(a) Was there an overpayment of age pension solely due to administrative error?

(b) If so, is the debt recoverable by the Commonwealth?

(c) If there is a debt, are there grounds upon which the debt can be waived or written off?

1. The manner in which the above figure of $6,324.25 has been calculated is set out in the T Documents (exhibit R1) at pages 174 to 178. Whilst the applicant disputes that the debt was properly raised, he did not challenge the calculation of the debt.
2. Mr Mirza raised certain further issues in his Statement of Facts, Issues and Contentions (exhibit A1). It appears from this statement that Mr Mirza contends that Centrelink provided inaccurate and negligent advice, and that as a result he suffered economic loss in that he had relinquished his UK pension and certain associated benefits. He further claims that Centrelink did not have his authority to complete or process an income and assets form used in conjunction with the claim for age pension form. He relies on the above matters as a defence to the Commonwealth's claim for the debt that had been raised against him, and in addition, seeks damages from Centrelink.
3. This tribunal has no jurisdiction to determine the matters referred to in the preceding paragraph, (except incidentally to the extent that they may be relevant to whether they constitute special circumstances for the purposes of s 1237AAD of the Act, whereby if certain statutory conditions precedent are satisfied, the Secretary, and this tribunal standing in the shoes of the Secretary, has a discretion to waive all or part of a debt). This tribunal has no inherent jurisdiction, and may only exercise the jurisdiction conferred on it by an enactment: Re Laird and Australian Broadcasting Tribunal AAT 78/122, 10 May 1979. Whilst the Social Security Act has conferred jurisdiction to determine the specific issues referred to in paragraph 5(a) to (c) above, there is no enactment that has conferred on the tribunal jurisdiction to determine the contentions to which I referred in the preceding paragraph (except, potentially, incidentally under s 1237AAD, as mentioned above). If Mr Mirza wishes to pursue the matters referred to in the preceding paragraph he will need to do so in some forum in Australia that has jurisdiction over such matters.

1. I make the following findings of fact in relation to matters that were not in dispute. I base these findings on the evidence and material before me.
2. Mr Mirza is aged 71. He migrated to Australia in 1971, and married in that year. He worked as a law lecturer from 1976 to 1978, and practised as a lawyer in South Australia until 1991. He later became estranged from his wife, and he was served with proceedings for the dissolution of his marriage on 2 March 2005.
3. He and his wife previously owned a property at St. Georges, a suburb of Adelaide, as joint tenants. On 1 October 2000, Mr Mirza gifted his half interest in the house at St. Georges to his then estranged wife in lieu of paying maintenance for his children during a period when he was employed overseas. At the time of the gift, the house was valued at $230,000. Soon afterwards, in June 2001, his wife of her own volition retransferred the half share in the matrimonial home back to him. The material before me does not disclose the reasons for this retransfer.
4. Mr Mirza had applied for and been granted an age pension in the year 2000. He received this pension for a few weeks late in that year. He then went overseas to the United Kingdom, and had intended to reside overseas permanently. The pension was accordingly cancelled.
5. During a subsequent visit to Adelaide, Mr Mirza had a meeting with a Centrelink financial information services officer, the witness Elizabeth Watt. The meeting occurred on 30 December 2004 at the Parkside Centrelink Office. Mr Mirza advised Ms Watt that he was going back to the United Kingdom on 13 March 2005 to tidy up his affairs, and that he intended to return to Australia permanently in April 2005, when he intended to lodge a claim for age pension. Mr Mirza sought Ms Watt's advice as to his entitlement to the age pension. He gave her information as to his marital situation and as to his assets and the amount of a UK pension which he was receiving. Ms Watt estimated his entitlement to age pension, on the assumption that Centrelink was satisfied that he was a single person, at approximately $316.90 per fortnight.
6. Later, on 2 March 2005, Mr Mirza telephoned the Norwood Centrelink office to advise that he had been served with an application by his wife for divorce and with associated documents. He was advised to take the documents to the Centrelink office, and he did this the next day, 3 March 2005.
7. On that occasion Mr Mirza completed, signed and dated an application for age pension (exhibit R1, T4, pages 31 - 53) and he also signed a related income and assets form (exhibit R1, T4, pages 54 - 77). Mr Mirza saw a different Centrelink officer, namely the witness, Jodie Gobbie. She filled in the information on the income and assets form, and dated it. There is a dispute as to whether she did this in Mr Mirza's presence, and as to whether Mr Mirza's application for age pension should have been processed forthwith, or whether he requested that this should be delayed until after his return from the United Kingdom the following month.
8. In fact, Mr Mirza's application was processed immediately. He was granted an age pension with effect from 2 March 2005, being the date of his earlier telephone call to the Norwood Centrelink office.
9. Centrelink sent him a letter dated 4 March 2005 advising him of the grant of his pension, and of the assets and income used to calculate his pension entitlement. This letter included the following heading and text:

The following details represent all of the income and assets that Centrelink currently holds on your records. Please advise us within 14 days if these details are incorrect. Authority for this request is in s 63 of the Social Security (Administration) Act."

1. On the day after his discussion with Ms Gobbie, Mr Mirza went to Sydney for a weekend conference. He returned to Adelaide during the following week, and left for London on 13 March 2005.
2. Mr Mirza's next contact with Centrelink was on 9 March 2005. This contact was also with Ms Gobbie. There is a dispute as to what happened on that occasion, and I will refer to this matter later in these reasons.
3. Mr Mirza went to Centrelink again on 15 September 2005 regarding the effect on his pension of the sale of the home at St. Georges. He saw Ms Watt. On that occasion, Ms Watt noticed that the assets used to calculate Mr Mirza's entitlement to age pension were not correct. Mr Mirza thought that Centrelink's assessment had been based on "concocted figures" (exhibit A2, paragraph 3.9). He was infuriated, and walked out of the interview.
4. On 6 October 2005 Mr Mirza delivered to Centrelink a copy of the contract notes relating to the purchase of certain shares or units that had not been taken into account in assessing his pension entitlement. Centrelink subsequently recalculated his pension entitlement, taking into account the current market value of the shares and units, and also deducting, with effect from 2 October 2005, a further sum of $105,000, being the assessment of a "deprived asset" arising from the gift to his wife, on 1 October 2000, of the half interest in the home at St. Georges. As a result of the reassessment, the debt of $6,324.25 was raised against Mr Mirza.

1. I now turn to the issues identified in paragraph 5 above. This will entail determining certain disputed factual issues.

Was the debt attributable solely to administrative error?

1. Section 1237A(1) of the Act provides in effect that the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
2. Mr Mirza contends that the debt raised against him was attributable solely to an administrative error. He gave evidence that on 30 December 2004, he had handed to Ms Watt his complete file containing records of his assets and income so that she could assess his entitlement to age pension. He said that the documents he produced to her included the contract notes from his stockbrokers relating to the purchase of his investments in 2003, and that these notes showed that the acquisition cost of the securities was approximately $220,000. He relied on his version of the events as showing that he had disclosed his investments to Centrelink before he was granted his age pension.
3. Ms Watt gave evidence that she has worked for Centrelink as a financial information service officer for approximately 15 years, and has worked in the social security field for 30 years. She denied in her evidence that she sighted any documents relating to Mr Mirza's investments, and further denied that she took any documents from Mr Mirza or made a copy of any such documents. She based her denial not on a recollection of the interview, but on the notes she made at the time of the interview and on the practice she had always adopted when she is dealing with a person who is not an existing customer of Centrelink (as was the case with Mr Mirza). She said that according to her practice, she would not have taken any documents from Mr Mirza and retained them, because Centrelink had no system of filing documents from a person who was not an existing customer. Further, if a customer produced any documents, her practice was to make a note that she had sighted them. However, there is no reference in her notes that she had sighted any documents produced by Mr Mirza. She said further that if Mr Mirza had (as he claimed) produced contract notes from his broker relating to the purchase of the securities, she would not have used the purchase price of the securities in calculating his pension entitlement, but would have used a computer facility available to her to obtain the updated value of the securities.
4. I prefer the evidence of Ms Watt to that of Mr Mirza in relation to the events of 30 December 2004. She was an impressive witness, and her evidence is consistent with the contemporaneous record that she made of the interview.
5. I refer again to the events of 3 March 2005, when Mr Mirza completed the claim for age pension form, and also signed the income and assets form. In addition to the matters to which I have referred above, Mr Mirza gave evidence that he signed the income and assets form in blank, and instructed Ms Gobbie to obtain particulars of his assets and income from Ms Watt, and told Ms Gobbie that he would be lodging a formal claim on his return from the United Kingdom. He said that Ms Gobbie should have included his investments in the form, as he had previously advised Ms Watt of these investments.
6. He said further that Ms Gobbie had incorrectly shown a credit balance of $22,000 in a BankSA account, but he did not have any account with BankSA at that time. He said that before departing for the United Kingdom in the year 2000 he had closed his BankSA account and had sold shares he had held in Esperance Minerals, and so he could not possibly have declared that he still had those assets on or after 3 March 2005. He said that the entries recorded by Ms Gobbie were "fictitious and imaginary since nobody would be foolish enough to declare those assets which did not exist" (exhibit A2, paragraph 4.7).
7. Mr Mirza accordingly claimed that the calculation of his age pension by reference to the document wrongly completed by Ms Gobbie amounted to an administrative error. He submitted further that the document was a forgery and therefore a nullity in law.
8. In her evidence, Ms Gobbie disputed Mr Mirza's account. She acknowledged that the income and assets form had been completed by her, and said that whilst she had assisted Mr Mirza by completing the form, she did so on the basis of information he provided to her.
9. Paragraph A2 of the income and assets form records that Mr Mirza owned household contents with a net market value of $5,000. Paragraph A8 indicates that he owned no shares or securities listed on a stock exchange.
10. Paragraph A5 of the form refers to a BankSA account with a balance of $22,000. Ms Gobbie admitted in evidence that she had referred to BankSA in paragraph A5 of the form. When it was pointed out to her that Mr Mirza had referred in the application for age pension form to an account with Adelaide Bank and not BankSA, she said that sometimes customers confuse Adelaide Bank with BankSA. Later she said that she thought that she might have confused BankSA with Adelaide Bank. I note that the account number which she wrote in to the form accords with the account number shown in paragraph E1 of the claim for age pension form, which Mr Mirza had completed, and which he described as an Adelaide Bank cheque account.
11. According to the information in the letter of 4 March 2005 advising Mr Mirza of the grant of his age pension (exhibit R1, T5, page 85), Centrelink took into account the following assets:

1. This list did not include the investments in securities which Mr Mirza had disclosed to Ms Watt on 30 December 2004. The list also differed from the information contained in the income and assets form, not only in that no reference was made in that form to an account with Adelaide Bank, but also because there was no reference in that form to the shares in Esperance Minerals, or to the deprived asset arising from the gift in 2000 of Mr Mirza's interest in the house property. No clear explanation was provided by the respondent as to the reasons for these differences, or as to the source of the information that was used to produce the list of assets contained in the letter of 4 March 2005. If the information was derived at least in part from Centrelink's records of the claim for pension made in 2000, the assessment should not have been based on the then bank balance in the BankSA account, or on the then value of the shares in Esperance Minerals. However, the respondent did not tender evidence as to what records of Mr Mirza's assets it had retained as at March 2005.
2. As mentioned above, there is also a dispute as to what was discussed between Mr Mirza and Ms Gobbie on 9 March 2005. Mr Mirza said that he had received a statement from the Adelaide Bank, and the only issue he raised with Ms Gobbie was to correct the balance of his account with that bank. He said that his contact with her was by telephone, and that he faxed to her the bank statement he had received and that showed the correct balance of his account. He also said that he was unaware at the time that his age pension had commenced, because the pension was paid into his account with the Adelaide Bank.
3. Ms Gobbie said that she had no recollection of her contact with Mr Mirza on 9 March 2005. However, she also said that in accordance with her usual practice, she had made a record of a contact with a customer, in this case, Mr Mirza. Her record appears in exhibit R1, T13, page 168. The record indicates that the contact with Mr Mirza was in person, and not by telephone, and that the purpose of the contact was to record changes to assets. The record further indicates that it was created on 9 March 2005. The operative part of the record reads as follows:

"Cust recently age pension 020305 and has come with Income & Assets statement sent out after grant with a few changes.

Cust provided current statement showing balance of Adelaide Bank CMT is $15004. SVS updated.

Cust also advised no longer has shares or any household contents."

By reference to this record, Ms Gobbie said that Mr Mirza had requested that the account balance with the Adelaide Bank should be amended to the figure that he had provided, and that the value of his shares in Esperance Mines and the value of the household contents should be removed from his assets.

1. I accept Ms Gobbie's account of the events of 9 March 2005 in preference to that of Mr Mirza. Ms Gobbie gave her evidence as to the events of that contact in a straightforward manner, and by reference to contemporaneous notes. The above record of the discussion on 9 March 2005 indicates that Mr Mirza had received the letter of 4 March 2005, and that he had read it, and this is inconsistent with his claim that he was unaware that his age pension had commenced. I find that he was so aware. I do not accept that Ms Gobbie created the notes after the event, as suggested by Mr Mirza. Further, Ms Gobbie said that following this contact with Mr Mirza, she amended Centrelink's computer records of his assets. This appears to be confirmed by Centrelink's records. A computer generated copy letter dated 9 March 2005 shows a small reduction in the amount of Mr Mirza's pension, and to the threshold at which he was required to advise of changes to his asset position, compared with the figures advised to him by the earlier letter of 4 March 2005. Presumably those changes were made in consequence of the adjustments to his asset position that Mr Mirza requested when he saw Ms Gobbie on 9 March 2005 (see exhibit R1, T5, pages 91 - 92, 94 - 96). It may well be that the letter of 9 March 2005 did not reach Mr Mirza before he went overseas, but I am satisfied that he did receive the letter of 4 March 2005 prior to then.
2. There is also evidence that Mr Mirza is confused in his recollection of the events of 9 March 2005. In paragraph 6 of the attachment to his application to this tribunal for review of the SSAT decision he refers to having had a telephone conversation on 9 March 2005 relating to the updated bank statement (exhibit R1, T1, page 5). However, in paragraph 3.7 of his Statement of Facts, Issues and Contentions (exhibit A2) he denies contacting Centrelink on 9 March 2005 either personally or by telephone, and says that to the best of his memory he had not returned from Sydney until the following day, and that he was totally unaware of inaccuracy in the details until 15 September 2005.
3. Ms Gobbie's account of her contact with Mr Mirza on 9 March 2005 indicates that he had read the letter from Centrelink of 4 March 2005, and also that he had considered the information contained in it. I find that he should have realised that the assets listed in the letter omitted any reference to the securities he had purchased in 2003 for a total cost of approximately $220,000 (see exhibit R1, T29, page 247). Having regard to this finding, it follows that I am not satisfied that the error in the computation of the entitlement to age pension was attributable solely to administrative error.

Should the Tribunal exercise its discretion to waive the debt by reason of special circumstances?

1. Section 1237AAD of the Act gives the Secretary, and this tribunal standing in the shoes of the Secretary, power to waive a debt in special circumstances. It provides as follows:

"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:

making a false statement or a false representation; or

failing or omitting to comply with a provision of this 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."_

1. In matters of this kind, it is customary for decision-makers to examine all the relevant facts and decide whether the conditions referred to in paragraphs (a), (b) and (c) of s 1237AAD are met, and if so, then to decide whether or not to exercise the discretion conferred by that section to waive the right to recover all or part of the debt. In the present case, however, I find it unnecessary to consider the question of whether the conditions precedent in paragraphs (a), (b) and (c) have been fulfilled, because even if I were satisfied of those matters, I do not think it appropriate in the circumstances to exercise the discretion conferred on me (standing in the shoes of the Secretary) by s 1237AAD. My reasons for this conclusion follow.
2. From Mr Mirza's evidence as to his discussion with Ms Gobbie on 3 March 2005, it appears that he had not expected her to process his claim for age pension until after his return from the United Kingdom the following month. However, once again, the contemporaneous records of what occurred at the relevant time are inconsistent with Mr Mirza's evidence, in that he completed the claim for age pension form, and Ms Gobbie proceeded to process it without waiting for him to return from overseas. Further, Mr Mirza's actions in completing the claim for age pension form and signing the income and assets form and in leaving those forms with Ms Gobbie are consistent with an intention that the claim be processed by her in the usual way; if he had intended to lodge his claim after he returned from overseas, he might have been expected to have taken the forms with him and then lodged up-to-date information following his return from overseas. I find that he did not request Ms Gobbie not to lodge his claim for age pension. I further find that if he did not intend the claim to be processed until after his return from overseas he did not communicate this clearly to Ms Gobbie, and she did not understand that she was to hold his claim until then.
3. I further find that as a former lawyer, and a person who had previously applied for and been granted an aged pension, Mr Mirza should have been aware of the necessity to provide an accurate list of his assets and their value to Centrelink, and he should also have been aware of the need to check the summary which Centrelink provided to him of the assets which they had used as the basis of their calculation of his pension entitlement. I have already found above that Mr Mirza should have understood from the letter of 4 March 2005 from Centrelink that he had by then been granted an aged pension, and he must have read the letter because he requested Ms Gobbie to amend or delete three of the assets referred to in that letter. As I have also found above, Mr Mirza should have realised that the assets listed in the letter of 4 March 2005 omitted any reference to the securities that he had purchased in 2003 for a total cost of approximately $220,000. However, he did not point this out to Ms Gobbie on 9 March 2005. If he had, his pension would no doubt have been further adjusted to reflect that change in his asset position, and the overpayment would not have occurred. In those circumstances, I do not think that it would be appropriate to exercise the discretion under s 1237AAD of the Act to waive the right to recover all or part of the debt, even if I were satisfied that the relevant conditions precedent to that discretion had been fulfilled.
4. As mentioned in paragraph 17 above, the letter of 4 March 2005 also advised that the details of the assets listed in the letter represented all of the income and assets that Centrelink currently held on his records, and requested that Centrelink be advised within 14 days if the details were incorrect. Mr Mirza did not comply with this request. This constituted a breach of s 63 of the Social Security (Administration) Act 1999 (Cth) ("Administration Act") which (among other things) in effect authorises the Secretary to notify a benefits recipient that he or she is required, within a specified time, to give specified information to the Secretary. Under s 63(4), if the person does not comply with the requirement, the payment that the person is receiving or has claimed is not payable. Mr Mirza's failure to comply with the Administration Act has also led me to conclude that even if I were satisfied that the relevant conditions precedent had been fulfilled, it would not be appropriate to exercise my discretion under s 1237AAD to waive the right to recover all or part of the debt for the overpayment of pension.
5. Even though I have not found it necessary to decide whether the conditions precedent in s 1237AAD have been fulfilled, it is appropriate to refer to one argument put on behalf of the respondent as to subparagraph (a)(ii) of that section. That subparagraph in effect requires the Secretary to be satisfied that the debt did not result from the benefits recipient knowingly "failing or omitting to comply with a provision of this Act" (emphasis added). It was suggested on behalf of the respondent that Mr Mirza could not satisfy this subparagraph either, because after receiving the letter of 4 March 2005 he did not advise within 14 days whether the details of his assets as listed in the letter were incorrect. However, the relevant obligation is contained in the Administration Act, and not in the Social Security Act. Mr Mirza's failure to correct the omission in the statement of assets included in the letter of 4 March 2005 did not therefore constitute a failure or omission to comply with the provisions of the Social Security Act. There accordingly appears to be a gap in s 1237AAD which should be remedied by including reference in subparagraph (ii) to the Administration Act, as well as to "this Act".

1. Under s 1236(1A) of the Act, the Secretary has a discretion to write off the debt in certain circumstances. This section provides as follows:

"The Secretary may decide to write off a debt under subsection (1) if, and only if:

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt."

1. The SSAT referred to this section in its reasons for decision and found that Mr Mirza had liquid assets and therefore had the capacity to repay the debt. The value of his assets when his pension was reassessed in October 2005 supports this finding (although his financial position may of course have changed since then). Whilst Mr Mirza expressly disagreed in exhibit R1, T1, pages 3 - 6 with certain findings and conclusions reached by the SSAT, he did not comment on this aspect of the SSAT's reasons, and he did not lead any evidence before me to contest this finding. Accordingly, and having regard to the information available to me as to Mr Mirza's financial position, there is no evidence of the existence of any of the facts necessary to enliven the discretion to write off the debt under s 1236(1A) of the Act, and in any event, in view of Mr Mirza's threatened claim against the Commonwealth, I do not think that it would be appropriate to write off the debt or any part of it under that section.

1. The tribunal affirms the decision under review.

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

Date/s of Hearing 11 October 2006 and 20 March 2007

Solicitor for the Respondent Centrelink Legal Services Branch