CHALMERS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 540
•4 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 540
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3430
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES CHALMERS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member K Bean Date4 August 2011
PlaceAdelaide
Decision The Tribunal:
(a) varies the decision under review so as to provide that the debt raised against Mr Chalmers and attributable to the period 1 July 2001 to 1 June 2007 is waived pursuant to s 1237A(1) of the Social Security Act 1991; and
(b) otherwise affirms the decision under review.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – Pensions – Age pension – Overpayment – Debt – Part of debt solely attributable to administrative error – That part of debt waived – No grounds to waive or write off remainder of debt – Decision under review varied.
Social Security Act 1991 ss 1223, 1224(1), 1236, 1237A(1), 1237AAD
Re Secretary, Department of Family and Community Services and Natale (2003) 75 ALD 535
Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Sarolea [2008] AATA 372REASONS FOR DECISION
4 August 2011 Senior Member K Bean introduction
1.The applicant, Mr Chalmers, is currently 83 years old and has been in receipt of Age Pension (AP) since 25 September 1992. Mr Chalmers has also been in receipt of a United Kingdom retirement pension (UK pension) since 28 September 1992[1]. Mr Chalmers’ rate of Australian AP was and is calculated by taking into account his UK pension.
[1] T6/47
2.Sadly, on 24 January 1999, Mr Chalmers’ wife passed away. As a result, from 25 January 1999 his UK pension increased to £56.73 per week. However, for reasons which will be explored later in these reasons, Mr Chalmers’ Australian AP continued to be calculated after that date on the basis that he was receiving £27.36 per week by way of UK pension. This error was not discovered or corrected until June 2009.
3.Between 13 May 1999 and 18 June 2009, Mr Chalmers was paid between $52.22 and $75.40 per fortnight more than he would have been paid had Centrelink been taking into account the correct amount of his UK pension. Consequently, Mr Chalmers was paid a total of $15,582.51 in excess of his correct entitlement during this period[2].
[2] T2/8
4.In March 2010, an officer of Centrelink decided that this entire amount was a debt due to the Commonwealth which must be repaid and that decision was affirmed by an Authorised Review Officer (ARO).
5.However Mr Chalmers sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). The SSAT pointed out that prior to 1 July 2001, s 1224(1) of the Social Security Act 1991 (the SS Act) required that an overpayment be attributable to a false statement or false representation before the amount overpaid became a debt due to the Commonwealth[3]. The SSAT concluded that that part of the overpayment which related to the period 13 May 1999 to 30 June 2001 did not result from any false statement or false representation by Mr Chalmers[4], and the respondent does not dispute that conclusion. However the SSAT also concluded that the debt arising from the period 1 July 2001 to 18 June 2009 must be recovered as there were no grounds on which that debt could be waived or written off.
[3] T2/10
[4] T2/13
6.On 16 August 2010, Mr Chalmers sought review of that decision by this Tribunal.
issues
7.It follows that the issues for determination by me are as follows:
(a)whether Mr Chalmers was overpaid AP in the period 1 July 2001 to 18 June 2009;
(b)if so, whether the amount so overpaid is a debt due to the Commonwealth; and
(c)if so, whether there are grounds on which the whole or part of the debt should be waived or written off.
was mr chalmers overpaid ap?
8.As outlined above, there is no real dispute that Mr Chalmers was overpaid AP in the period 13 May 1999 to 18 June 2009 totalling $15,582.51. I am satisfied that Mr Chalmers was overpaid that amount of AP during that period.
is the overpayment a debt due to the commonwealth?
9.As I have also indicated above, the SS Act changed from 1 July 2001 so that s 1223 of the SS Act now provides that if a person who obtains the benefit of a payment was not entitled for any reason to obtain that benefit, then the amount of the payment is a debt due to the Commonwealth. However, prior to 1 July 2001, in order for an overpayment to become a debt, the SS Act required that the overpayment arose as a result of a false statement or false representation or a failure or omission to comply with a relevant statutory requirement.
10.The SSAT found that that part of the debt which arose prior to 1 July 2001 was not due to any false representation or statement or any failure by Mr Chalmers to comply with relevant statutory requirements. The respondent does not dispute the correctness of that conclusion and I also accept that that conclusion was correct. However, I am also satisfied having regard to the terms of s 1223 of the SS Act, as currently framed, that that part of the debt accruing from 1 July 2001 to 18 June 2009 is a debt due to the Commonwealth and I note that the debt attributable to that period is $11,775.41[5].
[5] Respondent’s Statement of Facts, Issues and Contentions [35]
should the debt be waived or written off?
11.There are a number of provisions of the SS Act pursuant to which Mr Chalmers’ debt may be potentially waived or written off. Those provisions are ss 1236, 1237AAD and 1237A.
12.I propose to address the potential application of each of these provisions in turn, commencing with s 1237A relating to a debt attributable solely to administrative error.
Should the debt be waived due to administrative error?
13.Section 1237A(1) of the SS Act relevantly provides as follows:
“1237A Waiver of debt arising from error
Administrative error
(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).”
14.The circumstances in which Mr Chalmers’ debt arose have been explored on a number of occasions and what Mr Chalmers has said about those circumstances has been reasonably consistent over time and is also reasonably consistent with the other evidence.
15.Mr Chalmers told the SSAT that after his wife passed away in January 1999, he contacted Centrelink to advise of his wife’s passing and also contacted the UK pension authorities. He said that he attended the Whyalla Centrelink office personally and was accompanied by his daughter, Ms Thompson. He gave the same account in a letter to this Tribunal dated 30 May 2011. In that letter he also stated that when he received the death certificate relating to his wife’s passing, he sent this to the UK. He subsequently received a letter from the UK pension authorities advising him that he was entitled to a higher rate of pension and his new pension would be £56. He said that that same day he went to Centrelink at Whyalla with his daughter to show them the letter from the UK pension authorities. He said in his letter to this Tribunal:
“The employee took my documents away to get photocopies and add to my records. This apparently was not done by Centrelink and I had no way of knowing they didn’t update this information.”
16.Mr Chalmers went on to state in his letter that when he received his “first new British pension” he had an increase of $300 and did not think this amount was right. He said he attended Centrelink again at Whyalla and an employee checked his records and stated “I was getting paid the right amount of pension Mr Chalmers, so don’t worry”. He went on to state:
“If no one at Centrelink had updated the information I had given them, how was the next person who looked at my pension records to know I had recently lost my wife and was waiting on updated information on my new pension. This error Centrelink made went on apparently for eleven years.”
17.What Mr Chalmers said in his letter about contacting Centrelink on the second and third occasions is also reasonably consistent with what he told the SSAT and what he said during his oral evidence before this Tribunal.
18.As the respondent does not dispute this account and there is nothing before me which contradicts it, I accept Mr Chalmers’ evidence about the occasions on which he attended the Whyalla Centrelink office, what he communicated to Centrelink and what he was advised on each occasion.
19.There is some uncertainty on the evidence as to why Mr Chalmers attended Centrelink on the third occasion, in the context of concerns about the rate of his UK pension. However, I accept that he was re-assured on that occasion that everything was correct from Centrelink’s point of view and that he was not asked to provide any further information by Centrelink.
20.Whilst the respondent does not dispute Mr Chalmers’ account or Centrelink’s failure to accurately record and act upon the information provided by Mr Chalmers, the respondent does dispute Mr Chalmers’ contention that the debt was therefore attributable “solely” to administrative error. The respondent says that Centrelink wrote to Mr Chalmers on numerous occasions advising him as to the amount of UK pension it believed he was receiving. The respondent says that if Mr Chalmers had taken note of this and taken steps to correct Centrelink’s misunderstanding as to the UK pension he was receiving, the debt would not have arisen or would not have been as large.
21.In particular, the respondent relies upon letters sent to Mr Chalmers on 28 January 1999, 17 March 1999, 6 June 2000, 16 August 2000, 1 December 2000 and 15 November 2008, each of which advised him of the annual amount of UK pension which Centrelink understood he was receiving[6]. The respondent also relies upon a letter to Mr Chalmers dated 28 April 2009 advising him that Centrelink was taking into account an annual income of $3,255.87 and also stating “the pension authorities from United Kingdom have advised your current rate of pension from that country. Pension from United Kingdom: basic amount £27.34 sterling weekly”[7].
[6] T12/185-194 & 227
[7] T12/233
22.The respondent also relies upon a number of account statements provided to Mr Chalmers between 18 May 2007 and 10 June 2009[8]. The statements on 18 May 2007, 31 October 2007 and 7 March 2008 each advised him that his AP was being calculated on the basis that he received a monthly payment of £118.50. The account statements dated 9 June 2008, 1 September 2008, 27 November 2008, 5 March 2009 and 10 June 2009 each advised him that his AP was being calculated on the basis that he received a weekly payment of £27.34 and advised him to contact Centrelink within 14 days if his circumstances had changed.
[8] T12/210-234
23.In his evidence, Mr Chalmers stated that he had not received any of these letters. He also indicated that, in any event, any letters advising him of an annual or even monthly amount “would not have meant anything” to him.
24.As to whether Mr Chalmers received these letters and notices, I note that they were each sent to his correct address and I am satisfied that they were received by Mr Chalmers in the sense of arriving at that address, although I accept that he may not have physically received each and every letter. For example Mr Chalmers gave evidence that he was overseas on holiday on a couple of occasions in 2000 and 2009, when his mail would have been collected by his daughter.
25.Whilst I do not accept that Mr Chalmers did not receive these letters however, that still leaves the question of whether his failure to respond to the letters contributed to the debt arising.
26.A similar issue arose in the matter of Re Secretary, Department of Family and Community Services and Natale (2003) 75 ALD 535. In that matter, at the time of applying for Newstart Allowance, Mr Natale had informed the Department orally that he had a military pension and indicated on his wife’s application form that he had such a pension, but without specifying the amount. The military pension was not taken into account by the Department in the calculation of Mrs Natale’s level of benefit.
27.In that matter, the applicant claimed that the debt was not solely due to its error as Mrs Natale did not rectify the error in response to notices seeking information issued by the Department. The applicant also argued that Centrelink had sent letters to Mrs Natale which expressly required her to give Centrelink notice as to changes in her circumstances which would affect her payment of Newstart Allowance. Those letters specifically notified her that she was required to advise Centrelink if her or her partner’s income changed. The applicant contended that Mrs Natale was in breach of her notification obligations arising from these letters because she failed to notify Centrelink of a CPI increase in her husband’s military pension, which occurred on 30 June 2001. The applicant accordingly contended that after that date, the debt was not solely attributable to its error, but was contributed to by Mrs Natale’s failure to comply with her notification obligations.
28.However the Tribunal concluded that, even if it was prepared to accept that disclosure of the CPI increase would have led to the overpayment being discovered, it did not follow that the initial administrative error would have ceased to be the sole cause of the overpayment. The Tribunal went on to observe as follows:
“This is because in consequence of Centrelink’s error, both Mrs Natale and her husband honestly, and in the Tribunal’s view in all of the circumstances, reasonably, understood that the DFRDB pension was simply not relevant to Mrs Natale’s entitlement to her NSA. It remained irrelevant in their minds solely because of Centrelink’s having failed to take any steps in relation to it when Mr and Mrs Natale disclosed it to Ms Li at the interview with her. We are satisfied that Mr and Mrs Natale disclosed that Mr Natale was receiving a DFRDB pension and gave Ms Li an indication of the amount of payment that he received. They took with them to their original interview documents verifying the DFRDB pension and its precise amount of payment and were ready to show those documents to Centrelink. We found that they were not asked for the documents and were not asked for any details about the DFRDB pension. In particular, we find that, contrary to Centrelink’s customary practice when there is an affirmative answer to question 21 of the Module P form, any consequence of Centrelink’s administrative error, Mr Natale was not asked to complete a form ‘I’ which would have required him to give details of his income, and nor was Mrs Natale asked for such information.
It was against this background that Mrs Natale received letters from Centrelink dated 7 December 2000, 28 February, 2 March and 8 May 2001. Each of those letters advised Mrs Natale of, among other matters, the information used to calculate the NSA payments. Among that information, under the heading ‘information used for calculating your regular payments’, was shown an amount of $2.12 or a similarly small amount as the ‘total fortnightly income’. Mrs Natale said, and the Tribunal finds, that the reference to this amount, which clearly did not include her husband’s DFRDB pension, reinforced her understanding that her husband’s DFRDB pension was not relevant. … Given Mr and Mrs Natale’s evidence and the manner in which Centrelink had disregarded their disclosure of the DFDB pension and had failed to ask for any further information, we are satisfied that Mr and Mrs Natale did not understand that the income stated in the letters was intended to encompass the income that had already been disclosed or that Mrs Natale had to advise of any change in her husband’s income. … Centrelink’s disregard of the DFRDB pension constituted an administrative error. It continued to pervade the entire understanding of Mrs Natale, and as far as was relevant, Mr Natale, as to what was required of them in their communications with Centrelink as far as the DFRDB pension was concerned. We are satisfied that on the facts of this matter it was the sole cause of Mrs Natale’s not understanding that the reference to ‘income’ in its letters was intended to refer to her husband’s DFRDB pension. It follows that we are also satisfied that Centrelink’s disregard was the sole cause of her not notifying it that the income shown on the letters was incorrect. … Not having first notified her rate of income because of Centrelink’s treating the DFRDB pension as irrelevant, Mrs Natale had no reason to think that she was required to notify it when her husband’s DFRDB pension increased with the CPI. She had no reason just as she had previously, and continued to have, no reason to think that she needed to advise Centrelink of the amount of income her husband received from the DFRDB pension. We are satisfied that she was led to this position solely by Centrelink’s actions and so solely by its administrative error. … For these reasons we are satisfied that the debt should be waived pursuant to s 1237A(1) of the Act.” [9]
[9] At 543-544
29.The circumstances of this matter are closely analogous with those considered by the Tribunal in Re Natale. I have accepted and the respondent does not dispute that Mr Chalmers advised Centrelink following the passing of his wife that he was receiving a higher rate of UK pension, and showed them a letter to this effect from the UK pension authorities, which a Centrelink employee undertook to copy and place on his record. Further, when Mr Chalmers subsequently queried whether he was receiving the right amount of pension, he was reassured that he was.
30.As in the Re Natale case therefore, Mr Chalmers’ reasonable belief that Centrelink was well aware of the amount of UK pension he was receiving, subsequently pervaded his understanding of what was required of him in his dealings with Centrelink. Further to that, I also accept Mr Chalmers’ evidence that even if he had carefully read the letters and notices forwarded to him by Centrelink with a view to correcting any error on their part, the letters and notices which referred to annual amounts of UK pension would not have alerted him to the fact that Centrelink was not aware of the amount of UK pension he was actually receiving.
31.Whilst I accept that it was honestly given however, on balance I do not accept Mr Chalmers’ evidence that references to him receiving a monthly amount of £118.50 would not have alerted him to the fact that Centrelink was using the wrong amount to calculate his AP. At the time he received notices referring to that amount, he was actually receiving in the vicinity of £230 per month by way of UK pension and in my view if he had carefully read the notices referring to him receiving £118.50 per month, he would have become aware that Centrelink was using an incorrect figure to calculate his AP, and taken steps to correct this.
32.Accordingly, in my view, from the time that Mr Chalmers received the first account statement referring to a monthly payment of £118.50 of UK pension it could fairly be concluded that he had been put on notice by Centrelink that they were using an incorrect figure to calculate his entitlement to AP. Up until that date, whether Mr Chalmers read the letters and notices that he received or not, in my view it could not be said that he had been squarely and effectively put on notice by Centrelink that Centrelink was using an incorrect figure for his UK pension. In other words, nothing had occurred until that time which could reasonably be said to have alerted Mr Chalmers with sufficient clarity to the fact that Centrelink’s previous advice to him, that he was being paid the correct amount of AP having regard to his UK pension, was incorrect. As he had not been effectively alerted by Centrelink that the advice he had previously been given was incorrect, there was no omission or failure on his part which contributed to the debt arising. Therefore, up until that point, in my view the debt was solely attributable to Centrelink’s original error in failing to accurately record Mr Chalmers’ increased UK pension, and wrongly reassuring him that his rate of AP was correct.
33.The first notice referring to a monthly amount of UK pension was dated 18 May 2007 and I consider that that notice and the subsequent similar notices were sufficient to alert Mr Chalmers that Centrelink was using an incorrect figure to calculate his entitlement to AP and if Mr Chalmers had read and responded to those notices, it is likely that Centrelink’s error would have been corrected at that time and the debt would not have continued to accumulate. Therefore Mr Chalmers’ failure to respond to the notices forwarded to him from 18 May 2007 contributed to the debt accumulating further after that date.
34.Allowing a period of 14 days from the date of the notice of 18 May 2007 for Mr Chalmers to receive and respond to that notice, I have accordingly concluded that for the period 1 July 2001 to 1 June 2007, the debt which has been raised against Mr Chalmers is solely attributable to an administrative error on the part of Centrelink within the meaning of s 1237A of the SS Act. As I am also satisfied that Mr Chalmers received the monies which make up that part of the debt in good faith and the respondent did not contend to the contrary, it follows that that part of the debt must be waived pursuant to s 1237A(1).
35.However, that still leaves the question of whether there are any grounds upon which the remainder of the debt should be waived or written off.
Should the debt be waived due to special circumstances?
36.Section 1237AAD provides as follows:
“1237AAD Waiver in special circumstances
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, the Administration 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.”
37.Whilst he is elderly and indicated that he had some health issues, Mr Chalmers did not put forward, or refer in his evidence, to any other matters which could potentially be considered to amount to “special circumstances” within the meaning of s 1237AAD of the SS Act.
38.As to the extent to which an administrative error is capable of constituting or contributing to “special circumstances” a number of Tribunal decisions have considered this question.
39.The most recent decision to which I was referred is Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Sarolea [2008] AATA 372, where Member Tovey observed as follows:
“42. In some cases special circumstances can arise in whole or part from the manner in which the Secretary or the Secretary's delegates administer the relevant legislation. This was the case in Re Reardon and Secretary, Department of Family and Community Services [2002] AATA 33. In that case the Tribunal had regard, in the context of s. 1237AAD of the Social Security Act, to the administrative error which caused the debt to arise when determining that there were special circumstances that made it desirable to waive half the debt.
43. The decisions of the Tribunal in Brown v Secretary, Department of Family and Community Services [1999] AATA 113 and Castle v Secretary, Department of Employment, Training and Youth Affairs [1999] AATA 176, also recognise that administrative error by the Commonwealth's officers can be taken into account in determining whether there are special circumstances that make it desirable to waive a debt. However, in both of those cases, and in Reardon, the relevant administrative error was only one of a combination of factors which led the Tribunal to consider that there were special circumstances that made it desirable to waive the relevant debt. In contrast to those cases, in the present case the Respondent has confined her reliance to the administrative errors of the Secretary's delegates, and her response to them, as giving rise to special circumstances which make it desirable to waive the debt.
44. In Tubic and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 13 at [30] I said, in similar circumstances to the present case:
‘I do not exclude the possibility that there might be cases where administrative error, taken alone, will give rise to special circumstances which make it desirable to waive a debt under s. 101 of the Administration Act. However, waiver under s. 101 of the Administration Act will not necessarily be appropriate in all circumstances in which administrative error causes or contributes to a debt being incurred. There must be something in the administrative error that gives rise to what may be properly regarded as special circumstances. In that regard it should be noted that the experience of the Tribunal has been that administrative error by the Respondent's delegates is, unfortunately, far from unusual. More importantly, where special circumstances arise from administrative error of the Commonwealth, there must be something about the administrative error that makes it desirable to waive the debt. Often that will involve some unfairness or hardship to the person who received the payment if repayment were to be required.’
45. I consider that statement of principle to be equally applicable to the present case. It follows that I do not necessarily accept the Secretary’s submission that administrative error alone can never constitute special circumstances which would justify the waiver of a debt under s. 101 of the Administration Act. However, ordinarily something more will be required.
46. It is also to be noted that administrative error of the kind reflected in the Respondent’s case is far from unusual, and is a common feature of most of the cases which come before this Tribunal. So much has been noted in a number of decisions of the Tribunal. That is a sad reflection on the manner in which the relevant legislation is administered, but it remains that fact that administrative error is common. It might be thought undesirable that the Secretary should be able to rely on common past administrative errors by his delegates to resist waiver on the grounds of special circumstances. However, Parliament has specifically addressed the circumstances where debts resulting solely from administrative error of the Commonwealth are to be waived, in s. 97 of the Administration Act. To conclude that administrative error will of itself generally not constitute special circumstances is consistent with Parliament having made that separate provision.”
40.The Tribunal went on to note in that matter that the respondent did not contend that her personal or other circumstances or financial hardship which would result from recovery of the debt gave rise to any special circumstances. The Tribunal found itself unable to conclude that repayment of the debt would occasion any significant financial hardship to the respondent and nor did it consider the administrative error to be unusual or to give rise to any unfairness or other hardship of a kind that would justify waiving the debt. Accordingly, notwithstanding the error which had led to the debt, the Tribunal found there were no special circumstances which justified waiver of the debt.
41.Similarly, in this matter, the only circumstance relied upon by Mr Chalmers is the error by Centrelink. He expressly did not rely upon his health and nor did he suggest that being required to continue to repay the debt would cause him any financial hardship. He did contend that it was unfair for him to have to repay such a large debt when this arose through no fault of his and despite what could be seen as his efforts to avoid any debt arising. As against that however, there is no doubt that he has received additional money to which he was not entitled and he has not contended that he is not in a position to repay the debt. It is also relevant to my consideration of this issue that the debt will be substantially reduced as a result of my conclusion that part of it arose solely from Centrelink’s administrative error.
42.In all the circumstances, including the fact that the debt will be much lower in light of my conclusion in relation to the administrative error issue, and the fact that there are no other circumstances relied upon by Mr Chalmers which make it oppressive or unfair for him to repay the remaining debt, I am not satisfied that there are “special circumstances” which justify waiver of the remaining debt.
Capacity to repay
43.Section 1236 of the SS Act relevantly provides as follows:
“1236 Secretary may write off debt
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
…
(1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
…”
44.There is nothing before me to suggest that any of the circumstances which potentially give rise to the discretion to write off a debt pursuant to this provision are present. As noted above, Mr Chalmers expressly did not contend that being required to repay the debt would cause him financial hardship.
45.That being the case, I am not satisfied that there are any circumstances which would justify the remaining debt being written off, in whole or in part, pursuant to this provision.
conclusion
46.I have accordingly concluded that that part of the debt accruing from 1 July 2001 to 1 June 2007 is solely attributable to an administrative error on the part of Centrelink and that portion of the debt should be waived pursuant to s 1237A of the SS Act. As to the remainder of the debt, there are no “special circumstances” which justify waiver of that part of the debt and nor are there grounds upon which that part of the debt should be written off pursuant to s 1236 of the SS Act. Accordingly, that portion of the debt must be recovered.
decision
47.The Tribunal:
(a) varies the decision under review so as to provide that the debt raised against Mr Chalmers and attributable to the period 1 July 2001 to 1 June 2007 is waived pursuant to s 1237A(1) of the Social Security Act 1991; and
(b) otherwise affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .....................................................................................
AssociateDates of Hearing 30 March 2011, 5 May 2011 & 7 June 2011
Date of Decision 4 August 2011
Advocate for the Applicant Self-represented (with Ms Thompson, daughter)Advocate for the Respondent Ms L Odgers
Program Litigation and Review Branch
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