Ballo and Secretary, Department of Family and Community Services

[2005] AATA 282

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 282

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/305

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ZIAD BALLO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member Mrs Josephine KELLY

Date1 April  2005

PlaceSydney

Decision

1. The reviewable decision of the Social Security Appeals Tribunal of 3 February 2004 to cancel the Special benefit from 1 April 2003 is affirmed.

2. The reviewable decision is varied in that the debt for the period 1 April to 15 October 2003 is waived.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Special benefit payment – eligibility denied as not unable to earn a sufficient livelihood – debt accrued while receiving payment –  not informed of debt until special benefit payment cancelled retrospectively after lengthy delay – decision varied.

LEGISLATION

Social Security Act 1991 ss 729, 729(2), 1223(1), s 1234AAD, 1237, 1237AAD
Social Security (Administration) Act 1999 s 80(1)

CASELAW

Re Te Velde & Director- General of Social Services (1981) 3 ALN N111

REASONS FOR DECISION

Senior Member Josephine KELLY   

1.The Applicant, Mr Ziad Ballo, was born in Iraq on 17 October 1983 and is 21 years old. He arrived in Australia on 10 May 2000 and has been accepted as a refugee.  He has a Temporary Protection Visa. He was granted the special benefit on 19 August 2000.  Shortly after that, he moved to Sydney to reside with his older brother, Mr Laith Yousif, who is a permanent resident in Australia.

2.Mr Ballo seeks the review of two decisions by the Social Security Appeals Tribunal (“the SSAT”). The Respondent is the Secretary, Department of Family and Community Services (“DFACS”) On 23 October 2003 Centrelink notified Mr Ballo that it had cancelled his payment of special benefit from 16 October 2003 “at his request” (T29/95) and on 27 October 2003 it raised a debt for the period 1 April 2003 until 15 October 2003 of $4,385.34 which was recoverable pursuant to s 1223(1) of the Social Security Act 1991 (“the Act”) (T13/58). Following the review of those decisions on 5 January 2004 by the Authorised Review Officer who affirmed them, Mr Ballo sought a review by the SSAT. On 3 February 2004, the SSAT affirmed the earlier decision to cancel the special benefit, set aside the decision to recover a debt of $4,385.34 and substituted a new decision that the recovery of the debt is to commence at the end of a six month period from 3 February 2004, or sooner if Mr Ballo is earning income from employment or business (T2).

Issues

3.The issues in these proceedings are:

§Did Mr Ballo qualify for special benefit as of 16 October 2003?

§Did Mr Ballo qualify for special benefit from 1 April until 15 October 2003? I        note that the debt period was for the pay periods 20 March 2003 to 15 October 2003. 

§Is the special benefit paid to Mr Ballo during that period a debt?

§If there is a debt, are there any reasons not to recover it?

Law

4.The qualification requirements for special benefit are set out in section 729 of the Act Relevantly, the section provides:

Qualification for special benefit

729(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.

Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

729(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a)   no social security pension is payable to the person during the period; and

(b)   no other social security benefit is payable to the person for the period; and

(bb) …; and

(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

(f) …

5.There is no dispute that Mr Ballo is not entitled to any other pension or benefit because he does not satisfy residency requirements. Therefore he satisfies s 729(2)(a) and (b). The question is was he at the relevant time unable to earn a sufficient livelihood as set out in s 729(2)(e).

6.Section 80(1) of the Social Security (Administration) Act 1999 (“the Administration Act”) provides:

If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)  who is not, or was not, qualified for the payment; or

(b)  to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

7.Section 1223(1) of the Act provides:

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.

8.Section 1237 of the Act limits the circumstances under which the recovery of a debt may be waived. The respondent contends that the only relevant provision is waiver under section 1237AAD because of ‘special circumstances.’ The section 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.

Why was the special benefit cancelled?

9.The trigger for the cancellation of Mr Ballo’s special benefit occurred on 31 March 2003. Mr Norman Vesty from the Cash Economy Team of Centrelink attended an auction where he saw Mr Ballo handing out business cards for a delivery business (T9/41).  Mr Vesty’s statement says that he was approached by Mr Ballo who handed him a business card for L&M transport removals, and offered to transport any goods purchased.  Mr Ballo proceeded to give quotes and make bookings with other purchasers.  Mr Vesty asked his sister to collect business cards from transport companies present at an auction she attended a month later.  She returned with a card for L&M transport removals.  Mr Vesty checked one of the mobile numbers on the card which was that given for a current special benefit recipient.  Mr Vesty identified Mr Ballo as the person who had approached him at the auction when Mr Ballo attended a Centrelink interview on 23 October 2003 and presented himself as Ziad Ballo. 

10.Mr Vesty gave evidence and was cross-examined at the hearing.  In light of all of the evidence, I accept the evidence of Mr Vesty about what happened at the auction.  

11.The investigation following Mr Vesty’s activities in March and April comprised of searches of the telephone numbers on the business card identifying Mr Ballo, on 2 April 2003 (T12/50), and vehicle registration searches which were apparently carried out on 20 October 2003 (T12/51) and 2 April 2003 (T12, pages 53 to 57).  

12.Document T30 shows the following.  On 16 October 2003 “Joanne” from Centrelink sent a “Q001” document to Mr Ballo advising him that an interview had been booked for 22 October 2003 at 10 am.  “Joanne” is Ms Cox whose reference number “S5F” appears on various documents (see T13).  Ms Cox also gave evidence at the hearing.

13.Mr Ballo telephoned on 22 October advising he was unable to attend because he was on his way to a dentist in Sydney.  He was asked to provide a certificate from the dentist. The interview was rescheduled for 3 pm the next day, which he did attend and saw Ms Cox. He did not have a certificate from the dentist because:

“he did not actually see the dentist … he had his name placed on a waiting list for braces”. 

14.He did not have an appointment with the dentist.  When asked if he was working he said he was not.  He also denied having worked since arriving in Australia.  He said he was not allowed to work on a temporary protection visa.  He denied having a car registered in his name.  He was shown an RTA print-out showing a list of six vehicles currently and previously registered to him.  He asked what vehicles were on the list.  When asked how he was able to afford the vehicles Mr Ballo responded that his brother assisted him. When asked how his brother was able to help him when he was also on a benefit, Mr Ballo said

“the car did not cost much and his brother saved some money.” 

15.When asked for his mobile number he gave one of those appearing on the business card given to Mr Vesty in March (Exhibit T9)  When shown and asked about the business card, Mr Ballo said the truck belonged to the business and not his brother but was registered in his brother’s name.  When shown that the mobile telephone number he had given was the same as one that appeared on the business card he said he had helped pay for the business cards

“but the business is owned by a person who lives in Merrylands”.

16.His answer to the question why did he make that payment was not responsive.  He said that the owner of the business doesn’t speak English and so he was handing the cards out on his behalf.  He denied doing any work.  When told that he had handed a business card to a Centrelink officer at Graysonline Auctions several months ago, Mr Ballo could not remember doing so.  When it was suggested to him that he would not remember handing it to a specific person if he was handing them out to many people, he said he had not done much work, only working for about a month. When asked why he had not notified Centrelink of his earnings he repeated that he had not done much work.  He did not say that he had not been paid.  When asked why he left the job he said the work was hard and he did not like it, and you hear things when you’re working, but on questioning did not explain what he had heard. Later in the interview he repeated that the work was hard and he prefers to sit at home and do nothing. He said he could not manage financially on what Centrelink paid him.  When asked how he expected to live in Australia he said he expected to get special benefit. 

17.Ms Cox advised Mr Ballo that special benefit is paid when a person has no capacity to support themselves and the he had proven that he does have a capacity for work by obtaining employment. He was advised that it does not matter if he is no longer working but only that he has proven a capacity for work. He was then further advised that he had incurred a debt due to his employment. Mr Ballo stated that he wanted his payments cancelled as he was

“able to get money for myself”.

In cross-examination Mr Ballo denied saying that. He left the interview. The   

document concludes:

“Special Benefit cancelled.  Debt to be followed up.” 

18.I note that in oral evidence of Ms Cox and Mr Vesty they said that Mr Vesty was present during this interview.

19.On 29 October 2003 Mr Ballo telephoned Ms Cox and requested an interview to discuss the cancellation (T14).  The conversation repeated some of the matters discussed in the earlier interview. Although he was told he would not get special benefit because he is able to work, Mr Ballo stated that he could ‘prove’ about his work and could bring in documents.  The interview took place at 11 am on the same day (“the second interview”).  Some of the interview repeated what had been said at the earlier interview, however, some further information was given. Mr Ballo took copies of documents belonging to his brother which showed that his brother had declared earnings from self-employment to Centrelink.  Mr Ballo repeated that his brother did not own the L & M business but then said he did own it with another person. When queried whether he understood the questions Mr Ballo stated he has no problem with English and understood. He said his number was on the business card because his brother does not speak English well and so he took calls and arranged business for his brother. He said he did not hand out any business cards.  When asked what he had meant when he had said at the first interview that he could get money in other ways, Mr Ballo asked whether

“I wanted him to rob people and steal things”

and when asked why he would think that, he replied because

“I had stopped his payments”.

20.On this occasion Mr Ballo denied the mobile telephone number on the business card was his. He was told that he had incurred a debt because of his work and would have to pay money back. 

21.On 30 October 2003 Mr Ballo rang Centrelink after having received his debt advice and asked Ms Cox how he was meant to repay the debt. The conversation became heated with Mr Ballo speaking over the top of Ms Cox.  Among other things Mr Ballo asked her twice why are you

“trying to f**** his  life up”.  

22.On this occasion Mr Ballo said the business was his brother’s and that he did not work at all. Ms Cox terminated the call two times because of Mr Ballo’s behaviour. Mr Ballo rang back both times and the conversation continued with Ms Cox repeating advice which had previously been given, that is Mr Ballo had an ability to support himself and cannot be paid special benefit and that she had nothing against him personally, and Mr Ballo stating that he was not working.  The conversation ended after Mr Ballo said he would take the officer to court and make her pay costs.   

23.In cross-examination, Mr Ballo said that he was angry when he saw Ms Cox and that “she forced me to say stuff” and threatened to call the police if he did not leave. Ms Cox denied threatening to call the police. I accept Ms Cox’s evidence that the notes that she has taken in relation to the interviews and telephone conversations and which are in evidence, are accurate.  I prefer her evidence to that of Mr Ballo. His evidence lacked credibility because he gave various versions according to what he apparently perceived would assist his case, as is shown by examples provided above and below.

The case for Mr Ballo

24.Two statements made by Mr Ballo were tendered.  The first was dated 16 June 2000 (Exhibit A4) and the second 1 December 2004 (Exhibit A5.) He also gave evidence at the hearing and was cross-examined.

25.Mr Ballo’s first statement was concerned with his life in Iraq and his fear of returning there. 

26.In his second statement Mr Ballo said that he was on a temporary visa and

“I now know that I am allowed to work and have known that for a long time.”

27.During his first eighteen months in Australia he studied English and after that began looking for work. It was hard to find work. The first job that he had was making lounges but he lost it after four days because he was in a fight. During his oral evidence Mr Ballo said that he was working with a friend in that job and the fight was between the two of them. He was charged but not convicted and not paid for his work.  

28.His second job involved working in a market with a friend but it ended after three days because he had a fight with a customer and was charged with assault.  During oral evidence he said he had been charged, convicted and fined $2,000 which he had not paid. These jobs were probably in 2002/early 2003. 

29.Mr Ballo claimed the reasons for the fights were that

“I have an anger problem and can not take what people say like that.”

30.These were the only jobs Mr Ballo said he had prior to casual construction work which he began in March or April 2004. Mr Ballo stated that although hard he enjoyed the construction work which was for friends and stated that “Mostly I get left alone to get on with my work. Also I think I have changed a bit and find it easier not to get into fights than I did a couple of years ago.”  He said he did all work offered which varied from 3, 4 or 5 days a week. 

31.Mr Ballo also referred to his anger problem in the context of an occasion when he hit “a friend” and was charged with assault.  He said he had four assault charges against him. Two charges were dismissed and he was convicted of two and fined $2,000. Those had occurred during early to mid 2003.  What provoked the fights referred to was not clear.  He said during the hearing, that he could not control his temper and does not want to work so he does not get into trouble. He also said his temper might be a bit better but he had been in a fight in Cabramatta two weeks before the hearing with two men who were strangers.  He broke his hand which was bandaged at the time of the hearing. He thought he might be charged. Before that he fight he had been working in the same job he had started in March/April 2004.

32.In relation to the business of his older brother Mr Laith Yousif, L&M Transport Removals, he stated in Exhibit A5 that he went to two or three auctions with his brother and once helped his older brother lift a fridge and washing machine. He did hand out business cards at the auction for his brother and spoke to customers on his brother’s behalf.  In his oral evidence, he said he did not line up removals, only worked for a month and was never paid. He stated that

“I didn’t stop helping Laith because it was too hard.”   

33.He explained that his contact telephone number given to Centrelink was on the business card because the number used to be his brother’s number.  He used the number but he did not have it all the time.  He said that his brother

“had it whenever he wanted it as it was really his card but I used it too.”

34.When his brother ran the business if this mobile number was called, Mr Ballo stated that he just wrote down the number and gave it to Laith or may have given the caller Laith’s number. Mr Ballo said he also gave Centrelink his brother’s home number.

35.When describing the conversation that he had with Ms Cox, Mr Ballo stated that he would have said that ‘my brother, just him’ owned the business and not that anyone else owned the business. He denied saying that he worked for a month. He stated:

“I didn’t know what I was saying because I was so angry”

and   

“I might have said “yeah” to stuff she said after I was angry.”

36.He accused Ms Cox of being rude to him.  He said he would not have said that he expected to live on the special benefit when he came to Australia because he did not know about social security here. I do not accept that or his denying that his brother had told him about social security or special benefit.

37.In Exhibit A5 Mr Ballo provided a different explanation about the six motor vehicles currently and formerly registered in his name from that given at the first interview when he said his brother had helped him buy them. He said that a friend who owned a panel beater’s shop had put the cars in his name and that he had gotten in trouble for this as they were stolen. He told the SSAT that he had been convicted and fined. He said that the only car that was registered to him was his car that his uncle had given him money for. In relation to the sum of $5,370 deposited into his account on 8 January 2002 (T31/115), Mr Ballo said during cross-examination that it was sent to him by his uncle in America to buy a car and that the withdrawal dated 14 January 2002 (T31 p 116) of $4,800 was the purchase of the car. This explanation does not accord with any of the acquisition dates for vehicles in his name in T12/52. Given the different accounts provided by Mr Ballo, I am not able to determine on the evidence what happened in relation to the vehicles or these funds and I do not infer that the monies were related to payment for employment. 

38.Mr Ballo lived with his brother until early 2004.  During Mr Yousif’s month-long trip overseas at the end of 2003, Mr Ballo was arguing and having problems with his sister-in-law. Mr Ballo was not contributing to the household income once his Centrelink benefits stopped. A few months after Mr Yousif returned to Australia, he had a physical fight with Mr Ballo and kicked him out of his home.  This was confirmed by Mr Yousif’s evidence.  Mr Ballo then stayed with friends and borrowed money from his girlfriend to buy food. He says he owes her $1800 but cannot pay it back.

39.Mr Ballo summarised his financial position as follows. He pays rent of $90 per week, and has debts of $4,000 which includes fines, $1,800 to his girlfriend and $200 to $300 to another friend. 

40.Mr Ballo gave evidence that sums of money deposited over an 18 month period during 2002 and 2003 totalling approximately $2,000 (T31, pages 118, 121 and 130) which were not his special benefit payments were sums paid by cheque to him for his brother when Mr Yousif worked at the markets. That is, he was not earning any money from employment.

41.Mr Yousif is also a refugee and lives in Australia with his wife and three children.  He has been in Australia for about 10 years. A statement by him was tendered (Exhibit A3) and he was cross-examined. His main source of income is the Newstart allowance.  In 2003 he began to sell second hand goods. He bought a small truck for the purpose which he still has and is still paying off by credit card.  He would buy goods at auctions, take them to a market to try to sell them, but if unsuccessful, he would sell back to the auctioneer. The auctioneer would pay by cheque which was made out to Mr Ballo, who then deposited it into his cheque account.  Therefore, it was not Mr Ballo’s income because he had to repay it to Mr Yousif.  Mr Yousif sold second hand goods for 10 or 11 months.    He said Mr Ballo accompanied him two or three times and helped carry goods.  

42.Having the truck, Mr Yousif also decided to undertake some removalists or carrying work for people who purchased goods at the auctions he attended.  He had some business cards printed for the purpose which included the letters “L&M” which stood for his name and the names of his children, all of which started with the letter “M”. He had his home number and two mobile numbers printed on the card. He used only pre-paid sim cards and therefore the telephone numbers change all the time. Again, Mr Ballo accompanied him and assisted him on two or three jobs. Mr Ballo’s English is better than Mr Yousif’s and so Mr Ballo took some telephone calls for Mr Yousif about removals.  Mr Yousif did not make very much money from either of these activities.  He only did the carrying work at the auctions on a Wednesday for two months. I understand that he stopped because people asked him whether he had insurance which he did not.

43.Mr Yousif also said that Mr Ballo did not earn any income from working for him doing removalist work or returning things to auctions. He did not pay Mr Ballo because Mr Ballo was living with him, his wife was taking care of him, he was his brother but was also like a son.  At that time Mr Ballo was paying board from his Centrelink benefit.

44.Mr Yousif emphasised that he had never had trouble with Centrelink or the Police but that Mr Ballo has had trouble with the police.

45.I accept that Mr Ballo was not paid for any work that he helped Mr Yousif do either at the markets or at the auctions but that he did assist him as Mr Yousif described. I am not satisfied that any of the cheques paid into Mr Ballo’s account in 2002 related to Mr Yousif’s work at markets because Mr Yousif said that work began in 2003.  The paucity of other evidence does not enable me to make a finding as to the source of those funds.

46.Ms Sant who appeared for Mr Ballo emphasised his age, limited education and skills, little work experience, lack of family support, particularly since his brother threw him out of his home, and that he has a “disability” by which I understand her to refer to general anxiety disorder and symptoms of PTSD For those reasons she said Mr Ballo “is unable to earn a sufficient livelihood for (himself)” and therefore satisfied s 729(2)(e) of the Act.

47.She relied on the evidence of Ms Vijaya Manicavasagar, a psychologist, whose report dated 14 October 2004 became Exhibit A2.   When Mr Ballo was seen by Ms Manicavasagar on 11 October 2004, he was working as a builder’s labourer on a casual basis and had a girlfriend with whom he had been for one and half years. Mr Ballo described the relationship as “stable”.  Ms Manicavasagar described Mr Ballo’s early life in Iraq, including a good relationship with his parents and siblings, persecution suffered because the family was Christian and the departure from Iraq of his father and older brother following the detention and interrogation of other family members.  He has not seen or heard of them since and is very worried about them.  She also stated that Mr Ballo had lost touch with his mother and disabled brother who are still in Iraq.  Ms Manicavasagar’s opinion was that Mr Ballo fulfils criteria for Generalized Anxiety Disorder quoting DSM-IV and suffers symptoms of post traumatic stress

disorder.  She also referred to Mr Ballo’s temper and that he had been charged      
     with assault several times.  She said that

“These outbursts are more likely to occur when he has dealings with people in positions of authority the origins of which can probably be traced back to his experiences of persecution and violence in Iraq”. 

48.She found that Mr Ballo

‘is willing and capable of working in a productive capacity as long as he does not feel threatened or feel “put down” by people in positions of authority’. 

49.She also recommended that Mr Ballo be referred for psychological treatment to address his anxiety and anger problems although she foresaw barriers to Mr Ballo’s doing this, including his mistrust of government appointed services. 

50.Therefore in Ms Manicavasagar’s opinion, the only limitation on Mr Ballo’s willingness and capacity to work was that he not feel threatened or “put down” by people in authority. 

51.Mr Ballo’s temper has resulted in convictions, fines, injuries, the loss of two jobs, and having to leave his brother’s home. He said that he thought it was getting better, although he had been in a fight just before the hearing. He stated that his temper was the reason he could not go to work.  I do not accept that his temper “prevents” him from working, now or in the past. After the special benefit was cancelled he got a job and at the date of hearing had been working for a concreter for at least seven months with no apparent difficulty and enjoying the work, which is admirable. Mr Ballo did not know what would happen about his work once his hand had recovered but the person he worked for was a friend and he thought he might continue to get work. 

52.I agree with Ms Manicavasagar that Mr Ballo has a capacity to work and I find that he has had since at least 1 April 2003.  He was not “unable to earn a sufficient livelihood” as of 1 April 2003 or until and including 15 October 2003. I accept that he worked with his brother on a few occasions in relation to the removalist work and at the markets and was not paid.  However that he did little work and was not paid does not establish that he was “unable to earn a sufficient livelihood”. Apart from an initial search for work after he finished studying English, there was no evidence before me that he had looked for work at all. There is reference in the SSAT decision to a fairly desultory search in early 2004.  Mr Ballo was able to work in four different jobs (including the two different kinds of assistance he gave to Mr Yousif) before special benefit was cancelled.  He was very angry when it was cancelled and the debt raised, as is evident from the quotation given earlier. I find that Mr Ballo had no intention to work when he was being paid special benefit. Once it was cancelled and that was affirmed by the SSAT, he found a job and continued to work in it until the time of the hearing. He was off-work because of an unrelated fight.  Although he gave evidence of having debts, there was no evidence of what his income and other expenditure has been since he has been working. 

53.I do not accept Ms Manicavasagar’s opinion that Mr Ballo’s temper outbursts are more likely to occur when dealing with people in authority, or mean as Mr Ballo seemed to contend that he is unable to work. This is confirmed by the fact that he worked during 2004 without any apparent problems arising because of his temper. Ms Manicavasagar’s report does not give a history of his fights with friends and his brother. On the evidence, in the past Mr Ballo has reacted badly physically and verbally to anything which displeased him, regardless of whether the individuals were in authority, friends, a relative or strangers. Although fortunately as Mr Ballo said himself, he now finds it easier not to get in to fights than he did a couple of years ago.   

54.Although not argued in the proceedings as a reason for his not working, I address Mr Ballo’s comment during the interview that he was not allowed to work while on a temporary protection visa.  He did seek work successfully but briefly which is inconsistent with such a belief. In documents relating to his special benefit sent to him from 24 September 2001 until May 2003 by DFACS (T5, T6, T7, T8, T10 and T11) there were statements advising him to advise

Centrelink within 14 days about events or changes in circumstances affecting    
     this payment, including: 

“You start paid work or any form of profession, trade, business or self employment; …”.   

55.On the evidence Mr Ballo was happy sitting at home doing nothing while on special benefit. He was angry and resentful when it was cancelled. He knew that if he worked and earned an income he would lose the special benefit payment. I do not accept that he did not work because he believed his visa did not allow him to.

56.Accordingly, I am not satisfied that Mr Ballo was ‘unable to earn a sufficient livelihood’ within the meaning of s 729(2)(e) of the Act from 1 April 2003 to and including 15 October 2003 or thereafter. In coming to that conclusion I rely on the authority of Re Te Velde and Director-General of Social Services (1981) 3 ALN N111. The decision to cancel special benefit pursuant to s 80(1) of the Administration Act was correct.

57.It is therefore unnecessary to consider whether I should exercise the discretion under s 729(2).

58.It follows that Mr Ballo was not entitled to special benefit from and including 1 April  2003 to 15 October 2003 and from 16 October 2003.   

59.Should the debt raised be waived? The Department relied on Mr Ballo’s failure to advise that he was receiving payment for working for his brother’s business as the failure to comply with a provision of the Act such that recovery cannot be waived under s 1237AAD. I have found that he was not paid for that work. Accordingly, the debt did not result wholly or partly from the Mr Ballo knowingly failing to comply with a provision of the Act (s 1234AAD).

60.In my opinion it is appropriate to waive the debt for the period 1 April to 15 October 2003 inclusive because of the following circumstances. Mr Ballo was receiving special benefit without question for three years.  He had no notice from the Department until 23 October 2004 that his special benefit was at risk from 1 April of that year, during which time the debt accrued.  There was apparently nothing done in terms of investigation of Mr Ballo between the first week of April 2004 and the interview on 23 October of the same year. Why there was a delay of more than 6 months was not explained and I find it an unsatisfactorily lengthy delay. Mr Ballo has other debts to repay, no family support and in the past was on the margins of criminal activity. It would therefore be unfairly harsh to require Mr Ballo to repay those monies when he has obtained a job and seems to be improving his personal situation, including getting into fewer fights.  He should be given the opportunity to establish himself without the added unfair burden of the debt. 

Decision

61.The SSAT’s decision to cancel the special benefit is affirmed and its decision in respect of the debt for the period 1 April to 15 October 2003 is varied in that it is waived.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member

Signed: Sacha Keady
Associate

Date/s of Hearing  1 December 2004
Date of Decision  1 April 2005
Counsel for the Applicant         Kathy Sant
Solicitor for the Applicant          Legal Aid Commission
Solicitor for the Respondent     Secretary Department of Family and Community         
  Services