Administrative Law

Students will be required to to provide written submissions based on a fictional AAT fact scenario.
The scenario will include (as much as possible) tribunal documents as attachments. A more detailed
description along with the assignment and T – documents will be included as a document on uts
online. The aim of this assessment is to allow students an opportunity to adopt a problem- solving,
process-focused approach along with practising the application of legal knowledge in the manner
required by the legal profession.

Administrative Law

Name:

Course:

Professor:

Date Due:

IN THE ADMINISTRATIVE TRIBUNAL
ON APPEAL FROM
THE SSAT (CIVIL DIVISION)                                                                         AAT2/2015/0001
ON APPEAL FROM
ARO                                                                                                          CLAIM No HQ12X1750
THE QUEEN’S BENCH DIVISION
BETWEEN
(1)   BETTY SMITH
and                                              Applicant
(2)   Secretary Dept of
Community Services                    Respondent

APPELLANTS WRTTEN SUBMISSIONS
FOR PERMISSION TO APPEAL
Summary
1.          Given similar circumstances, and the pension age discovered that their client Mrs. Smith had infact incurred a loss of $21,000.50 due to a similar problem as currently experienced, would the pension age have acted the same way and with equal zeal to refund the amounts underpaid to Mrs. Smith. And whose fault would it be. These are the questions that everyone should be asking as it’s clearly an act of negligence on the part of the fund. The pension age is a professional body that has been charged with the responsibility of accounting and ensuring that there is transparency and fairness in all its financial transactions and appropriations. The fund has the capacity to hire the best brains in financial knowledge to manage its operations. It’s regrettable that Mrs. Smith has found herself in a situation that blames her lack for lack of competence in her part. The fund is a professional body that cannot erode the privacy of any individual and all the information on the company’s data bank has been volunteered by the clients. The principle of disclosure runs deep in the organizations system. The fund had no intention of recovering the lumpsum amounts from Mrs. Smith Accounts but the circumstances compelled the fund’s managers to recover the refunds as there was no official communication from the applicant. The issue in question is whether Mrs. Smith received more than she was entitle to under the age pension between the period 15 August 2012 to 1 October 2014. The answer is yes according to the records under the custody of the fund and in Mrs. Smith custody. It’s irrelevant whether she took her time to read them or not but according to her statement she confesses that she received the letters but spared no time to read them. The other issue for determination is whether the excess payments constitute a debt and if the debt is recoverable. The fund is calling upon the administrative tribunal to consider all the material facts presented on the case and make a final decision once and for all. The fund has already spent a lot of resources in this case when all the facts point out that the case is an open and shut case. Mrs. Smith is only riding on self pity because of old age and which the fund has already waivered all the interest that would have been chargeable but the fund cannot incur a loss because of reasons that can be avoided.
2.   Mrs. Betty Smith is currently 70 years retired in the year 2012 when she was 67 years. She applied on 15th August 2012 for her pension. She resides near one of the local branches of Centrelink. Mrs Betty Smith has appealed to the Administrative Appeals Tribunal seeking a review of the Social Security Appeals Tribunal’s decision. The SSAT has reaffirmed the decisions of the ARO who contends that the Applicant in this case Mrs. Betty Smith was overpaid hence owes a debt to the age pension fund under Centerlink, the service provider and to commonwealth.
3.   The circumstances of the case are such that Mrs. Betty was overpaid by the Centerlink as pension compensation from 15 August 2012 to 14 November 2014. The total amount overpaid amounted to $21,000.50. The decision to recover the amounts from Mrs. Smith was initially made by the ARO, that’s the Authorized Review Officer and the decision was later reaffirmed by the Social Security Appeals Tribunal.
4.   The decision to recover the excess payments from Mrs. Smith given the circumstances of the case would be unfair and unpractical. The legality of the whole issue is questionable as Mrs. Smith Applied to the pension age for monthly compensation and she was awarded. The complexities of the calculations are literally beyond the means of Mrs. Smith.
5.   The Centrelink owes Mrs. Smith a standard duty of care regarding the accuracy of the statements and the compensation calculations. It was literally the duty of the paying authority to establish the payment eligibility of Mrs. Smith financial position. The calculations of the figures in the bank statements amounted to herculean task for Mrs. Smith at one point had undergo an eye operation for removal of cataracts to enable her to read.
6.   The bank cannot escape liability given the professional standards that the bank is supposed to exhibit in financial reporting standards, auditing and internal operations regarding its client based relationships. The error that resulted in overpayment to Mrs. Smith was basically an error that the bank was better placed to unearth than Mrs. Smith.
7.   Due to negligence on its part, the fund continued paying Mrs. Smith who under normal circumstances would have qualified for other pensionable schemes for the edged that are financed by the government of Australia. The fact that she applied and qualified to get a pension under the fund automatically locked her out of receiving any financing from the government. It means that whatever the government would have paid her is not refundable to her under the circumstances and the pension age has reneged on its promise to pay her any more pensions and instead wants her to refund the excess funds that she had received from the fund. It’s obvious that the funds were not obtained fraudulently and the bank through its own inefficiency paid her the excess funds.
8.   Mrs. Smith can apply to the government funded funds for the aged to get living expenses but she cannot obtain any funds whatsoever to refund the commonwealth. She is practically incapable of refunding the amounts demanded.
9.   Mrs. Betty Smith applied for the assistance of the pension age when she was 67 years that’s in August 2012. At the time she had over ten thousand in investments and more than fifty thousand dollars in fixed deposit accounts. Because of misrepresentation of facts and negligence on the part of the bank, her bank balance was taken as $1000 instead of $10,000. This mistake practically meant that she could not quality for the pension age payments.
10.   The mistake was not noticed on time and it’s obvious that Mrs. Smith did not disclose that she had other investments to Centerlink though this is not the issue at hand. Mrs. Smith rightfully informed Centerlink that she had $10,000 in her account but she never checked or considered the amounts recorded wrongly as consequential.
11.   The whole scenario stems from lack of understanding on the part of the applicant as the facts were misrepresented not by Mrs. Smith but by the data entry staff of pension age.
12.   The customer services officer at Centerlink, Wilma wrongfully entered Mrs. Smith financial investments as $1000 instead of $10,000. Ideally the person at fault here was the customer officer and not Mrs, Smith. The circumstances of this case are subject to disclosure principles that mostly affect fiduciary relationship and other contracts that require utmost good faith like in the case of insurance contracts. The relationship between pension age and Mrs. Smith is like the insurance contract and where the disclosure principles apply.
13.        Subsection 27A (1), (3) and (4) provides different remedies that may be applicable under the contract of insurance for the insurer,
Insurance Act 1984 Section 29 subsection 27A (1), (3) and (4)
Insurer may avoid contract
(2) If the failure was fraudulent or the misrepresentation was made fraudulently, the insurer may avoid the contract.
(3) If the failure was not fraudulent or the misrepresentation was not made fraudulently, the insurer may, within 3 years after the contract was entered into, avoid the contract.
Insurer may vary contract
(4) If the insurer has not avoided the contract, whether under subsection (2) or (3) or otherwise, the insurer may, by notice in writing given to the insured, vary the contract by substituting for the sum insured (including any bonuses) a sum that is not less than the sum ascertained in accordance with the formula; SP/Q (Insurance Act 1984)
14.   Despite numerous letters that were sent to Mrs. Smith to confirm the value of her assets but none of the letters were answered. The fund continued writing more letters instead of investigating why all the letters were being sent Mrs. Smith decided to remain silent
15.   Old age comes with a lot of inconveniences and Mrs. Smith major problem was his eye sight that was failing at very fast rate. Due to her persistent eye problem, Mrs. Smith adopted the habit of not straining her eyes to avoid the pain that was associated with the cataracts that had infected her eyes.
16.   On 30th October 2014, Centerlink communicated to Mrs. Smith that they had recovered over $10,500.25 from her investments and a further balance amounting to the same amount would be deducted gradually from her pensions.
17.   Mrs. Smith eyesight became clearer only when a huge amount of money was deducted from her account that her eye sights stopped having problems and she could effectively hire seek legal counsel as some deductions had been made. It’s obvious that Mrs. Smith considered the letters sent to her as a nuisance from the fund and she only got serious when the money was deducted from her account. Over two years letters were sent to her to only update the value of her investments and instead she ignored all the letters.
18.   It’s true that there was no known fraudulent activity that was registered under Mrs. Smith but instead her failure to confirm the value of her investments despite regular reminders from the fund constitute a breach of the contract between the fund and Mrs. Smith hence the initial contract is voidable at the option of the respondent. The law like in the case of insurance contracts provides the respondent with the opportunity to recover all the amounts paid under the contract due to misrepresentation of facts and non disclosure of material information.
19.   Mrs. Smith has no legal basis that prevented her from disclosing the material facts that the fund required and the fund has been left with no alternative but to follow the law and recover all the amounts outstanding from the accounts of Mrs. Smith despite the good intention that the fund had to work out a convenient way of repayment.
20.   Its note worthy that the bank is only recovering the outstanding amounts that had been overpaid and it has decided to waiver any interest whatsoever that would have been chargeable under the circumstance.
21.   The fund is calling upon the administrative tribunal to consider all the material facts presented on the case and make a final decision once and for all. The fund has already spent a lot of resources in this case when all the facts point out that the case is an open and shut case. Mrs. Smith is only riding on self pity because of old age and which the fund has already waivered all the interest that would have been chargeable but the fund cannot incur a loss because of reasons that can be avoided. It’s with these remarks that we rest our case.

Attachments
AAT No: 2015/0001
Applicant: Betty Smith
Respondent: Secretary of the Department of Community Services
INDEX TO DOCUMENTS
No       Page       Date                   Description
T1       1 – 5       30/03/15   Decision of the Social Appeals Tribunal
T2       6       15/01/12       Financial Statement from Rich Bank
T3       7       17/08/12       Centerlink notice issued to Mrs. Smith –
T4       8        01/09/12      Financial Statement from Richmanbank

Bank Statement
1-Dec-12
Dear Mrs. Smith
Everyday Account Number: 362436 8150 2650 3280
For period beginning: 1 September 2012 and ending 30 November 2012.
Opening balance: $10,000CR
Closing balance: $10,481.20CR
Transaction details: Balance:
2 September 2012 deposit
from Centrelink $695.30 CR $10,695.30CR
10 September 2012 withdrawal
from Smallville branch $600DR $10,095.30 CR
16 September 2012 deposit
from Centrelink $695.30CR $10,790.60 CR
1 October 2012 withdrawal
from Smallville branch $500DR $10,290.60CR
21 October 2012 withdrawal
from Smallville branch $150DR $10,240.60CR
2 November 2012 deposit
from Centrelink $695.30CR $10,935.90CR
4 November 2012 withdrawal
from Smallville branch $500DR $10,435.90CR
16 November 2012 deposit
from Centrelink $695.30CR $11,131.20 CR
20 November 2012 withdrawal
from Smallville branch $650DR $10,481.20 CR

Mrs. Smith Term Deposit
15-Jan-13
Dear Mrs. Smith
Term Deposit Account Number: 342434 2612 0410 3245
Term deposit details –
Amount: $50,000
Period: 3 years
Start Date: 1 December 2011
Date of maturation: 1 December 2014
Interest amount: 3% per annum
Balance as of 15 January 2013: $51,500CR
RichBank
Everyday Account Statement
Mrs. Betty Smith
8 Peacock Place
Smallville NSW 2123
1-Sep-13
Dear Mrs. Smith
Everyday Account Number: 362436 8150 2650 3280
For period beginning: 1 June 2013 and ending 31 August 2013.
Opening balance: $10,481.20CR
Closing balance: $10,855.00 CR
Transaction details: Balance:
2 June 2013 deposit
from Centrelink $695.30 CR $11,176.50CR
5 June 2013 withdrawal
from Smallville branch $650DR $10,526.50CR
16 June 2013 deposit
from Centrelink $733.70CR $11,260.20CR
19 June 2014 withdrawal
from Smallville branch $400DR $10,860.20CR
1 July 2014 withdrawal
from Smallville branch $700DR $10,160.20CR
2 July 2014 deposit
from Centrelink $733.70CR $10,893.90CR
7 July 2014 withdrawal
from Smallville branch $350DR $10,543.90CR
15
16 July 2014 deposit
from Centrelink $733.70CR $11,277.60CR
20 July 2014 withdrawal
fromSmallville branch $400 $10,877.60CR
2 August 2014 deposit
from Centrelink$733.70CR $11,611.30CR
5 August 2014 withdrawal
fromSmallville branch $350 $11,261.30CR
10 August 2014 withdrawal
fromSmallville branch $440 $10,821.30CR
16 August 2014 deposit
From Centrelink $733.70CR $11,555.00CR
21 August 2014 withdrawal
from Smallville branch $700 $10,855.00CR
No further transaction details for period.
End of statement.

Place this order with us and get 18% discount now! to earn your discount enter this code: special18 If you need assistance chat with us now by clicking the live chat button.