Case Review: Tomlin’s case (20 October 2017)

admin SOCIAL SECURITY RIGHTS REVIEW

by Carolyn Odgers, Assistant Principal Solicitor / Volunteer Co-ordinator, Welfare Rights Centre

In Tomlin’s case, our member centre’s client had a debt arising from the failure to separately report income for social security payments and Family Tax Benefit payments. The Tribunal found that a dual reporting framework was confusing and misleading. The debt was deemed the administrative responsibility and error of Centrelink. This successful debt appeal case, run by the Welfare Rights Centre (NSW) in October 2017, has significant positive ramifications for those in similar debt circumstances. The following is a detailed overview of the case:

Tomlin; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1810 (20 October 2017)

Merinda Tomlin had a debt of $37, 454.02 due to the overpayment of her Parenting Payment (partnered) (PPP) for the period 24 May 2011 to 21 September 2015. Ms Tomlin was receiving Family Tax Benefit (FTB) during this period. She did not have an FTB debt.

Ms Tomlin’s appeals to an Authorised Review Officer and the Administrative Appeals Tribunal (AAT1) had both resulted in partial waiver of the debt due to sole administrative error. Both the ARO and the AAT(1) had based their decision to waive part of the debt on the basis that Ms Tomlin had told Centrelink about her family’s annual income for FTB purposes but that Centrelink had failed to use that information to determine (or review) Ms Tomlin’s rate of PPP.

The Secretary appealed the AAT1 decision to the General Division of the AAT (The Tribunal).

History of matter

In May 2011 Ms Tomlin and her mother attended a Centrelink office as Ms Tomlin was applying for PPP and FTB. Ms Tomlin told Centrelink her partner’s income was about $800 a fortnight and Centrelink recorded this information.

Ms Tomlin understood from this meeting that her income and her partner’s income would affect her Centrelink payments. She explained at the hearing she was told by the Centrelink officer that it would all be ‘worked out’ at the end of the year.

Throughout the debt period Ms Tomlin received PPP letters from Centrelink, some of which referred to her partner’s annual income as being zero as well as including the annual income estimate for FTB.

On 8 December 2011 Ms Tomlin received a letter entitled ‘Your Centrelink payments’. Nowhere in the letter was her partner’s ‘fortnightly income’ referred to, however her partner’s ‘annual income’ was correctly recorded.

Ms Tomlin continued to update Centrelink about her partner’s income for FTB purposes. In April 2013 after Ms Tomlin’s second child was born, she lodged an online FTB and baby bonus claim again declaring her family’s income.

The overpayment was discovered when Ms Tomlin called Centrelink in September 2015 to report her partner’s change of employer.

The Secretary conceded Ms Tomlin did not knowingly make a false statement or fail to comply with her obligations and it was accepted Ms Tomlin received the payments in good faith. However the Secretary contended it was not possible for Centrelink to calculate a person’s PPP based on a FTB income estimate because the payments are calculated differently.

The Welfare Rights Centre argued that Centrelink had sufficient information to be aware that Ms Tomlin was being incorrectly paid, and the error was solely Centrelink’s.

The Tribunal found Ms Tomlin complied with all reporting requirements set out in Centrelink documents sent to her after December 8, 2011. Further the Tribunal noted “The Tribunal is not satisfied that Ms Tomlin – or any other person of reasonable mind – would be able to understand there are different reporting requirements for the income of a person’s partner for family tax benefit and parent payment (partnered)….By conflating information about the payment types of parenting payments and family tax benefit, the information provided in the documents from Centrelink was not only confusing, but misleading. This was solely the administrative responsibility and error of Centrelink.”