Angelakos; Secretary, Department of Employment and Workplace Relations
[2006] AATA 220
•9 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 220
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/221
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
GEORGE ANGELAKOS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date9 March 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in the place of that decision decides that:
(a) all of the respondent’s Parenting Payment debt must be repaid; and
(b) the respondent is indebted to the applicant in the sum of $30,385.82...............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Parenting Payment (Single) – overpayment of benefit – whether solely administrative error – waiver requirements – whether special circumstances – decision set aside.
Social Security Act 1991 ss 500Q, 1118(1), 1118B(1),1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 ss 68, 72
Re Bazley and Secretary, Department of Family and Community Services [2002] AATA 593
Re Lohner and Secretary, Department of Social Security (AAT 9888, 22 November 1994)
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Secretary, Department of Family and Community Services and Natale (2003) 75 ALD 535
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Re Napolitano and Secretary, Department of Social Security (AAT 8461, 23 December 1992)
Re Hajar and Secretary, Department of Social Security (1988) 16 ALD 716
Riddell v Secretary, Department of Social Security (1993) 30 ALD 31REASONS FOR DECISION
9 March 2006 Senior Member R W Dunne 1. In July 2001, the respondent (Mr George Angelakos) applied for Parenting Payment. He indicated in his claim form that he did not have a partner and his claim was considered for Parenting Payment (Single). His claim was rejected due to the Income Maintenance Period which was calculated to run until 3 April 2002. On 21 March 2002, Mr Angelakos put in another claim for benefit and on 4 April 2002 he began to be paid Parenting Payment (Single). On 9 November 2004, at an interview with a JET (Jobs, Education and Training) Adviser, it was discovered that Mr Angelakos’ Parenting Payment was being paid in error due to the level of his assets. On 9 December 2004, Centrelink raised a debt of $30,385.82 against the respondent. On 21 March 2005, the Centrelink original decision-maker reviewed and affirmed her decision and on 27 May 2005 a Centrelink Authorised Review Officer reviewed and affirmed the decision of the original decision-maker.
2. On 11 July 2005, the Social Security Appeals Tribunal (“SSAT”) set aside Centrelink’s decision and substituted its decision that an amount of $27,385.82 of the debt should be waived under s 1237AAD of the Social Security Act 1991 (“Act”), leaving a recoverable debt balance of $3,000.00. On 15 August 2005, the applicant (“Department”) applied to this Tribunal for review of the SSAT decision.
issues for the tribunal
3. The issues for the Tribunal are:
·whether the respondent has been overpaid Parenting Payment (Single);
·if there has been an overpayment, whether it is recoverable by the Department; and
·if the overpayment is recoverable by the Department, are there grounds to waive or write-off all or part of the overpayment.
legislation
4. The provisions of the Act that relevantly apply to the issues before the Tribunal are as follows:
Payment of Parenting Payment
5. Sections 500Q(1) and 500Q(2) of the Act provide:
“(1)Parenting payment is not payable to a person if the value of the person’s assets exceeds the person’s assets value limit.
(2) The assets value limit of a person who is not a member of a couple is worked out using the following table:
Table – Assets value limits for person who is not a member of a couple
Column 1
Item
Column 2
Person’s situation
Column 3
Assets value limit
1
Person is a homeowner
$125,750
2
Person is not a homeowner
$215,750
Note 1: For homeowner see section 11.
Note 2: The assets value limit in Column 3 of Item 1 is indexed annually in line with CPI increases (see sections 1190 to 1194).
Note 3: The assets value limit in Column 3 of Item 2 is adjusted annually (see subsection 1204(1)).
Note 4: If parenting payment is not payable to a person because of the value of the person’s assets, the person may be able to take advantage of provisions dealing with financial hardship (see sections 1130B and 1130C).”
During the period in which the overpayment occurred (4 April 2002 to 3 November 2004) the assets value limit under s 500Q(2) for a person who was not a member of a couple and was a homeowner was $141,000 and for a person who was not a homeowner was $242,000.
Amounts Recoverable under the Act
6. Section 1223(1) of the 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.”
Non-recovery of Debts
7. Sections 1236(1) and 1236(1A) of the Act provide:
“(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(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.”
8. Sections 1237A(1) and 1237A(1A) of the Act provide:
“(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).
(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;
whichever is the later.”
9. Section 1237AAD of the Act provides:
“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 a 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.
Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt.”
the hearing
10. The applicant was represented by Mr Kilderry from the Department’s Legal Services Branch. The respondent was represented by Ms Riley from Welfare Rights Centre (SA) Inc. He gave evidence as did his fiancée, Ms Cecilia Bannan. Both the Department and Ms Riley relied largely on their statements of facts and contentions. The s 37 documents (T documents) were tendered before the Tribunal and admitted as exhibit A1, along with a statement of Ms Bannan (exhibit R1).
11. The respondent is 52 years of age. The SSAT found that he presented as a person who was deeply troubled about the amount of the debt and the level of personal liability placed upon him. The overriding impression the Tribunal gained was that he was a strong-willed person and was angry and frustrated at a system that he felt was the cause of his problems. His evidence was that he resigned from employment with ACI in July 2001 to help care for Ms Bannan, who had been seriously injured in a traffic accident in 1998 and was wheelchair bound, and to assist his elderly mother care for his son, who is 15 years old, and his father, who is 83 years old and suffers from emphysema. The respondent lives with his parents and his son in a property owned by the respondent at Torrensville. Upon his resignation from employment, he received a termination payment of $100,000. It appears from the T documents (exhibit A1, T2 at page 5) that he was also able to access $117,000 from his non-preserved superannuation benefits. With the termination payment and the superannuation he purchased another property at Flinders Park on 15 January 2002 for $209,500. In December 2004, Ms Bannan moved into the Flinders Park property to save rent and to assist the respondent financially.
12. He said that when he first applied to Centrelink for Parenting Payment in July 2001, it was the first time he had had dealings with Centrelink. He was advised that he had to use up all his available funds before any benefit would be paid. In March 2002, his circumstances changed and he completed and lodged another claim form (exhibit A1, T5 at page 47). Ms Riley referred the respondent to question 37 in the claim form (exhibit A1, T5 at page 58) which reads:
“Do you (or your partner) own (or partly own) real estate other than the home in which you live?”
13. In answer to this question, the respondent ticked the “yes” box and indicated that he had one property other than the home in which he lived. He said that he commenced receiving Parenting Payment and that he was not aware of any problems arising out of the claim form. In a post-grant interview in June 2002 he was asked about his ability to work. Ms Riley referred the respondent to the Centrelink record of the interview (exhibit A1, T7 at page 90) in which the Centrelink comment “assets unchanged” appeared.
14. Ms Riley then referred the respondent to the Centrelink letter dated 4 April 2002 which confirmed the amount of his Centrelink benefits (Parenting Payment (Single) $421.51 plus pharmaceutical allowance $5.80, total $427.31). The letter detailed the respondent’s annual income as $3,570.24 and required that he tell Centrelink, within 14 days, if his income increased or if his financial investments were more than $102,781 (which was said to be $1,000 more than the value of financial investments recorded for the respondent with Centrelink). Centrelink also required that he advise if his assets other than financial investments were more than $39,469. When asked about these Centrelink requirements, the respondent said that he had not read the letter from Centrelink thoroughly and had not noted the requirements.
15. Ms Riley then referred the respondent to the Centrelink calculations of the Parenting Payment overpayment (exhibit A1, T16 at page 159). He said that, when he contacted Centrelink and told them they had made an error, the Centrelink officer became rude and acted in a humiliating manner towards him. He said that, in late 2004 when he learnt of the overpayment, he went through a horrific time. He suffered rapid weight loss and required medical assistance. The imposition of the Centrelink debt had added to the other influences affecting him at the time. His parents relied upon him for support, his divorce from his former wife had been difficult to deal with and, at 52 years of age with his current responsibilities, he would find it difficult to obtain and undertake employment. He said Centrelink had suggested that he should sell the property at Torrensville. However, he viewed the Torrensville property as his parents’ home and could not contemplate its sale. He said he had used funds of his father and had borrowed from the bank to purchase the Torrensville property in 1974. He had intended to transfer the property into his father’s name or make a declaration of trust, but had never done so. In relation to the Parenting Payment, he believed he had done nothing wrong and felt no guilt. As to his answer to question 37 in his claim for Parenting Payment he said he had not seen in the question the requirement that he complete and attach a Module R in respect of the Flinders Park property.
16. Under cross-examination by Mr Kilderry, the respondent indicated that the Flinders Park property was valued at $265,000 and the Torrensville property at $290,000, which had been offered to St George Bank as security for a $20,000 line of credit. In addition, the respondent said he had non-preserved superannuation benefits of approximately $100,000-$110,000 which would become due to him in approximately 3 years time. When questioned further by Mr Kilderry about his contact with Centrelink, the respondent said that he had read the notification letter from Centrelink dated 4 April 2002, but had not been alerted to the notes on the back of the letter (regarding assets other than financial investments) by the trigger that appeared on the front of the letter (exhibit A1, T6 at pages 70-71). He also said that, in an interview with a Centrelink Personal Adviser late in 2002 (exhibit A1, T6 at page 77), there had been no discussion of his assets or the level of his income.
17. The respondent’s fiancée, Ms Bannan, was sworn and her statement (exhibit R1) tendered. Her evidence was that the respondent had never received a Module R from Centrelink to complete. He had read the Centrelink notification dated 4 April 2002, but had not been aware of the notes requiring details of assets that appeared on the back of the notification. She said she believed the respondent had done nothing wrong in his dealings with Centrelink. The Torrensville property was his parents’ home and was not an asset of his. The property could not be sold because it belonged to the parents. Also, the Flinders Park property could not be sold because it would become their home. She said that the raising of the debt by Centrelink had caused the respondent to suffer a breakdown. He could not sleep, he could not hold down food and had trouble with toileting. He was still very vulnerable and needed encouragement and re-assurance. She said she believed this would come if he did not have to pay any of the debt raised by Centrelink. She said that she believed the respondent was not responsible for what had taken place and that Centrelink was solely responsible.
submissions
18. Mr Kilderry’s submissions, as outlined in the Department’s statement of facts and contentions and orally, were as follows:
(a) The respondent was not entitled to Parenting Payment (Single) because the value of his assets exceeded his assets value limit for a homeowner. As a result, he had been overpaid Parenting Payment (Single) amounting to $30,385.82 and a debt had been correctly raised and was recoverable under the Act.
(b) As the overpayment was not attributable solely to an administrative error by the Department, the right to recover the overpayment could not be waived under s 1237A(1) of the Act.
(c)The Department could not write-off the overpayment under s 1236(1) of the Act.
(d) As special circumstances did not exist, the Department could not waive the right to recover all or part of the overpayment under s 1237AAD of the Act.
19. In response, Ms Riley’s submissions, as outlined in her statement of facts and contentions and orally, were as follows:
(a) The overpayment of Parenting Payment (Single) was attributable solely to an administrative error made by the Department and the overpayment should be waived under s 1237A(1) of the Act.
(b) If the overpayment was not caused solely by administrative error, the overpayment did not result wholly or partly from the respondent knowingly:
(i) making a false statement or representation; or
(ii) failing to comply with a provision of the Act; and
(iii)special circumstances existed (other than financial hardship alone),
such that the Department should waive the right to recover all of the overpayment under s 1237AAD of the Act.
20. Based on the submissions of Ms Riley and Mr Kilderry, there was no dispute as to the quantum of the overpayment or the manner in which it had been calculated.
consideration and application of the law
21. Under s 68(2) of the Social Security (Administration) Act 1999 (“Administration Act”), a person who is receiving Parenting Payment may be given a notice which requires the recipient to inform the Department of a specified event or change of circumstances or to give the Department a statement about a matter that might affect the payment to the person of the Parenting Payment. Section 72(1) of the Administration Act sets out the information to be included in the notice, including the period within which the person is to give the information to the Department. It was accepted by the parties that the letter forwarded to the respondent by Centrelink on 4 April 2002 was a notice in terms of s 68(2) of the Administration Act and had effectively been given to the respondent.
22. Section 1223 of the Act sets out the circumstances where a recoverable debt arises from the receipt of social security payments. A debt due to the Commonwealth by a recipient may be waived by the Department, pursuant to s 1237A(1) or s 1237AAD of the Act, if certain circumstances exist. Section 1237A(1) is mandatory where a debt has arisen which is solely due to an administrative error by the Department.
findings of fact
23. The Tribunal, after taking into account the evidence as a whole, including the legislation, authorities and submissions from the parties’ representatives, makes the following relevant findings:
(a) At the time of lodging his claim for Parenting Payment (Single), the respondent completed the application form and answered all the questions honestly and to the best of his knowledge. In answering one question, he indicated that he owned one property other than the home in which he lived. However, he omitted seeing a notation under the question that required him to complete and attach a real estate Module R for the property.
(b) On 4 April 2002 the respondent received a letter from Centrelink advising him that he had been granted Parenting Payment (Single) and requiring him to inform Centrelink within 14 days if his financial investments (or his assets other than financial investments) increased from the amounts stated in the letter.
(c) The respondent failed to thoroughly read the notification letter and was not aware of his obligation to inform Centrelink of any increases in his financial investments or other assets. The Tribunal accepts that the respondent’s failure was an innocent mistake.
(d) The respondent commenced receiving Parenting Payment (Single), based upon the application he had lodged with Centrelink.
(e) During personal interviews with Centrelink officers in June 2002 and December 2002, the issue of the respondent’s increased assets was not raised. The respondent believed that he had made full disclosure of his financial position when lodging his application in March 2002 and that no further disclosure was required.
(f) During an interview with a Centrelink officer on 9 November 2004, the respondent was shown details of all the financial investments and assets recorded for him with Centrelink. He noted that the amounts for his savings and managed investments were still recorded and that there was no record of his purchase of the Flinders Park property.
(g) Based on the information furnished by the respondent at the interview on 9 November 2004, Centrelink raised a debt of $30,385.82 in respect of the overpayment of Parenting Payment (Single).
24. The Tribunal is satisfied and so finds that the respondent received an overpayment of Parenting Payment (Single) during the period from 4 April 2002 to 3 November 2004. The overpayment occurred because the respondent failed to advise Centrelink that his assets other than financial investments (ie the Flinders Park property) were valued at more than $39,469. The Parenting Payment (Single) should not have been paid to the respondent as the value of his assets exceeded his assets value limit as provided in s 500Q(2) of the Act. The amount of the overpayment is a debt recoverable under s 1223(1) of the Act and is not capable of being written-off under s 1236(1) and (1A) of the Act.
Waiver under s 1237A(1) of the Act
25. There can be no question that the respondent did not receive the Parenting Payment that was overpaid in good faith. He believed he had done nothing wrong. Ms Riley submitted that the debt was attributable solely to an administrative error made by the Department. The Tribunal accepts that there were administrative errors made by the Department in processing the respondent’s claim. However, the Tribunal does not accept that the respondent did not contribute to the error that gave rise to the overpayment. Even if it is accepted that the respondent’s failure to ask for a Module R from Centrelink when he completed his application form in March 2002 did not contribute to the error, the Tribunal does not accept that his failure to advise Centrelink of the increase in his assets (other than financial investments) when he received the notification letter dated 4 April 2002 did not contribute to the error and to the overpayment. The fact that the respondent failed to thoroughly read the notification letter cannot excuse him from his obligation to notify Centrelink about a matter that might effect the payment to him of the Parenting Payment.
26. In support of her submissions, Ms Riley referred to the decisions in Re Lohner and Secretary, Department of Social Security (AAT 9888, 22 November 1994) and Re Bazley and Secretary, Department of Family and Community Services [2002] AATA 593. In both Re Lohner and Re Bazley, the Tribunals found that waiver was appropriate because the overpayments there had been caused solely by administrative error on the part of the Department. As such a finding has not been made in the present case, the decisions in both Re Lohner and Re Bazley are distinguishable.
27. For the reasons given, the Tribunal is not satisfied that the debt should be waived under s 1237A(1) of the Act.
Special Circumstances under s 1237AAD of the Act
28. It was contended by Ms Riley that, if the overpayment was not waived under s 1237A(1), it should be waived under s 1237AAD of the Act, on the grounds that there were special circumstances that made it desirable to waive.
29. Both Ms Riley and Mr Kilderry referred the Tribunal to a number of cases dealing with the issue of “special circumstances” under s 1237AAD. The expression has been considered on numerous occasions by Courts and Tribunals. In the case of Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal said (at page 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 on 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.
…” (emphasis added)
30. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court’s decision in Re Beadle, observed that special circumstances:
"… would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. …”
31. Ms Riley submitted that the following were special circumstances that made it appropriate for the Secretary (and the Tribunal) to exercise the discretion to waive the right to recover all of the overpayment in the present case:
(a) Centrelink had made a significant error in not identifying the need for a Module R when the respondent’s claim form was received. It was this error that was the main contributing factor giving rise to the overpayment. Had Centrelink acted correctly on the information provided by the respondent in his claim form, the overpayment would not have occurred. Moreover, the error was perpetuated in June and December 2002 when the issue of the respondent’s increased assets was not raised or identified by Centrelink officers at interviews with him.
(b) As a result of the debt, which would be a significant burden for him, the respondent had suffered a breakdown. He had gone through a horrific time, had suffered physically and was still very vulnerable.
(c) The respondent had an ongoing caring role for his incapacitated fiancée, for his father who is 83 years old and suffers from emphysema and for his mother who is 75 years old. Because of these roles and his age, he would have little or no opportunity for employment.
(d) Because of his financial circumstances, the respondent would find it very difficult to repay the debt. He had financial commitments to support his family, including his son and his fiancée.
(e) The sale of either of the properties at Torrensville and Flinders Park would be unreasonable and place the respondent, his fiancée and his family under considerable stress. His parents believed the home at Torrensville was theirs and he and his fiancée intended that the property at Flinders Park would become their home.
32. What will constitute “special circumstances” for the purposes of s 1237AAD must be considered on a case by case basis. In doing so, the Tribunal must have regard to the circumstances, other than financial hardship alone, to be satisfied what are “special”. On this point, the Tribunal notes that, in Secretary, Department of Social Security v Hales (1998) 82 FCR 154, French J in the Federal Court found that financial hardship was not an essential prerequisite for the exercise of the discretion in relation to special circumstances and waiver. In Hales, the Court on appeal observed that Ms Hales’ financial circumstances, in the opinion of the Administrative Appeals Tribunal below, could not be described as comfortable. But neither were they desperate or unduly straitened. In Re Hajar and Secretary, Department of Social Security (1988) 16 ALD 716, Senior Member B J McMahon said (at paragraph 43):
"Financial hardship has been considered as a possible component of special circumstances in a number of decisions. It is clear, however, that standing by itself, it would not amount to a ‘special circumstance’: Re Beadle (1984) 6 ALD 1 at 4. Furthermore the financial circumstances must be more than straitened. They must be ‘exceptional’: Re Colaiacolo (unreported, 24 April 1985, No 2109, (19)).”
33. In Riddell v Secretary, Department of Social Security (1993) 30 ALD 31, the Full Federal Court said (at page 38):
“… Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.”
34. Ms Riley referred the Tribunal to the decision in Re Secretary, Department of Family and Community Services and Natale (2003) 75 ALD 535. In that case, Deputy President S A Forgie and Deputy President D G Jarvis found that special circumstances existed because the “predominant reason” for the overpayment of Newstart Allowance there was administrative error by Centrelink. The Deputy Presidents found that “… it was Centrelink’s actions that led [Ms Natale] to misunderstand her obligations to notify it of changes in her husband’s DFRDB pension and so to be in error.” In other words, it was the action of Centrelink leading to the misunderstanding of Ms Natale that was the predominant reason for the error, rather than the Centrelink inaction that occurred in the respondent’s case. Notwithstanding Ms Riley’s submission, the Tribunal was unable to gain much assistance from a consideration of Re Natale.
35. The Tribunal did gain assistance from other cases referred to it. In Hales (supra), in considering the circumstances of social security benefits overpayments, French J said (at page 155):
“From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. …”
36. In considering the impact that financial hardship might have on the question of special circumstances, Deputy President I R Thompson, Member G Brewer and Member L S Rodopoulos commented in relation to the applicant in Re Napolitano and Secretary, Department of Social Security (AAT 8461, 23 December 1992) at paragraph 14:
“It is, we consider, necessary to consider the applicant's financial circumstances by comparison with those of persons who receive invalid pension at the maximum rate. …”
37. The Tribunal notes the financial position of the respondent, which is adverted to later in these reasons.
38. The Tribunal has had regard to other authorities on special circumstances. As was inferred earlier, what circumstances are “special” will vary from case to case. The Tribunal has come to the conclusion that the matters referred to in paragraph 31 above, on an overall analysis, cannot properly be regarded as circumstances which are special. Apart from the Centrelink error itself, the Tribunal accepts that the debt would be a significant burden for the respondent and that it has affected him physically and emotionally. He has various roles and responsibilities, not to mention his financial circumstances. The imposition of the debt has obviously impacted (or will impact) upon his future plans concerning the properties he owns at Torrensville and Flinders Park. On the other side of the equation, the respondent has significant assets (if his preserved superannuation benefits and his two properties are taken into account) which, on the evidence, have a total value of around $683,000. Ms Riley has submitted that the respondent’s property at Torrensville and his superannuation entitlement should be excluded, when considering his assets, pursuant to ss 1118(1) and 1118B(1) of the Act. These provisions deal with the calculation of a person’s assets for social security benefits purposes, rather than in determining a person’s capacity to repay a debt arising from an overpayment of benefits. The Tribunal is of the view that ss 1118(1) and 1118B(1) are of no relevance in the present case. There is evidence also that the respondent pays the costs of his son’s attendance at a private school, the fees for which are some $3,000 per annum. It appears the two properties owned by the respondent are not subject to any registered mortgage or other encumbrance and that he receives some financial assistance from his parents and his fiancée (see exhibit A1, T15 at page 148).
39. The Tribunal is not satisfied that special circumstances exist that make it desirable to waive, under s 1237AAD of the Act, the debt that has been raised by Centrelink. The Tribunal finds that there is nothing unusual, uncommon or exceptional about the respondent’s case that would justify some other conclusion. The respondent is not a person who is impecunious and in straitened circumstances. He has significant assets and his case is one where the taxpaying public would be entitled to expect that, in the ordinary course, the benefits paid to him, which he was not entitled to receive, will be recovered.
40. The Tribunal has sympathy for the respondent’s position. It would be the Tribunal’s strong recommendation to the Department that satisfactory arrangements be made with him to enable repayment of the debt over an extended period.
decision
41. The Tribunal sets aside the decision under review, and in the place of that decision decides that:
(a)all of the respondent’s Parenting Payment debt must be repaid; and
(b)the respondent is indebted to the applicant in the sum of $30,385.82.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .............J Coulthard...........................................
AssociateDate of Hearing 13 December 2005
Date of Decision 9 March 2006
Counsel for the Applicant Mr R Kilderry
Solicitor for the Applicant Centrelink Legal Services Branch
Counsel for the Respondent Ms M Riley
Solicitor for the Respondent Welfare Rights Centre (SA) Inc
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