Burke and Secretary, Department of Social Services (Social services second review)
[2018] AATA 4429
•29 October 2018
Burke and Secretary, Department of Social Services (Social services second review) [2018] AATA 4429 (29 October 2018)
Division:GENERAL DIVISION
File Number: 2018/1371
Re:Craig Burke
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:29 October 2018
Date of written reasons: 27 November 2018
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
...............[sgd].........................................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – overpayment of pension – recovery of debt – whether debt can be written off – whether debt can be waived – whether sole administrative error of the Commonwealth and payments received in good faith – whether special circumstances – decision affirmed
LEGISLATION
Social Security Act 1991 s 1237A
CASES
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Secretary, Department of Education, Employment, Training and Tough Affairs v Prince (1977) 152 ALR 127
Secretary, Department of Family and Community Services and Trio [2002] AATA 865Secretary, Department of Social Security v Coralie Hales [1998] FCA 219
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
27 November 2018
BACKGROUND
Mr Burke has applied for a review to this Tribunal, from a decision of the Social Services and Child Support Division of the Tribunal (AAT1), made on 22 February 2018, which affirmed a decision of the respondent department made in November 2017 to recover a debt for a disability support pension overpayment in the sum of $7,239.13 that was overpaid to the applicant during the period 23 November 2012 to 4 April 2013.
There is no issue in relation to the actual sum. Apparently the applicant was entitled to about $1,400 for that period of time, leaving a net of the $7,239.13, which was an overpayment. Nothing arises out of that; that is not in dispute. Nor indeed is it in dispute that the debt actually is a debt. It is, as far as it goes, properly raised in that it did amount to an overpayment made at a period of time, namely that period when the applicant, Mr Burke, was working with Mission Australia.
Mr Burke was on a disability support pension and it appears that Mr Burke had been on a disability support pension up until 12 July 2011 when he had then been put on Newstart from that date until 26 March 2012. He then went back on the disability support pension from 26 March 2012.
It appears from the file in the T-Documents that there was some concern around about the middle of 2012 that he was at risk of becoming homeless, and there were also some significant concerns expressed in relation to his health.
Mr Burke had been with Mission Australia for several years, firstly as someone being assisted, but then working his way up as a volunteer through to the stage that on 23 November 2012 he was able to get a paid job in Alice Springs helping out Mission Australia which involved him going out 300 kilometres into the desert and assisting remote communities.
It was a thoroughly enjoyable, if taxing, job.
He was at the time banking with a credit union in Darwin. The credit union didn’t have any ATMs in Alice Springs, nor did it have an office there. His disability support pension, which was all he was getting up until November 2012, was paid into his account with the Darwin credit union.
Because of the expense involved in accessing that or anything else electronically, he was mainly concerned just with keeping contact with his immediate family on Facebook, and because of his limited means he did not at that stage check what was going into his accounts.
He gave sworn evidence, and it is consistent with what he told the AAT1, that he rang up, he thinks within a week and a half, and certainly within the normal 14-day period that clients are allowed, to tell Centrelink that he had commenced employment with Mission Australia, and he had commenced employment as a mental health case manager in Alice Springs. He said he had told them also his fixed salary. He told the Tribunal below that he had advised his earnings about $1,900 per week, rounded up, and that’s consistent with what he told this Tribunal, i.e. about $900 a week with add-ons.
According to the department and its records, for the full two-week periods his gross salary was $1,877.66, so it certainly appears to be $900 a week with add-ons, and very consistent with what he has told the AAT1 as well.
He was aware that he had to notify Centrelink when he commenced work, and he was aware that his earnings would affect his Centrelink payments. He unfortunately notified Centrelink, he said, verbally, and didn’t go into any office they may have had in Alice Springs, and certainly didn’t put it in writing.
He doesn’t know the name of the person he spoke to. It was a female.
As I said, he wasn’t checking his accounts. At any rate, all he would get electronically would be the balance. He was out in the bush a lot with his field work. He lived frugally, and when he was able to check his balance on one or two occasions during this period of work, he told the Tribunal that it did appear to be reasonably high.
He was not able to check it for about two weeks after he returned from Alice Springs and went back to Darwin, as he wasn’t well and had been admitted to hospital. He didn’t check it until he got out of hospital. He noticed that it was quite high, but when he enquired further it appeared that he had a payment of $3,515.45 made on 27 March 2013, which was holiday pay and all the extras he was entitled to when he ceased employment with Mission Australia.
As he understood he was entitled to those things, he said the $3,515 payment didn’t come as a surprise to him and he didn’t think anything further of it.
The next contact he had in relation to this matter (it appears there was some other contacts with Centrelink) was when an employee of Centrelink by the name of Abdul from debt recovery, rang him up in October 2017 and advised him that Centrelink were seeking a debt recovery, and a letter would follow to that effect, which it did about three or four days after the conversation. This matter then progressed from there to where we are today.
FURTHER EVIDENCE GIVEN BY THE APPLICANT
The applicant indicated in cross-examination that he believed that he had in fact most likely notified Centrelink, again he thought by phone, that he had ceased employment Whilst he can’t recall any conversation or any details of the contact, he believes he would have notified Centrelink very soon after he ceased employment. He noted that there was no record by Centrelink of receiving such a call nor of the subsequent conversation.
He also said the conversation where he told the AAT1 he was employed in late November 2012 was a detailed but not lengthy one and denied telling the AAT1 that it had been a lengthy one.
He was asked at some length about not looking at his balance, and he said he certainly knew he had more money, but in his words, “I knew I had more money, but I assumed I was spending less”. He felt his job was a good opportunity to save, because of the lack of expenses that he had.
He said when he did check when he was back in Darwin, and he did that at an ATM, he was surprised by the balance. He said he had gone into the branch and asked for a copy, and that’s when he saw that $3,515.45. He said he raised his eyebrows, but because it was back-pay and final payments by Mission Australia, he really didn’t think anything more about it. He stated he didn’t even know if he looked at his statement.
When he was asked, I think by myself, “did [he] get statements in the mail”, he said “yes, [he] did”. He was asked “and that’s statements in the mail where they list what goes in and out of an account?”. He said “yes, [he] would have”, but because he was moving from address to address and he was staying between six and nine weeks at various places, and because his mail wasn’t being passed on, that would explain why he would not necessarily get his statements.
So, he thought nothing more about it until the contact in 2017 by the Centrelink officer whose name was Abdul, who also gave his contact details, which Mr Burke said he went in and put on the board at his home.
On 8 January 2016 he left the Northern Territory and moved in with his mother at the address he now lives in, which is about 10 minutes out from the Maitland CBD.
THE ISSUE
Fundamentally the issue in this case is simply – is this debt something that he should repay, or is this one of those situations where in accordance with the Social Security Act 1991 (the Act) the debt can be written off or waived.
APPLICATION OF THE LAW
It can’t be written off by law because it’s an ascertainable debt, the department knows where he is, there is a means of repayment, albeit slowly because he’s currently getting a benefit, and so the provisions for a write-off are not there. A write off at any rate is something that can be reactivated down the track if his circumstances changed. However he does not qualify by law.
Is it a debt that can be waived? The debt can be waived if there is sole administrative error and if the debt has been received in good faith. Also a debt can effectively be waived if in fact there are special circumstances as well in the case, and that is where the debt hasn’t arisen basically solely or partly because of an applicant’s misrepresentations or not doing what he or she are meant to do, and deliberately doing that. That certainly doesn’t apply here.
Special circumstances are pleaded on the basis, it would seem, that the applicant’s situation in advising Centrelink, and the errors that they made, could be construed, as I understand him to say, as a special circumstance; plus his personal and financial situation at the time and his health situation.
I should say that an applicant’s financial situation has to be quite extreme, because basically everyone who is on some form of benefits usually isn’t in a very good financial situation.
SOLE DEPARTMENTAL ERROR
There are a number of situations that present themselves here. Firstly what I need to consider is the facts: the situation around the time in November 2012; the situation around the time of March/April 2013; the situation in October 2017. I don’t think anyone doubts that the first time the applicant was aware of the problem of the debt was around October 2017. On 9 October 2017 the department sent him a letter. The conversation with the departmental officer by the name of Abdul would have been in that case probably earlier than that, probably early October 2017. In other words, about 12 months ago.
The relevant period we are looking at is between November 2012 and March/April 2013, some four and a half years before October 2017. A long time ago. Mr Burke by his own evidence indicated that he simply hadn’t given the matter any thought, as he didn’t have any need to for that period of time.
The other fact I mention here, because it is important in terms of me considering the possibilities and the factual situation of this case before I make some finding of fact, is that when the applicant was on the disability support pension prior to July 2011 he had, from 2008, run a business. Quite commendably he had taught himself some drafting skills, he was quite good with a computer, again self-taught, and had done some work which had made him a very limited amount of money.
It obviously wouldn’t have affected his disability support pension, but he did have to put in documents indicating profit and loss statements, and there was some profit and loss, at least for one year, but for the other two years it was zero. Effectively the business had completely ceased by the end of 2010, but was pretty well inoperative for a couple of years, it seems, before that, and really only seemed to have been active in 2008. There was documentation and correspondence in the T-Documents to that effect.
The department has no record of the conversation in November 2012. Mr Burke’s position is he felt “it’s their problem”. He felt that they should have taken a record, they should know that he had got a job with Mission Australia; and because of that, really this is all their fault. He hasn’t done anything wrong, and therefore why should he have to repay it?
That is an understandable position.
Can I be satisfied that indeed he made that call to the department? What are the other possibilities? I don’t think there’s anything to indicate that Mr Burke is not telling the truth as best he recalls it, or at least believes implicitly that he is telling the truth. There is nothing in his file or in his demeanour today or in anything I read in the AAT1 decision which would lead me to believe that he is not doing his best to tell the situation as he recalls it at the time. It is, I suppose, possible that with the passage of time things might have got mixed up. He may have thought he had that conversation, it’s possible. It is possible that he has confused it with something else. However, he remains adamant that he had that conversation.
The only thing I think that might have possibly confused it were the events, at least 15 months earlier, and that was in relation to his business, which ceased to operate as at the end of 2010, and which he had to do and send various reports to the department in 2011. I suppose with the five year passage of time between the employment with Mission Australia and being told he owed money that might have led to a confusion there.
I’ve got nothing to base that on apart from the fact that there is some logic in that supposition. People often get confused in recalling events due to the passage of time.
I am certainly not satisfied that he rang up the department beyond reasonable doubt or even comfortably satisfied of that but given the fact that the department is composed of many employees and people make errors and not infrequently those errors include officers not taking down details of conversations it is quite possible he is correct.
I should add that in this matter there is documentation of notes being taken by departmental officers of other conversations from phone calls to the department by the applicant.
I’m certainly satisfied beyond reasonable doubt that Mr Burke clearly, to his recollection, believes, and believes 100 per cent, that he rang the department, and he rang the department at that time about this.
I do have some doubts as to whether this actually occurred. I can think of a number of scenarios where that may not be the situation. I think we all, when we have to recall events of a long time ago, in our own mind sometimes think that clearly something happened but when shown actual proof that it didn’t, we say – and it has happened to me – “oh, I really thought it did, but you’ve proved to me that it didn’t occur”.
However for something as important as this, knowing his responsibility to advise the department if he got work and with his track record of not having any issues with the department beforehand, plus the fact that he is adamant about it, means that I will give him the benefit of the doubt and say I’m prepared to accept on the balance of probabilities that he did ring, and for some reason it wasn’t taken down. I also note that the AAT1 seemed to be of the same view.
However, in terms of Mr Burke telling the department that he had stopped work and that he therefore could basically go back on the full disability support pension, I note that he initially didn’t even volunteer that that was the next contact with the department. It was in cross-examination that he seemed to recall that he must have done that, but he can’t recall exactly when or how. He thinks he would have done it when he got back to Darwin.
I must say, had the department made an error and not taken down his initial advice that he was working, it wouldn’t have made any difference if he had rung up and they hadn’t taken that down, because they were continuing to pay him; and at any rate, he ceased being paid money into his account from Mission Australia as he was only employed for less than a six month period. Money started being paid in when they hired him and when he stopped work the money stopped too. It was a finite period.
So clearly the only way that might have affected his pension definitely was if in fact the department had taken a note that he was working in November 2012 or indeed had he rang up in March or April of 2013 and told them “I’ve ceased work” and then they checked the records and found out they had no record of him starting work which would then lead them to ask him “well, when did you start?”. Certain things would have flowed from that and this would have been sorted out a long time ago if that had been the case.
Accordingly I don’t think, on the balance of probabilities, that the latter phone call supposedly made in March/April 2013 was ever made.
I think quite possibly he might have been confusing it with another contact he did have with the department, and that was on 4 April 2013, where there is a note, and this is replicated at pages 147-148 of the T-Documents, where it said:
Customer contacted DEBT RECOVERY QLD on 4 APR 2013 regarding Recovery Action for Debt Management. Information was obtained via E-MAIL using E-Mail. Document created by JEE on 4 APR 2013. need to clarify a current debt if someone can call me on [phone number given]
And it then went on to say “phoned the customer” – this is JEE on 4 April 2013:
and he requested to have the $12.20 taken out of his pay due on 08/04/2013, customer wanted to have his o/s balance paid so he could apply for an advance
OPAL coded to reflect the customers request
That was from the archive assistance team at Centrelink, printed on 24 January 2018. So certainly there appeared to be a contact there in relation to a $12.20 amount. This contact with the department could well be what he is confusing with his vague recollection of ringing them up to tell them he had ceased work. That could explain his belief that he can’t recall anything about it, but he thinks he certainly would have contacted the department to say “I’m not working anymore”.
Given that he can’t recall any conversation, I’m certainly satisfied on the balance of probabilities at the very least that the only contact with the department around about that time is that recorded contact on 4 April 2013. Fast forwarding to October 2017, I accept the conversation he had with the departmental officer (Abdul) which led to him receiving the letter dated 9 October 2017.
So where does that leave us? In terms of his evidence, he was quite consistent in what he said, and also consistent with the problems he has had with the department. He also made some further comments in relation to how they just took out $127 a fortnight from his pay before this matter had even been heard here today. He told the Tribunal that there had been a lot of instances he was aware of, and one sees it on the news a lot, about errors by Centrelink. He felt Centrelink could well have not taken details of his conversation, both in November 2012 and April 2013. I have covered that and I have made my findings as above.
He also made the following comment in his submissions, and as it was fairly pertinent I wrote it down. He said “whether I’ve crossed the t’s or dotted all the i’s, I might be guilty of that, but basically it was very much the department’s fault”.
He has done everything he reasonably can. He has followed instructions. He is certainly entitled to ring up Centrelink, as opposed to writing to them or going into a Centrelink office, to advise of changes of circumstances, and he was adamant he has done that.
Those are the pertinent facts as far as I see them. Is this solely a departmental error; can it be said to be that; and if it is solely a departmental error, what about the second leg of the equation there in terms of the law? Section 1237A of the Act provides that:
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.
Is this solely an administrative error by the Commonwealth; and did the applicant receive it in good faith? And, if that doesn’t necessarily apply here, we have to look at the question of are there any special circumstances (other than financial hardship alone) in this case, which gives the Secretary, and me standing in the shoes of the Secretary, the right to recover all or part of a debt, or waive it if the debt didn’t wholly result or partly result from the debtor or somebody else knowingly making a false representation or failing or omitting to comply with a requirement. I certainly think the debt didn’t result wholly or partly from that.
On the issue of sole administrative error, as the respondent’s legal representative submitted, sole administrative error is just that: it has to be solely attributed to an administrative error by the department. If there is any error by an applicant, a person in Mr Burke’s situation, even of a minor kind, that isn’t sole administrative error. Is there sole administrative error here?
The main error would seem to, and I have found for the purposes of this case that he did make that phone call – I may be wrong in that, but I have so found that he did make that call – then that certainly led to this situation occurring. If that conversation had been taken down properly, then we simply wouldn’t be here.
The only things that would detract from sole administrative error is the fact that whilst I appreciate it was virtually impossible for him to check his bank accounts, I get the distinct impression – and I’ve gone through the evidence in some detail – that he was surprised at times with his balance, that it was a lot more that he thought it would have been. He has said that much in evidence under oath.
He dismissed his concerns about it without going in to explore them further because firstly he had been living frugally; and secondly the last big lump sum he got of $3,515.45 could be explained away as his holiday pay and all the extras he got when he ceased employment.
That being said, the larger than expected bank balance would trigger in many people – and indeed I would say should reasonably trigger a person asking himself/herself the question: “shouldn’t I check this out?”. A prudent person would go and check it out and then would have found out that he/she appeared to have been overpaid (and in the applicant’s case that Centrelink clearly hadn’t taken any notice of what he had told them back in November 2012) and that he had better contact them.
That is something I think a prudent person would have done and had the applicant done so we wouldn’t be here today if that had occurred.
The above makes it difficult to assert that this is a sole administrative error because it was an error, but an error that could have been rectified earlier by some action, and a reasonable action too, taken by the applicant.
The converse to that of course is one of the reasons perhaps he didn’t follow through on doing that was he wasn’t well. He had been in hospital for one or two weeks. He had a not unreasonable explanation as to perhaps why it was more than he thought it might have been, and consequently between his illness and the passage of time he simply didn’t take it any further. That is understandable, but not necessarily prudent.
I do find it difficult to say in the circumstances there was sole administrative error. If the department didn’t take down details of the call, then that is largely the reason why we are in this predicament. If they had recorded it, again we would not be here, but not taking down the call but may not be the sole error.
At any rate, even if it is, does that necessarily help him? The law is pretty clear and a person in the applicant’s position has to receive the money in good faith.
The law as to what constitutes “good faith” is not what perhaps the average person in the street would think it is. It’s “good faith” as the term is used with regard to determining debt waivers.
Finn J in the case of Secretary, Department of Education, Employment, Training and Tough Affairs v Prince,[1] said good faith in the context of debt waiver requires a consideration of:
the state of mind of a person concerning his or her receipt of the payment. If that person knows or has reason to know that he or she is not entitled to a payment received – ie is not entitled to use the moneys received as his or her own – that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.
[1] (1977) 152 ALR 127
In other words, if someone said, “hey, I’m entitled to that because the department made a mistake earlier, they actually owe me $10,000 and that’s probably them paying me back”, that might then mean one has an entitlement to it. But if you know it’s an error, the department shouldn’t have done it – you’ve told them that they shouldn’t have done it – then that isn’t by law in good faith. Nothing criminal, nothing devious or anything like that about it; but it’s not received in good faith.
Forgie DP certainly considered that in her case of Secretary, Department of Family and Community Services and Trio,[2] which involved an applicant requesting that parenting payments be cancelled, which didn’t occur. The administrative error was there, with the department stuffing something up, and they continued to make the payments, and indeed paid it into the applicant’s husband’s account, which complicated everything further (and that explained why the applicant, who claimed to be unaware of it, probably was unaware). The Trios only ever looked at the bottom line of that account, very, very similar to the applicant here; Mr Burke only looked at his bottom line just to make sure because he lived week to week, fortnight to fortnight, that there was enough money, so he had “$50 to buy something I needed”, as he said.
[2] [2002] AATA 865
Forgie DP found that although the applicant in her case had, “acted honestly, openly and without guile or attempt to deceive at all times”, she was still nevertheless aware that she didn’t have an entitlement to those payments during the debt period, and she could not have received the payments accordingly in good faith. That may seem harsh, especially in that case because Ms Trio had actually told the department to cancel the payments and not only did they keep paying them, they paid her in her husband’s account, which complicated the matter.
Despite this, it was held that even though Ms Trio had done all the right things – the money was not received in good faith.
The reason for that is it is a debt. It is money that the person isn’t entitled to. These things usually do arise because of some departmental error, albeit sole or otherwise. But unless the person has a genuine, and a genuinely-held belief with something to back it up, that they are actually entitled to that money, if they’re not – and that is the case here – then the law is that that money needs to be repaid.
Many people think because it’s a big government department, which has made a stuff-up, why should they have to pay it back?
The answer is because it is not their money – it is taxpayers’ money. If, and these things happen quite often errors are made, and probably a lot of money has to be paid back; if that applied generally and all department errors which led to money being paid where it shouldn’t have been paid could never be recovered, that would simply mean that the taxpayer would be lumbered with additional payments in some form or another which they shouldn’t have to pay because they, the taxpayer, are innocent of the whole process.
It is much fairer and far better as a matter of public policy if the person who was the beneficiary initially of the overpayment is the person who actually pays it back, because at the end of the day that person has been given a windfall he/she was not entitled to. Yes, it is unfortunate, because the department has stuffed up and has caused some inconvenience, but it is something that quite logically should be paid back.
French J also acknowledged this in the case of Secretary, Department of Social Security v Coralie Hales;[3] when he said:
From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the person concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise.
[3] [1998] FCA 219
Fundamentally, if people are paid money that they’re not entitled to, the community does expect that money to be paid back.
SPECIAL CIRCUMSTANCES
We come now to special circumstances. Special circumstances in fact can lead to a waiver. It is somewhat rare. The circumstances cannot be capable of precise or exhaustive definition but they have to be unusual, they have to be uncommon and they have to be effectively, if they’re not that, exceptional.
In Davy and Secretary, Department of Employment and Workplace Relations,[4] Forgie DP, at paragraph 80, said:
“special circumstances” are not merely directed to a person’s own circumstances. Rather they are directed to those that are “special circumstances … that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiving the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it… He has had benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement… The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it does not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances make it desirable to waive the debt
[4] [2007] AATA 1114
So fundamentally what she is saying is that an injustice will be done to others if a debt is not repaid. It is a balancing act. Special circumstances do not, unfortunately for Mr Burke, apply in his case simply on the basis that whilst he is certainly ill and whilst the Tribunal takes note that he was in hospital for two weeks after he finished working with Mission Australia in the Northern Territory, a number of people, especially those on a disability support pension, have an ailment of some description and there really have to be out of the ordinary circumstances to enliven the exemption.
Similarly, financial circumstances alone cannot be taken into consideration because everyone has some degree of financial constraints if they are on a pension. Mr Burke certainly does have those issues. He does struggle from fortnight to fortnight, but there is nothing really out of the ordinary in his situation which would amount to special circumstances. I think the AAT1 got that right too.
One thing that does concern me, is that whilst it is all very well to expect people to pay back a debt for monies they got accidentally and for which they are not entitled, it has to be done after considering their circumstances and it has to be done fairly.
I do not think $127 a fortnight is fair in relation to Mr Burke. I think that it is just a mathematical formula. I also note his concern and also his quite understandable comment about, “hey, they’ve done this prior to the matter being finalised”.
I thank Ms Dunlop for pointing out that it has occurred in his case after the AAT1 made its decision. That is normal, unless someone actually does something to stay the matter pending an appeal. That can either be done by the applicant going back to the Tribunal and asking for that to occur or coming to some agreed arrangement with the department to not recover it until after the AAT2 appeal has been finalised.
As the respondent would not have been inconvenienced at all if they waited until after this appeal to recover the debt, the applicant should have been consulted and told his rights to seek a stay if need be.
So I think it is a valid point to raise and that is something that the Department may wish to consider in future.
One thing I will urge, having heard from him today, is that a more realistic figure might be an amount of around $50 a fortnight. That it is something for the department to consider in discussing the matter further with the applicant.
The department does tend to be quite reasonable in terms of looking at the rate of repayment of debts owing. Already in this case it has got back over $2,000. If the debt was to be reclaimed at the rate of $50 a fortnight, or even less, that would mean that it would still be repaid in probably four to five years’ time, which when dealing with persons of limited means is not unreasonable. Some debtors only pay $20 or $30 per fortnight and their debts are much larger than this one.
I think the applicant can be heartened by the fact that the department, whilst very keen to recoup debts that are owed to it, can be very reasonable in terms of ensuring that it does not crucify a person who owes it money and usually, when asked, comes up with a reasonable repayment regime that takes that person’s circumstances into account.
I note further what the applicant says in relation to the frustration he and others have in terms of having situations where the department gets it wrong, and the cases show that and the media coverage sometimes reflects that too. However, we are dealing with very big government departments with people working there with various degrees of competence, experience, training, attitude – the situation is unfortunately not uncommon when one deals with large organisations – public or private. Some people are better at their jobs than others.
Some things simply do happen. Someone is having a telephone conversation. Someone might interrupt them. A door may slam. That might be at the crucial time when someone simply forgets to do something they are meant to do, like press enter or something like that on the keyboard. Something as simple as that. Human error. It is impossible to overcome human error. We are all human.
It is possible to minimise it, and clearly there are probably ways in which it can be minimised, and that is certainly something where Mr Burke, and others, are rightfully upset about and indeed by raising it again with such people like one’s federal member, there can be improvements made to the system so that customers are inconvenienced as little as possible.
Errors will always occur but the secret is doing things so that they are minimised, and there are all sorts of ways I am sure that can occur, ranging through, perhaps, better management practices, maybe some disciplinary measures against people in departments who clearly are doing the wrong thing. But it is impossible to completely overcome the vagaries of human nature.
If it is any consolation, Australian Government departments tend to be a lot more efficient than most countries in the world, and despite some of the very obvious problems that people have with them, departments like Centrelink especially, are very big departments and unfortunately these things happen, sometimes far too often. It is important that people raise the issues and raise them with the relevant authorities, with the department or their local member, so that these issues can be addressed and the system can be improved.
DECISION
For the reasons given, the decision of the AAT1 will be affirmed.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member
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Associate
Dated: 27 November 2018
Dates of hearing: 9 & 29 October 2018 Applicant: In person Solicitors for the Respondent: Ms K Dunlop, Department of Human Services
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