Brown and Department of Family and Community Services - [2001] AATA 232

DECISION AND REASONS FOR DECISION [2001] AATA 232

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1249

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

DECISION

Tribunal Dr J D Campbell, Member

Date23 March 2001
PlaceSydney

Decision      The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant has a debt due and owing to the Commonwealth of $4975.20.
  ..............................................
  [sgd]Dr J D Campbell
  Member
CATCHWORDS
Social Security - sole parent payment - casual employment - overpayment - administrative error - good faith - special circumstances
Social Security Act 1991 – ss 284, 285, 1224 and 1237
Hales v Secretary, Department of Social Security (1983) 47 ALR 281
Re Beadle and Director General of Social Services (1984) 6 ALD 1

REASONS FOR DECISION

Dr J D Campbell, Member

Ms Robin Brown ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 16 July 1998 which found that the Applicant had a debt of $5463.10 owed to the Commonwealth as a result of overpayment of sole parent pension during the period 13 July 1995 to 26 June 1997.
In making that decision, the SSAT varied the decision made by a Centrelink delegate of the Secretary of the Department of Family and Community Services ("the Respondent") dated 30 July 1997 to raise and recover a debt amounting to $10,041.20 as a consequence of overpayment of sole parent pension ("SPP") during the period 13 July 1995 to 26 June 1997. This latter decision was reconsidered on 13 August 1997 with the amount of debt being reduced to $6649.70. On 20 January 1998 the authorised review officer affirmed the decision to raise the debt but varied the amount of debt owing to $6288.40.
A hearing was held initially before the Tribunal on 27 August 1999 with a final hearing day on 13 July 2000. The Applicant was self-represented, and the Respondent was represented by Mr G Lozynsky, a solicitor from the Advocacy and Administrative Law Section at Centrelink.
The following material was placed into evidence before the Tribunal:

Exhibit No  Description                Date
T1-T70 pp1-70 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Ms Brown's response to Centrelink submissions including attachments of five pages from the Welfare Rights Centre and a five page submission by the Applicant to the SSAT   25 August 1999
A2      Ms Brown's submission (4 pages) 13 January 1999
R1      Respondent's statement of facts and contentions        25 June 1999
R2      Advice from NSW Dept of Education and Training (2 pages) 22 October 1999
R3      Respondent's updated statement of facts and contentions     24 February 2009

issues

The relevant issues in this matter are:
(a) whether the Applicant has received an overpayment of sole parent pension during the period 13 July 1995 to 26 June 1997; and
(b) whether the Applicant has a debt owing to the Commonwealth as a result of this overpayment; and
(c) whether, if a debt exists, there are grounds found to exist which would allow the debt to be waived.

legislation

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 284, 285, 1224 and 1237.
applicant's evidence
The Applicant told the Tribunal that she was a sole parent with three children aged 23, 17 and 13. She further stated that she was a graduate in education in 1976 and that she had commenced casual teaching in 1991 when her husband departed. In 1994 she had experienced a difficult year with stress, high blood pressure and two operative procedures being undertaken. In 1996/97 she experienced much pain, with skin cancers being removed from her face in March/April 1997. The Applicant stated that she had been active with the Girl Guides Association since 1988; that her mother had died recently and that her father was a great support to her.
The Applicant informed the Tribunal that she undertook no casual teaching during the years 1982 to 1991, and commenced as a casual teacher with the Department of Education in 1991. She stated that as a casual teacher working under 90 days a year she would receive a loading to the normal hourly rate, while if working more than 90 days a year she would receive a 17.5 % leave loading.
The Applicant stated that in late 1995 she was given advice that she had a full year's work as a casual teacher at a high school in 1996. The Applicant further stated that in December 1995 she discussed this with department officers at Nowra. Further the Applicant stated that on 9/10 February 1996 on receipt of a review form, she again communicated with the Nowra office of the Respondent, discussing with them her full year of casual teaching work and expressing her concern about the absence of any payments from education during school holidays. She was advised that she could apply for supporting parent pension when not working, with automatic cut offs when she returned to teaching at the commencement of each term.
In evidence before the Tribunal on 13 July 2000, the Applicant clarified that she had spoken with the Centrelink officer on 9 January 1996 when she was given the advice stated in the earlier paragraph. The Applicant stated that on 10 January 1996 she lodged a form with the Department which nominated her income as $2394.74 for the previous 12 weeks (T15, 16), which in turn resulted in her pension being altered and being placed on notice that she must advise the Respondent if her income was to exceed $199.48 per week (T17).
In further evidence the Applicant indicated that she commenced working in late January 1996 and was working a nine-day fortnight, being paid $160 a day. The Applicant stated that she advised the Respondent of this on 4 March 1996 (T18), as a result of a visit by officers the previous day. As a consequence her SPP was ceased with effect 7 March 1996 (T20).
The Applicant indicated that by this stage the Respondent had full knowledge of her then situation, which was to continue for the remainder of 1996. The Applicant stated that she would have to apply for SPP benefits at the start of each holiday period and tell them how long she was going to be on holidays, with some benefit flowing over into the week after she had returned to work (transcript p30). The Applicant again stated that she had to apply for SPP benefits at the start of each holiday period and also advise the time at which it was expected she would return to work (ie the end of the school holidays). She was being assessed over a 52 week period in terms of her annual salary equivalent, which in turn allowed her to claim for sole parenting payment during the periods of holiday, when she had no income.
file evidence and applicant's and respondent's evidence:
The overpayment in this matter has arisen from a particular circumstance in varying periods, and the Tribunal will detail the relevant evidence for each period, the Applicant's comments and the Respondent's position in relation to each period.
(a) Period one: 1 May 1995 to 30 June 1995
On 28 April 1995 the Applicant completed a sole parent review form in which she declared her previous 12-week's earnings as a casual teacher of $1353.68. This was lodged with the Respondent on 1 May 1995. Sole parenting payment had recommenced with effect 9 February 1995, with the Applicant being advised that she must notify the Respondent if her weekly income exceeds $69 per week or if she recommenced work (T4). A further sole parent review form was completed by the Applicant on 11 August 1995 (T7) and in a letter dated 11 August 1995, the Applicant stated that she had already returned the review form. If there have been any overpayments, a request was made to pay off the debt by weekly instalments (T9). The salary sheets attached to the sole parent review form indicated that the Applicant had worked from 1 May 1995 to 30 June 1995 (T7). The Applicant's SPP ceased with effect 27 July 1995 (T11). In the sole parent review form completed by the Applicant on 28 April 1995, she indicated that she was not working and that her last day of work was 11 April 1995 (T5, P24). The Applicant indicated to the Tribunal that she believed that she had done all that was required when she completed and returned the sole parent review form every 12 weeks.
(b) Period Two: 13 July 1995 to 27 July 1995
The Applicant recommenced working on 20 July 1995 and advised the Respondent of this on a sole parent review form, which was received on 11 August 1995 (the need for a second form to be forwarded to the Applicant) as the first form had been forwarded by the due date, namely 28 July 1995 (T7, T9).
(c) Period Three: 16 November 1995 to 29 December 1995
The Applicant was advised on 2 November 1995 that she would receive SPP with effect from 2 November 1995, and that she must advise if her weekly income exceeded $71 or she recommenced work (T4). In a sole parent review form the Applicant indicated that she had an unexpected block of teaching for the period 8 November 1995 to 13 December 1995 and that if an overpayment has occurred it was requested by her that it be paid off in instalments (T15).
A leave loading payment was paid to the Applicant on 29 December 1995, with the Respondent stating that this should not affect the Applicant's entitlement to SPP for both paydays 14 December 1995 and 28 December 1995, and that overpayment had only occurred for the period 16 November 1995 to 13 December 1995.
(d) Period four: 29 January 1995 to 7 March 1996
On 10 January 1996 the Applicant lodged a sole parent review form with the Respondent, and at the same time talked with them of being a full-time casual teacher for calendar year 1996. The Applicant stated that she was given particular advice and that she could receive SPP in holiday periods or if for any other reason she was not working. The Applicant understood that such payments would be automatic, but that she must apply for such payments, notifying date of cessation of work and date of commencement of work. The Applicant commenced work in late January 1996 working a nine day fortnight. As a consequence of the lodgement of her review form on 10 January 1996, the Respondent granted the Applicant a SPP from 8 February 1996 and informed the Applicant that she must inform them if her weekly income was to exceed $199.48 or if she was to recommence work (T17). The Applicant notified the Respondent on 4 March 1996 that she was working a nine-day fortnight at $160 a day (T18); that it was noted that the Applicant would reclaim SPP during the school holidays (T18) and that SPP was ceased as from 7 March 1996 (T20).
(e) Period five: 15 April 1996 to 2 May 1996
In a letter dated 9 April 1996 the Respondent advised the Applicant of the entitlement to SPP commencing 18 April 1996, and advised her to tell the Respondent if her weekly income was to exceed $71 or if she was to recommence work (T22). The payment was stopped after 2 May 1996 on account of the Applicant's failure to lodge the sole parent review form (T23). Respondent's records show the Applicant earned, per her employer records $769.10 for 19 April 1996, and that no advice of these earnings was received within 14 days. In further evidence the Applicant argued that her first day back at work was 15 April 1996. On 1 April 1996 a file note nominates the Applicant as attending the office, indicating that she would not be working as from that day and that she was unsure as to whether she would get work when school recommenced (T21).
(f) Period six: 26 July 1996 to 8 August 1996
The Applicant was regranted SPP from 11 July 1996. The Applicant recommenced working on 26 July 1996 and advised of her employment on 31 July 1996. SPP was cancelled from 8 August 1996 (T26).
(g) Period seven: 4 October 1996 to 31 October 1996
SPP was regranted commencing 17 October 1996, with the requirement to notify the Respondent of her return to work (T27). The Applicant advised the Respondent of such on 30 October 1996 (T29). The Applicant had recommenced work on 14 October 1996.
(h) Period eight: 28 February 1997 to 20 March 1997
The Applicant was regranted SPP from 26 December 1996, and advised that she must inform the Respondent if income were to increase or if she were to recommence work (T31). In a sole parent review form completed by the Applicant on 21 January 1997 she advised that her last day of work had been 19 December 1996 and that she was unsure as to her future work commitments (T32). The Applicant's SPP was ceased on 23 January 1997 for non- lodgement of sole parent review forms (T33) and recommenced from 6 February 1997 (T34). On 30 April 1997 the Applicant advised that she had recommenced work on 7 April 1997 and wished her SPP to be cancelled (T35). The Applicant's SPP was again stopped after 1 May 1997 for failure to lodge the sole parent review form (T36) and recommenced on 15 May 1997 after receipt of particular information (T38).
The Applicant acknowledged that she commenced working again on 28 February 1997, that she did not inform the Respondent within 14 days and that she accepts liability for the debt between 28 February 1997 and 20 March 1997 (T2, P8).
(i) Period nine: 17 April 1997 to 15 May 1997
The Applicant recommenced work on 7 April 1997, as per her employer records, and as advised by the Applicant on 30 April 1997, at which time she requested her SPP to be cancelled (T35). The SPP was eventually cancelled on 12 June 1997, with the Respondent denying receipt of the letter of 30 April 1997. The Respondent stated that the first advice of such a return to work was when the Applicant lodged the sole parent review form on 6 May 1997. The Respondent however did not move to cancel the pension until evaluation of the Applicant's earnings after receipt of a letter from the Applicant on 4 June 1997 (T40).

considerations and findings

In preliminary observations the Tribunal notes that this matter is a somewhat sorry saga, in which it appears both parties have interacted in such a way as to create a muddle of ever increasing dimensions, and to which both have contributed. The Tribunal further notes that the obligations and responsibilities imposed on both parties in the proper administrative processing of issues involved in this matter would not have been onerous if addressed in a timely and detailed fashion, and if proper and effective communication had been established between the interactants, in order that a common understanding of the issues could have been established long before the passage of 30 months had elapsed.
In moving forwards the Tribunal recognises the effort undertaken by both parties in constructing the path through the forest and allowing the Tribunal to undertake the function for which it exists, namely to come to a correct and preferable decision. In so doing the Tribunal, having considered the evidence in great detail, comes to the following findings of fact:
(a) that the Applicant was employed as a casual teacher by the Department of Education during all relevant periods in this matter;
(b) that the Applicant has at all times in this matter endeavoured to present the appropriate information, but often the information provided has omitted particular pertinent detail or alternatively there has been a lack of attention to detail in providing the necessary information in a timely fashion;
(c) the Respondent has been less than particular in dealing with information provided, evaluating and requesting further information and failing to follow through matters, where even the Applicant has indicated that she believed an overpayment may have occurred;
(d) that the Applicant believed that her reporting responsibilities to the Respondent were in the main discharged by the completion and lodgement of a sole parent review form every 12 weeks;
(e) that the Applicant was employed for the period 1 May 1995 to 30 June 1995; that the Applicant had received a notice to advise the Respondent within 14 days of such re-employment; that she did not notify the Respondent of this re-employment and earnings quantum until lodgment of a sole parent review form in late July 1995, with a notation that the original review form had been returned;
(f) that the Applicant, because of her failure to notify the Respondent of her employment or increase in earnings from 1 May 1995 to 30 June 1995, received payment of SPP to which she was not entitled, and as such an overpayment occurred for this period (ie period one);
(g) that the Applicant recommenced work on 20 July 1995 and did notify the Respondent within the 14-day time frame;
(h) that as a consequence of the Applicant's notification within the time obligation, no debt should accrue for the period 13 July 1995 to 27 July 1995 (ie period two);
(i) that the Applicant recommenced work on 8 November 1995 and ceased work on 13 December 1995; that payment received on 29 December 1995 was a leave loading and that this does not affect the Applicant's entitlement to SPP payments for both paydays in December 1995 (14 and 28);
(j) that the Applicant had been instructed to notify the Respondent within 14 days of recommencing work or a change in income on 20 November 1995 and that she did not inform the Respondent until 9 January 1996, and that as a consequence the Applicant was overpaid during the period 16 November 1995 to 13 December 1995 (ie period three);
(k) that the Applicant did lodge a sole parenting review form with the Respondent on 10 January 1996 and did at the same time inform the Respondent of her casual teaching employment for all of the calendar year 1996;
(l) that the Applicant was given particular advice that she would be automatically entitled to SPP during periods of holidays, but that she would have to apply to reclaim such benefits nominating both her last day of work and her expected recommencement of work;
(m) that the Applicant was paid SPP payment following the lodgment of her review form on 10 January 1996; that she was advised to notify if her income was to exceed $199.48 a week or if she recommenced work; that she did notify the Respondent of such details on 4 March 1996 and that the Applicant's SPP ceased as from 7 March 1996;
(n) that the Respondent had decided that no debt for the period 29 January 1996 to 7 March 1996 existed as the Applicant had earlier advised the Respondent of her expected earnings for the period (ie period four);
(o) that the Respondent did advise the Applicant of her entitlement to SPP commencing 18 April 1996 on 9 April 1996 and further advised that the Applicant advise of change in income or recommencement of work; that the Applicant commenced work on 15 April 1996 and on 1 May 1996 the Applicant notified that she was ceasing work and was unsure as when she would return to work;
(p) that the Respondent has calculated that an overpayment of SPP for the period 18 April 1996 to 2 May 1996 occurred because of the Applicant's failure to notify within 14 days (ie period five);
(q) that the Applicant was regranted SPP on 11 July 1996; that she recommenced work on 26 July 1996; that she advised the Respondent of such recommencement on 31 July 1996 and that the Applicant's SPP was cancelled from 8 August 1996;
(r) that the Respondent considered that no debt exists for this period (ie period six);
(s) that the Applicant was regranted SPP commencing 17 October 1996 with an obligation stated on 10 October 1996, to notify the Respondent of change in income or recommencement of employment and that the Applicant advised the Respondent of recommencement of work on 14 October 1996, on 30 October 1996;
(t) that the Applicant, by failure to give notice within 14 days of recommencement of work, has received an overpayment of SPP for the period 17 October 1996 to 31 October 1996 (ie period seven);
(u) that the Applicant recommenced work on 28 February 1997; that the Applicant was regranted SPP commencing on 6 February 1997 following advice from her to the Respondent on 21 January 1997; that she was unsure as to future work commitments and that advice was given to her by the Respondent on 31 January 1997 that she must notify the Respondent of any increase in income or recommencement of work with 14 days of the event;
(v) that the Applicant acknowledged that she did not notify the Respondent of her increase in income or recommencement of work until 30 April 1997, when she drafted and sent a letter to the Respondent, indicating that she had recommenced work on 7 April 1997 and requested that her SPP be cancelled. As a consequence there was an overpayment of SPP for the period 28 February 1997 to 20 March 1997 (ie period eight);
(w) that the Applicant recommenced employment on 7 April 1997; that she did advise the Respondent of this in a letter drafted and sent on 30 April 1997; that for whatever reason the Respondent did not cancel SPP payments to the Applicant until 12 June 1997, despite acknowledging that they were aware of her return to work on 6 May 1997, they had never received the Applicant's letter of 30 April 1997 and had waited until they could evaluate the Applicant's earnings as a result of a receiving a letter from the Applicant on 11 June 1997;
(x) that as an consequence of the Applicant's failing to advise within 14 days of her return to work on 7 April 1997, overpayment for SPP occurred between the period 17 April 1997 to 15 May 1997. The latter date is consistent with the time necessary for the Applicant's letter of 30 April 1997 to have been received and actioned by the Respondent, as the next payday commenced on 1 May 1997 (ie period nine).

overpayment

As a consequence of the Tribunal's findings of fact, the Applicant received an overpayment of sole parent pension for the following periods:
1 May 1995 to 30 June 1995 (ie period one);
16 November 1995 to 13 December 1995 (ie period three);
17 April 1996 to 2 May 1996 (ie period five);
17 October 1996 to 31 October 1996 (ie period seven);
28 February 1997 to 20 March 1997 (ie period eight); and
17 April 1997 to 15 May 1997 (ie period nine).
Further, following an examination of the Applicant's payment records contained within the Tribunal documents and within Exhibit R3, the Tribunal quantifies the overpayment as follows:
1 May 1995 to 30 June 1995   $1439.50
16 November 1995 to 13 December 1995         $ 682.00
18 April 1996 to 2 May 1996  $ 696.00
17 October 1996 to 3 October 1996  $ 703.60
28 February 1997 to 20 March 1997 and
17 April 1997 to 15 May 1997  $1452.90

The total overpayment is quantified at $4975.20.

debt

The Tribunal, in considering whether the overpayment is a debt due and payable to the Commonwealth, observes that the Respondent considered that no debt existed in relation to the periods
13 July 1995 to 27 July 1995;
29 January 1996 to 7 March 1996; and
26 July 1996 to 8 August 1996.

In accordance with the earlier findings, the Tribunal concludes that no debt existed for these three periods.

In further consideration, the Tribunal notes the following statutory framework provided by the Act, which deals with the creation of a debt and with circumstances wherein a debt must or may be waived:
1224 Debts arising from recipient's contravention of Act
1224(1) If:
(a) an amount has been paid to a recipient by way of social security payment; and
(b) the amount was paid because the recipient or another person
(i) made a false statement or false representation; or
           (ii) failed r omitted to comply with a provision of this Act or the 1947 Act;
the amount paid is a debt due by the recipient to the Commonwealth.
1237 A Waiver of debt arising from error:.
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.
1237AAD Waiver in special circumstances
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 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.

In considering the facts established earlier in this decision against the statutory framework, the Tribunal notes that in each of the periods in which an overpayment existed, the Applicant failed to notify the Respondent of her return to work or increase in earnings within the 14 days as instructed in correspondence sent by the Respondent, at a time relevant to each of the periods in question. The Tribunal, following the decision in Hales v Secretary, Department ofSocial Security (1988) 47 ALR 281, finds that such actions by the Applicant constitute a failure to comply with a provision of the Act, and that as a consequence the overpayment of $4975.20 constitutes a debt pursuant to section 1224(1) of the Act, which is due and payable by the Applicant to the Commonwealth.
In considering the circumstances of how the debt occurred in each period, the Tribunal has already made findings as to such circumstances. For the sake of clarity however, the Tribunal will detail such circumstances for each period and make a finding as to the nature of the error that has led to the debt creation in each period:

(a) 1 May 1995 to 30 June 1995:

The Applicant considered that by completing and lodging of the sole parent review form, which detailed her previous 12 weeks' earnings her task of information provision had been completed. The Applicant did receive a letter dated 10 February 1997, which stated that she must notify the Respondent if she was to recommence work, or if her income exceeded $69 a week. The Applicant completed a sole parent review form on 28 April 1995, which was lodged with the Respondent 1 May 1995, in which she stated she was not working.
The Applicant lodged a further sole parent review form in late July, with pay documentation attached, clearly indicating that she had recommenced work on 1 May 1995 and that her income did exceed $69 per week.

Finding: The Tribunal, while noting the Applicant's understanding of her responsibilities and the difficulties shared between the parties in terms of issues surrounding a casual teacher, finds that while the Respondent may not have clarified in sufficient detail the many particulars necessary to entail the Applicant to have comprehensive understanding, the instructions issued by the Respondent to the Applicant in the letter of 10 February 1995 where clear and specific. Further, the Tribunal finds that the Applicant did not comply with these instructions.. As a consequence the Tribunal is specific in finding that a sole administrative error by the Commonwealth is not the cause of the overpayment in this period, as the Applicant has played a significant role in the creation of the overpayment.

(b) 16 November 1995 to 13 December 1995:
The Applicant was advised on 2 November 1995 that she must notify the Respondent within 14 days of recommencing work, or if her weekly income was to exceed $71. The Applicant completed and lodged a sole parent review form on 9 January 1996 in which she noted a three week period of employment finishing on 13 December 1995.

Finding: The Tribunal, in noting that the circumstances detailed in this period are similar to those in period (a), finds that the overpayment for this period was not solely caused by the Commonwealth, again for the reasons nominated for the earlier period of debt.
(c) 18 April 1996 to 2 May 1996:

The Applicant was advised on 9 April 1996 that she must notify the Respondent of a return to work or a change in her weekly income of $71 within 14 days of the event occurring. The Applicant recommenced work on 15 April 1996, and did not so notify the Respondent.
The Applicant had two inconsistent beliefs at this stage, namely:
(1) that the Respondent would automatically manage the issue of reclaiming during the holidays; and
(2) that the Applicant had a responsibility to notify the Respondent of the date of finishing work to reclaim her SPP, and also indicate when she was likely to return to work, having advised them in January 1996 that she would be employed as a casual teacher on a nine-day fortnight for the whole of the year 1996.

Finding: The Tribunal again finds that the Applicant has participated in the error, which led to the overpayment, and therefore sole administrative error by the Commonwealth cannot be established. Further, the Tribunal is unable to reconcile the Applicant's two beliefs that she stated with such certainty.

(d) 4 October 1996 to 31 October 1996:
The Respondent sent a notice to the Applicant on 1 October 1996, which detailed that the Applicant must advise of her return to work within 14 days. She returned to work on 14 October 1996 and did not advise the Respondent until 30 October 1996.

Finding: The Tribunal finds that the error lies mainly with the Applicant for failing to notify within 14 days. While the Applicant may have enjoyed some residual confusion as to her updating responsibilities, the fact that she did report within 16 days is indicative of the fact that she understood that such a requirement existed. The Tribunal, while noting that the Applicant was only two days outside the time limit, was not provided with any reason as to why it was not reported within the 14 day period. Again for this period, the Tribunal finds that sole administrative error by the Commonwealth was not the cause of the overpayments.

(e) 28 February 1997 to 20 March 1997:
The Applicant acknowledged that she recommenced work on 28 February 1997 and that she did not inform the Respondent within 14 days, with notification being made on 30 April 1997.

Findings: The Tribunal finds that sole administrative error by the Commonwealth was not the cause of the debt for this period, with the debt being caused by the Applicant's failure to notify of her return to work within 14 days, a requirement specified in the Respondent's letter dated 31 January 1997.
(f) 17 April 1997 to 15 May 1997:

The Applicant had recommenced work on 28 February 1997. The Applicant in a letter dated 30 April 1997 advised the Respondent of her return to work on 7 April 1997. The Respondent did not action a stoppage of SPP until the receipt of the sole parent review form on 7 May 1997, stating that the earlier letter was not received.

Finding: The Tribunal finds that the failure of the Applicant to advise of her return to work is the cause of the debt up to 15 May 1997, as the letter, acknowledged as having been written and sent on 30 April 1997, would not have been received by the Respondent in sufficient time to prevent the payment made on 7 May 1997. As such the Tribunal concludes that the debt was not created as a consequence of sole administrative error by the Commonwealth.

In summary, as a consequence of its nominated findings in the previous paragraph, the Tribunal concludes that none of the debt arose as a consequence of sole administrative error by the Commonwealth, and as such the issue of waiver under section 1237A(1) does not arise.
In turning to the issue of special circumstances, the Tribunal notes that the Applicant requested that consideration be given to the administrative circumstances of the matter, and while she detailed particular personal health occurrences in the relevant period, no particular emphasis was placed on them by the Applicant as constituting other than what they were. Further the Tribunal, in noting the long line of cases which it has dealt with, and what does and does not constitute special circumstances, turn to the definition made by Toohey J in Re Beadle and Director General of Social Security (1984) 6 ALD 1 at 3:
"An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective 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 circumstance 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 must have a particular quality of unusualness that permits them to be described as special."
In this matter the Applicant has contended that the nature of her work (casual teaching) has created a situation between herself and the Respondent which has led to misunderstanding and confusion and a failure by both parties to properly deal with the matters at hand. The Tribunal, while acknowledging a level of misunderstanding by the Applicant as to the particulars of her responsibilities, observes that on at least four occasions the Applicant has acknowledged the possibility of an overpayment occurring. Despite this the Tribunal considers that the Applicant's responsibilities of updating a change in particular circumstances was not particularly onerous and that on all occasions debt arose as a consequence of her failure to notify within the 14 day period.
Further, while the Applicant may have received particular verbal advice from the Respondent, and on occasions may have given particular verbal advice to the Respondent, the Tribunal does not consider, having worked through the totality of the evidence, that there is any factual circumstance in which the Respondent did not give particular written advice to the Applicant, which if the Applicant had followed may have prevented the overpayment.
In summary, the Tribunal concludes that the circumstances of this matter are essentially about the interaction of an individual with a Department and vice versa, a failure of both to address the matters involved with the particularity necessary to avoid confusion and mistake and a failure by the Applicant to address nominated requirements in a timely and complete manner. In further consideration, the Tribunal finds that such circumstances are not unusual, exceptional or uncommon, and finally would wish to state once again, that while the Applicant and the Department may have not necessarily enjoyed a mutual understanding of what should and had to be done, the written directions given to the Applicant were specific. Further, the Tribunal finds that while the Applicant may have experienced some confusion, it was the Applicant's failure to provide timely advice on each of six occasions which led to the creation of the debt. The Tribunal does acknowledge that on three other occasions it was considered that a debt was not created, as the Respondent had failed to action advice given by the Applicant or alternatively the Applicant had provided the necessary advice in a timely fashion.
As a consequence of the Tribunal's finding that special circumstances are not found to exist, the exercise of discretion to waive the debt in this matter is not available pursuant to section 1237A(1).
determination
The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant has a debt due and owing to the Commonwealth of $4975.20.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  27 August 1999/13 July 2000
Date of Decision  23 March 2001
Applicant  Self-represented
Solicitor for the Respondent    Mr G Lozynsky

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Brown and Department of Family and Community Services [2001] AATA 232

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