Anderson and Department of Family and Community Services - [2001] AATA 869

DECISION AND REASONS FOR DECISION [2001] AATA 869

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/261

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FRANCES ANDERSON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date19 October 2001
PlaceSydney

Decision The Tribunal affirms the decision under review.

[sgd] Ms N Bell
Member
CATCHWORDS
SOCIAL SECURITY – widows pension – cancellation of pension – whether an overpayment occurred – whether overpayment is a debt due to the Commonwealth – whether debt should be recovered – write off – waiver
Social Security Act 1991 – ss 1066, 1072, 1075, 1224, 1236, 1237A, 1237AAD
Department of Social Security v Ekis (1998) 85 FCR 382
Re Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997)
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Re Greenwood and Secretary, Department of Social Security (1991) 25 ALD 775
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Ms Frances Anderson ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT") on 24 January 2001, which affirmed the decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 26 April 2000 to cancel the Applicant's widows pension and to raise and recover an overpayment of $12,741.80. This earlier decision was also reviewed and affirmed by an authorised review officer ("ARO") on 19 June 2000, who increased the debt amount from $12,731.80 to $12,741.80.
background
The Applicant was in receipt of widows pension class B from 1987. She is a musician and from 1993 she commenced working in that capacity at the Petersham RSL Club.
Following the Applicant's provision of her income tax returns for the financial years 1997/98 and 1998/99 on 8 February 2000, a decision was made by a Centrelink officer that the Applicant's gross income should be assessed and that this should be done on the basis that her income tax returns were individual returns and that she had been paid under the PAYE system of taxation. The Applicant's pension was cancelled on the basis that her income was above the level which would reduce the pension rate to nil. On 26 April 2000 a Centrelink officer raised a debt of overpayment of widows pension class B in the amount of $12,731.80, covering the period 1997/98 to 1998/99 (T22). The decisions to cancel the pension and to raise and recover a debt of overpayment were reviewed by an ARO who, on 19 June 2000, affirmed those decisions but increased the debt amount to $12,741.80 (T27).
The Applicant appeared on her own behalf and gave oral evidence to the Tribunal. The Respondent was represented by Ms Smith, an advocate from the Advocacy and Administrative Law Team at Centrelink. The following documents were taken in as evidence:
Exhibit           Description    Date
TDI Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents"), T1-T28 pp 1-80
TD2     Supplementary T-documents
AI       Applicant's letter to the Tribunal    26 April 2001
A2      Letter from the Australian Tax Office (ATO) to the Applicant 28 July 2000
A3      Letter from George Anderson to the SSAT       31 August 2000
A4      Letter from Centrelink to the Welfare Rights Centre     30 November 2000
A5      E-mail message headed "Diane DM Keenan"   10 February 2000
A6      Letter from Centrelink to the Applicant 8 December 2000
A7      Letter from Centrelink to the Applicant    29 November 2000
A8      Letter from Centrelink to the Commonwealth Bank of Australia         31 October 2000
A9      Letter from Centrelink to the Applicant    31 October 2000
A10     Written submission by the Applicant       26 September 2001
R1      Respondent's Statement of Facts and Contentions     7 June 2001

issues

The issues to be considered by the Tribunal in this application are:

whether the Applicant's pension should have been cancelled;
whether there was an overpayment to the Applicant of widows pension;
if so, whether the overpayment is a debt due to the Commonwealth; and
if so, whether the debt should be recovered.

The legislation relevant to this Application is sections 1066, 1072, 1075(1), 1224(1), 1236(1A), 1237A(1), and 1237AAD of the Social Security Act 1991 ("the Act") which provide as follows:
"1066. The rate at which a person's pension is payable is determined with reference to heir assets and income. Calculation of the rate of Widow's B pension is contained in s1066 of the Act.
…
1072. A reference in this Act to a person's ordinary income for a period is a reference to the person's gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
…
1075(1) Subject to subsection (2), if a person carries on a business, the person's ordinary income from the business is to be reduced by:
(a) losses and outgoings that relate to the business and are allowable deductions for the purposes of section 51 of the Income Tax Assessment Act 1936 or section 8-1 of the Income Tax Assessment Act 1997, as appropriate; and
(b) depreciation that relates to the business and is an allowable deduction for the purposes of subsection 54(1) of the Income Tax Assessment Act 1936 or Division 42 of the Income Tax Assessment Act 1997; and
(c) amounts that relate to the business and are allowable deductions under subsection 82AAC(1) of the Income Tax Assessment Act 1936.
…
1224(1) If:
(a) an amount has been paid to a recipient by way of social security payment; and
(b) the amount was paid because the recipient or another person:
(i) made a false statement or a false representation; or
(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth.
…
1236(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) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.
…
1237A(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.
…
1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt."

applicant's main arguments

The Applicant raised three main arguments against the decision under review. The first of these was that she was "carrying on business" and not working as an employee at the Petersham RSL club. She argued that as a consequence, the income that should have been taken into the account by the Respondent, for the purposes of calculating her rate of pension, was her income after business related deductions. That is, a lesser amount of income should have been used by the Respondent to calculate her entitlement. The significance of this argument is that it may have an effect on the total amount of pension overpaid to her, if any. Depending on the extent of any reduction consequent upon the Applicant being regarded as "carrying on the business", this issue may also be relevant to the question of whether her pension should have been cancelled.
The second main argument raised by the Applicant was that she was overpaid as a result of an error on the part of Centrelink. She maintained that Centrelink had advised her that it was appropriate for her to await the completion, by her accountant, of her tax returns for the years 1997/98 and 1998/99 and did not ask her for any other information to indicate her income during those periods. This argument is relevant to the issue of whether any overpayment, if it is a debt due to the Commonwealth, should be recovered.
The third argument raised by the Applicant was that her circumstances are special and that recovery of any overpayment, if it is a debt due to the Commonwealth, should be waived on that basis.
applicant's evidence
The Applicant gave the following evidence relevant to the issues in the application and the above arguments raised by her. In relation to the first matter raised by the Applicant, that is the arrangement under which she worked at Petersham RSL Club ("the club"), she told the Tribunal that when she began working at the club she did not sign any forms at all and regarded herself as a contractor. She confirmed, however, that the club deducted income tax and that sometimes she was given a meal allowance, or travel allowance, or both. She said that her hours and the days on which she worked were advised to her by the Entertainment Director of the club and that she would often work longer hours, for no extra payment, at her own discretion. She generally worked on Fridays, Saturdays and Sundays usually for four hours on each of those days. She said that she never asked for a contract over a period of time, for example, six months or one year, and was effectively on a nightly contract and was given no notice at all when she was terminated by the club.
The Applicant told the Tribunal that at one stage she went to the club's accountant and asked to be paid differently, that is not to be paid on a PAYE basis, and he responded that this was not possible unless she was a company.
In cross examination the Applicant told the Tribunal that if, on occasions, she was sick or for some other reason could not attend the club on the day she was appointed to do so, she would arrange for another musician to take her place. This musician would then be paid directly by the club, but a deduction would be made from the Applicant's wages as a result. She was at pains to point out, however, that this deduction would often be more than the amount she would usually receive for one day's work.
The Applicant told the Tribunal that she obtained an Australian Business Number ("ABN"), because she knew that some employers would deduct the marginal rate of taxation from her pay if she did not have an ABN. She confirmed that she has not, to date, made use of her ABN.
The Applicant said that the range of expenses she was required to meet in relation to her work at the club included the following:

sheet music;
maintenance of equipment, including five organs;
costumes and make up;
stage ornaments and settings; and
transport.

She confirmed that at the club she used the club's grand piano and sound system.
The Applicant gave evidence of her attempts to have herself removed from the PAYE system of payment in relation to the club and stated that such attempts were fruitless (Exhibit A1, pp5-6). She also stated that she was, in this respect, treated quite differently from other musicians who worked regularly at the club but were treated as contractors.
In relation to the issue of an error, if any, on the part of the Respondent, the Applicant confirmed that during 1997/98 and 1998/99 she gave Centrelink information by telephone that she was still working at the club. She also confirmed that she received a number of letters from Centrelink, which stated that if she received income of more than a named amount, then she was required to advise Centrelink. The Applicant said that she is unable to understand financial matters of that kind and adopts the view that her income is the amount that she has available to live on. She said she has always relied on her accountant to deal with such matters.
The Applicant told the Tribunal that when she received group certificates from the club she understood them to the extent that she was able to recognise the difference between gross income and the net income, but she still noted only the amount that she considered she had available to live on. She said she gave her group certificates to her accountant.
The Applicant said that when she received letters from Centrelink, which made mentioned of her income, she would telephone Centrelink and advise that she did not know what her income was, after taking into the account deductions and other matters, given that she "only thought about what I lived on". She told the Tribunal that she recalls receiving such letters at least six times. She said she never told Centrelink that she had payslips or group certificates and no officer of Centrelink ever asked her to supply them. She stated that in her conversations with Centrelink officers, in response to Centrelink's correspondence, she suggested that she may be being overpaid but thought that the amount in question would be very small. The Applicant said she offered to take her business to another accountant in order to have her tax returns prepared quickly, her own accountant having been struck by illness, but that Centrelink officers advised her that that would not be necessary and that Centrelink was prepared to wait until her own accountant was able to prepare her tax returns.
The Applicant said that she thought her income throughout 1997/98 and 1998/99 was not much different from her income for the previous few years. However, she then stated that in that period she received a rise in payment which netted her approximately $50.00 per week. She also said that she knew Centrelink was working on the basis of old information.
In relation to her current circumstances, the Applicant told the Tribunal that she owns no real estate and since 1987 she has been homeless. She said that she stays with various people, including one or other of her two daughters, and has an arrangement with such people whereby she will pay an average of $80.00 per week for her accommodation. She said she meets her own expenses in relation to food. She remarked that this arrangement is advantageous to her, given that she would be required to spend approximately $200.00 per week in rent were she to have her own accommodation.
The Applicant said that her current savings are in the sum of approximately $88,000.00 held in a term deposit and another form of investment with the Commonwealth Bank. She said she has no other assets besides her car and that she has no debts.
The Applicant said, in relation to her health, that she has some conditions which are currently being investigated, including a possible heart condition, and that she is very stressed but is not taking any medication by way of treatment for those conditions. She explained her great upset in relation to her dealings with Centrelink over the past two years and the difficulty she has experienced in attempting, without legal assistance, to deal with this matter. She explained that the stress she has experienced as a result of her dealings with Centrelink has had an efect on her relationship with her family.
The Applicant was also concerned to inform the Tribunal that she had attended the Campsie office of Centrelink, shortly after 2 March 1997, in order to deliver to Centrelink a document containing some information on her financial affairs. She stated that this documentation was later misplaced or lost by Centrelink and was in relation to a period relevant to this application.
Finally, the Applicant argued that Centrelink had enough information, from her tax returns of previous years, to properly calculate her rate of payment of pension and that any failure to do so was the fault of Centrelink and not her own.
respondent's submission
The Respondent relied generally on the documents contained in TD1 and TD2 in relation to the calculation of the Applicant's entitlement to pension. The Respondent referred to the manner of calculation of the rate of pension set out in section 1066 of the Act. It was noted that at the time of the cancellation of the Applicant's pension on 8 February 2000, the amount of income earned by a person, at which the pension rate would be reduced to nil, was $21,976.80 per annum. The Respondent noted that, on the basis of the Applicant's income tax returns for the year ended 30 June 1999, her main salary and wage occupation was that of musician and entertainer, and that her income from that occupation was derived from the club in the gross amount of $23,929.00 (T16). The Respondent argued that as this amount exceeded the cut-off point for pension, the rate of her pension was nil and her pension was therefore properly cancelled.
In relation to the question of what income must be taken into consideration in calculating the rate of pension under section 1066 of the Act, the Respondent referred the Tribunal to section 1072 of the Act. Section 1072 defines "ordinary income" as a person's gross ordinary income from all sources, for the period calculated, without any reduction, other than a reduction under Division 1A of the Act.
Division 1A of the Act relates to business income and section 1075(1) provides that, if a person carries on a business, the person's ordinary income from the business is to be reduced by a range of matters including losses and outgoings related to the business, depreciation and allowable deductions. The Respondent submitted that as the Applicant is an employee, she is, therefore, not carrying on a business and so the provisions of section 1075(1) are not available to her. In this respect, the Respondent referred the Tribunal to the decision of the Federal Court in Department of Social Security v Ekis (1998) 85 FCR 382. It follows, according to the Respondent, that the Applicant's gross earnings from the club were correctly used in determining the rate of pension payable to her during the relevant period.
In relation to the issue of whether the Applicant was overpaid, the Respondent submitted that at the beginning of the period the Applicant's total maximum annual rate of pension was $10,127.00. This, it was submitted, was made up of $9,042.80 basic pension, $140.40 pharmaceutical allowance and $943.80 rental assistance. The income cut off point was $22,854.00. The Applicant's total maximum rate rose to $10,461.10 by the end of the relevant period and the income cut off point therefore also rose to $23,522.20. The Applicant's income tax returns for the 1998 and 1999 financial years (T15 and T16) show that her gross income from the club was $23,766.00 and $23,929.00 respectively. It was submitted by the Respondent, that these amounts were above the cut-off points applying throughout the period and therefore the Applicant's rate of pension entitlement was nil during the period. The Respondent submitted that the Applicant has been paid more pension than her correct entitlement.
In relation to the question of whether the overpayment contended amounts to a debt due to the Commonwealth, the Respondent referred the Tribunal to s 1234(1) of the Act and s 389 of the Act (as it was at the relevant time), which provides that a person may be given a notice requiring them to provide certain information which may affect the rate of their payment. The Respondent noted that the Applicant was sent, and had acknowledged receiving, a number of notices in accordance with this section of the Act. In summary, the Respondent argued that as the Applicant did not provide details of her taxable income for the years ended 30 June 1998 and 1999 until February 2000, notwithstanding that her accountant's illness had delayed provision of these details, she did not comply with those notices and the provisions of the Act under which they were issued. As a result of this, it was submitted, she was paid more pension then her correct entitlement. Further, this excess payment of pension constituted a debt under s 1234(1) of the Act, in that the amount paid to her was paid because the Applicant failed or omitted to comply with a provision of the Act. The Respondent referred the Tribunal to its decision in Re Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997) and the Federal Court's affirming of that decision in Secretary, Department of Social Security v Hales (1988) 82 FCR 154, where it was held that a failure to comply with a notice issued under the Act constitutes a failure to comply with the section under which the notice was issued. The Respondent also referred the Tribunal to its decision in Re Greenwood and Secretary, Department of Social Security (1991) 25 ALD 775. In this decision, it was held that a failure or omission to comply with the Act need not have been the dominant or effective cause of an overpayment for that overpayment to be a debt due to the Commonwealth pursuant to s 246 of the Social Security Act 1947 (the equivalent of s 1224 of the Act).

In relation to the question of whether the debt should be recovered, the Respondent submitted that the writing off of the debt, pursuant to s1236 of the Act, is not appropriate in this case, as it is not irrecoverable. The Respondent submitted that the Applicant has the capacity to repay, her whereabouts are known, and it is considered cost affective to recover a debt of this magnitude.
In relation to waiver of the debt, the Respondent argued that there has been no administrative error in this case and that the Respondent continued to pay the Applicant a pension from 24 July 1997 to 24 June 1999 on the basis of information provided by her. The Respondent referred to the Applicant's contention that documentation she had handed to the Campsie Centrelink office in March 1997 was mislaid and noted that this documentation referred, in fact, to the Applicant's income for the 1994/95 financial year which had been requested by the Respondent as part of a data matching exercise. In this respect, the Respondent referred the Tribunal to the Respondent's letter to the Applicant dated 2 March 1997 (T8). The Respondent noted that this information related to a period prior to the debt period in question. It was submitted by the Responded that, notwithstanding the Applicant's concerns about the way she has been dealt with by various staff of the Respondent, the instances to which these complaints refer occurred after the decision was made by Centrelink to raise and recover the debt, which is the subject of this application. It follows, in the Respondent's submission, that these instances, if they are errors, do not constitute administrative error for the purposes of s 1237A of the Act.
Finally, the Respondent submitted that it is not available to the Applicant to have the debt waived pursuant to s 1237AAD of the Act because her circumstances are not "special" within the terms of that section. The Respondent noted that the Applicant currently receives a widow allowance at the rate of $342.97 per fortnight and has significant financial investments. It was also submitted that any difficulties, which the Applicant experienced in her dealings with Centrelink, are not such that would warrant the exercise of the discretion conferred by s 1237AAD.
consideration
should the applicant's pension have been cancelled?
At the outset, this question requires an examination of the issue of what amount of income should have been taken into account in determining the Applicant's appropriate rate of payment of pension. The income that was taken into account by the Respondent for this exercise was the gross amount paid to the Applicant by the club. The Applicant has argued that the appropriate income to be taken into account was her income after deductions for expenditure related to the work performed by her. This leads to the question of whether the deductions provided for in s1075(1) of the Act are available to the Applicant. In this respect the Respondent referred the Tribunal to the decision of the Federal Court in Department of Social Security v Ekis [supra]. Drummond J held at FCR 387:
"Because s1075(1) of the Security Act identifies the only class of business expense that is to be brought into account in calculating a pension entitlement as limited to expenses incurred in carrying on a business which are deductible from gross income to arrive at assessible income for the purposes of the ITAA, the expression "carries on the business" in s1075 of the Social Security Act necessarily, in my opinion, has the same meaning as the expression "in carrying on business" in s51 of the ITAA. While the term "business" as used in s 51(1) of the ITAA is defined by s6(1) of that Act to include "any profession, trade, employment, vocation or calling" it is also defined to exclude "occupation as an employee". It follows that, if a pension applicant who claims to be carrying on the business for the purposes of s1075 is, in truth, an employee, losses and outgoings incurred in respect of the person's employment are not deductible as business losses or outgoings under s51(1) and so cannot be brought into account in the pension entitlement calculation."
It is therefore necessary to consider whether the Applicant was an employee. The Applicant's evidence to the Tribunal, which it accepts, was that she worked a certain number of hours on a certain number of days on a regular basis at the direction of the Director of Entertainment of the club. She was paid by the club on a PAYE basis, with income tax withheld by the club, and she was also sometimes given meal and travel allowances. Her evidence was that she was provided with payslips and group certificates by the club and in her work she used the resources of the club, including a grand piano and the club's sound system. It was also her evidence that when she was unable to attend as arranged, she would organise for a replacement musician. This musician would be paid directly by the club and a deduction would be made from the Applicant's usual wages. The Applicant also gave evidence of her attempts to alter her status, in respect of the club, from that of employee to contractor. On the basis of this evidence, the Tribunal finds it an inescapable conclusion that the Applicant was an employee. It follows that the income of the Applicant to be taken into account, for the purposes of the calculation of her rate of payment of pension, was her gross ordinary income from all sources.
The Tribunal accepts as correct the Respondent's submission as to the calculation of the Applicant's entitlement to pension, given the levels of income evidenced by her taxation returns for the years 1997/98 and 1998/99 (T15 and T16). These calculations show that her gross ordinary income from all sources was in excess of the income cut-off point for payment of the pension and that her entitlement was therefore nil. It follows that the decision to cancel the Applicant's pension was correct.
was the applicant overpaid?
The Tribunal has concluded that it is the Applicant's gross income from all sources that should be taken into account, in the calculation of her rate of payment of pension. At T15 and T16 are the Applicant's tax returns for the years ended 30 June 1998 and 30 June 1999. T15 shows a gross income from the club of $23,766.00 and T16 shows a gross income from the club of $23,929.00. The following formula was submitted to the Tribunal by the Respondent:
Cut out point = (maximum rate of pension x 2) + $2652
In this case = (9662.40 x 2) + 2652
= $21976.80 per annum
The Respondent submitted that a person receiving a pension is allowed an income of a certain amount before the maximum rate of pension is effected. For every dollar of income above this amount, the rate of pension is reduced by 50 cents. The above formula represents the amount of income at which the pension rate is reduced to nil.
Applying that formula to the amounts of gross income derived by the Applicant from the club, shows that those amounts were above the cut out points applying throughout the relevant period. It follows that the Applicant was paid, in the relevant period, more pension than was her entitlement. The Tribunal notes that the above calculation does not take into account the financial investments held by the Applicant during the relevant period. However, these additional income figures do not alter the quantum of the overpayment.
is the overpayment a debt due to the commonwealth?
The Applicant did not dispute that she received a number of letters from the Respondent, which requested information on, or made mentioned of, her income. In particular, documents T8 and T9 are letters to the Applicant nominating an amount of income, that is $13,254.38 and $10,491.38 respectively. These letters both ask the Applicant to advise the Respondent within 14 days if the amount noted in the letter is incorrect. Each of the letters refers to sections 389 and 390 of the Act. Those provisions, at the relevant time, provided that a person may be given a notice which requires the person to provide certain information which may affect the rate of their payment. The Tribunal accepts as correct the Respondent's submission that a failure to respond to the request for information contained in each of these letters constitutes a failure to comply with the provisions of the Act. In this regard, the Tribunal follows, with respect, the decision of the Federal Court in Secretary, Department of Social Security v Hales [supra] and the decision of the Tribunal in Re Greenwood and Secretary, Department of Social Security [supra].
It was the Applicant's evidence that she received regular payslips from the club and, for the relevant period, received group certificates from the club. The Tribunal accepts this evidence and therefore finds that the Applicant had at her disposal information that would indicate to her that her income in the relevant period exceeded the amount noted in the Respondent's letters to her, dated 2 March 1997 and 4 June 1997. To this extent, and notwithstanding the unavailability of her accountant, it was within the Applicant's power to provide the information requested in those letters. It follows that she did fail or omit to comply with a provision of the Act and the amount paid to the Applicant was so paid because of that failure or omission. Consequently, the amount paid to her is a debt due by her to the Commonwealth pursuant to section 1224(1) of the Act.
should the debt be recovered?
The Tribunal accepts as correct the Respondent's submission that the discretion to write off the debt is not available in this case. The Applicant's evidence to the Tribunal was that she has some $88,000.00 available in savings and investments. The Tribunal finds, therefore, that the Applicant has a capacity to repay the debt. Further, there is no dispute that the Applicant's whereabouts are known and that she is currently receiving a social security payment. Finally, as discussed below, the debt is not irrecoverable at law. It follows that the debt may not, pursuant to s 1236 of the Act, be written off.
Turning to the question of whether the debt may be waived under s 1237A of the Act, the exercise of waiver under that section depends on the debt being attributable solely to an administrative error made by the Commonwealth. It is not in dispute that the Respondent requested information from the Applicant as to whether the comparatively low amount of income used by it to calculate her payment throughout the period was correct and that the Applicant, although she had such information at her disposal, failed to provide it to the Respondent. It was the Applicant's evidence that she was never asked by Centrelink for her payslips or group certificates and that she was advised that she could continue to await her accountant's recovery and his preparation of her taxation returns for 1997/98 and 1998/99. However, even if the Tribunal accepted this evidence, it would not amount to an error by the Commonwealth of the kind required by s 1237A(1) of the Act. The Applicant had been asked for certain information, which she had at her disposal, but did not provide it to the Respondent. It follows that waiver pursuant to section 1237A is not available.
The remaining provision relating to waiver, which is relevant to the circumstances of this application, is s 1237AAD of the Act. In order for the discretion under this provision to be exercised, the Tribunal must be satisfied that there are special circumstances (other then financial hardship alone) that make it desirable to waive the debt. The Applicant, on her own evidence, has available $88,000.00 in savings and investments. She, again on her own evidence, has no debts and pays an average of $80 per week for her accommodation. She is currently in receipt of the maximum rate of pension. Her evidence as to other aspects of her current circumstances is that she has some health conditions, including a heart condition, which are currently being investigated by medical practitioners; that as result of her dealings with Centrelink she is under considerable stress; and that this stress is having an impact on her relationship with members of her family, including her grandchildren.
The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 is often cited in relation to the interpretation of "special circumstances". In that decision, the Tribunal said at ALD 3:
"An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."
The Tribunal is of the view that the Applicant's circumstances are not so unusual, uncommon or exceptional as to make waiver pursuant to s 1237AAD desirable. Stress and faltering health are, unfortunately, common experiences and do not lend the Applicant's circumstances any feature of unusualness.
determination
The Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed:     R Quinn.....................................................................
  Associate
Date/s of Hearing  26 September 2001
Date of Decision  19 October 2001
Representative for the Applicant              Self
Representative for the Respondent        Ms Smith