Bond and Secretary, Department of Family and Community Services
[2004] AATA 931
•6 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 931
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/1053
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN BOND Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Mr C. Ermert, Member
Date6 September 2004
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) J Handley
Senior Member
SOCIAL SECURITY – overpayment of Disability Support Pension – failure to comply with recipient notices – whether special circumstances – overpayment found by data match with ATO – Centrelink had some information applicable to applicant on file of his wife – if that information had been transposed or cross referenced likely that debt would either not arisen or been considerably less – recommendations made
Social Security Act 1991 (Cth) s1223(1) and s1223(1AB) and s1237A and s1237AAD
Re Callaghan and Secretary, Department Of Social Security (1996) 45 ALD 435
Beadle and Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 54
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Riddell v Secretary, Department of Social Security (1993) 30 ALD 31
Re Schulze and Secretary, Department of Family and Community Services [2004] AATA 705
REASONS FOR DECISION
6 September 2004 Mr J. Handley, Senior Member
Mr C. Ermert, Member
1. The Applicant, Mr Stephen Ronald Bond, was overpaid Disability Support Pension (“DSP”) in respect of the period from 25 June 1999 to 25 March 2003. This overpayment was discovered as a result of a data matching program conducted with the Australian Taxation Office. The program showed a discrepancy between the amount actually earned by the Applicant’s wife and the amount or her earnings recorded on the Applicant’s DSP records. On 27 March 2003 a Centrelink officer, acting as a delegate of the Secretary to the Department of Family and Community Services, calculated that Mr Bond had been overpaid $20,857.67 due to his failure to declare his wife’s earnings. Mr Bond was informed by letter dated 29 March 2003 that this amount was a recoverable debt.
2. Mr Bond requested a review of the delegate decision. On 22 April 2003 the original decision maker recalculated the debt to $19,427.96 after taking into account the child free income. Mr Bond requested a further review of the decision on 30 April 2003. The decision was affirmed by an authorised review officer on 17 June 2003. Mr Bond referred the matter to the Social Security Appeals Tribunal on 8 July 2003. In a reviewable decision dated 25 August 2003 the Social Security Appeals Tribunal affirmed the decision under review. In its Reasons for Decision the Tribunal found that there is a debt due to the Commonwealth, that the debt was not solely due to error on the part of the Centrelink, and that there were no sufficiently unusual, uncommon or exceptional circumstances to justify waiver of the debt. The Applicant has applied to this Tribunal for review of that decision.
3. The Applicant and Mr Michael Todd, an advocate for the respondent, both participated in the hearing by conference telephone. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”) were admitted in evidence.
the issue
4. The issue before the Tribunal is whether there is a debt and, if so, whether that debt can or should be waived or written off under the Social Security Act 1991 (the “Act”).
background
5. On 20 March 1998 the Applicant applied for Sickness Allowance (T3) which was granted and for which he was required to lodge fortnightly income statements as his wife worked in casual employment at Murrayvale Nursing Home. In the accompanying Partner’s details document (T4) Mrs Bond’s weekly income was shown as $438.00 with a tick in the “No” box in answer to the question “Is this your usual wage?”. At the same time Mrs Bond submitted an application for Parenting Payment which was also granted. Her application (T5) also showed a weekly earning of $438.00 with the answer “No” to the same question regarding usual wage.
6. On 2 February 1999 the Applicant was sent a notice by Centrelink (T11) informing him of the start of his DSP from 4 February 1999. The letter contained the statement “Please read the back of this letter”. The details recorded on the back of the letter included an assessed combined yearly income of $1,884.78, comprising War Pension of $1,884.48 and Deemed Investment of $0.30. The section headed “WHAT YOU MUST TELL US” includes so far as is relevant the following:
… you must tell us within 14 days …if any of these things happen.
…
if your combined income … increases;
if your combined income as shown above is incorrect;
7. On 22 May 2000 an income and assets statement (T12) was sent to the Applicant at his request noting that “Income assessed in determining your rate of payment (Per annum) Veterans Affairs $1,942.98 , Investments $0.17”. T13 is a notification to the Applicant of an increase in the rate of payment of the DSP. It contains the statement “INFORMATION USED FOR CALCULATING YOUR REGULAR PAYMENT Combined Annual Income $2,096.20” as well as the “WHAT YOU MUST TELL US” section as contained in paragraph 6 above.
8. As a result of a data matching exercise with the Australian Taxation Office (ATO) a document (T14) was created that noted the discrepancy between the ATO record of Partner’s salary for 2000/2001 of $27,107 compared to the Centrelink declared income of $0.00. This initiated contact with the Applicant who then provided a copy of Mrs Bond’s Tax Return for that year (T15). Further inquiries to Murrayvale Aged Care elicited the income details for Mrs Bond (T22) for each of the years 1999/2000 ($27,537), 2000/2001 ($27,107) and 2001/2002 ($30,145). On 27 March 2003 a Centrelink officer calculated that the Applicant had been overpaid $20,857.67 due to the discrepancy between Mrs Bond’s declared and actual income (T23).
9. The Applicant was advised by letter dated 29 March 2003 that this amount was a recoverable debt. He requested a review of the delegate’s decision and in a letter dated 22 April 2003 (T24) the Applicant was advised by an Authorised Review Officer that he still had a debt but that it had been reduced to $19,427.96 by taking into account the Child Free Area. Mr Bond referred the matter to the Social Security Appeals Tribunal on 8 July 2003 and on 25 August 2003 that Tribunal decided to affirm the decision under review.
applicant’s contentions
10. In his evidence the Applicant stated that he had never withheld from Centrelink information regarding his wife’s working. While receiving Sickness Allowance benefits from March 1998 to February 1999 he provided advice of his wife’s income each fortnight. The requirement for fortnightly advice changed to three monthly responses when he was accepted for the DSP. The Applicant stated he received “normal” forms requesting information of his own and his wife’s earnings. When asked if he provided this information he replied that he thought so. At the time his wife was also in receipt of parenting or child support allowances however he did not know anything about her affairs.
11. The Applicant was referred to T11, the advice of the start of his DSP and the information on the reverse of the document showing the assessed combined yearly income of $1,884.78, comprising $1,884.48 War Pension and $0.30 Deemed Investment. He agreed that the $1,884.48 was only his veterans pension and did not include his wife’s income. The Applicant was then referred to the statement on the form “… YOU MUST TELL US … within 14 days … if your combined income as shown above is incorrect” and when asked why he did not inform Centrelink that the combined yearly income figure of $1,884.78 was incorrect he stated that he could not remember back that far.
12. The Applicant referred to the Reasons for Decision of the Social Security Appeals Tribunal (T2) which states in paragraph 5 “From 25 June 1999 to 16 March 2003 Centrelink records show Mrs Bond’s income as being $0.15, $0.17 and $0.12 per annum”. He stated that the figures were ridiculous and that he would never have reported those amounts. He further stated that he was appealing because he thinks there must be a transposition of figures. The Tribunal notes that the figures are contained in a section of T23, the overpayment calculations.
13. When asked how Centrelink were informed of his wife’s income he stated that his wife came with him when he first applied, then through the 3 monthly reviews which became 12 monthly reviews. The estimation of his wife’s income could only be a “guesstimate” because of the variations in her casual form of employment. Centrelink’s use of 12 monthly estimates was confirmed by Mr Todd.
14. The Applicant agreed that he read the back of the Centrelink letters containing the requirement to inform changes in his wife’s income but that he did not tell Centrelink on a fortnightly basis. He stated that at the time he was receiving medical treatment involving gastric surgery and that this was playing on his mind. His own health was more important at the time.
15. In order to assess hardship if required as a result of the eventual decision in this matter the Applicant provided details of his financial situation. He stated that he considered himself bankrupt but when asked if the present repayment rate of $20 per fortnight was having a real impact he said “no”. At that point Mr Todd provided details of the allowances being received by Mrs Bond.
16. In his submission the Applicant asked the Tribunal to consider his financial hardship and his inability to work. He reiterated that he has not attempted to defraud Centrelink and that any mistakes he may have made were honest mistakes under the duress of illness.
respondent’s contentions
17. Mr Todd, on behalf of the Respondent, contended that Mr Bond was required to personally advise of his wife’s income and that he failed to do so. Mr Bond’s failure to advise of his wife’s income led to an overpayment of DSP. The amount of the overpayment has been correctly calculated (T23, pp80-103). Recovery of the overpayment can only be waived in specific circumstances. The overpayment did not arise solely from administrative error. There are no special circumstances to justify waiver of part or whole of the overpayment. He would not describe the Applicant’s situation of illness and debts uncommon. Recovery at the rate of $20 per fortnight is appropriate. Mr Todd referred the Tribunal to Re Schulze and Secretary, Department of Family and Community Services [2004] AATA 705.
18. The Tribunal pointed out to Mr Todd that Mrs Bond was receiving a Parenting Payment benefit at the same time as Mr Bond was receiving the DSP and that it would be reasonable to assume that her income was recorded on her Centrelink file. The Tribunal questioned why that information was not made available for the assessment of the Applicant’s benefit. Mr Todd stated that the computer system did not always correctly cross-match file and in any case the obligation was on the recipient of the benefit to provide the information.
19. The Tribunal also referred to the incorrect income information on Mrs Bond’s file relating to her family allowance as shown in T26. Mrs Bond’s income was recorded as $15,000 for 2000/2001 and estimated as $15,870 for 2001/2002 compared with the actuals of $24,836 and $28,164 respectively. Mr Todd agreed that this discrepancy suggests a degree of error, in so far as it concerns her entitlement and rate of payment.
legislation
20. The provision of the Social Security Act 1991 (the Act) that entitles the Commonwealth to raise a debt in the present circumstances is s1223(1) as explained by s 1223(1AB). Those sections are recorded below:
1223(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.”
…
1223(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one of more of the following reasons:
(a)the payment was made to the person by mistake as a result of a computer error or an administrative error;
… .
21. Section 1237A of the Act provides for the waiver of a debt where the debt resulted solely from administrative error and the relevant benefits were received in good faith. Section 1237A relevantly provides as follows:
1237A(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)
22. Section 1237AAD gives the Secretary a discretion to waive the right to recover all or part of a debt in special circumstances. This section provides as follows:
1237AAD 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: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
consideration
Existence of Debt
23. The first issue to be decided is the entitlement of the Commonwealth to raise a debt. Section 1223(1) provides that a payment is a debt if the payment has been made and the person who obtains the benefit is not entitled for any reason to obtain that benefit. In this case it is not in dispute that a payment in excess of the entitlement has been made. As Mrs Bond’s income was not taken into account in the assessment of the Applicant’s benefits from June 1999 to March 2003 he was paid more than his correct entitlement under the income test. There is no dispute that Centrelink has applied the Rate Calculators correctly such that the amount overpaid in that period was $19,427.96. The Tribunal therefore finds that there is a debt due to the Commonwealth.
Entitlement to Payment
24. As presented to the Tribunal there is no dispute between the Parties that the Applicant has no entitlement to the rate of payment received. The application is not in regard to entitlement to the rate of payment, rather the Applicant seeks relief from the requirements for repayment. In regard to the effects of s1223(1AB) the Tribunal considered the possibility of an administrative error in making the payment. There was no evidence of error in the determination of the benefits paid and calculated on the information provided to Centrelink by the Applicant.
25. On the basis of the lack of dispute between the Parties that the Applicant has no entitlement to the rate of payment received and the lack of evidence of an error in determination of the benefits the Tribunal finds that the Applicant was not entitled to obtain the benefit.
Waiver of Payment due to Administrative Error
26. The Tribunal next considered the application of the applicable waiver provisions of the Act. Section 1237A(1) provides for the waiver of a debt where the debt resulted solely from administrative error and the relevant benefits were received in good faith. In this matter, as discussed in paragraph 24 above, there is no evidence of administrative error being the cause or sole cause of the over payment of benefits. The Tribunal also notes the provisions of the Note to s1237A(1) which specifically precludes the “waiver of a part of debt that was caused partly be administrative error and partly by one or more other factors (such as error by the debtor)”. The Applicant conceded that he did not correct the information on his combined income report periodically sent to him and used by Centrelink in the determination of his benefits.
27. The Tribunal finds that this constitutes an error by the debtor and therefore the effect of s1237 precludes a waiver under this section of the Act. In his submission the Applicant conceded that he may have made this error but submitted that this was an honest mistake. The Tribunal finds that this does not alter the effect of s1237 but acknowledges that there was no dishonesty by the Applicant nor an attempt by the Applicant to deceive.
Discretion to Waive
28. Section 1237AAD gives the Secretary a discretion to waive the right to recover all or part of the debt if the Secretary is satisfied that the debt did not result from the debtor knowingly making a false statement or representation or knowingly failing to comply with a provision of the Act, and there are special circumstances that make it desirable to waive, and that it is more appropriate to waive than write off the debt. The Tribunal considered each of these in turn.
Knowingly Making False Statement or Failing to Comply
29. In this case the level of benefits paid to the Applicant occurred as a result of Mrs Bond’s income being considered as zero in the assessment of the Applicant’s combined income. The Applicant did not advise Centrelink of the error in the combined income as he was required to do and as notified on the various assessment documents sent to the Applicant by Centrelink. The first question to be determined by the Tribunal is whether the failure of the Applicant to provide advice to Centrelink constitutes knowingly making a false statement or a false representation.
30. The Applicant’s evidence was that he provided correct information regarding his wife’s income on his initial application for Sickness Allowance and this is evident in T3. Although the Applicant conceded that he did not advise Centrelink of the error of the combined income assessment in relation to his Sickness Allowance and subsequently his DSP he stated that he and his wife did provide details of his wife’s income regularly to Centrelink. From the evidence it is apparent that information relating to his wife’s income was provided to Centrelink in relation to her parenting and family support benefits rather than specifically for the Applicant’s DSP benefits. It is conceivable to the Tribunal that the Applicant could consider the provision of information to Centrelink in support of the parenting and family support benefits would be also be sufficient to support consideration of his DSP benefits.
31. The meaning and application of the word “knowingly” in a similar context was explored by Deputy President Forgie in Re Callaghan and Secretary, Department Of Social Security (1996) 45 ALD 435(“Callaghan”)
(48) There is nothing in s 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement of the act or omission.
(49) In this case, the emphasis of Mr and Mrs Callaghan’s evidence was more upon their belief that the one department paid them than upon their state of mind in complying with their obligations under the Act. Mr Callaghan has acknowledged that he had received notices under s 727 of the Act and that he had read at least one of them. I am satisfied both on the material in the T documents and on his oral evidence that he received more than one of them and that he read the first one. On the basis of the notices themselves I am satisfied that they clearly set out his obligation to advise the department should his income, or that of Mrs Callaghan, change. I am also satisfied from the notice that it quite clearly stated that income included Austudy benefits. Taking into account Mr Callaghan’s knowledge of the notice and of his having read at least one of them, I find that he knew that he had an obligation to advise of a change in Mrs Callaghan’s income. Therefore, when he failed to advise of the change he knowingly omitted to comply with a provision of the Act.
(50) I am also satisfied that the sickness allowance review forms clearly asked for any other money that Mr and Mrs Callaghan were getting from “any other source”. Taken in the context of the form, this must surely have meant any money obtained, such as earnings or the sickness allowance the subject of the review, that had not been mentioned on the form. They omitted to mention the Austudy benefits being paid to Mrs Callaghan. I am satisfied that they knowingly omitted to do so in the sense that they knew that Mrs Callaghan received the Austudy benefits and they omitted to include them. Knowingly omitting them is something different from fraudulently omitting them and I draw the distinction in this case.
32. In this matter the Applicant agreed that he had read the information on the back of the Centrelink letters. In explanation for his failure to respond to the requirements shown on the reverse of the Centrelink forms the Applicant contended that he was undergoing medical treatment when the review forms were received and that his mind was pre-occupied with his own health. The Tribunal did not consider this to be a reasonable explanation of his failure to correct the combined income assessment and finds that the Applicant did know of his obligation to provide Centrelink with the correct information relating to his wife’s income.
33. On the issue of knowledge of the obligation this matter is similar to the finding in Callaghan. The difference then becomes a matter of whether, in light of that knowledge, the Applicant made false statements or representations or failures or omissions to comply with the provisions of the Act. In his evidence, not contested by the Respondent, the Applicant stated that information regarding his wife’s income was provided to Centrelink on a number of occasions. His evidence was that his wife was with him when he first applied for his benefit and that they provided advice of his wife’s income initially fortnightly and later three monthly. Mr Todd conceded that information regarding Mrs Bond’s income was available to Centrelink however it was related to Mrs Bond’s Parenting Payment benefit and that the computer system did not always correctly cross-match files. Mr Todd went on to state that the obligation was on the recipient of the benefit to provide the information.
34. In considering the statements by the Applicant and Mr Todd the Tribunal accepts that although the Applicant had the obligation to provide the required information to Centrelink and he knew that he had such an obligation he nevertheless had a reasonable belief that the required information was being made available to Centrelink and that this met the obligation on him to provide that information. The belief that the required information was being passed to Centrelink distinguishes this case from Callaghan where information was not provided to the relevant authority.
35. In considering the evidence as presented the Tribunal finds that the omissions of the Applicant to provide the required information to Centrelink in this situation did not amount to knowingly making false statements or representations. However, there was a failure by Mr Bond to comply with the Act. The notices sent to him, the authority for which being found within the Act, require persons to notify of a number of changed or altered circumstances (refer paragraphs 6, 7 and 11 earlier). Mr Bond did not notify Centrelink that the information it held as to his income and the combined income was incorrect. There has not been compliance with S1237AAD (a) (ii) and the debt resulted from the failure to comply.
Special Circumstances
36. Sub-section (b) of Section 1237AAD(b) provides for consideration of special circumstances (other than financial hardship alone) that make it desirable for the Secretary to waive the payment of the debt. In his submission the Applicant requested consideration of two special circumstances. The first is financial hardship due to his inability to work. The second is that the Applicant’s omission to provide the required information was made while under the duress of illness.
37. In his contentions Mr Todd submitted that the circumstances were not sufficiently special to justify the waiver of the debt. He contended that the Applicant’s situation of illness and debts are not uncommon.
38. The meaning of special circumstances has been considered in a number of previous cases. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 Toohey J stated:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjectives looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon 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 have a particular quality of unusualness that permits them to be described as special.
On appeal Beadle and Director-General of Social Security (1985) 7 ALD 670 at 674, the Full Federal Court reiterated the need to avoid limiting the scope of what might constitute special circumstances when it explained that:
We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General gearing in mind the purpose for which the power is given. The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.
In a later case, Groth v Secretary, Department of Social Security (1995) 40 ALD 54, at 545, Keifel J, after referring the Federal Court’s decision in 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.
In Riddell v Secretary, Department of Social Security (1993) 30 ALD 31, the Full Court of the 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.
39. In applying the above principles to the present matter the Tribunal considers the issues raised by the Applicant do not amount to unusual, uncommon or exceptional circumstances sufficient to be considered special circumstances. On the issue of financial hardship the Applicant himself conceded that the present repayment rate of $20 per fortnight was not having a real impact on his situation.
40. In regard to the second issue of the duress of illness the Applicant contended that he did not tell Centrelink of his wife’s income on a fortnightly basis because his medical treatment played on his mind and that his own health was more important than the details of his DSP at the time. The Applicant provided no medical or other evidence in support of the severity and duration of his medical condition and the possible effects on his ability to attend to matters of importance. The medical condition was described by the Applicant as involving gastric surgery. The Tribunal accepts that major surgery would take priority over other considerations for a period of time however finds it difficult to accept that this condition would last for the duration of time involved in this case, namely June 1999 to March 2003
41. Further, in considering the context of the circumstances, the Tribunal has difficulty in accepting that the effects of the condition, except those adjacent in time to the surgery, would be sufficient to suppress an awareness of his financial position. The evidence is that the DSP is the Applicant’s main source of income and as such the Tribunal considers it would be a matter of considerable priority in his life and that there would have been sufficient periods of time, free from the effects of his medical condition, for the Applicant to put his mind to matters as important as his income. There is no evidence that the Applicant suffered any physical constraints in looking after the affairs of his benefits.
42. On the material presented the Tribunal considers it unlikely that the effects of the medical treatment were so severe or long lasting that there would not have been sufficient opportunities clear of those effects in which the Applicant could have attended to his financial affairs.
43. The Tribunal finds that a combination of financial hardship and the Applicant’s medical condition do not constitute circumstances sufficiently unusual, uncommon or exceptional in the context of the Applicant’s situation to be accepted as special circumstances under the Act. The Tribunal agrees with the submission of the Respondent in this regard and finds that there are no sufficient special circumstances to make it desirable to waive the debt.
Waive or Write Off
44. The final provision for the Secretary’s discretion to waive payment is if it is more appropriate to waive than to write off the debt or part of the debt. In this matter the Respondent submitted that the debt is already being repaid through a planned deduction from the DSP payments. The Tribunal also has regard to the proper use of public money for the purposes provided for in the relevant legislation. In support of the submission the Tribunal finds that there is no reason why a waiver is more appropriate than a write off.
Finding on Discretion to Waive
45. The Secretary may exercise a discretion to waive the right to recover all or part of the debt if all three elements of Section 1237AAD are satisfied. In this matter the Tribunal has found that the requirements of all three subsections have not been met. The Tribunal therefore finds that in this matter the Secretary may not exercise the discretion to waive the right to recover all or part of the debt.
Re Schulze
46. In the Respondent’s contentions the Tribunal was referred to Re Schulze and Secretary, Department of Family and Community Services [2004] AATA 705. This case called for consideration of two issues. The first related to whether the portion of the overpayments, which were conceded as having been due solely to an administrative error by Centrelink, were received in good faith by the Applicant. The second issue was whether the remainder of the overpayment was due solely to an administrative error by Centrelink or whether it resulted from a combination of error on the part of the department and an error by the applicant.
47. In the present matter there is no contention by either party that the debt arose in whole or part solely due to administrative error by Centrelink. The issues raised in Re Schulze are considered to be not relevant to this case.
Centrelink Procedures
48. From the evidence presented in this matter it is not disputed that some information relating to the income being received by the Applicant’s wife was periodically being provided to Centrelink in relation to her parenting and other benefits. Had this information been made available also to the file relating to the Applicant’s DSP the discrepancy in the stated level of combined income would have become apparent much earlier. Had that occurred the level of payments could have been re-assessed earlier and the matter resolved with a very much smaller level of debt repayment. This action could have minimised the hardship for the Applicant in meeting the repayment requirements.
49. While the passage of information from one file to another within Centrelink may raise issues relating to privacy the Tribunal considers that the procedures currently being followed by Centrelink should be examined to see if they could be modified to allow an exchange of income information where levels of joint income are essential particulars for the assessment of benefits to both parties. Prevention or early resolution of issues such as the present matter should benefit all parties including Centrelink, the Secretary and particularly the recipients of the benefits.
decision
50. The Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr J. Handley, Senior Member andMr C. Ermert, Member
Signed: Grace Carney
Personal AssistantDate of Hearing 28 July 2004
Date of Decision 6 September 2004
Solicitor for the Applicant Nil – Self Represented
Departmental Advocate Mr M Todd
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