Ahmad Alali and Secretary, Department of Social Services
[2014] AATA 551
[2014] AATA 551
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4927, 2013/4946
Re
Ahmad Alali
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor T Sourdin, Member
Date 11 August 2014 Place Sydney The Tribunal sets aside the decision under review and decides to remit the matter to Centrelink so that the debt can be recalculated and so that the Parenting Payment debt applies only to the period from 14 April 2012 to August 2012. The whole of the Family Tax debt is correctly stated.
........[Sgd]................................................................
Professor T Sourdin, Member
CATCHWORDS
SOCIAL SECURITY – Overpayment and debt recovery – whether the debt should be waived – whether the debt should be written off – special circumstances – decision under review
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth), ss 21
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 25, 71, 95, 97, 101
Social Security Act 1991 (Cth), ss 1236, 1237A, 1237AADSocial Security (Administration) Act 1991 (Cth), s 12
CASES
Gerhardt and Department of Education, Employment and Training [1996] AATA 173
Robinson and Secretary, Department of Social Services [2014] AATA 446
Sakoutis and Secretary, Department of Social Services [2013] AATA 885
Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76REASONS FOR DECISION
Professor T Sourdin, Member
11 August 2014
Background
Mr Ahmad Alali is originally from Iraq and arrived in Australia as a refugee in late 1996. He is 40 years of age. He was married until 2010 and is the father of three boys aged 11, 9 and 3 years of age who do not live with him. He was injured in a motor vehicle accident in 2005 and has been unable to work full time since 2010. He speaks little English and an interpreter assisted him at the hearing. At the close of the first part of the hearing (the hearing was adjourned to enable the Secretary to call evidence relating to debt calculations), Mr Alali noted that interpreters that were used at the Social Security Appeals Tribunal (‘SSAT’) did not speak his Arabic dialect and that the interpreter who attended this Tribunal hearing understood him much better as the interpreter understood and could translate in respect of an Iraqi dialect.
On 29 May 2011 Mr Alali agreed to take over the care of his niece Zaynab who was then aged 3 years. Zaynab was placed in his care by his sister while her youngest child was in Westmead Hospital.
Zaynab remained in the care of Mr Alali until 6 October 2011 when her mother decided to return to Iraq to visit family. On 6 October 2011 Mr Alali contacted the Centrelink and advised them that Zaynab had left Australia that day to travel overseas with her mother and was expected to return within 13 weeks, although he did not have a fixed return date.
Mr Alali also travelled to Iraq on 8 October 2011. It appears that almost immediately following his sisters departure from Australia a bomb exploded near their family house in Iraq that led to the death of Mr Alali’s father and uncle. As a result of this event, Mr Alali returned to Iraq for a short period.
On 26 October 2011 Mr Alali contacted Centrelink again and indicated that he could not provide details of Zaynab’s return date. The next contact made with Centrelink is somewhat unclear. The Secretary indicated that it wrote to Mr Alali in early January 2012 and February 2012 advising that he was required to advise Centrelink if Zaynab was not living with him. Mr Alali says that he did not recall receiving these letters. The situation is also unclear as it seems that not all records of contact with Centrelink were retained or reflected in the Section 37 Tribunal documents (‘T documents’). The SSAT noted that material received through an FOI request made by Mr Alali was not part of the Departmental record that was provided to the SSAT. This material was also not made available in the T-documents provided this Tribunal.
There appears to have been some contact between Mr Alali and Centrelink in December 2011 where the Centrelink notes record “..advised cus[tomer] that he may continue FTB as long as he still supports the child and child’s [will] not claim. [C]us[tomer] advised that he is 100% sure that her s [sic] will not claim. [A]dvised that PPS will be cancelled aft[er] and [FTB A] will be paid at min[imum] rate and [FTB B] will stop 13 [weeks].’ (Annexure B to the Secretary’s Statement of Facts and Contentions, Exhibit R1). It also seems that on 4 January 2012, a number of benefits that were paid to Mr Alali were cancelled and as a result Mr Alali received a lesser benefit amount as Zaynab remained overseas. This reduction and cancellation coincided with Zaynab’s travel overseas for more than 12 weeks.
In ‘Centrelink computer record – person details,’(T28, p 363) it was noted that some, but not all benefits payable to Mr Alali that related to Zaynab’s care were cancelled by Centrelink. In short, it seems that Mr Alali’s benefits were reduced but not completely. For example, the FTB B component was stopped completely. The reduction in the amounts paid to Mr Alali in January 2012 were significant and the payments received were reduced by around $300 per fortnight (to Mr Alali).
The material that was provided as a result of the FOI request made by Mr Alali shows that Mr Alali contacted Centrelink on 4 January 2012 and that a Parenting Payment Single Enquiry was made. Centrelink records also show that on 11 January 2012 a ‘customer service officer actioned record on 11 January 2012 regarding Review of Parenting Payment Single.’
It is not clear why the Secretary did not cancel all the parenting payments in early January 2012. Their own correspondence, (which Mr Alali said not recall receiving) stated on 5 January 2012 “We cannot pay you Family Tax Benefit Part A at more than the base rate for Zaynab because our records show she is still overseas. We cannot pay you Rent Assistance because you are not entitled to more than the base rate of Family Tax Benefit Part A.” (T10, p 113).
It seems that despite knowing that Zaynab was overseas, Centrelink continued to pay a reduced family tax benefit and parenting payment to Mr Alali until 1 August 2012. The Secretary has claimed that a debt is owed to it of $18,474.52 in respect of these periods and backdated to the periods when payments were first made. Mr Alali says that he notified Centrelink and that Centrelink understood that Zaynab was overseas. He says that either the debt should be waived or in the alternative, the amount of debt should be offset by the benefit that he might otherwise have received (probably a Newstart Allowance).
The background to this matter is otherwise summarised in the decision of the SSAT.
The Issues
The issues are:
(i)Whether Mr Alali incurred family tax benefit debts of $3455.59 for the period 1 July 2011 to 30 June 2012 and $124.16 for the period 1 July 2012 to August 2012.
(ii)Whether Mr Alali incurred a parenting payment debt of $14,894.77 for the period 6 October 2011 to August 2012.
(iii)Whether all or part of the debt should be waived or offset in some way.
The legislation
The legislation that applies to this matter is complex and is contained within A New Tax System (Family Assistance) Act 1999 (the ‘FA Act’), and the A New Tax System (Family Assistance) (Administration) Act 1999 (the ‘FA Administration Act’), and the Social Security Act 1991.
Section 21(1)(a) of the FA Act provides:
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii) is not an absent overseas recipient and has at least one regular care child who is also a rent assistance child; …
Subsection 25(1) of the FA Administration Act provides:
(1) If, after a claimant becomes entitled to be paid family tax benefit by instalment:
(a) anything happens that causes the claimant to cease to be eligible for family tax benefit on the days for which the claimant will become entitled to be paid the benefit under the determination concerned, or to become eligible for a daily rate of family tax benefit that is less than that specified in the determination; or
(b) the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Penalty: Imprisonment for 6 months.
In relation to debt, subsection 71(1) of the FA Administration Act provides:
(1) If:
(a) an amount has been paid to a person by way of family tax benefit, baby bonus, single income family support supplement or schoolkids bonus (the assistance) in respect of a period or event; and
(b)the person was not entitled to the assistance in respect of that period or event;
the amount so paid is a debt due to the Commonwealth by the person.
Subsection 1223(1) of the Social Security Act provides:
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
In relation to writing off a debt, the relevant sections are subsection 97(2) of the FA Administration Act and subsection 1236(1A) of the Social Security Act. Subsection 1236(1A) of the Social Security Act:
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(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.
In relation to debt waiver, the relevant sections are provided in subsections 97(1) and (2) of the FA Administration Act and subsection 1237A(1) of the Social Security Act.
Subsection 97(1) and (2) of the FA Administration Act:
Waiver of debt arising from error
(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
Subsection 1237A(1) of the Social Security Act:
Waiver of debt arising from error
Administrative error
(1) Subject to subsection (1A), 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.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
Subsection 101 of the FA Administration Act provides:
(1) An individual (the entitled individual) is entitled to a single income family bonus if subsection (2), (3) or (4) applies to the individual.
(2) This subsection applies to the individual if:
(a) in relation to 3 February 2009, a determination under section 16 of the Family Assistance Administration Act was in force in respect of the individual as a claimant; and
(b) the rate (the applicable rate) of family tax benefit payable under the determination in relation to 3 February 2009 consisted of or included a Part B rate greater than nil.
(3) This subsection applies to the individual if:
(a) in relation to 3 February 2009, a determination under section 17 of the Family Assistance Administration Act was in force in respect of the individual as a claimant; and
(b) the determination was made as a result of a claim made in the 2008-09, 2009-10 or 2010-11 income year; and
(c) if the claim was made in the 2008-09 income year--the rate (the applicable rate) of family tax benefit payable under the determination in relation to 3 February 2009 consisted of or included a Part B rate greater than nil; and
(d) if the claim was made in the 2009-10 or 2010-11 income year:
(i) the individual has satisfied the FTB reconciliation conditions under section 32B of the Family Assistance Administration Act for all of the same-rate benefit periods in the 2008-09 income year; and
(ii) the rate (the applicable rate) of family tax benefit that was payable under the determination after the individual satisfied those conditions, and that was payable in relation to 3 February 2009, consisted of or included a Part B rate greater than nil.
(4) This subsection applies to the individual if:
(a) in relation to 3 February 2009, a determination under section 18 of the Family Assistance Administration Act was in force in respect of the individual as a claimant; and
(b) the determination was made as a result of a claim made in the 2008-09 income year or a later income year; and
(c) the rate (the applicable rate) of family tax benefit payable under the determination in relation to 3 February 2009 consisted of or included a Part B rate greater than nil.
There is also capacity to offset a debt or at least to assume that Mr Alali might have been eligible for newstart allowance. The relevant provision is provided in s 12 of the Social Security (Administration Act) 1999:
Deemed claim in certain cases
(1) The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment ), if:
(a) the person became qualified for the new payment while receiving another income support payment; or
(b) the person became qualified for the new payment immediately after ceasing to receive another income support payment.
(2) The person is taken to have made the claim for the new payment on the day specified in the Secretary's determination. That day must not be earlier than:
(a) the day that is 13 weeks before the day on which the Secretary's determination is made; or
(b) if the person became qualified for the new payment after the day referred to in paragraph (a)--the day on which the person became qualified for the new payment.
Consideration
It is clear that Mr Alali received varying FTB and PPS payments for the period 6 October 2011 to 1 August 2012 in respect of the care of his niece. It is not in dispute that Mr Alali notified Centrelink that his niece was overseas for an unspecified period and it seems that Centrelink cancelled some but not all the benefits paid to Mr Alali in early January 2012. There is no dispute that Mr Alali was not entitled to the payments that were made and Mr Alali agrees that his niece did not return from Iraq during this time frame (Zaynab eventually returned to Australia on 26 June 2013). There is no dispute that Mr Alali was overpaid and therefore owes a debt to Centrelink.
There is however a question about whether the debt should be waived because it was either the result of administrative error or there are some special circumstances that should be considered. Alternatively, there is a question about whether the debt should be offset – that is whether the debt should be reduced by the amount that it is likely that the Applicant would have received had he been transferred to another applicable benefit.
The question of waiver as a result of administrative error has been considered many times by this Tribunal. In addition, there are a number of separate pieces of legislation to consider. Under s 97(2) of the FA Administration Act, there must be administrative error, payments must have been received in ‘good faith’ and there must also be evidence of severe financial hardship if the debt is not waived. Section 97(3) of the FA Administration Act refers specifically to family assistance payments and provides that there must have been administrative error, and provides in the alternative that the debt must have been raised within a particular timeframe:
(a) the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event ) that occurs in an income year; and
(b) the debt is raised after the end of:
(i) the debtor’s next income year after the one in which the eligibility period or event occurs; or
(ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last…
There must be evidence of ‘good faith’ and the legislation states that it is a requirement that “the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt”.
The legislation appears to set out different requirements in relation to the two payments types received by Mr Alali. Section 1237 of the Social Security Act, for example, applies to the Parenting Payment and specifies that for a waiver to take place there must be ‘good faith’ as well as ‘sole administrative error’ and that the debt should not be not raised within six weeks of the error taking place (see the legislation above). Each of these matters relating to waiver are considered below.
Was there an administrative error?
The legislation requires that a debt be waived if it is solely due to administrative error and if there are other factors present relating to ‘good faith’ and the timing of the raising of the debt or there is severe financial hardship . The word ‘solely’ has been considered in a number of cases and the Secretary referred to Gerhardt and Department of Education, Employment and Training [1996] AATA 173 and Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76 in submissions. The case law shows that the debt must be solely due to administrative error.
In Gerhardt, the Tribunal said:
40. There is nothing in sub-section 289(1) which indicates that any meaning should be given to "solely" other than its ordinary meaning. Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error. The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth's administrative error (i.e. they are incidental to the Commonwealth's error), then it may be that the debt is attributable solely to the Commonwealth's administrative error. Whether it is or is not attributable in that situation to the Commonwealth's administrative error will be a question of fact.
In Sekhon, Wilcox J:
However, it seems to me, the Tribunal failed to consider the significance of the inclusion, in s 1237A(1), of the word "solely". For the subsection to have effect, the "proportion" of the debt – in this case, it is common ground, that would be the whole of it – must be "attributable solely" to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.
In this matter, it seems that the Department cancelled some but not all of the benefits to be paid to Mr Alali in January 2012. There is clear evidence that Centrelink was aware that Zaynab remained overseas.
Section 25 of the FA Administration Act imposes a positive duty to report to the Secretary if an event occurs that means that an entitlement to FTB will cease or change. There is undisputed evidence that Mr Alali advised the Secretary of the trip overseas on 6 October 2011. Further contact was made on 26 October 2011, early December 2011 and January 2012. After that time there is some dispute about what occurred next. For example, Mr Alali does not agree that he received letters from Centrelink in February 2012. From his perspective, he notified Centrelink, received advice and payments were reduced after the 13 week overseas period had expired in January 2012. In evidence, he indicated that he did not understand that he was required to do more. He thought he had been transferred to another payment.
In the context of sole administrative error, it seems that Mr Alali continued to be paid FTB and PPS despite a lack of entitlement and it is also clear from the FOI documentation that contact was made and that Centrelink knew that Zaynab remained overseas.
In this regard, there can be no dispute that Centrelink was aware and understood that Zaynab remained overseas and notified Mr Alali of this fact in January 2012. In correspondence to Mr Alali (as noted above) they stated “We cannot pay you Family Tax Benefit Part A at more than the base rate for Zaynab because our records show she is still overseas. We cannot pay you Rent Assistance because you are not entitled to more than the base rate of Family Tax Benefit Part A.” (T10, p 113).” The continued payment of benefits occurred because Centrelink did not action or reduce benefits in January 2012 after receiving advice from Mr Alali and understanding that Zaynab had not returned to Australia. The FOI record of Centrelink contact notes that on 11 January 2012 that “Customer Service Officer actioned record on 11 Jan 2012 regarding review of Entitlement for Parenting Payment Single’ however no review seems to have been undertaken or actioned.
In the context of the decision not to grant a waiver, it seems that the Centrelink Authorised Review Officer did not consider all of the information that was held by the Department and the notes made of the January 2012 contact (and that were disclosed in the January FOI document release). It is clear from a consideration of all of the material in these documents that there was an administrative error and that the material in January 2012 was not followed up by Centrelink.
Were the benefits received in ‘good faith’?
It is not sufficient under the legislation to only prove that there was administrative error. The legislation also requires that payments must have been received ‘in good faith’.
The Centrelink records note that despite the contact that was made, Mr Alali continued to be paid PPS and FTB. Although payments had reduced after the 13 week period, the Secretary contends that Mr Alali had a positive obligation to advise Centrelink that he was receiving the incorrect benefit as Zaynab remained overseas. It is somewhat unclear what Mr Alali could have done to make the situation more clear. Centrelink knew that Zaynab was overseas and confirmed this in writing (The correspondence of 5 January 2012 from Centrelink shows that they knew that Zaynab remained overseas.).
There are various decisions of the Tribunal that deal with the question of how to determine whether payments are received in ‘good faith’. In each instance, and in determining whether there is good faith it is necessary to consider the individual circumstances of the Applicant. In Sakoutis and Secretary, Department of Social Services [2013] AATA 885 the individual circumstances of the Applicant and the extent to which they understood and could speak English were considered.
As in Sakoutis, in this case, it is understandable that Mr Alali could, at least initially have misunderstood the advice that he received from Centrelink. It seems, and I accept the evidence that he understood that he would continue to receive payments if he supported Zaynab and if his sister remained overseas. He appears to have thought that if he sent monies overseas he would receive a reduced amount. This understanding appears to be consistent with Centrelink advice that he received in December 2011 that he would continue to receive payments if he continued to support Zaynab.
Mr Alali provided evidence to show that he continued to support Zaynab and that he understood that this met any requirements. I consider that he met the requirements in the context of receiving payments in ‘good faith,’ and that he continued to receive the payments understanding that he needed to continue to support Zaynab. However, there is an issue about at what point it would have been appropriate for Mr Alali to have made further enquiries of Centrelink given that Zaynab had not returned to Australia. It seems that Centrelink only realised the error that it had made after Mr Alali contacted Centrelink in August 2012 and advised them of his income tax return and earnings. Essentially, as in Sakoutis, at what point was it reasonable for an Applicant, in the position of Mr Alali, to have further queried the benefits he received?
The question is, at what point could the payments be said to have not been received in ‘good faith’? It seems that in April 2012, the Applicant contacted Centrelink on two occasions. Each of these contacts related to LPG payments in respect of an LPG Vehicle schemes. At that point, Mr Alali had continued to receive payments as a ‘parenting payment’ and despite his earlier contact, and consistent with his December advice, I consider that it would have appropriate for him to have raised his parenting payment at that time. Whilst there may have been confusion at an earlier time, it is reasonable and consistent with Mr Alali’s circumstances to consider that by that stage he should have considered that there may have been an issue with the continuing payments he was receiving.
I am not satisfied that after that contact on 13 April 2012, it could be said that payments were received in ‘good faith or that there existed special circumstances within the meaning of s 1237AAD of the Social Security Act making it desirable that the debt arising after that time be waived. I am not satisfied that the Applicant knowingly failed or omitted to comply with his disclosure obligations under the Act after that time but I do not find the special circumstances which are necessary to found the discretion to act under s 1237AAD.
The timing of payments, other special circumstances or financial hardship?
The two tests outlined above relating to administrative error and the good faith receipt of payments are qualified by a third test in the legislation that relates to either the timing involved in the raising of the debt or financial hardship. The legislation that relates to the family tax benefit debt is different to the legislation that relates the parenting payment debt.
In the FA scheme which applies to the Family Tax Benefit debt, s 97 indicates that there must be administrative error, good faith and financial hardship. Subsection 97(2) requires that: “the person would suffer severe financial hardship if it were not waived.” In the alternative, subsection 97(3) provides that if severe financial hardship is not present, then waiver can operate if there is administrative error and if (b) the debt is raised after the end of: (i) the debtor’s next income year after the one in which the eligibility period or event occurs.
In considering the application of this section, I have considered each of the two possible tests. The second test requires that the debt be raised at a particular time. Here the debt was raised in August 2012 and related to payments made in the whole of the financial year to July 2012 (and a small amount in 2012). As the debt related to the previous income year, Mr Alali does not meet this requirement. I have also considered whether there are other special circumstances that exist that support waiver on the basis of ‘severe financial hardship’. Whilst I accept that Mr Alali has difficult financial circumstances I consider that they are not so severe, unusual or so special as to invoke the waiver requirements under the legislation. Mr Alali has been repaying the debt in small amounts and although his circumstances are difficult they could not be characterised as ‘severe.’ In August 2012 it seems that Mr Alali initially claimed a Newstart allowance and then later lodged a carer’s application.
In terms of Mr Alalis’ financial situation, Mr Alali lodged a claim for a carer’s allowance in September 2012. That carer’s claim was made in respect of an elderly woman who Mr Alali has looked after since August 2012. The woman is regarded by Mr Alali as a mother who looked after him whilst he was a child. Whilst he is a carer and lives in difficult financial circumstances and may struggle to pay bills, these circumstances could not be described as ‘severe.’
The legislation that applies to the parenting payment is different to that which applies to the family tax payment. Section 1237A of the Social Security Act requires that administrative error and good faith must be considered. In addition the legislation provides that:
(1A) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
Here, the debt was not raised within a period of six weeks from the time of the first payment that caused the debt or any notification period.
This means that Mr Alali meets the requirements under the Social Security Act for partial waiver of the debt in relation to parenting payments but does not meet the requirements (which are limited by different timing regimes) in respect of the Family Tax Benefit.
Offset issues
Given the finding made in relation to waiver above and the finding that there was administrative error, it is not necessary to consider in detail the offset issue – that is whether the debt could be offset by another allowance that could be paid. The Tribunal has previously considered the issue of whether a debt can be offset by another entitlement that may have arisen. Here, Mr Alali argued that had Centrelink acted correctly he would have received a Newstart allowance and that any debt should be offset by the amount of Newstart benefits he would otherwise have received. In a recent Tribunal decision of Robinson and Secretary, Department of Social Services [2014] AATA 446 the Tribunal considered this issue and noted that it would be difficult to determine to a degree of reasonable certainty whether or not a Newstart payment would have been made.
In particular, the Tribunal noted:
However, even if a “high probability” or “likelihood” that the applicant would have been qualified for, and received, newstart allowance during the relevant period would suffice for the purposes of the application of the “notional entitlement” concept (see Re Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 154 at [16], [17]), the Tribunal, having regard to the whole of the evidence before it, would still be unable to determine the answer to each of the questions set out in paragraph 52 above – and, accordingly, would still be unable to determine for what period(s) the applicant would (probably) have been qualified for newstart allowance during the relevant period and what amount of newstart allowance would (probably) have been paid to her during that period – to its reasonable satisfaction.
In addition the Tribunal noted that:
Having considered the issue of the applicant’s “notional entitlement” to newstart allowance in the relevant period, the Tribunal, having regard to the uncertainty involved in the application of that concept in the circumstances of the present case, concludes that that concept does not provide any useful assistance to the Tribunal in determining whether it is satisfied that there are “special circumstances ... that make it desirable to waive” (within the meaning of s 1237AAD(b) of the Act) the relevant debt due by the applicant to the Commonwealth.
In this matter, that uncertainty is also present and it is noted that this matter must be considered by reference to the particular circumstances of the Applicant as well as the information available to Centrelink. Accordingly, it is not appropriate to consider offset arrangements.
DECISION
I am satisfied on the evidence before the Tribunal that the proportion of the claimed debt of relating to the period 6 October 2011 to 13 April 2012 in respect of parenting payment is attributable solely to an administrative error made by the Commonwealth and the Applicant received in good faith the payments that gave rise to that proportion of the debt. In addition the timing requirements under the Act have been met. Pursuant to s 1237A(1) of the Social Security Act 1991 the Secretary must waive the right to recover that proportion of the claimed debt.
In respect of the Family Tax Benefit payment, this debt cannot be waived as the legislative requirements for debt waiver differ. Although financial hardship may be present it is not severe and the debt cannot be dealt with under the waiver requirements because of the date that it was raised.
This means that Centrelink is entitled to recover Family Tax Benefit debts of $3455.59 for the period 1 July 2011 to 30 June 2012 and $124.16 for the period 1 July 2011 to August 2012.
This conclusion means that Centrelink is not entitled to recover a Parenting Payment debt of $14,894.77 for the period 6 October 2011 to August 2012. It is however entitled to recover the proportion of the debt that relates to the period for the period 14 April 2012 to August 2012.
DECISION
The Tribunal sets aside the decision under review and decides to remit the matter to Centrelink so that the debt can be recalculated and so that the Parenting Payment debt applies only to the period from 14 April 2012 to August 2012. The whole of the Family Tax debt is correctly stated.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor T Sourdin, Member.
........[Sgd]................................................................
Associate
Dated 11 August 2014
Date(s) of hearing 29 April and 26 May 2014 Date final submissions received 6 June 2014 Applicant In person Solicitors for the Respondent Ms K Martini, DHS Program Review Litigation Branch
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