Baird and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1611

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1611

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1290

GENERAL ADMINISTRATIVE DIVISION		)
Re		FIONA BAIRD

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date31 July 2007

PlaceBrisbane

Decision I set aside the decision of the Social Security Appeals Tribunal of 7 March 2007 and substitute a decision that Ms Baird has a debt of $3,957.35 for the period of 7 November 2001 to 19 April 2005 and that the amount of $2,459.97 be waived under s 1237A of the Social Security Act 1991. 

...............[Sgd]...............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – overpayment – parenting payment – repayment of debt in full or in part – overpayment due to administrative error – payments received by applicant in good faith – overpayments during relevant period inaccurately reported to Centrelink – waiver of debt not applicable as not due to sole administrative error – waiver of debt due to special circumstances not applicable – decision set aside – applicant has debt of $3, 957.35 and $2,459.97 be waived.

Social Security Act 1991 (Cth) ss 1236, 1237A, 1237AAD

Secretary, Department of Social Security v Hales (1998) 51 ALD 695
Dranichnihov v Centrelink (2003) 75 ALD 134
Groth v Secretary, Department of Social Security (1996) 40 ALD 541

REASONS FOR DECISION

31 July 2007   Senior Member P McDermott, RFD

Introduction

1.      On 7 March 2007, the Social Security Appeals Tribunal made a decision that the applicant, Ms Baird, had a parenting payment debt of $3,957.35 covering the period of 7 November 2001 to 19 April 2005 and waived the Commonwealth’s right to recover $2,256.46 of that debt.  The issue I have to decide is whether, during the period from 10 March 2004 to 19 April 2005, Ms Baird has to repay the overpayment of parenting payment in full or in part.

History of the Matter

2.      On 10 January 2007 Centrelink made a decision that during the period from 7 November 2001 to 19 April 2005 Ms Baird was overpaid parenting payment in the amount of $3,957.35.

3.      It is difficult not to feel sympathy for Ms Baird in her dealings with Centrelink. I certainly accept her contention that all times she acted in good faith in all her dealings with Centrelink.

4. The Secretary has made concessions that a number of the overpayments of Ms Baird’s parenting payment have been made due to administrative errors on the part of Centrelink. These payments amount to the sum of $2,459.97. The Secretary has also accepted the contentions of Ms Baird that these payments were received by her in good faith. I consider these concessions on the part of the Secretary as properly and fairly made. Accordingly I waive the amount of $2,459.97 under s 1237A of the Social Security Act 1991 (the Act).

5.      The main issue I have to consider relates to the overpayments which were made during the period from 10 March 2004 to 19 April 2005 (“the relevant period”). Ms Baird gave evidence before me that she had difficulty in reporting the actual payments that she received from her employment. She stated that she endeavoured to accurately inform Centrelink of her employment income but due to the variable nature of her employment she was unable to accurately inform Centrelink of the actual amounts of income that she received. 

Consideration

6.      I accept that Ms Baird reported the actual amount of her income during the relevant period to the best of her ability. She also made full disclosure to Centrelink of her pay slips when she was requested to do so. There was certainly a period of delay on the part of Centrelink in ascertaining the amount of the overpayment for the relevant period. Nevertheless, it is clear on the evidence before me that Ms Baird was in fact overpaid parenting payment during the relevant period.

7.      In the circumstances of the present case, it is reasonable that the Secretary is attempting to recover the amount of the overpayment from Ms Baird.  In Secretary, Department of Social Security v Hales[1] French J explained the concept in these terms: “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”. The fact that there has been a period of some delay in exercising the recovery of the overpayment does not excuse Ms Baird from her obligation to repay the debt owed to Centrelink.

[1] (1998) 51 ALD 695 at 696

8. I have considered whether the Secretary is required to waive the debt in respect of the relevant period due to administrative error under s 1237A of the Social Security Act 1991.  This provision is applicable in circumstances where the debt arose solely as a result of “sole administrative error” and where the payments were received in good faith. I am satisfied that this provision is inapplicable to the payments made by the respondent in the relevant period. There is no evidence before me that the payments made during the relevant period were due to sole administrative error.

9. I have also given consideration to the application of s 1237AAD of the Social Security Act 1991 which provides that the Secretary may waive the debt owed due to special circumstances. In considering the application of this provision I am bound by the Federal Court of Australia which has held that “special circumstances” are those which take a case “out of the ordinary”[2]. As Kiefel J explained in Groth v Secretary, Department of Social Security[3] “there must be some feature out of the ordinary” for special circumstances to apply to a case. 

[2] See for example, Dranichnikov v Centrelink (2003) 75 ALD 134 at 148.

[3] (1996) 40 ALD 541 at 454.

10. I accept that Ms Baird has suffered some personal and financial difficulties which, for reasons of privacy, I do not need to outline in these reasons. However, I consider that the evidence before me does not disclose the existence of special circumstances within the meaning of s 1237AAD of the Social Security Act 1991.

11. For the sake of completeness, I have also considered the possible application of s 1236 of the Social Security Act 1991 which enables the Secretary to write-off a debt. I outlined this provision to Ms Baird who, after considering the terms of the provision, stated that she did not wish to rely on the provision for her present application. In the result, I consider that this matter is not an instance where the debt should be written-off under s 1236 of the Act.

12.     As a result of this decision, the amount of the debt which is still to be recovered is (as at the date of this hearing) approximately $113. This amount is soon to be repaid by deductions of family tax benefit which are being made to Ms Baird.

13.     As a result of a new concession properly made by the Secretary before this Tribunal at the hearing, it is necessary for me to set aside the decision of the Social Security Appeals Tribunal and substitute a new decision which reflects the increased amount of the debt that the Secretary has conceded should be waived.

Decision

14. I set aside the decision of the Social Security Appeals Tribunal and substitute a decision that Ms Baird has a debt of $3,957.35 covering the period of 7 November 2001 to 19 April 2005 and that the amount of $2,459.97 be waived under s 1237A of the Social Security Act 1991.  

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD

Signed:         .....................................................................................
           E O’Gorman, Associate

Date of Hearing  17 July 2007
Date of Decision  31 July 2007
The Applicant was self represented
For the Respondent                  Mr B Avery, Departmental Advocate