Bisset and Department of Family and Community Services

[2000] AATA 1120

DECISION AND REASONS FOR DECISION [2000] AATA 1120

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/517

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

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date19 December 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review and directs that the debt continue to be deducted at an amount of not more than $20.00 per fortnight.          

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
SOCIAL SECURITY – family allowance – 10% error margin in estimated income – calculation of overpayment. 
Social Security Act 1991 ss 885, 1223(3), 1236, 1237A(1), 1237AAD
Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

19 December 2000           Deputy President DP Breen, Presidential Member                  

1. This is an appeal against a decision of the Social Security Appeals Tribunal made on 23 May 2000 to affirm a decision by an Authorised Review Officer to raise and recover an overpayment of family allowance amounting to $1,725.45 for the period 2 July 1998 to 2 November 1999.

2. The matter was heard by me in Coolangatta on 22 November 2000.  The applicant, Jill Bisset, represented herself while Mr P Kanowski, Departmental Advocate, represented the respondent.  The "T" Documents were taken into evidence and the applicant gave oral evidence at the hearing.

3. Ms Bisset provided Centrelink with an estimate of her combined income for 1998/1999 on 2 July 1998 in the amount of $29,479. On 3 November 1999 she advised Centrelink that the actual combined income was $33,759. As the actual income was greater than 110% of the estimated income, the overpayment of family allowance during that period is a debt which is recoverable by the Commonwealth of Australia under subsection 1223(3) of the Social Security Act 1991.  Ms Bisset said that it had been difficult to estimate their income over a whole year as her husband had changed jobs and received more overtime than he had at his previous job.

4. Ms Bisset accepted that she had been overpaid family allowance but contended that the debt raised was excessive.  She submitted that although the difference between the actual amount and the estimate was $4,280.00, she should be given the benefit of the 10% error margin.  She submitted that this would mean that the overpayment would be only $1,332.10.

5. Section 885 of the Act is very clear that the re-calculation of the benefit payable is on the actual income earned.  As such, the Department re-assesses the allowance which the applicant was actually entitled and deducts from that the amount paid.  The difference is the overpayment.  The 10% error margin is the acceptable amount of error which the Department is willing to bear before it will seek to recover monies.  It is, in effect, a statutory indulgence rather than a right accruing to the applicant.  The method of re-calculation is binding on both Centrelink and this Tribunal.  Therefore, the overpayment as calculated at $1,725.45 stands.

6. Section 1236 of the Act provides that a debt may be written off if the person is suffering severe financial hardship and has no capacity to repay the debt.  Ms Bisset said that things were financially very tight.  However, her partner is still working and earning around $30,000 a year and they are still receiving Centrelink payments.  The debt is currently being deducted from Centrelink payments at the rate of $20 per fortnight.  In these circumstances, she has the capacity to repay the debt and it is not appropriate to write-off the debt under this provision.

7. Section 1237A(1) of the Act provides that a debt may be waived if it is solely due to the administrative error of the Commonwealth.  That is not the case here as the payments were made based on the income estimates given by Ms Bisset.

8. Finally, Section 1237AAD provides that a debt may be waived if there are special circumstances, other than financial hardship alone, and it is more appropriate to waive the debt than to write it off.  The case of Beadle and Director-General of Social Security (1984) 6 ALD 1 requires the circumstances to be considered as "unusual", "uncommon" or "exceptional" in order to be classed as "special" under Section 1237AAD.  It cannot be said that the inability to accurately estimate income is an "uncommon" or "exceptional" circumstance.  It is the very nature of these provisions that some people will over-estimate and so may be entitled to back-pay and others will under-estimate and have to repay some of the allowance they received.  There are no other circumstances in this case which could be considered "special".  Therefore, it is not appropriate to waive the debt under this provision.

9. For the above reasons the Tribunal affirms the decision under review and directs that the debt continue to be deducted at an amount of not more than $20.00 per fortnight.

   I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  22.11.00
   Date of Decision  19.12.00
   Rep. for the Applicant              Applicant appeared in person
   Solicitor for the Respondent    Mr P Kanowski, Departmental Advocate