Tukana and Secretary, Department of Employment (Social services second review) [2016] AATA 45 (13 January 2016)

Last Updated: 3 February 2016

Tukana and Secretary, Department of Employment (Social services second review) [2016] AATA 45 (13 January 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2988
Re	Patricia Tukana
	APPLICANT
And	Secretary, Department of Employment
	RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	13 January 2016
Date of written reasons	2 February 2016
Place	Sydney

For reasons given orally at the hearing the Tribunal affirms the decision under review.

.............................[sgd]...........................................

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – Parenting Payment – overpayment raised – no argument that overpayment properly raised – applicant contended that debt had been repaid in full – whether the Tribunal has jurisdiction to review dispute concerning repayment – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 25

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1991 (Cth)

REASONS FOR DECISION

Senior Member J F Toohey


2 February 2016

BACKGROUND

1. This matter concerns an overpayment of $19,211.89 in Parenting Payment to Ms Patricia Tukana from 1 March 2012 to 6 November 2013.
2. On 29 May 2015, the Social Security Appeals Tribunal (now the Social Services and Child Support Division of the Administrative Appeals Tribunal) affirmed a decision by a Centrelink officer that Ms Tukana had been overpaid. These written reasons reflect reasons given orally at the conclusion of a hearing on 13 January 2016. Ms Tukana was assisted at the hearing by her partner, Mr Metuisela Saqa, who spoke on her behalf.

HOW DID THE OVERPAYMENT ARISE?

3. Ms Tukana was paid Parenting Payment at the single rate from 21 May 2007 to 18 December 2013.
4. Centrelink records show that, on 8 May 2013, Ms Tukana advised Centrelink that she had been working since February 2013. The record shows she said she would need to work out how much she had been earning and would provide the details to Centrelink. For reasons which are not clear, she did not do so.
5. Following advice from the Australian Taxation Office (ATO) in September 2013 that there was a discrepancy between the amount of income declared by Ms Tukana to Centrelink and the amount declared on her tax return, Centrelink requested information from her employer. For reasons which are not clear, that apparently took some time.
6. On 11 November 2014, Centrelink raised an overpayment of $19,844.47. For reasons which it is not necessary to go into, on 19 February 2015, the amount of the overpayment and the period over which it was incurred were adjusted and the overpayment was reduced to $19,211.89.

HAS THE TRIBUNAL THE POWER TO DETERMINE WHETHER OR NOT A DEBT HAS BEEN REPAID?

7. At the start of the hearing, Ms Tukana and Mr Saqa made clear that they do not dispute the overpayment or the calculation of its amount. They accept that Ms Tukana’s employment meant she was not entitled to the amount she was paid. They maintain, however, that the debt has been repaid in full. In effect, they seek a declaration by the Tribunal that Centrelink cannot pursue recovery further.
8. The Tribunal has no power to make a declaration or to determine whether or not a debt has been repaid. It has only those powers conferred on it by statute. It may only review decisions in relation to which jurisdiction has been conferred on it by an enactment: Administrative Appeals Tribunal Act 1975, s 25. Even allowing, for the sake of argument, that Centrelink’s contention that the debt has not been fully repaid could be characterised as a “decision under an enactment”, it is not one that the Tribunal can review. Nothing in the Social Security Act 1991 or the Social Security (Administration) Act 1991 (or any other legislation) confers on the Tribunal power to review a dispute about whether a debt has been repaid.
9. Given that there is no dispute that the overpayment was correctly raised, there is nothing for the Tribunal to do other than to affirm the decision under review. However, because I accept that Ms Tukana and Mr Saqa genuinely believe the debt has been repaid, I will set out why, in my view, they are mistaken.

HAS THE DEBT BEEN REPAID?

10. It is not in dispute that Centrelink is currently recovering the overpayment by withholding $20.00 each fortnight from Ms Tukana’s Family Tax Benefit. Centrelink records show that, at 12 January 2016, $18,612.07 remained owing. I have no reason to doubt the Centrelink records. I accept they are correct.
11. Although I did not always find Mr Saqa’s argument easy to follow, I understand he relies on the following documents as evidence that the Commissioner of Taxation has paid Centrelink the full amount of the overpayment by means of offsets and rebates applied to Ms Tukana’s tax assessments:
    • (a) ATO Notice of Assessment – year ended 30 June 2012, issued on 26 July 2012
    • (b) ATO Tax Agent Portal – pre-filling report 2013
    • (c) Centrelink 2012 PAYG payment summary issued 19 November 2014
    • (d) Amended Centrelink 2012 PAYG payment summary issued 19 February 2015
12. For the following reasons, I do not agree.
13. The 2012 Notice of Assessment shows the outcome of Ms Tukana’s assessment as $3,356.67. The bottom of the notice shows:

“Other information relevant to your assessment:
You did not pay the temporary flood and cyclone reconstruction levy because your taxable income is less than the threshold amount.
Your Family Assistance Office (FAO) debts have been partially recovered. The FAO may contact you regarding any amounts still outstanding.”

14. Whatever the explanation for the second sentence, it cannot be a reference to the debt that is the subject of the current dispute. There is nothing to suggest that Ms Tukana had an FAO debt at 26 July 2012; she did not even notify Centrelink that she was employed until February 2013, and the overpayment was not raised until November 2014. Even if she had an FAO debt that had been partially recovered, there is nothing to suggest that the Commissioner of Taxation had made payment on her behalf.
15. I understand the pre-filling report to be an online document used in the preparation of tax returns. Essentially, it alerts the person completing the return to information that may be required, and “pre-fills” certain information such as private health insurance details. The document provided by Ms Tukana shows that it was created on 18 July 2013. It shows her gross income and total tax withheld, and what she was paid in parenting payment for 2012-2013.
16. The pre-filling report includes a section for “2012-13 Tax Offsets”. No amount has been pre-filled against either of two codes: T2 and T6. The most probable explanation is that there was no offset for which Ms Tukana was eligible. As I understand it, Mr Saqa’s argument is that these codes must refer to an offset applied by the Commissioner of Taxation or they would not appear on the document. Further, that the unspecified offset would have been paid to Centrelink on account of the debt. With respect to Mr Saqa, he misunderstands the document. In any event, as Ms Tukana’s Notices of Assessment for the years ended 30 June 2013 and 30 June 2014 show, no offsets were applied in either year.
17. The Centrelink PAYG payment summary issued on 19 November 2014 shows Ms Tukana received taxable Parenting Payment of $16,626.00 in the 2011-2012 financial year. The amended summary issued on 19 February 2015 shows payment of $11,987.00 for the same financial year with the explanation:

“The following payment details have changed because we have made adjustments to one or more overpayments which affected the original PAYG Payment Summary...” [issued on 19 November 2014]

18. Mr Saqa maintains this is further proof that the debt had already been reduced by 2012. The same observation about the date on which the overpayment was raised applies. There is no evidence before the Tribunal to explain either document but the likely explanation is that the adjusted amount reflects the overpayment raised in November 2014 and the reduced amount of taxable Parenting Payment to which Ms Tukana was entitled in 2011-2012. In any event, neither document is evidence of repayment of the debt by the Commissioner.

CONCLUSION

19. Ms Tukana and Mr Saqa have a number of grievances about government agencies including Centrelink. Whether or not there is any basis for their complaints, they are not matters that the Tribunal determine. I accept they believe that Ms Tukana’s debt has been repaid but I am satisfied they are mistaken. The amount of $18,612.07 remains outstanding.
20. I affirm the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

................................[sgd]........................................
Associate

Dated 2 February 2016

Date(s) of hearing	13 January 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services