s reasons for decision dated 17 March 2011.  
13.	Centrelink records indicate that, on 29 May 2004 the applicant changed her home address from 19 Florence Street, Fullarton to 44 Third Avenue, Klemzig.  On 10 August 2007, the respondent sent a notice to the applicant informing her of her obligation to notify the respondent within 14 days if there was a change to the value of her assets or financial investments by more than $1,000.  On 2 October 2007, the applicant became the sole registered proprietor of the property at 19 Florence Street, Fullarton, having inherited the property from her late husband.  The applicant did not inform Centrelink that she had become the sole owner of that property.  The Australian Valuation Office valued 19 Florence Street, Fullarton as at 2 October 2007 at $560,000.  
14.	In April 2010, Centrelink received confidential information from the general public that the applicant was owner of 19 Florence Street, Fullarton.  On 6 May 2010, the applicant with her son advised Centrelink that she was not aware that Centrelink did not know about the 19 Florence Street, Fullarton property and that her son (Romano) was residing in the property and paying rent of $140.00 per week.  On 3 June 2010, a debt of $41,712.17 was raised against the applicant for age pension overpayment during the period from 2 October 2007 to 3 June 2010 (“Debt Period”).  According to Centrelink records, the applicant had resided at 44 Third Avenue, Klemzig since 29 May 2004.  This is a house property owned by her and her two sons.
EVIDENCE
15.	In giving her evidence, Ms Andreucci said that she should have stayed at 19 Florence Street, Fullarton.  She didn’t do that, but she always regarded the Fullarton property as her principal residence.  She said that her savings of $20,000 had been spent on debts relating to the Fullarton property.  These debts related to maintenance of the property and council rates.  She said she owned the property at 44 Third Avenue, Klemzig jointly with her two sons and a daughter.  
16.	In cross-examination by Mr Visser, the applicant said that she did not contact the respondent when her pension stopped in June 2010 because she was in shock.  She had done nothing further about the overpayment of her pension and thought nothing more about it.  However, she said she had paid a lawyer $1,800.00 to defend the Centrelink action regarding the Debt.  Her son Romano no longer paid rental for the Fullarton property and she was now living there again.  This was different during the period February 2007 to June 2010 when the Debt was raised.
CONSIDERATION
Was the applicant overpaid age pension in the sum of $41,712.71 under the Act?
17.	On the evidence, the applicant has been overpaid age pension in the sum of $41,712.71.  She does not dispute this and has no issue with Centrelink’s calculations of that overpayment under s 1064 of the Act.  I am satisfied, on the evidence, that the applicant’s principal home during the Debt Period (from 2 October 2007 to 3 June 2010) was 44 Third Avenue, Klemzig.  Based on this finding, the property at 19 Florence Street, Fullarton was not her principal home and could not be disregarded in valuing her “assets” for age pension purposes. 
Are there any grounds to waive recovery of all or part of the debt?
18.	Under s 1118 of the Act, in calculating the value of a person’s assets for the purposes of the Act, the value of any life interest of the person in the person’s principal home is disregarded.  On the evidence, during the Debt Period the applicant’s principal home was 44 Third Avenue, Klemzig.  Her son, Romano, resided at 19 Florence Street, Fullerton and paid rental of $140.00 per week.  He did not reside with his mother at 44 Third Avenue, Klemzig. 
19.	Under s 1223(1) of the Act, if a social security payment is made to a person who obtains the benefit of the payment and is not entitled for any reason to obtain that benefit, the amount of the payment is a debt due to the Commonwealth by the person and is taken to arise when the person obtains the benefit of the payment.  In these circumstances, the overpayment of age pension made to the applicant during the Debt Period became a debt due by the applicant to the Commonwealth.
20.	Under s 1237A, the respondent must waive the right to recover a proportion of the debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment that gave rise to that proportion of the debt.  As overpayment of the applicant’s age pension was not attributable to an administrative error by the respondent, waiver of the debt arising cannot be made.
21.	Under s 1237AAD, waiver of the right to recover all or part of a debt can occur if the respondent is satisfied that:
“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.”
22.	The expression “special circumstances” has been considered on numerous occasions by Courts and Tribunals.  In the case of Re Beadle and Director-General of Social Security, the Tribunal said [at page 3]:
"...  An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."  (emphasis added)
23.	In Groth v Secretary, Department of Social Security, Kiefel J, after referring to the Federal Court’s decision in Re Beadle, observed that special circumstances:
"... would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. ..."
24.	In Riddell v Secretary, Department of Social Security, the Full Court of the Federal Court said [at page 38]:
"Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other."
25.	More recently, in Angelakos v Secretary, Department Employment Workplace Relations, Besanko J said at [33]:
“I note her Honour’s reference to the Tribunal in the case before her probably overstating the test. I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.”
26.	On the evidence available, Ms Andreucci is in a good financial position.  She has $25,000 in the bank and an interest in the 19 Florence Street, Fullarton property.  She is 79 years of age, but she says she has not been well.  In her hearing before the SSAT, the Presiding Member said she was “seeking leniency”.  It seems to me that, in appearing before me, she was seeking leniency again   I am satisfied that her circumstances are not such that they can be categorised as “special”.  Thus, the Tribunal is of the view that there are no special circumstances that would warrant the waiving of the Debt ($41,712.71), and the Tribunal so finds.
DECISION
27.	The Tribunal affirms the decision under review.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne	
........................[Sgd]................................................
Administrative Assistant
Dated 4 April 2014

Date of hearing	30 January 2014	
Advocate for the Applicant	Mr Romano Andreucci	
Advocate for the Respondent	Mr C Visser	
Solicitors for the Respondent	Department of Human Services