mixed. The Tribunal affirmed the decisions concerning overpayments in the names of Kenneth Mitchell and Mary Mitchell, set aside and remitted the overpayment decision concerning Pauline Crowhurst for...
Key principles
The Tribunal found that pension paid to Pauline Mitchell under her own identity was affected by undisclosed property and assets. Because the available evidence did not allow it...
The Tribunal found that Mitchell controlled and used pension payments made in the names of Kenneth Mitchell and Mary Mitchell, whom it found to be deceased. Those payments were...
The Tribunal affirmed suspension of Mitchell's age pension because she had not provided financial and property information sought by Centrelink, relying on ss 68 and 81 of the...
The Tribunal was not satisfied that the debts should be written off or waived under the provisions it considered. It found no basis to write them off under s 1236, no evidence...
Issues before the court
Whether Mitchell had been overpaid pension in her own name because she did not disclose property and assets, and how the overpayment should be...
Plain English Summary
The Tribunal found that Mitchell had not disclosed property affecting her own pension and had controlled pension money paid in the names of two deceased relatives. It upheld the debts relating to those relatives and upheld suspension of Mitchell's pension because she had not supplied requested information. It did not settle the final amount of the overpayment in her own name: it sent that decision back for recalculation using its findings about her properties and principal home.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,943 words · generated 01/10/2026
What happened
In Mitchell and Secretary, Department of Social Services [2014] AATA 534, the Administrative Appeals Tribunal reviewed four decisions relating to Pauline Mitchell, who had also used the surname Crowhurst. The decisions concerned an overpayment calculated against her own pension, pension payments made in the names of Kenneth Mitchell and Mary Mitchell, and suspension of her age pension.
Whether Mitchell collected, controlled and benefited from pension payments made in the names of Kenneth Mitchell and Mary Mitchell.
Whether suspension of Mitchell's own age pension in May 2011 was justified.
Whether any of the debts should be written off or waived.
Cited legislation
3 cited instruments linked from this judgment.
The Tribunal's final orders were mixed. It affirmed the decisions concerning the overpayments in Kenneth Mitchell's and Mary Mitchell's names, affirmed the suspension of Mitchell's pension, and set aside and remitted the overpayment decision in the name Pauline Crowhurst for recalculation. The Tribunal did not itself determine the final recalculated amount for her own-name debt.
The Tribunal found that Mitchell received widow's pension and later age pension in the name Pauline Crowhurst until her pension was suspended in May 2011. It found that she had owned several properties, including property at Asquith, properties at Kangy Angy and land at Wentworth Falls. Its findings about ownership and residence were important because pension entitlement depended on the assets test and on whether a property was her principal home.
The other two debt decisions concerned payments made in the names of Kenneth Mitchell and Mary Mitchell. The Tribunal found that Kenneth had died at sea in 1942. It considered Mary likely to be Mitchell's sister Marie or Maria, who had died in 1983. The Tribunal found that Mitchell had used bank cards and had access to post office boxes associated with the pension claims. It rejected her account that she had only acted as a conduit for money that someone else controlled.
The decision was made by Senior Member G Ettinger after hearings on 10 and 11 March 2014 and 8 May 2014. The source text does not provide a consistently numbered sequence for the reasons: paragraph numbering restarts in multiple sections. For that reason, this analysis identifies the relevant reasons by their section headings rather than supplying potentially inaccurate paragraph pinpoints.
Why the court decided this way
For Mitchell's own pension, the central issue was the effect of her property holdings on her pension rate. The Tribunal stated that the principal home was exempt from the assets test under s 4 of the Social Security Act 1947 and s 1118(1) of the Social Security Act 1991. It also referred to s 1064 of the 1991 Act for the dependence of pension payable on the assets and income tests.
The Tribunal found that Mitchell owned Asquith from October 1980 to November 1987. It found that she had an interest in the Kangy Angy properties, and that she used Number 19 and later Number 11 as a principal residence during different periods. It also found that she owned Wentworth Falls and treated that property as her principal residence from 2006 until its sale in mid-2013. These findings differed in important respects from the agency's treatment of her home ownership and principal residence.
The Tribunal relied on the decision in Re Melling and Secretary, Department of Social Services [2014] AATA 52. It adopted Member Webb's explanation that a principal home must be an asset in which the person has an equitable interest, that “principal” distinguishes a main or leading home from other homes, and that a home is a dwelling or residence from which a person may be temporarily absent. It also considered the Guide to Social Security Law, cl 4.6.3.30, which uses time spent in a home as a general way of identifying a principal home when a person owns more than one. The Tribunal stressed that the assessment remained one of fact and degree in the individual circumstances.
The valuation evidence also affected the remittal. One valuer had inspected Number 11; another had undertaken roadside inspections and had not accounted for the council's order concerning the shed or the cost of demolition and services. The Tribunal accepted the latter's valuations subject to appropriate deductions and adjustments. Because it could not determine the pension payable at each relevant time from the evidence and calculations before it, it sent the own-name overpayment decision back to the respondent for recalculation.
For the Kenneth and Mary Mitchell debts, the Tribunal considered the evidence cumulatively. It relied on Mitchell's admissions that she often used the key cards, bank material and correspondence found during searches, and the connections between the addresses and post office boxes used for the claims. It found her account of receiving money and leaving it for another person implausible. On that evidence, it found that she had control and use of the payments.
The suspension was addressed separately. The Tribunal stated that s 68 of the Social Security (Administration) Act 1999 allowed Centrelink to require information, and that s 81 provided for suspension or cancellation where information was not supplied. Because Mitchell had not provided information about her property and financial affairs, Centrelink could not assess her pension. The Tribunal therefore affirmed the suspension.
Before and after state of the law
This decision is an AAT merits-review decision, not an appellate judgment. The source text does not describe a change to legislation or announce a general new test. Its legal significance, as shown in the reasons, is the application of the cited social security provisions to the Tribunal's factual findings in this particular review.
Before the review, Centrelink had calculated an own-name overpayment of $219,149.73 and treated Mitchell as a non-homeowner from 1990 to December 2005 and as a homeowner from January 2006. The Tribunal's findings about property ownership and principal residence did not simply confirm that calculation. It found that she had a principal residence during relevant periods, made findings about the different properties, and directed recalculation.
After the decision, the two debts for payments in the names of Kenneth and Mary Mitchell remained affirmed. The age-pension suspension also remained affirmed. The own-name debt, by contrast, required a new calculation under the Tribunal's findings. The decision therefore left the final amount of that debt unresolved.
The Tribunal also addressed write-off and waiver. It considered s 1236 of the 1991 Act, which it described as allowing write-off in specified circumstances, including lack of capacity to repay, legal irrecoverability, unknown whereabouts or lack of cost-effectiveness. It was not satisfied that a condition applied. Under s 1237A, it found no evidence that the debts were solely attributable to administrative error and that the payments were received in good faith. Under s 1237AAD, it found that Mitchell had knowingly withheld asset information and claimed pensions in the deceased relatives' names, so it concluded that waiver was unavailable on the basis it considered.
These are the provisions and conclusions as set out in the 2014 reasons. The supplied material does not establish their current wording or subsequent legislative amendment.
Key passages with plain-English translation
The Tribunal adopted the principal-home discussion in Re Melling. It described a principal home as involving an asset interest, a home that is the person's main or leading residence, and a dwelling from which the person may be temporarily absent. In plain English, the issue was not simply where Mitchell said she lived on a particular day. The Tribunal considered ownership, the use of each property, and the periods during which she occupied them.
The Tribunal said that the time a person spends in each of multiple homes can be useful, but that “these are matters of fact and degree” requiring assessment in the particular circumstances. In plain English, the Guide's time-based approach was a starting point, not a mechanical answer for every situation. The Tribunal considered the evidence about Mitchell's seasonal use of properties and her ownership interests.
On the payments in Kenneth's name, the Tribunal said it preferred the respondent's evidence that Mitchell “had control” of the payments and often withdrew money using his key card. In plain English, the Tribunal did not require proof that she personally kept every dollar. It found her admissions and the documentary circumstances sufficient to reject her explanation that she was only passing money to someone else.
On waiver, the Tribunal said it was satisfied Mitchell “knowingly engaged in that behaviour” and therefore concluded no part of the debts could be waived under the provision it considered. In plain English, the finding that the conduct was knowing was central to rejecting that waiver route. This was the Tribunal's application of the provision to its factual findings, not a general conclusion about every overpayment case.
Finally, on suspension, the Tribunal linked the failure to provide financial information to the statutory information-request and suspension provisions it identified. In plain English, the agency could not assess the pension without the requested information, and the Tribunal upheld the suspension on that basis.
What fact patterns trigger this precedent
The decision is most relevant, as an example of AAT reasoning, where a pension review requires findings about the recipient's ownership of multiple properties and which property was the principal home during particular periods. It illustrates the Tribunal looking beyond a single address and considering ownership, occupation, time spent at properties, evidence about sale and transfer dates, and available valuations.
It is also relevant to fact patterns involving payments made under another person's identity where the recipient's control is disputed. In this case, the Tribunal considered the use of bank cards, access to mail, addresses, pension applications, documentary material found during searches, the applicant's admissions, and whether another person had come forward after payments stopped. It rejected the “conduit” explanation on the evidence before it.
The decision also illustrates review of a suspension where requested financial information has not been provided. The Tribunal relied on the statutory provisions it identified and the finding that the missing information prevented assessment of ongoing pension entitlement.
These are illustrative features of the case, not a checklist that necessarily determines another matter. The Tribunal repeatedly treated the principal-home question as fact-specific, and its findings depended on the evidence it accepted in this proceeding.
How later courts have treated it
The supplied judgment lists Re Melling as an earlier AAT decision and says the Tribunal respectfully adopted its principal-home principles. It also records a submission referring to McDonald v Director-General, Social Security [1984] FCA 57; (1984) 1 FCR 354, concerning whether the absence of evidence about matters peculiarly within a party's knowledge could support unfavourable inferences. The reasons do not provide a later judicial history for Mitchell.
No later cases or treatment are included in the supplied material. It is therefore not possible, on this source alone, to say whether a later court or tribunal followed, distinguished, explained or otherwise treated this decision. The decision itself should not be represented as establishing a binding appellate rule.
Still-open questions
The immediate unresolved matter was the final calculation of Mitchell's own-name pension overpayment. The Tribunal directed recalculation using its findings about her property interests, principal residence and property values, but did not state the resulting figure.
The reasons also identify evidentiary limits relevant to that calculation. The Tribunal said the evidence was insufficient to make findings about mortgages or other encumbrances that might affect asset values. It also discussed differences and limitations in the valuation evidence, including the roadside inspection, the condition of Number 11, and deductions for demolition and service costs.
The supplied text does not show what the respondent calculated after remittal, whether that calculation was later reviewed, or whether any party commenced further proceedings. It also does not supply later authorities applying this decision. Those questions cannot be resolved from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
Judgment (39 paragraphs)
[1]
Mitchell and Secretary, Department of Social Services [2014] AATA 534 (5 August 2014)
(a) The decision in respect to the overpayment of pension in the name of Kenneth Mitchell is affirmed (2013/1571);
(b) The decision in respect to overpayment of pension in the name of Mary Mitchell is affirmed (2013/1595);
(c) The decision in respect to overpayment of pension in the name of Pauline Crowhurst is set aside and remitted for recalculation of the overpayment in accordance with these reasons (2013/1596); and
(d) The decision to suspend the pension is affirmed (2013/1597).
SOCIAL SECURITY - pensions - suspension - overpayment - failure to provide information about income and assets - whether applicant had collected, and had control and benefit of pension payments made in the name of two deceased relatives - whether debts to the Commonwealth - whether appropriate to write-off or waive debts - decisions regarding pensions paid in the name of Kenneth Mitchell and Mary Mitchell affirmed - Pauline Mitchell/Crowhurst debt remitted for recalculation - decision suspending pension affirmed
Mrs Pauline Mitchell, the Applicant in these proceedings, is 81 years old. She was paid widow's pension from 1968, and then age pension from 1996 in her married name, Pauline Crowhurst, until the age pension was suspended in May 2011. Centrelink found that she had been overpaid pension entitlements of $219,149.73 as a result of non-disclosure of the level of her assets from July 1990 to October 2010. Centrelink also determined that Mrs Mitchell received pension and other one-off payments for many years in the names of two persons, her brother, Kenneth Mitchell, who was lost at sea in 1942, and a person called Mary Mitchell, who, from the details provided, was likely to have been her sister Marie, or Maria, deceased December 1983. The pensions for Kenneth Mitchell were paid from February 1984 to August 2010 to the value of $282,938.68, and for Mary Mitchell from April 1990 to January 2010 to the value of $231,217.33.
Mrs Pauline Mitchell, who had at various times in the past referred to herself also as Pauline Crowhurst (her married surname), seeks review of the Social Security Appeals Tribunal (SSAT) decision which affirmed Centrelink's decisions suspending age pension paid to her in the name of Pauline Crowhurst, and raised debts in respect to the overpayments.
I have found much of Mrs Mitchell's evidence less than credible. Her evidence surrounding the collection of pension and other payments for, or on behalf of Kenneth Mitchell between February 1984 and August 2010, and Mary Mitchell between April 1990 and January 2010, was inconsistent, and not credible. I am satisfied that she was overpaid pension, and her reasons for not disclosing her asset levels to Centrelink were deliberate. I am satisfied that the overpayments occurred in circumstances that mean that the amounts overpaid are debts to the Commonwealth. I am not satisfied that the debts were incurred due to administrative error, or that there are reasons the debts should be written off, or waived in part or in full. I am satisfied that Mrs Mitchell's pension should have been suspended. My reasons follow.
[11]
The issues before the Tribunal, not necessarily in that order, are:
Whether Mrs Mitchell was overpaid pension (received in the name of Crowhurst), because of a failure to declare assets; if so, what was the value of her assets at the relevant times. In particular, the Tribunal needs to determine what, if any properties, were her principal residence during the relevant period, and if she was the owner of properties that were not her principal place of residence during the relevant period;
Whether Mrs Mitchell's age pension (received in the name of Crowhurst) should have been suspended in May 2011;
Whether Mrs Mitchell collected, and had control, and the benefit of pension and other payments for her deceased brother, Kenneth Mitchell;
Whether Mrs Mitchell collected, and had control, and the benefit of pension and other payments for Mary Mitchell (deceased);
Whether she therefore owes debts to the Commonwealth; and, if so,
Whether there is any reason the debts ought not to be recovered in full or in part.
Overpayments arising prior to 1 July 1991 must be assessed with reference to the 1947 Act. Section 1224 of the 1991 Act applies to overpayments incurred between 1 July 1991 and 30 June 2001. Overpayments incurred after 1 July 2001 are considered pursuant to section 1223 of the 1991 Act. In any case, a person who receives a social security payment or obtains the benefit of payment to which they were not entitled, incurs a debt to the Commonwealth.
[13]
Mrs Mitchell is one of seven siblings, and relevant to this matter, had a brother Kenneth, who was ten years older, and a sister, Mary (from her birth certificate), also known as Marie or Maria, who was two years older. The Applicant married in 1960, and used her married name, Crowhurst, for some time. She received widow's pension payments in that name, and age pension and other one off pension payments from October 1968, until her pension was suspended in May 2011.
Mrs Mitchell told me that she has three children, and that she separated from her husband in 1969, and was divorced in 1975. She told me that her children were 15, 13 and 11 years old at the time of the separation. She said that her husband was still around until the 1990s, but that he had since died.
I noted that Mrs Mitchell's evidence was at times quite lucid and clear, and at other times, I perceived she obfuscated and blamed a 1994 head injury for memory loss, which occurred, she said, when she was thrown from a horse (documents indicate the fall was in 1993). She said that the first five years afterwards were horrific from a memory point of view, stating that although she has a degree in music, she could not even play the piano. Mr Brennan, her counsel, accepted there was no medical support for Mrs Mitchell's assertions regarding memory loss, but submitted that she generally denied any difficulties, and was, at the Tribunal, demonstrating better cognition than she actually has. Similarly, there was no medical evidence to support his submission.
I was not satisfied that the Applicant suffered any memory loss due to a head injury as there was no medical evidence to support that proposition. I noted that Mrs Mitchell had an admission to hospital after a fall from a horse. The records show she had what appeared to be a superficial head injury, and a broken ankle. She said that she had two operations, but no further treatment, as she was too afraid to attend at a doctor. She said that she has never discussed memory loss with her general practitioner.
Mrs Mitchell told me that between 1969, when she lived at Asquith, (a house which she said she did not own), and 1975, she moved many times. The documentary evidence indicates that in October 1980 there was a transfer of title of the Asquith property from Douglas Mitchell to Pauline Henning, and that the property was owned by Pauline Henning until November 1987. Mrs Mitchell agreed, when asked in cross-examination, that the transfer was to herself, Henning being her mother's maiden name. Records indicate that she owned the Asquith property from October 1980 to November 1987.
[14]
MRS MITCHELL'S COMMUNICATIONS WITH CENTRELINK - CREDIT ISSUES
[15]
I am satisfied that Mrs Mitchell's communications with Centrelink and its predecessors was not conducted in an honest fashion, as can be seen below. Mrs Mitchell told untruths in reply to correspondence from Centrelink, and at times did not reply at all. When she gave evidence at the Tribunal, she denied receiving various pieces of correspondence which Centrelink claimed had been sent to her. I have selected a number of instances where she has been demonstrated to have told untruths.
Mrs Mitchell first applied for widow's pension in the name of Pauline Crowhurst in October 1968, claiming she was a deserted wife, and received pension payments in that name continuously until her pension was suspended in May 2011. Her evidence before me was that she separated in 1969, was divorced in 1975, and that her ex-husband was around until the 1990s (no fixed date for his death was given). Mrs Crowhurst told the Department of Social Security (as it then was), when she filled in a form for pension in March 1988 that she was paying rent to Mr Henning when she was living at Asquith. Documents before me indicate that she owned the property at Asquith from October 1980 to November 1987, and that it is unlikely she paid rent to anyone.
Mrs Mitchell (writing as Crowhurst), made a statutory declaration in March 1993 containing a number of statements relevant to the matter before me. She stated that: I have never been the owner of [house number and street omitted] Asquith and have never owned it, under my own name or any other name. She stated that the house was owned by her brother Douglas, and that she paid rent to him. She and the other tenants, she deposed, put the rent on the table, and somebody came and collected it. She stated: The reason I left the house was because the woman downstairs was a prostitute ... I left with my three daughters and went into a caravan park... The post office box at Pennant Hills is owned by my brother Roy Mitchell, and I have no idea who Mrs P.E. Mitchell is or who Mr P.E. Henning is. Mrs Mitchell continued: I have never used my maiden name of Mitchell since I got married. I have never used my mother's maiden name of Henning for any purpose whatsoever. I have never claimed from Social Security in either of those names.
Documents indicate that the Applicant claimed pension in the name of Crowhurst and Mitchell simultaneously, and that Henning, (to whom she allegedly paid rent), was her mother's maiden name.
[16]
WHETHER MRS MITCHELL HAD A PRINCIPAL HOME AT ANY OF THE RELEVANT TIMES
[17]
The principal home, and there can only be one at any one time, is exempt from the assets test in pension matters pursuant to section 4 of the 1947 Act, and 1118(1) of the 1991 Act. The amount of pension payable to a person is dependent upon the application of the assets and income tests (section 1064 of the 1991 Act). There is also a different asset value based on whether a person is a home owner or not. In calculating the overpayment to Mrs Mitchell it appears that Centrelink has treated her as a non-home owner from 1990 to December 2005, and as a homeowner from January 2006 in applying the assets test values available at the time to calculate the overpayment.
It was not immediately clear from Mrs Mitchell's evidence whether she had a principal residence at all between 1968, when she first claimed widow's pension in the name of Crowhurst, and May 2011 when her age pension was suspended, and if so, at what times. In reply to Centrelink correspondence in which Centrelink is entitled, pursuant to section 68 of the Administration Act to make inquiries and require a recipient of pension to reply, Mrs Mitchell had at various times either not replied, or replied that she was homeless, or that she lived in a caravan park. Failure to respond to such a notice from Centrelink provides grounds for cancellation or suspension of the payment of pension pursuant to section 81 of the Administration Act.
When asked by Ms Tronson regarding receipt of various pieces of correspondence either addressed to herself or to Kenneth Mitchell, or to Mary Mitchell, the Applicant's reply was mainly that she had not received it. The Applicant vigorously denied receiving mail from Centrelink which it said had been posted to her. Mr Brennan submitted that the letter box 139A, Mrs Mitchell's letter box, was in a remote area, not near Number 19, and that if someone had taken something out of it, then that may not have been noticed.
Ms Tronson also put to Mrs Mitchell that she was interviewed by departmental officers in April 1994, whom she told: I don't have afixed address. At the moment I live in the National Park in the Blue Mountains by a river. When questioned about that statement at the Tribunal, Mrs Mitchell said that it was not true because she was living at Kangy Angy at the time, but did not want to admit it because she was .
[18]
While not definitive, these provisions shine some light on three important features of the conception of a 'principal home' for the purposes of s 1118. Firstly, wholly or partly, it must be an asset of the person, in which the person has an equitable interest. Secondly, use of the adjective 'principal' recognises that 'one residence' or home is to be treated as the main or leading home, or the home of first importance, and distinguished from other homes in which the person has an interest. Thirdly, 'home' is referred to as a dwelling house or a flat or a home unit, or a 'residence' from which the person may be temporarily absent.
[19]
Member Webb also referred to the Guide to Social Security Law which adopts a temporal approach at clause 4.6.3.30 where a person owns more than one home. The Tribunal would apply that policy unless there is good reason not to. The Guide states:
[20]
If an income support recipient, or their partner, has more than one home:
- their principal home is the one in which they spend the greatest amount of time, UNLESS
- they spend the same amount of time in each of them, in which case the most expensive home is defined as the principal home.
[21]
While in many cases, the amount of time a person spends in one home rather than another may well provide a reasonable basis to determine which home is the person's principal home for the purposes of the Act, this does not apply satisfactorily in all cases. These are matters of fact and degree that must be assessed in the particular circumstances of each case, including this one.
In conclusion, I have noted that Ms Tronson submitted that from 1985 Mrs Mitchell's assets were over the limit, and that she did not disclose to Centrelink in her application for pension.
I am satisfied on the basis of the evidence that notwithstanding Mrs Mitchell's occasional notifications to Centrelink that she was homeless, or living in a caravan, her real estate holdings, which she did not disclose to Centrelink, consisted of:
Asquith, owned from October 1980 to November 1987;
Kangy Angy (comprising Numbers 11 and 19), owned two-thirds of, and resided on, from 1977 until the subdivision in 2001;
Number 19, owned two-thirds of and used as her principal residence from 2001 to 2004 when it was sold; may be subject to the extended land use test;
Number 11, owned two-thirds of after the subdivision until December 2004 when she became the sole owner, and used as her principal residence from 2004 until 2006; and
Wentworth Falls, owned for the entire period, and her principal residence from 2006 till the sale in mid-2013.
The values of the above holdings have accordingly affected Mrs Mitchell's pension entitlements and created debts to the Commonwealth. I note that there was reference in the evidence to mortgages over various properties. The evidence was however insufficient for the purposes of making findings in relation to any encumbrances or charges over the properties that might have been taken into account to determine the value of Mrs Mitchell's assets.
[22]
I had before me, as Exhibit A1, the valuation of Number 11 by Mr P Links of Central Coast Property Advisory Service dated 23 September 2013. Mr Links was able to conduct an onsite inspection, with the value attributed to the property restricted to the date of his inspection, 23 September 2013. Mr S Venter, on the other hand, had been instructed by Centrelink to only carry out roadside inspections. Exhibit R6 and R7 were a series of valuations by Mr Venter of the Australian Valuation Office (AVO) from 1 January 1990 to 1 January 2012. Both valuers dealt with the property at Number 11 Kangy Angy, In addition, Exhibit R7, Mr Venter's valuation, also dealt with Number 19 Kangy Angy. Both valuers provided values of comparable properties as far as possible, given the unusual nature of the location of Number 11. Both valuers gave oral evidence by telephone.
Mr Links stated in his report that the property at Number 11 is located in a bushfire prone zone, a 1:100 year flood zone, and would be subject to flood level requirements. He did not obtain a section 149 certificate from the local council in that regard. He noted that the dwelling presented in a poor and neglected condition, and that a letter dated 8 August 2005 from the local council responsible for the area**,** ordered cease occupancy of the shed.
Mr Links explained that given the improvements were in a rundown state, he selected the comparable properties more for land value than improvements. He concluded that following analysis of comparable sales evidence, he was of the opinion that the fair current market value of the property as at 23 September 2013, fell in the range of $350,000 to $400,000. He selected $380,000 to be the fair current value for market advice/asset purposes.
Mr Venter had carried out roadside inspections only, as instructed by Centrelink. His valuations and statements at Exhibit R6 were in regard to Number 11. However, he had not been made aware of the order of council directing non-habitation and demolition of the shed at the time, and accordingly had not taken demolition costs into account for Number 11, nor that services would be required. He had assumed in valuing Number 11 that electricity, sewage and other services were connected. It was estimated that demolition could cost between $24,000 and $36,000, and if Mrs Mitchell were to stay there, the installation of sewage, estimated at approximately $20,000, electrical wiring up to $20,000, and connection of the telephone, approximately $1,000. The abovementioned costs would need to be taken into account, and deducted, in considering Mr Venter's valuation of Number 11. As with Mr Links, the difficulty of obtaining prices for comparable properties was discussed, as were the presently more stringent requirements which would govern any new construction on the land at Number 11.
[23]
WHETHER MRS MITCHELL COLLECTED AND HAD CONTROL OF PENSION PAYMENTS FOR KENNETH MITCHELL AND MARY MITCHELL
[24]
As noted above, Mrs Mitchell had, amongst other siblings, Kenneth who was ten years older than she, and Mary **(**or Marie or Maria), who was two years older. When questioned about the documents indicating that Kenneth died at sea in World War II, Mrs Mitchell said that she had not seen him since that time. At other times during her evidence, she told me that Roy had introduced her to Kenneth in the 1980s, and that she only saw him a few times. That was in the 1980s in a park at Hornsby, she said. She said that she saw him again, perhaps four times, in 2005. She told me that Kenneth was upset when he visited her at Kangy Angy in that year because she would not permit him to stay.
She said that she last saw Eric in 1974. Douglas died in 2008, and she attended the funeral. Mrs Mitchell said that Roy died in 2009 in Victoria. She did not attend the funeral because she could not afford to do so.
I am satisfied from the documents before the Tribunal that Kenneth Mitchell died aboard the Montevideo Maru, during active service in 1942, and that Mrs Mitchell's evidence that she met him in a park, or anywhere, in the 1980s was not credible.
Mrs Mitchell's evidence in regard to the applications made for pensions and signing of documents was that Roy, and Douglas, asked her to sign various documents, and that she did so without reading them, or having them explained. She said she played by Roy's rules.
When asked by Mr Brennan whether she was aware that Kenneth was receiving the pension, she said that it was not until the Australian Federal Police raided her place in 2010, and told her that. She said that she knew he had a bank account, and that Roy gave her Kenneth's key card in order to withdraw money from the account. She said that Roy asked her to help Kenneth out by withdrawing the money, which she would leave on the table in the shed. She said that she often did that. He would leave the card there, she would use it, and he came and went, and took the money with him. She said that she saw him collect the money on occasion, and that she herself did not pick it up, or spend it. She said that she did not know who deposited the money into the account.
Mr Brennan submitted that Mrs Mitchell did not withdraw the money every week, and inferred someone else, perhaps Roy, may have used the card and the money. Mr Brennan submitted that Mrs Mitchell's evidence was that she did not use the money, and she did not have the benefit of it. She was only the Mr Brennan submitted, and accordingly Mrs Mitchell did not owe a debt to the Commonwealth.
[25]
Mrs Mitchell told me that Mary was Kenneth's wife, and that she met her once only, in a park in Hornsby in the 1980s, and did not see her or speak to her again. She later ascertained that Mary had a bank account, and told me that she used a similar process to withdraw money from Mary's account for her. She said she did not know the provenance of the funds, and was not sure if it was on the same day she would access Kenneth's account or not.
Mrs Mitchell said that she often used Mary Mitchell's key card, and did not see any Centrelink letters addressed to Mary. When asked about the identity of Mary Mitchell, and whether she had confused her with her sister Marie, she said that she knew her sister, but not well. I have noted that the application for Mary Mitchell's age pension was made in April 1990 using details consistent with those for Mrs Mitchell's sister. By way of completeness, I note that the death certificate for Marie, or Maria, using her married name, is dated 1983. The address given for Mary Mitchell's pension application was 6740 C ... Road, (which was Pauline Mitchell's address), and indicated Mary paid $60 a week rent to P Williams. The address was later changed to a caravan park. Inquiries at the caravan park by the Respondent indicated Mary Mitchell was not known there. Post Office Box 939 ('K Mitchell's' post box number) was also given for Mary Mitchell.
In November 2009, Centrelink sent a letter addressed to Mary Mitchell seeking information about her address. Her age pension was suspended in January 2010, and cancelled in March 2010 for failure to respond to information requests.
I note from the evidence that that no one has come forward to discuss Mary's suspension or cancellation of pension, or reapply which one would have expected had the pensions been paid for a legitimate purpose.
In early September 2010, the Australian Federal Police searched Mrs Mitchell's residence at Number 11 and the residence at Wentworth Falls, and seized various items including key cards and bank account details for Kenneth Mitchell and Mary Mitchell. There were also photographs of Mrs Mitchell's family which she identified at the hearing. Mrs Mitchell was present at Number 11 during the search. The following day Kenneth Mitchell's pension was cancelled. It has never been reclaimed.
Mrs Mitchell's evidence was that the Australian Federal Police also came to her daughter's house in 2010. She said that she was not present. She also told me that her granddaughter was badly affected by the incident, and that she is still suicidal. The veracity of that evidence is doubtful, and is not relevant to the matters I have to decide.
[26]
SHOULD MRS MITCHELL'S AGE PENSION HAVE BEEN SUSPENDED IN MAY 2011
[27]
The reason why Mrs Mitchell's age pension was suspended in May 2011 was that she did not provide the information regarding her financial affairs and property holdings sought by Centrelink. The Secretary is entitled, pursuant to section 68 of the Administration Act to require such information, and may suspend or cancel a pension pursuant to section 81 if it is not provided. That is what has occurred.
I inquired of Mr Brennan, Mrs Mitchell's counsel, whether the Applicant was intending to reclaim age pension for which she may be qualified. As at the date of the final day of hearing, Mrs Mitchell had made no application for pension, or provided information as required if she had intended to do so.
Mrs Mitchell has steadfastly refused to answer questions about her assets, and accordingly Centrelink does not have the information in order to consider to reinstating her pension.
Based on the evidence above, I affirm that part of the decision under review which found that Mrs Mitchell's age pension should have been suspended in May 2011.
[28]
WHETHER MRS MITCHELL OWES DEBTS TO THE COMMONWEALTH
[29]
As indicated above, Mrs Mitchell received social security payments to which she was not entitled, or were not payable to her, and so far as earlier provisions apply, the amounts were paid due to false statements or representations, or failures or omissions to comply with the 1947 and/or 1991 Acts. Accordingly, the amounts paid to her are debts due to the Commonwealth.
The Respondent prepared a table which details the overpayments received by Mrs Mitchell, in the name of Crowhurst, Kenneth Mitchell and Mary Mitchell, which the Respondent claims are debts due to the Commonwealth. The evidence regarding how the overpayments arose has been discussed in the paragraphs above.
Mrs Mitchell did not disclose the level of her assets when she claimed pension payments. Accordingly, she was not entitled to receive pension at the rate at which she received it, or at all.
I am satisfied from the evidence of Centrelink investigations which took place between 2009 and 2011, including a search of the post boxes and Mrs Mitchell's residence at Number 11, and Wentworth Falls, that she also claimed pensions in the names of Kenneth Mitchell and Mary Mitchell, to which she was not entitled.
I am satisfied that Mrs Mitchell's property holdings are as indicated below:
Asquith, owned from October 1980 to November 1987;
Kangy Angy (comprising Numbers 11 and 19), owned two-thirds of, and resided on, from 1977 until the subdivision in 2001
Number 19, owned two-thirds of and used as her principal residence from 2001 to 2004 when it was sold; may be subject to the extended land use test;
Number 11, owned two-thirds of after the subdivision until December 2004 when she became the sole owner and used as her principal residence from 2004 until 2006; and
Wentworth Falls, owned for the entire period and her principal residence from 2006 until it was sold in mid-2013.
As can be seen from the details above regarding ownership of property, Mrs Mitchell owned property other than her principal residence at any one time throughout the relevant period.
The Respondent submitted that pursuant to the 1947 Act and 1991 Act, all payments made to the Applicant because of a false statement or false representation made by her or another person constitute a debt due to the Commonwealth. The Respondent submitted that it was open to the Tribunal to conclude that the relevant payments with regard to pension for Mrs Mitchell, Kenneth Mitchell and Mary Mitchell were made because of false statements and/or false representations. Accordingly, the Tribunal could find that the relevant payments made to the Applicant constituted a debt due to the Commonwealth pursuant to section 1224(1) of the 1991 Act or its predecessor, the 1947 Act.
[30]
Debts for payments in the name of "Mary Mitchell":
[31]
Debts for payments in the name of "Kenneth Mitchell":
[32]
received Invalid Pension payment in the name Kenneth Mitchell
[33]
Both the 1991 Act, and its predecessor, the 1947 Act, provide for debts to the Commonwealth to be recovered.
[34]
WHETHER THERE IS ANY REASON THE DEBTS OUGHT NOT TO BE RECOVERED IN FULL OR IN PART
[35]
I am mindful that prima facie, a debt arising under either the 1947 Act or the 1991 Act, is to be recovered unless it can be written off or it is appropriate to waive all or part of the debt.
The discretion to write off a debt is set out in section 1236 of the 1991 Act. It provides that a debt may be written off if the debtor has no capacity to repay the debt, if the debt is irrecoverable at law, if the debtor's whereabouts are unknown, or if it is not cost-effective to recover. The Applicant owns Number 11 which is currently her principal residence. Nevertheless, she has not provided information about her financial circumstances, and has not reapplied for the pension. I cannot be satisfied that the Applicant has no capacity to repay the debt. She sold the property at Wentworth Falls in mid-2013 for $460,000 of which she said she received $300,000. Mrs Mitchell's evidence was that she used to pay debts and to live on. I note that in any case, writing off does not extinguish a debt. Recovery can be resumed at a later date. I am satisfied that none of the conditions in section 1236 of the 1991 Act apply in this case.
Two further sections of the legislation need to be considered. Section 1237A provides that if a debt is solely attributable to an administrative error made by the Commonwealth, and the debtor received the payments in good faith, then the Secretary must waive the right to recover the whole or that part of the debt received in good faith attributable to the error. No evidence was provided which would satisfy me that the debts Mrs Mitchell owes arose because of sole administrative error. I make the point nevertheless that Centrelink audit procedures could, and should have, discovered the situation under which Mrs Mitchell was collecting pensions to which she was not entitled, far sooner.
Section 1237AAD of the 1991 Act provides for waiver of a debt where a debt is not incurred knowingly by the making of a false statement or false representation, or omitting to comply with the legislation, and the person has special circumstances that make it more appropriate to waive all or part of the debt than to write it off. I have found, in the paragraphs above, that Mrs Mitchell knowingly claimed pensions to which she was not entitled, in that she did not disclose her asset levels, and that she concocted identities for Kenneth Mitchell and Mary Mitchell, both deceased, and collected unauthorised Commonwealth pension payments between 1984 and 2010. I am satisfied that Mrs Mitchell engaged in that behaviour, and that accordingly no part of the debts can be waived.
[36]
The Tribunal decides that:
The decision in respect to the overpayment of pension in the name of Kenneth Mitchell is affirmed (2013/1571);
The decision in respect to overpayment of pension in the name of Mary Mitchell is affirmed (2013/1595);
The decision in respect to overpayment of pension in the name of Pauline Crowhurst is set aside and remitted for recalculation of the overpayment in accordance with these reasons (2013/1596); and
The decision to suspend the pension is affirmed (2013/1597).
[37]
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
(Source: Schedule of Asset Values and Limits provided by the Respondent)
Legislation Cited (3)
Security Act 1991
Security Act 1947s 4_
Security (Administration) Act 1999
Cases Cited (1)
(1984) 1 FCR 354
AI Analysis
Outcomemixed
Disposition:
The Tribunal affirmed the decisions concerning overpayments in the names of Kenneth Mitchell and Mary Mitchell, set aside and remitted the overpayment decision concerning Pauline Crowhurst for recalculation, and affirmed suspension of Mitchell's age pension.
Mrs Mitchell said that she ended up at Kangy Angy in 1975, where her brothers Douglas and Roy also lived. She said that she bought the property at Kangy Angy in 1977 for $22,000, on her brothers' advice. She said that it had no water, electricity or other amenities, but that she had to live there in seclusion to hide her children. Mrs Mitchell said that the land at Kangy Angy, which she purchased in her name (two-thirds) and that of one of her daughters (one-third), was in two blocks although they were on the same title. She said it was subdivided in 2001. She said that she lived in Number 19, the house on one block, essentially while it was being built. I will be referring to the two properties following sub-division as Number 11 and Number 19 Kangy Angy, as for privacy reasons, I do not intend to refer to the street names.
Mrs Mitchell told me that she was in hiding from 1968 because her children were abducted, her husband's sister being one of the perpetrators of the abduction. She said she did not tell Centrelink or its predecessors, or anyone else, that she had to move from Asquith, and that she was living at Kangy Angy. She said: I lived in fear. In another part of her evidence, Mrs Mitchell said that she had to move from Asquith because there was a prostitute living there. I have no further evidence or corroborating evidence to support her account of abductions, and will not comment further as the incidents, if indeed they took place, are not relevant to the matters I have to decide.
Mrs Mitchell told me that she did not tell Centrelink or its predecessors (for ease, I shall refer to the agency as Centrelink), that she owned, or that she was living at Kangy Angy, because she was afraid the children might be abducted again.
Mrs Mitchell also owned land at Wentworth Falls which she said was given to her by her husband in trust for the children, as a settlement for the divorce, and that she owned only one-fifth of it. Documentary evidence indicates otherwise. I am satisfied that Mrs Mitchell owned the whole of the land at Wentworth Falls from July 1979 to mid-2013 when it was sold outright. From the evidence it is likely she had a house constructed on the property in approximately 2006, and lived there from 2006 until it was sold in mid-2013, when she moved to Number 11.
Mrs Mitchell's failure to respond to correspondence, and to inform Centrelink of her assets and income meant Centrelink could not be satisfied age pension was payable to her, and that has been the cause of the suspension of Mrs Mitchell's pension.
The debts incurred for pensions and other payments collected in the names of Kenneth Mitchell and Mary Mitchell by Mrs Mitchell are discussed below.
Ms Tronson, referring to McDonald v Director-General, Social Security[1984] FCA 57; (1984) 1 FCR 354, submitted that much of the evidence in this case, in regard to where Mrs Mitchell lived and other factual matters, was peculiarly within the knowledge of the Applicant. She submitted that, accordingly, absence of evidence in relation to those facts might properly be used by the Tribunal to draw unfavourable inferences. She submitted that the Tribunal should rely only on documentary evidence.
When Mrs Mitchell was questioned regarding the correspondence the Department (Centrelink), sent her, she denied receiving it, although I am satisfied it was sent to the correct address.
In reply to questioning, Mrs Mitchell denied making the following applications for pension:
Exhibit R1/T3, for widow's pension in the name of Crowhurst dated 17 October 1968;
T5, special benefit and unemployment benefit claim in the name of P Mitchell on 14 March 1988;
T6, rent assistance in the name of P Crowhurst dated 22 August 1989;
T7, special benefit claim in the name of P Mitchell dated 13 October 1989;
T10, request for review of special benefit on 7 June 1990 in the name of P Mitchell.
Ms Tronson asked Mrs Mitchell about rental payments which she claimed she was making when she filled in forms for Centrelink, mentioning P Williams. Mrs Mitchell replied that Mary paid rent to P Williams, as Kenneth did.
An application for invalid pension was made for Kenneth Mitchell in February 1984 and various pension payments, including invalid pension and age pension were made to his name until August 2010. A notification of change of address for Kenneth Mitchell was made in January 1987, and the post box nominated was Box 939. The post box had been applied for in the name of K R Mitchell in December 1986. Given the items found in the Post Box 939 when it was searched, and given the key cards and bank statements in Kenneth Mitchell's name, discovered when the Australian Federal Police executed a search warrant in Mrs Mitchell's residence, satisfies me that Mrs Mitchell had applied for pension in Kenneth Mitchell's name and collected and had use of that pension.
An application for age pension was made for Mary Mitchell in April 1990, and age pension payments were made continuously until January 2010. The situation is considered in the paragraphs which follow, and is similar to that for Kenneth Mitchell as described above. The identity of Mary (Marie or Maria, deceased 1983), was used to obtain pension which Mrs Mitchell collected and had the use of.
It is noteworthy that after the pensions for Kenneth Mitchell and Mary Mitchell were suspended, no one has come forward to ask for review of the decision or reapply.
I am satisfied that Mrs Mitchell repeatedly used the names of Williams and Henning to whom she stated that she paid rent. There were statements on Kenneth Mitchell's Centrelink forms at times that informed he paid rent. Henning was Mrs Mitchell's mother's maiden name, and there was no evidence she had paid rent, nor that Kenneth had.
Other recurring items in relation to Pauline Mitchell, Kenneth Mitchell and Mary Mitchell were Post Office Box number 939, and Roadside Mail Box 139A, all associated with Kangy Angy. I am satisfied from the evidence that Mrs Mitchell applied for the Post Office Box, and that she had mail for Kenneth and Mary sent to her in that way.
I noted that the Social Security Appeals Tribunal found that Mrs Mitchell's evidence was inconsistent and contradictory, and I have found similarly so.
always fearful
I was satisfied from the evidence that Mrs Mitchell owned her residence at Asquith from October 1980 to November 1987. Her evidence was that she moved to Kangy Angy in 1975. She purchased what consisted of two blocks on one title in 1977. Mrs Mitchell said that she formerly owned two-thirds of the property, and one of her daughters owned the other third. It was subdivided in 2001. Number 19, the block with the house on it, which she says she lived in while it was being built, was sold in mid-2004. Mrs Mitchell said that she had to sell Number 19, so that she could pay the mortgage. She says she received $300,000 from the sale which was approximately half of the sale price. She then moved to Number 11, to the shed, as she called it. Her daughter's one-third share of Number 11 was transferred to her in December 2004.
Mrs Mitchell built a house on the land at Wentworth Falls in 2006, and can be said to have lived there from 2006 until it was sold in mid-2013, when she returned to Number 11. There is no documentary evidence before me, and little credible evidence about how the building was paid for. There must be some doubt about how Mrs Mitchell could have financed the building of the house on Number 19, living on a pension, but for the use of the other pensions to which she was not entitled. There is no documentary evidence to support Mrs Mitchell's various assertions that her brothers or her son-in-law paid for the building, and that evidence is not credible.
Mr Brennan submitted that Roy and Douglas had introduced Mrs Mitchell to the Kangy Angy area as she claimed, noting that people do move to areas interwoven with family. He submitted Roy and Douglas could have been responsible for payment of the building and carrying out of the work itself. He noted, as Mrs Mitchell had, that she took instructions from Roy who was much older than she.
In 2004, following the sub-division of the block, Mrs Mitchell sold Number 19, and lived in Number 11, in what she described, as a condemned shed. There is no mortgage on that property.
Mrs Mitchell told me that the land at Kangy Angy is in a flood prone zone, and that the shed has been found by the local Council to be condemned and uninhabitable. She also asserted that nothing could be built on the land because Council would not give approval. That is unlikely to be correct, although there may be particular conditions imposed for building. It was discussed with the valuers who gave evidence at the Tribunal, and is considered elsewhere in these Reasons for Decision.
Mrs Mitchell also told me that 40% of the land at Kangy Angy was under a conservation order. She was, notwithstanding my offer that she take a week following the hearing to provide further evidence and/or documents in that regard, either unwilling or unable to substantiate her claim. I accordingly do not accept that there is a conservation order on the land, or that she cannot seek Council approval to build on the land at Number 11. I note Mr Venter's observation that Number 19, on an adjacent property, was similarly flood and fire affected, and has a dwelling on it, and note also Mr Brennan's submission that current regulations with regard to building may have more stringent requirements.
Mr Brennan submitted that, overall, it was most likely that Kangy Angy was Mrs Mitchell's principal residence until 2005/06, and that it was then the house at Wentworth Falls until that was sold in 2013. Mrs Mitchell's evidence was that she lived at Kangy Angy in winter, and at Wentworth Falls in summer, because it was too cold there in winter. Mrs Mitchell claimed to departmental officers that in 1979, as part of the divorce settlement, she was given one-fifth of the land at Wentworth Falls which was in trust for her children. That was shown not to be so, and I am satisfied from the documents that she owned the full title. She built a house on the land in 2006. She told me that it was with the proceeds of the sale of number 19, and that a reverse mortgage was repaid in 2007. She sold the house and land to her daughter in mid-2013. Her evidence was that she received $300,000 from the sale; an additional $130,000 was vendor finance.
The principles with regard to establishing principal home were well stated in Re Melling and Secretary, Department of Social Services[2014] AATA 52 by Member Webb, and I respectfully adopt those. Member Webb noted that section 11A of the 1991 Act provides guidance as to inclusions and absences, but it does not explain the meaning of principal home. He stated at [30]:
Mr Venter agreed in reply to questions in cross-examination that $380,000, as estimated by Mr Links could be the correct figure for the value of Number 11 once the appropriate deductions had been taken into account. I noted that his valuations dating from 1 January 1990 where he valued Number 19 at $100,000, to $490,000 in January 2004 (Exhibit R7).
In Exhibit R6, Mr Venter gave values for Number 11 which ranged from $110,000 in January 1990 to $525,000 in January 2012. I am mindful that the parties estimated the figure of $40,000 by which Mr Venter's 2012 valuation would have to be reduced in order to account for services and/or demolition. The figure of $40,000 was not likely to apply to all previous years, and would need to be discounted for previous years based on the scale used by Mr Venter in his deliberations.
Mr Brennan noted that whilst there were differences between the valuations of Mr Links and Mr Venter, he submitted that the figure of $380,000 was appropriate as the valuation for Number 11.
Ultimately, notwithstanding Mr Venter was unable to access the properties to value them, I was satisfied following the giving of evidence that his valuations were acceptable once appropriate deductions based on the $40,000 for 2012 for Number 11 had been made, and the values adjusted for earlier years. Mr Links did his valuation after accessing Number 11, but only dealt with 2012, which was outside the relevant period. However, I am grateful both valuers were able to give evidence as the final calculation of Mrs Mitchell's debt will be based on Mr Venter's valuations.
Contrary to what Centrelink has held, I have found that Mrs Mitchell had a principal place of residence from 1990 to 2006, and 2006 to 2013. I have noted that she lived at least part of the time, at Wentworth Falls, which I find was her principal residence between 2006 and the time of its sale in mid-2013. In the absence of valuation evidence from the Applicant in respect to the Wentworth Falls property I consider that the valuations obtained by the Respondent should be used for the purposes of the recalculation (see Appendix A).
Having heard the evidence, I have made various findings about the ownership and value of assets held by Mrs Mitchell. However, I am unable to determine whether the pension was payable, and at what rate during the relevant periods, so I will accordingly remit this part of the Decision to the Respondent for recalculation.
conduit
Ms Tronson argued against that submission on the basis there was no evidence of Roy using the card or benefiting from the money withdrawn in the name of Kenneth. She submitted further that Mrs Mitchell admitted withdrawing money from the account of Kenneth Mitchell, and did not say she had given it to anyone else.
Ms Tronson, submitted that Mrs Mitchell's credit was in issue. She submitted that the case was largely circumstantial, but that as Mrs Mitchell was the only person who had access to bank accounts in the names of Kenneth Mitchell and Mary Mitchell, from which she admitted she often withdrew money, it could be inferred she had the benefit of the money.
Mr Brennan accepted on the basis of the documentation that Kenneth had died in 1942, but submitted a person passing himself off as Kenneth and using his identity, must have been present to claim aged pension and invalid pension. He submitted that the invalid pension, later disability support pension, involved undergoing a medical examination and satisfying Centrelink that the person was eligible for the pension claimed. Mr Brennan accordingly claimed that a person other than Mrs Mitchell must have been involved.
I am mindful that various applications were made using Kenneth Mitchell's name, and signed K Mitchell, including a letter dated 23 February 1984, in which he purportedly wrote in support of receiving the invalid pension. There was other correspondence, including change of bank account details.
Mr Brennan expressed dissatisfaction that no documents were available to verify the events leading up to the granting of age pension and/or invalid pension to a person passing himself off as Kenneth Mitchell. Ms Tronson agreed that the documentary record in these matters was incomplete.
I prefer the evidence of the Respondent that Mrs Mitchell had control of the pension payments made to Kenneth from February 1984 to August 2010, and that she withdrew the money often using his key card. I accept that she had control of the money and the use of it. I have noted Mr Brennan's submissions, but have no satisfactory evidence that any other person was involved.
I note Ms Tronson submission that Kenneth's pension was suspended in August 2010, and accept that had it been paid to a legitimate recipient it is likely that someone would have come forward to reclaim it.
A few days later, also in early September 2010, the AFP executed a search warrant on post office boxes 939 and 1341 at the Gosford post office. A list of the items seized is in the documents at Exhibit R1, and included correspondence ordering a new key card for the account of K R Mitchell, key cards, pins and bank statements for Kenneth and Mary Mitchell. I am satisfied that Mrs Mitchell had access to the post boxes and that that implicated the Applicant in the raising of the debt for Kenneth and Mary Mitchell which is before the Tribunal.
Ms Tronson submitted that the Applicant had admitted to receiving the money she withdrew from the accounts in the names of Kenneth and Mary Mitchell. She had access to the letter boxes in regard to the mail which she said she did not receive, and the various addresses she gave Centrelink for herself at times, namely 139, 139A, and 6740 C ... Road all seemed too coincidental for Kenneth and Mary also to have.
The Tribunal can be comfortably satisfied from the evidence that those persons did not exist at the time, and that Mrs Mitchell used their identities, and their key cards, and withdrew money from their accounts which had been paid by Centrelink. I do not accept Mr Brennan's submission that Mrs Mitchell was simply the conduit. Her evidence about meeting Kenneth and leaving the money on the table for collection is not plausible. It is more than likely that she had full use of the money claimed in pensions to which she was not entitled.
Mrs Mitchell said that payment for the building of Number 19 came from her brothers or her son-in-law. There was no documentary or other evidence of that. Following the sale of Number 19, Mrs Mitchell built the house at Wentworth Falls. She says she has lived on the proceeds of the sale in 2013.
The evidence before the Tribunal is that Centrelink investigated Mrs Mitchell's claiming of pensions between 2009 and 2011, following which her pension was cancelled in May 2011. The age pension in the name of Kenneth Mitchell was cancelled in September 2010, and Mary Mitchell's age pension was cancelled in March 2010.
I conclude that Mrs Mitchell received pension and other payments paid in the names of Kenneth and Mary Mitchell to which she was not entitled, and accordingly there has been an overpayment to Mrs Mitchell comprising invalid and age pension and other payments paid by Centrelink to Kenneth Mitchell between February 1984 and August 2010 in the sum of $282,938.68, and an overpayment to Mrs Mitchell comprising age pension and other payments paid by Centrelink, and to Mary Mitchell between April 1990 and January 2010 in the sum of $231,217.33.
The Respondent submitted that the Applicant's debts were incurred because she did not disclose her interest in properties at Kangy Angy and Wentworth Falls, and that she had control of funds supposedly paid to Kenneth Mitchell and Mary Mitchell by use of contrived personal information.
I am satisfied from the evidence as discussed in the paragraphs above, that Mrs Mitchell did not disclose her assets to Centrelink, and was paid more pension than that to which she was entitled.
I have decided on the basis of the evidence noted above that Mrs Mitchell knowingly engaged in providing false information regarding her assets to Centrelink by omitting to disclose her assets over a long period of time, and that she claimed pensions for deceased persons, Kenneth Mitchell and Mary Mitchell.
I am satisfied from the evidence that Mrs Mitchell owes the debts in regard to Kenneth Mitchell and Mary Mitchell as detailed below. Payability of pension to Mrs Mitchell was in part dependent on the level of her assets and home ownership during various periods as discussed above. Accordingly, I have set aside the decision in respect to overpayment of pension in the name of Pauline Crowhurst and remitted it to the Respondent for recalculation of the overpayment in accordance with these Reasons for Decision.
The tables which follow indicate the Respondent's calculation of pension payments to Pauline Crowhurst, (Mitchell) and Kenneth and Mary Mitchell over the relevant periods.
As I have said elsewhere in these Reasons for Decision, I am remitting the overpayment for Pauline Crowhurst to the Respondent for recalculation based on my findings regarding Mrs Mitchell's principal residence, and assets at the relevant times. The debts for Kenneth Mitchell and Mary Mitchell are affirmed.