Al Ali; Secretary, Department of Social Services and (Social services second review)

This matter concerned an appeal by the Secretary of the Department of Social Services against a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal. The dispute centred on whether certain payments received by Mrs Hashim and Mr Al Ali constituted undeclared income, thereby creating a debt owed to the Commonwealth due to social security overpayments. The Tribunal was required to determine the nature of the payments received by the individuals and whether they represented loans or income, and consequently, whether the overpayments were recoverable as a debt.

The Senior Member considered the definition of income for social security purposes and the evidentiary requirements to establish that payments were loans rather than income. The Tribunal found that there was insufficient evidence to prove that the payments received by Mrs Hashim and Mr Al Ali were loans. Consequently, these payments were treated as undeclared income, leading to overpayments of their respective social security benefits. The Tribunal also addressed submissions regarding the waiver or write-off of debts, noting that such actions are permissible only in limited circumstances, such as when a debt is irrecoverable at law or the debtor lacks the capacity to repay.

The Tribunal concluded that no evidence supported the grounds for waiver or write-off in this instance. Given that both Mr Al Ali and Mrs Hashim were in receipt of social security payments, the debts were deemed recoverable through deductions from these payments, as provided for by section 1236(1C) of the *Social Security Act*. Accordingly, the decision of the Administrative Appeals Tribunal was set aside. In substitution, the Tribunal determined that Mrs Hashim owed a debt of $21,849.72 to the Commonwealth for overpayments of parenting payment, and Mr Al Ali owed a debt of $22,635.89 to the Commonwealth for overpayments of Disability Support Pension.