Baird and Anor and Secretary, Department of Employment and Workplace Relations and Anor
[2007] AATA 1804
•26 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1804
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600388
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL ANTHONY BAIRD Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200700036
GENERAL ADMINISTRATIVE DIVISION ) Re GEMA PALMA BAIRD
Applicant
AndSECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date26 September 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[Sgd S D Hotop]...........
Deputy President
CATCHWORDS
SOCIAL SECURITY – parenting payment – family tax benefit – overpayments – debts due to Commonwealth – write off – preconditions of write off of debts not fulfilled – waiver – debts not wholly or partly attributable to administrative error made by Commonwealth – no special circumstances that make it desirable to waive debts – debts recoverable in full by Commonwealth – decision under review affirmed
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth), s 95, s 97 and s 101
Social Security Act 1991 (Cth), s 1236, s 1237A and s 1237AAD
REASONS FOR DECISION
26 September 2007 Deputy President S D Hotop Introduction
1. Michael Baird (“Mr Baird”) and Gema Baird (“Mrs Baird”) have applied to this Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 3 November 2006, which affirmed decisions of an Authorised Review Officer (“ARO”) of Centrelink, dated 26 May 2006, as follows:
· Mr Baird was not eligible to receive parenting payment in the period 24 July 2004 to 23 December 2005 and his parenting payment should have been cancelled in that period;
· in the period 24 December 2005 to 12 May 2006 Mr Baird had been underpaid parenting payment and arrears of $149.53 were payable to him;
· in the period 18 October 2003 to 23 December 2005 Mr Baird had been overpaid parenting payment by $1,211.86 and the amount overpaid was a debt to be recovered from him; and
· in the 2004/05 financial year Mrs Baird had been overpaid family tax benefit by $1,190.16 and the amount overpaid was a debt to be recovered from her;
and a decision of another ARO, dated 20 July 2006, affirming a decision of a Centrelink officer on 26 June 2006 to suspend Mr Baird’s parenting payment.
2. For the purposes of the present proceedings, the only matter which is in dispute is whether the abovementioned debts due to the Commonwealth by Mr Baird and Mrs Baird – comprising an overpayment of parenting payment in the case of Mr Baird, and an overpayment of family tax benefit in the case of Mrs Baird – should be recovered from them or, alternatively, should be written off, or waived in whole or in part, under the relevant “non-recovery of debts” provisions in the Social Security Act 1991 (Cth) (“the SS Act”) and the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (“the FA Administration Act”).
The Tribunal’s Determination
3. For the reasons which follow, the Tribunal has determined that there are no grounds for writing off or waiving either of the abovementioned debts and that each debt is recoverable in full.
The Factual Background
4. The relevant background facts, as found by the Tribunal on the basis of the “T Documents” lodged by each respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (comprising documents T1-T34 in respect of Mr Baird’s application, and documents T1-T13 in respect of Mrs Baird’s application), are as follows.
Mr Baird
5. Mr Baird, who at all material times was “partnered” (within the meaning of the SS Act) and had 3 children under the age of 16 years, was in receipt of parenting payment at the partnered rate under the SS Act from 5 June 2002. Mr Baird’s partner has, at all material times, been Mrs Baird.
6. In the period from October 2003 to March 2006 Centrelink sent to Mr Baird various notices, and Reporting and Income Statements, regarding his parenting payment which, inter alia, contained details of his, and his partner’s, income on the basis of which the rate of his parenting payment was calculated, and notified him that he was required to inform Centrelink within 14 days of changes in his relevant circumstances, including increases in his, or his partner’s, income.
7. Mr Baird was, at all material times, self-employed as a taxi driver.
8. Centrelink recorded Mr Baird’s income from self-employment as a taxi driver on the dates specified below as follows:
· 24 April 2002 – $3,272.00 per annum
· 30 July 2002 – $3,500.00 per annum
· 13 November 2003 – $3,570.00 per annum
· 10 March 2006 - $2,448.00 per annum.
9. On 27 January 2006 Centrelink was informed by the Australian Taxation Office (“ATO”), following a request for information by Centrelink on 9 January 2006, that Mr Baird’s net business income in the tax years specified below was as follows:
· 2002/2003 – $4,718.00
· 2003/2004 – $5,275.00
· 2004/2005 – $7,821.00.
10. By letter dated 31 May 2006 Centrelink requested Mr Baird to “provide a profit and loss for [his] taxi driving from 1.3.2006 to 31.5.2006”. The letter went on to state:
“You need to contact us or supply the documents within 14 days after the day on which this letter is given to you to avoid possible cancellation of your Parenting Payment Partnered.”
11. On 26 June 2006 Mr Baird was notified by Centrelink that his parenting payment had been suspended because he had not replied to the abovementioned letter of 31 May 2006.
Mrs Baird
12. Mrs Baird was granted family allowance under the SS Act on 28 July 1998 and she subsequently received family tax benefit under the A New Tax System (Family Assistance) Act 1999 (Cth) (“the FA Act”).
13. Mrs Baird, at all material times, was the partner of Mr Baird and had 3 “FTB children” (within the meaning of the FA Act).
14. On 21 September 2004 and 20 December 2004 Centrelink sent to Mrs Baird a notice about her family tax benefit which, inter alia, contained details of the income on the basis of which the rate of her family tax benefit was calculated, and notified her that she was required to inform Centrelink of, inter alia, changes in her, and/or her partner’s, income “when [she knows] they are going to happen or as soon as possible after they happen”.
15. Mrs Baird was, at all material times, employed by Mrs Mac’s Pty Ltd on a full-time basis.
16. Mrs Baird regularly provided to Centrelink information regarding her income which understated her actual income.
17. Mrs Baird’s adjusted taxable income in the 2004/2005 tax year was $30,700.00.
18. Mr Baird’s adjusted taxable income in the 2004/2005 tax year was $8,145.00.
Mr Baird’s Case
19. Mr Baird’s case centred on the procedures followed by Centrelink for the purpose of assessing the amount of his income from self-employment as a taxi driver in the relevant period and, on that basis, determining his entitlement to parenting payment in that period.
20. Mr Baird tendered in evidence (Exhibit A1) a bundle of documents comprising Centrelink records which appeared to confirm the following:
· he informed Centrelink that he was self-employed as a taxi-driver on 10 July 2001, at which time he was in receipt of a carer’s pension;
· he thereafter regularly contacted Centrelink by telephone and reported his fortnightly earnings from self-employment, but he was subsequently informed by Centrelink that income from self-employment was not assessed on a fortnightly basis but was instead assessed on the basis of a 12-weekly profit and loss statement provided by the customer;
· this information was confirmed by letter dated 13 September 2001 from Centrelink which stated (inter alia):
“You were advised that we ask customers who have commenced a business to provide a twelve weekly profit and loss statement… We ask customers to provide twelve weekly statements until they have completed their first tax return relating to the business. We then maintain the income declared on the tax return for twelve months…”;
· he provided such statements to Centrelink until November 2003 and, on the basis of his last statement, Centrelink assessed his annual income, as at 14 November 2003, as $3,750.00;
· on 1 September 2003 Centrelink sent to him a “Parenting Payment (partnered) service update” form for completion and return by 29 September 2003;
· that form required him, inter alia, to attach his latest personal and business income tax returns or, if they were not available or there had been a change in his income, a profit and loss statement for the past 13 weeks;
· he completed and returned that form to Centrelink on 10 September 2003, but he did not provide his income tax returns;
· on 10 September 2003 Centrelink telephoned him and requested his latest income tax return but he stated that he had never been required to provide income tax returns to Centrelink and that they should get it themselves from the ATO;
· Centrelink again telephoned him on 11 September 2003 and requested his latest income tax return, and he informed them that he would be preparing his income tax return for the 2002/2003 tax year next month but that he would not provide them with a copy of it and they should get a copy from the ATO.
21. Mr Baird said that Centrelink subsequently made no attempt to review his income, and did not provide appropriate forms to enable him to update his income changes, until 5 January 2006 when, in the course of an interview with Centrelink, he completed a “Parenting Payment Service Update” form (T3, pp 23-49).
22. Mr Baird noted that, following the abovementioned interview, Centrelink made a request to the ATO to provide details of his business income for the 2002/2003, 2003/2004 and 2004/2005 tax years, and that information was provided by the ATO to Centrelink on 27 January 2006 (see paragraph 9 above).
23. On the basis of that information, Centrelink decided to reduce the rate of Mr Baird’s parenting payment and Mr Baird was notified of that decision by letter dated 20 February 2006 (T8). Mr Baird’s parenting payment was subsequently cancelled by Centrelink and he was so notified by letter dated 17 March 2006 (T12).
24. Mr Baird contended as follows:
“…
4.9 There is a practical requirement under the relevant sections of the Act to specify how the person is to give the information or produce the document to which the requirement relates and the period within which he must comply. Fortnightly reporting procedures are only applicable to employment income and only the Applicant’s partner could utilise this avenue for reporting income. Self-employed income, particularly from a fluctuating source, can only be administered by an annual averaging process or by quarterly Profit and Loss statements. The letter to the Applicant 17 March 2006 stating ‘It is your obligation to notify Centrelink of any changes within 14 days and this includes changes in income on a tax return’ is a small step in filling the void caused by administrative neglect in failing to conduct appropriate income reviews.
4.10 Detailed annual income for both the Applicant and his partner has been provided to Centrelink where requested in 2003, 2004 and 2005. For example:
· Parental Income and Assets Test forms (Mod JY) provided in conjunction with dependent’s applications for Youth Allowance.
· Family Actual Means Test forms SY003 and Tax Assessment forms.
· Family Tax Benefit estimates and reconciliations – one overpayment 2004-05 of $190.
4.11 The only issue is whether the Applicant and his partner are to be prejudiced by that portion of overpayment caused solely by the respondent’s failure to correctly administer/review the Applicant’s income on an annual or quarterly basis between September 18 October 2003 (sic) and 23 December 2005.”
Mrs Baird’s Case
25. Mrs Baird did not appear at the hearing, and her case was presented by Mr Baird in conjunction with his own case.
26. The only additional matter that need be noted here is that Mr Baird acknowledged that Mrs Baird had understated the amount of her income in the details of her income which she provided to Centrelink in the relevant period, but he contended that she had done so unintentionally.
The Relevant Legislation
Mr Baird’s application
27. Section 500 of the SS Act sets out the qualification requirements for parenting payment, and s 503 provides that the rate of parenting payment for a person who is a member of a couple is worked out using the Benefit PP (Partnered) Rate Calculator at the end of s 1068B in Pt 3.6A. Section 500I(2) provides that parenting payment is not payable to a person if the person’s parenting payment rate would be nil.
28. Pursuant to s 68(2) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) Centrelink is authorised to give to a person, to whom a social security payment (which includes parenting payment partnered) is being paid, a notice that requires the person:
· to inform Centrelink if a change of circumstances (including a change in their, or their partner’s, income) occurs, or the person becomes aware that such a change of circumstances is likely to occur; and/or
· to give to Centrelink one or more statements about a matter that might affect the payment of the relevant social security payment to that person.
Section 81 of the Administration Act authorises the cancellation or suspension of a social security payment where a person, who has been given a notice under s 68, does not comply with the requirement of that notice.
29.
Chapter 5 of the SS Act deals with overpayments and debt recovery. Pursuant to
s 1223 of the SS Act, the amount of an overpayment of a social security payment to a person is a debt due to the Commonwealth by that person, and such a debt is recoverable from that person by the Commonwealth.
30.
Part 5.4 of the SS Act, however, deals with non-recovery of debts. Pursuant to
s 1236 of the SS Act, a debt may be written off, but only in the following circumstances:
“(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.”
Waiver of debts is authorised by, relevantly, s 1237A and s 1237AAD of the SS Act. Section 1237A(1) provides that the right to recover the proportion of a debt that is “attributable solely to an administrative error made by the Commonwealth” must be waived “if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt”. A note to subs (1) states:
“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 (3) provides that, for the purposes of this section, “a proportion of a debt may be 100% of the debt”. Section 1237AAD provides that the right to recover all or part of a debt may be waived where:
“(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.”
Mrs Baird’s application
31. Sections 21 and 22 of the FA Act set out the eligibility requirements for family tax benefit and s 58(1) provides that “an individual’s annual rate of family tax benefit is to be calculated in accordance with the Rate Calculator in Schedule 1”.
32. Section 25(1) of the FA Administration Act imposes an obligation on a recipient of family tax benefit to notify Centrelink of any relevant change, or likelihood of change, of circumstances (including a change in their, or their partner’s, income) “as soon as practicable after [the person] becomes aware” of the change or the likelihood of the change. A breach of s 25(1) is an offence punishable by imprisonment for 6 months.
33. Part 4 of the FA Administration Act deals with overpayments and debt recovery. Section 71(2) of the FA Administration Act provides that, if a person has received an amount of family tax benefit which is greater than the amount that should have been paid to that person under the family assistance law, the difference between the amount received and the amount that should have been paid is a debt due to the Commonwealth by that person, and such a debt is recoverable from that person by the Commonwealth.
34. Division 4 of Pt 4 of the FA Administration Act, however, deals with non-recovery of debts. Pursuant to s 95 of that Act, a debt may be written off, but only in the following circumstances:
“(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.”
Waiver of debts is authorised by, relevantly, s 97 and s 101 of the FA Administration Act. Those sections provide as follows:
“97(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.
97(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.
97(3) The Secretary must waive the administrative error proportion of a debt if:
(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; and
(c) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
97(4) For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.”
“101 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 the family assistance law; 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.”
Analysis and Findings
35. There is no dispute regarding the SSAT’s findings that:
· the correct rate of Mr Baird’s parenting payment for the period from 24 July 2004 to 23 December 2005 was nil, and, by reason of s 500I(2) of the SS Act, parenting payment was not payable to him in that period;
· Mr Baird received an overpayment of parenting payment in the amount of $1,211.86 in the period from 18 October 2003 to 23 December 2005, and that amount is a debt due by him to the Commonwealth;
· in the period from 24 December 2005 to 12 May 2006 Mr Baird was underpaid parenting payment by $149.53, and arrears of parenting payment in that amount were payable to him;
· Mrs Baird received an overpayment of family tax benefit in the amount of $1,190.16 in the 2004/2005 income year, and that amount is a debt due by her to the Commonwealth;
· Mr Baird failed to comply with a valid notice, dated 31 May 2006, given to him by Centrelink requiring him to provide a profit and loss statement for the period 1 March 2006 to 31 May 2006, and on that basis it was appropriate to suspend his parenting payment on 26 June 2006.
The Tribunal, on the basis of the evidence before it, accepts and adopts each of the abovementioned findings.
36. The matter which is in dispute, however, is whether either or both of the abovementioned debts – namely, the debt of $1,211.86 due to the Commonwealth by Mr Baird by reason of an overpayment of parenting payment, and the debt of $1,190.16 due to the Commonwealth by Mrs Baird by reason of an overpayment of family tax benefit – should be written off, or waived in whole or in part, under the relevant “non-recovery of debts” provisions in the SS Act and the FA Administration Act.
Should Mr Baird’s debt or Mrs Baird’s debt be written off?
37. The exercise of the power, conferred by s 1236 of the SS Act and by s 95 of the FA Administration Act, is conditional on the fulfilment of one or more of the circumstances specified in each of those sections (see paragraphs 30 and 34 above). There is, however, no evidence before the Tribunal to the effect that any of those specified circumstances is fulfilled in the case of Mr Baird. Mr Baird did not contend otherwise. The Tribunal notes, as regards Mrs Baird’s debt, that that debt has been fully recovered from her.
38. Accordingly, the Tribunal concludes that, in the circumstances of this case, it does not have the power to write off either Mr Baird’s debt or Mrs Baird’s debt.
Should Mr Baird’s debt or Mrs Baird’s debt be waived?
Mr Baird’s debt
39. The waiver obligation imposed by s 1237A of the SS Act applies only to a debt, or a proportion of a debt, that is “attributable solely to an administrative error made by the Commonwealth”.
40. Mr Baird submitted that his debt, comprising an overpayment of parenting payment in the amount of $1,211.86 in the period from 18 October 2003 to 23 December 2005, is attributable solely to Centrelink’s “failure to correctly administer/review [his] income on an annual or quarterly basis” during that period. He relied on published Centrelink policy guidelines regarding the procedure for assessing the income of a customer who operates as a sole trader. Those policy guidelines state (inter alia):
“…
When a customer becomes a sole trader, they must provide an interim profit and loss statement for the first 13 weeks of their business operation. Bills and receipts of payment used to develop the profit and loss statements may be required as supporting evidence of the statement. Note: A Business Activity Statement (BAS) cannot be used instead of a profit and loss statement as it does not have information on expenses.
A customer without a profit and loss statement should be issued with a ‘Profit and Loss Statement’ (SU580) form in which the customer can advise past or estimated future net profits over an appropriate period such as three months (13 weeks). At six months, and again at nine months and 12 months, the customer needs to supply a new interim profit and loss statement which covers the full period from the initial start date of the self-employment. At each contact, check if the customer needs to revise their current FAO income estimate and advise choices available to help reduce the chance of an overpayment during the reconciliation process. Profit and loss statements should be used for assessments until the customer has lodged an Income Tax Return which covers the self-employment income for a period of 12 months.
When a customer (or partner) is self-employed, entitlement will automatically be monitored annually by the Business Income Service Update process, which is a specially targeted service for the maintenance of accurate business income and assets records for customers to ensure they are paid their correct entitlement. Customers who receive this targeted service will automatically be sent a letter requesting Income Tax Returns and associated financial statements, so that an accurate assessment may be made.
However, in some cases, the use of a previous year’s return is not appropriate, as it does not give an accurate indication of current circumstances. If a customer (or partner) advises of a significant increase or decline in business income, a reassessment can be made at any time, based on available business records. In this case, interim profit and loss statements will need to be obtained (again the customer should be issued with a SU580).” (original emphasis) (part of Exhibit A1)
Mr Baird submitted that Centrelink did not follow those policy guidelines in his case in that it did not conduct a review of his income from self-employment as a taxi driver during the period from October 2003 to December 2005 or provide him with “appropriate forms to enable [him] to update income changes” during that period. He also submitted that Centrelink did not “apply notified income updates (via dependent’s Youth Allowance applications and Family Tax Benefit reviews) to [his] parenting payment”.
41. Having regard to the whole of the evidence, the Tribunal is not satisfied that Mr Baird’s debt, or any proportion thereof, is attributable solely to an administrative error made by Centrelink. Even if it be the case that Centrelink made an administrative error in failing to conduct a review of Mr Baird’s income annually in the period from October 2003 to December 2005 in breach of its abovementioned policy guidelines, such a failure on the part of Centrelink did not, of itself, cause Mr Baird to receive an overpayment of parenting payment in that period and thereby incur the relevant debt. It seems to the Tribunal that the primary cause of that overpayment and consequent debt was Mr Baird’s own failure to keep Centrelink fully informed of changes in his income from self-employment as a taxi driver in the period from October 2003 to December 2005, notwithstanding the various notices he received from Centrelink in that period informing him of his legal obligation to provide such information to Centrelink. The most appropriate and effective way in which Mr Baird could have discharged that obligation was by providing Centrelink with a copy of his profit and loss statement each quarter and a copy of his annual income tax return, as he had been advised to do by Centrelink in its letter to him dated 13 September 2001 (see paragraph 20 above). According to Mr Baird’s evidence, he did provide such statements to Centrelink up until November 2003 but apparently not thereafter for the remainder of the relevant period. Had Mr Baird continued to provide Centrelink with such statements – and provided, of course, that the information contained therein was correct – he presumably would not have been overpaid parenting payment and would not have incurred the relevant debt.
42. Accordingly, it cannot be said, in the Tribunal’s opinion, that any part of Mr Baird’s debt is “attributable solely to an administrative error made by the Commonwealth”, within the meaning of s 1237(1) of the SS Act. It follows, therefore, that the Commonwealth’s right to recover the whole of that debt cannot be waived under s 1237A(1) of the SS Act.
43. Section 1237AAD of the SS Act confers a discretionary power to waive the right to recover the whole or part of a debt in the circumstances specified in that section. Mr Baird submitted that there were “special circumstances” in his case which warranted waiver of at least a substantial part of his debt, namely, that Centrelink did not conduct a review of his income after September 2003 until January 2006 following which it was determined that he had been overpaid parenting payment in the period from October 2003 to December 2005 and had thereby incurred a debt due to the Commonwealth in the amount of $1,211.86. Had Centrelink reviewed his income on a quarterly, or at least an annual, basis during that period, in accordance with its policy guidelines, the amount of the overpayment and consequent debt would, he submitted, have been substantially lower.
44. As previously indicated, the Tribunal does not regard Centrelink’s failure to conduct an annual review of Mr Baird’s income in September/October 2004 and in September/October 2005 as the effective cause of Mr Baird’s receiving an overpayment of parenting payment in the period from October 2003 to December 2005 and thereby incurring the relevant debt. Rather, in the Tribunal’s opinion, that overpayment and consequent debt were primarily of Mr Baird’s own making by reason of his failure to keep Centrelink fully informed of changes in his income during that period, as he was legally obliged to do, at least by the provision of his quarterly profit and loss statements and his annual income tax return. In those circumstances the Tribunal is not satisfied that it would be unfair, unreasonable or otherwise inappropriate for the Commonwealth to recover the whole of the debt of $1,211.86 due to it by Mr Baird. Nor is the Tribunal satisfied that there are any special circumstances in Mr Baird’s case that make it desirable to waive the Commonwealth’s right to recover the whole of that debt from him.
45. Because the Tribunal is not satisfied that there are any “special circumstances… that make it desirable to waive”, within the meaning of para (b) of s 1237AAD of the SS Act, an essential precondition of the exercise of the discretionary power conferred by that section is not fulfilled. Accordingly, the Commonwealth’s right to recover the whole of Mr Baird’s debt cannot be waived under that section.
Mrs Baird’s debt
46. As regards the waiver obligation imposed by s 97 of the FA Administration Act, the Tribunal is satisfied, on the basis of the evidence before it, that:
· the relevant debt of $1,190.16 incurred by Mrs Baird by reason of an overpayment to her of family tax benefit in the 2004/2005 income year is attributable largely, if not entirely, to Mr Baird’s, and Mrs Baird’s, failing to inform Centrelink of the correct amount of their respective incomes during that year; and
· no part of that debt was attributable solely to an administrative error made by Centrelink or any other Commonwealth agency.
47. The Tribunal is also satisfied that that debt was raised before the end of the next income year (namely, the 2005/2006 income year), for the purposes of s 97(3) of the FA Administration Act. Furthermore, there is no evidence before the Tribunal on the basis of which it could be satisfied that Mrs Baird would suffer severe financial hardship, within the meaning of s 97(2) of the FA Administration Act, if that debt were not waived.
48. It follows that the Commonwealth’s right to recover the whole of that debt cannot be waived under s 97 of the FA Administration Act.
49. As regards the discretionary power, conferred by s 101 of the FA Administration Act, to waive the right to recover the whole or part of a debt, the Tribunal, having regard to the matters referred to in paragraph 46 above, is not satisfied that it would be unfair, unreasonable or otherwise inappropriate for the Commonwealth to recover the whole of the debt of $1,190.16 due to it by Mrs Baird. Nor is the Tribunal satisfied that there are any special circumstances in Mrs Baird’s case that make it desirable to waive the Commonwealth’s right to recover the whole of that debt from her.
50. Because the Tribunal is not satisfied that there are any “special circumstances… that make it desirable to waive”, within the meaning of para (b) of s 101 of the FA Administration Act, an essential precondition of the exercise of the discretionary power conferred by that section is not fulfilled. Accordingly, the Commonwealth’s right to recover the whole of Mrs Baird’s debt cannot be waived under that section.
Conclusion
51. It follows, from the abovementioned analysis and findings, that the debts of $1,211.86 and $1,190.16 due by, respectively, Mr Baird and Mrs Baird to the Commonwealth are recoverable in full.
Decision
52. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .....................[Sgd Y Maker]........................
AssociateDate of Hearing 6 August 2007
Date of Decision 26 September 2007
Representative for the Applicants Mr M BairdRepresentative for the Respondents Mr R Wright
Legal Services Branch
Centrelink
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