Chamoun; Secretary, Department of Social Services and (Social services second review)

[2019] AATA 4236

Chamoun; Secretary, Department of Social Services and (Social services second review) [2019] AATA 4236 (16 October 2019)

Division:GENERAL DIVISION

File Number:           2019/1306

Re:Secretary, Department of Social Services

APPLICANT

AndAshour Chamoun

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:16 October 2019

Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides:

·Mr Ashour Chamoun has a debt to the Commonwealth due to the overpayment of carer payment in the amount of $36,483.30 for the period 15 February 2016 to 14 June 2018;

·the debt for the period 28 June 2017 to 14 June 2018 is waived pursuant to section 1237A of the Social Security Act 1991 (Cth); and

·the remainder of the debt is recoverable in accordance with section 1223 of the Social Security Act 1991 (Cth).

..........................[SGD]..............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – carer payment debt – where applicant’s partner received lump sum compensation payment – where Centrelink on notice that lump sum compensation payment would be made – where Applicant failed to discharge reporting requirements – where Centrelink ultimately notified that Applicant’s partner owned two properties and continued to pay Applicant at the maximum rate of carer payment – sole administrative error – decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth) ss 8, 9, 11, 1064, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 68, 72

CASES

Groth v Secretary, Department of Social Security [1995] FCA 1708
Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76

SECONDARY MATERIALS

Guide to Social Policy Law, Social Security Guide

REASONS FOR DECISION

Dr L Bygrave, Member

16 October 2019

INTRODUCTION

1. The respondent, Mr Ashour Chamoun, was granted carer payment and carer allowance from 21 January 2016.

2. On 13 June 2018, the Department of Human Services (Centrelink) decided Mr Chamoun had a carer payment debt in the amount of $28,571.35. Mr Chamoun sought review of this decision and an authorised review officer of Centrelink decided on 13 September 2018 that Mr Chamoun had a carer payment in the amount of $36,483.30 for the period from 15 February 2016 to 14 June 2018.

3. Mr Chamoun applied to the Social Services and Child Support Division (the SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for a review of Centrelink’s decision.

4. On 1 February 2019, the SSCSD determined that the amount of debt was correct but the entirety of the debt should be waived as it was solely attributable to administrative error by Centrelink.

5. The Secretary of the Department of Social Services (the Secretary) applied to the General Division of the Tribunal on 8 March 2019 for a review of the SSCSD decision.

6. The matter was heard in Sydney on 10 September 2019. Mr Chamoun did not have legal representation; he attended the hearing and gave oral evidence in person.

   ISSUES

7. The issues for determination before the Tribunal are:

   (a)whether Mr Chamoun has a debt for the overpayment of carer payment in the amount of $36,483.30 for the period 15 February 2016 to 14 June 2018; and

   (b)if so, whether there are any grounds for writing off or waiving all or part of the debt.

   RELEVANT LEGISLATION

8. The rate of a person’s carer payment is calculated in accordance with section 1064 of the Social Security Act 1991 (Cth) (the Act). Section 1064-A1 of the Act provides that the rate of carer payment paid to a person is affected by factors such as their income and assets, and whether they are single or a member of a couple. Section 1064-A2 sets out that where two people are members of a couple, they are treated as pooling their income and assets and sharing them on a 50/50 basis.

9. The Act defines the meaning of “income” at subsection 8(1) of the Act as an amount “earned, derived or received” by a person for their “own use or benefit”. Section 11 of the Act sets out that “assets” include money and/or property, and section 9 provides that “financial assets” include available money or money that is deposited in a financial institution account.

10. Section 1223 of the Act states that an overpayment of a social security payment is a debt to the Commonwealth. Provisions to write off or waive a debt are set out in sections 1236, 1237A and 1237AAD of the Act.

11. Sections 68 and 72 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) require a person to inform Centrelink about any changes to their circumstances within 14 days.

    EVIDENCE

12. Mr Chamoun is the partner of Ms “M”. On 18 June 2009, Ms “M” was injured in a motor vehicle accident. Ms “M” subsequently sued the responsible party for damages in the District Court of New South Wales and, on 31 October 2014, NRMA (the insurer of the responsible party) notified Centrelink in writing that a compensation payment of $1.4 million would be released to Ms “M” “once Centrelink clearance issued”.[1] Centrelink wrote to Ms “M” on 16 December 2014 stating that her compensation payment affected her eligibility for income support and a compensation preclusion period applied until 24 May 2027.[2]

    [1] Exhibit T-T4, page 86.

    [2] Exhibit T-T26, page 477.

13. On 25 November 2015, Mr Chamoun and Ms “M” completed and signed a Centrelink “Income and Assets” (SA369) form. This form included the following relevant declarations:

    51 … Have you (or your partner) ever CLAIMED or are you (or your partner) ABLE TO CLAIM compensation, insurance and/or damages:

    Yes [box ticked] Go to 53

    52 …Are you (or your partner) RECEIVING or have you (and /or your partner) EVER BEEN PAID compensation, insurance and/or damages.

    [no box ticked]

    53 … Have you told us about these payments before?

    No [box ticked] You will need to complete and attach a Compensation and damages form (Mod C). If you do not have this form, go to our website…[3] [emphasis in original]

    [3] Exhibit T-T5, page 106.

14. Mr Chamoun wrote to Centrelink on 21 January 2016 regarding his claim for carer payment and carer allowance for the care he provided to his father. This letter included the following statement: “I need to provide the details for my wife’s compensation claim. Her claim has not been finalised and she has not recieved [sic] any payment”.[4]

    [4] Exhibit T-T6, page 110.

15. Centrelink records confirm that Mr Chamoun contacted Centrelink on 21 January 2016 regarding his claim for carer payment as he had commenced caring for his father seven days a week. An annotation to this Centrelink record on 2 February 2016 stated “2009 compensation on wife is clear to pay”.[5]

    [5] Exhibit T-T20, page 242.

16. Centrelink sent Mr Chamoun a letter dated 2 February 2016 confirming his receipt of carer payment from 21 January 2016. This letter set out the following information:

    Your Carer Payment

    …

    Information used for calculating your regular payment

    Combined Annual Income ……. $0.94

    …

    What you must tell us

    You must tell us within 14 days…if any of the changes listed below happen or are likely to happen to you and/or your partner…or the person(s) you care for.

    …

    Income: You or your partner’s gross income changes…

    Compensation: Tell us within seven days if you or your partner will receive, have received or are likely to receive compensation.

    Assets: If the value or your and/or your partner’s assessable assets change by $1,000 or more. Changes include buying, receiving, selling or giving away assets. Assets include…real estate…personal property…[6]

    [6] Exhibit T-T25, pages 440-441.

17. Centrelink sent further letters to Mr Chamoun on 8 November 2017 and 11 June 2018 that set out identical reporting requirements.[7]

    [7] Exhibit T-T25, pages 453-455 and 464-466.

18. On 10 February 2016, the NSW Public Trustee (the Public Trustee) deposited the amount of $1,241,726.57 into a bank account of Ms “M”.[8] Ms “M” transferred the amount of $1,242,000 to another bank account on 15 February 2016.

    [8] Exhibit T-T13, page 192.

19. Ms “M” subsequently purchased two properties. On 22 June 2016, she purchased a property at the suburb “S” for the price of $637,000 with a mortgage loan of $400,000;[9] and on 30 August 2016, she purchased vacant land at “B” for $600,000 unencumbered.[10]

    [9] Exhibit T-T8, pages 133-136.

    [10] Exhibit T-T8, pages 140-142.

20. At the Tribunal hearing, Mr Chamoun said that he told Centrelink about the deposit of compensation money into Ms “M”’s bank account in February 2016, and Ms “M”’s purchase of the property at “S” in June 2016 and vacant land at “B” in August 2016. He said it was “no secret” that Ms “M” received the amount of $1,241,726.57 into her bank account and she required the consent of the Public Trustee to purchase the properties at “S” and “B” in her name. Mr Chamoun was adamant that he both telephoned and attended Centrelink offices on many occasions to inform Centrelink about Ms “M”’s financial situation.

21. Centrelink records for Ms “M” show she contacted Centrelink on 24 May 2016 regarding an enquiry for family tax benefit. This record contained the following statement: “Customer contacted regarding lump sum for compensation January 2015. Wishes to discuss the effect of the lump sum.”[11] A further record also dated 24 May 2016 noted Ms “M” enquired about child care hours and made an “additional enquiry about buying a house, and weather [sic] it will [affect] future payments with her current family payments.”[12] On 1 March 2017, Centrelink records for Ms “M” noted:

    Customer has advised that she and partner own two pieces of real estate, one is a vacant block and one is a house and land. Have sent forms out to have information provided for partner’s payment…[13]

    [11] Exhibit T-T21, page 278.

    [12] Exhibit T-T21, page 279.

    [13] Exhibit T-T21, page 280.

22. Centrelink records for Mr Chamoun show he contacted Centrelink about his carer payment on 1 March 2017, 10 May 2017 and 11 October 2017: on each of these occasions, a “Mod R” form was issued to him.[14]

    [14] Exhibit T-T20, pages 244-246.

23. On 10 March 2017, Mr Chamoun and Ms “M” signed a Centrelink “Income and Assets” (SA369) form and a “Real estate details” (Mod R) form. Mr Chamoun told the Tribunal that he and Ms “M” signed these forms but their accountant completed the information in the forms.

24. In the “Income and Assets” (SA369) form dated 10 March 2017, Mr Chamoun provided details about bank accounts, which included a “mortgage offset” account in the sole name of Ms “M”. Mr Chamoun also declared that he and Ms “M” received “rental income (per Mod “R”)”.[15]

    [15] Exhibit T-T7, page 123.

25. In the “Real estate details” (Mod R) form dated 10 March 2017, Mr Chamoun set out the following information. At question 5 of this form, Mr Chamoun declared that he and/or his partner own “2 (1 house & 1 block of land)” properties.[16] This form then provided details solely about the property at “S”, noting it was valued at $650,000, 100 percent owned by Ms “M” and she received gross rental income of $520 per week.[17] The Tribunal notes that question 5 of this form stipulated: “You will need to complete and attach a separate Real estate details form (Mod R) for each property you own”[18] [emphasis in original]. No Mod R was completed for the property at “B” at this time.

    [16] Exhibit T-T7, page 126.

    [17] Exhibit T-T7, pages 127-129.

    [18] Exhibit T-T7, page 126.

26. On 28 June 2017, Ms “M” and Mr Chamoun completed and signed a “Real estate details” (Mod R) form. Ms “M” declared in this form that she and/or her partner owns or has an interest in “2” properties and provided details about the property at “B”, including that Ms “M” owned 100 percent of the property and it was valued at $600,000.[19]

    [19] Exhibit T-T9, pages 146-148.

27. Ms “M” and Mr Chamoun completed and signed another “Real estate details” (Mod R) form on 8 November 2017, again declaring that Ms “M” owns or has an interest in “two” properties and providing details about the “S” property, including that the amount owing on the property was $379,000 and she received $520 per week in gross rental income.[20]

    [20] Exhibit T-T10, pages 153-156.

28. A Centrelink record for Mr Chamoun on 8 February 2018 stated:

    Client is in rec[eipt] of an incorrect payment rate. Partner owns two properties one at [S], coded on record and another property Lot…[at B] (not recorded – information is available). One Mod R on client record and one Mod R on partner record. Please correct record ensuring that the correct date of receipt is used.[21]

    [21] Exhibit T-T20, page 248.

29. On 7 May 2018, a Centrelink record for Mr Chamoun noted:

    PARTNER HAS ADDITIONAL PROPERTY THAT HAS NOT BEEN ADDED PLS [sic] ADD TO RECORD – CUSTOMER IS RECEIVING INORRECT RATE OF PAYMENT

    PROPERTY AT [B] PURCHASED 7/9/16 BY [MS “M”]. PURCHASED FOR $600,000

    MOD IA [income and assets] DETAILS ALSO NOT UPDATED.????????[22] [reproduced as in original]

    [22] Exhibit T-T20, page 249.

30. Centrelink obtained a market valuation for the “B” property on 13 June 2018, that set out the property was valued at $700,000.[23]

    [23] Exhibit T-T14, page 206.

31. On 21 June 2018, Centrelink received an undated handwritten letter from Ms “M” that stated:

    I have recieved [sic] the lump sum of $1,241,726.57 for my compensation on 10/2/2016. However, from that amount I had to pay $124,447.50 back to my solicitor and the rest of the money I purchased a house that is in [S] for $637,000 plus stamp duty and extras around $27,000. Also I purchased a vacant land in [B] for $600,000 plus around $27,000.[24]

    [24] Exhibit T-T15, page 209.

32. Centrelink then cancelled Mr Chamoun’s carer payment and subsequently raised a carer payment debt in the amount of $36,483.30 for the period from 15 February 2016 to 14 June 2018 because the total combined assets and combined annual income of Mr Chamoun and Ms “M” exceeded the allowable limit.

33. At the Tribunal hearing, Mr Chamoun accepted he was overpaid carer payment. However, he insisted that any overpayment of carer payment was not his fault. Mr Chamoun said that he told Centrelink about Ms “M”’s financial circumstances on many occasions by telephone and in person at two separate Centrelink offices. He said that he believed that Centrelink was paying him his correct entitlement of carer payment because he had provided all the required information about his and Ms “M”’s circumstances. He repeatedly said that the Public Trustee and Centrelink knew about the compensation amount deposited into Ms “M”’s bank account on 10 February 2016 and her purchase of the property at “S” in June 2016 and the vacant land at “B” in August 2016. Mr Chamoun submitted that, as he told Centrelink about Ms “M”’s compensation payment and her purchase of the properties, any overpayment of carer payment to him was solely due to administrative error by Centrelink.

    CONSIDERATION

    Does Mr Chamoun have a debt for the period from 15 February 2016 to 14 June 2018?

34. Subsection 1223(1) of the Act provides:

    Debts arising from lack of qualification, overpayment etc.

    (1)Subject to this section, if:

    (a) a social security payment is made; and

    (b)  a person who obtains the benefit of the payment was not entitled for any reason to obtain the benefit;

    the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

35. A MultiCal – Centrelink Debt Calculator created by the Department showed Mr Chamoun was paid carer payment for the period from 15 February 2016 to 14 June 2018 in the amount of $38,310.42 and entitled to receive $1,827.12.[25]

    [25] Exhibit T-T23, page 296.

36. Based on the evidence before the Tribunal, I am satisfied that Mr Chamoun has a carer payment debt in the amount of $36,483.30 for the period from 15 February 2016 to 14 June 2018 that is to be repaid to the Commonwealth in accordance with section 1223 of the Act.

    Are there any grounds for writing off or waiving all or part of the debt?

    Should the debt be written off?

37. Section 1236 of the Act provides, in part:

    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.

38. There is no evidence before the Tribunal to suggest that any of the conditions set out in subsection 1236(1A) are met. I am not satisfied that the debt should be written off.

    Should the debt be waived by reason of sole administrative error?

39. Pursuant to section 1237A of the Act, a debt arising from error may be waived:

    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. [emphasis added]

40. In Secretary, Department of Family and Community Services v Sekhon,[26] Wilcox J stated:

    However, it seems to me, the Tribunal failed to consider the significance of the inclusion, in s 1237A(1), of the word “solely”. For the subsection to have effect, the “proportion” of the debt – in this case, it is common ground, that would be the whole of it – must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes. [emphasis added] [27]

    [26] [2003] FCA 76.

    [27] Above, at [41].

41. At the Tribunal hearing, the Secretary’s legal representative contended Mr Chamoun was overpaid carer payment between 16 February 2016 and 14 June 2018 because he did not comply with the reporting requirements set out in the letter Centrelink sent to him on 2 February 2016. Further, the Secretary submitted that it was not until Centrelink received the undated letter from Ms “M” on 21 June 2018 that Centrelink was fully informed about the combined income and assets of Mr Chamoun and Ms “M”.

42. As outlined in paragraph 33 above, Mr Chamoun provided submissions to the Tribunal that his carer payment debt was solely due to administrative error by Centrelink. Mr Chamoun contended that he repeatedly informed the Public Trustee and Centrelink by telephone and in person about the compensation amount deposited into Ms “M”’s bank account on 10 February 2016 and Ms “M”’s purchase of properties in June 2016 and August 2016. Consequently, Mr Chamoun believed that Centrelink was paying his correct entitlement to carer payment.

43. The question before the Tribunal is whether and if so, for what period, Centrelink is solely responsible for any administrative error.

44. Based on the evidence, I make the following findings of fact:

    ·Mr Chamoun was in receipt of carer payment and carer allowance from 21 January 2016 to 14 June 2018.

    ·Centrelink sent letters to Mr Chamoun on 2 February 2016, 8 November 2017 and 11 June 2018 that set out his requirement to report any changes to his or his partner’s gross income and assets within 14 days; and to report if he or his partner receive, have received or are likely to receive compensation within seven days.

    ·Centrelink was on notice that Ms “M” would receive a lump sum compensation payment from 31 October 2014, which is the date the NRMA notified Centrelink a compensation payment of $1.4 million would be released to Ms “M” when Centrelink issued a clearance. The following documents show that Centrelink was aware of these circumstances:

    othe letter from Centrelink to Ms “M” on 16 December 2014, which set out her compensation preclusion period;

    othe Centrelink “Income and Assets” (SA369) form signed by Mr Chamoun and Ms “M” on 25 November 2015 in which they declared a claim for compensation;

    othe Centrelink record for Mr Chamoun on 2 February 2016 that noted the “2009 compensation on wife is clear to pay”; and

    othe Centrelink record for Ms “M” on 24 May 2016 that states “lump sum for compensation January 2015”.

    ·Mr Chamoun was aware that he was required to provide details of Ms “M”’s compensation claim to Centrelink as shown in his letter to Centrelink on 21 January 2016.

    ·Neither Ms “M” nor Mr Chamoun completed a Centrelink “Compensation and damages” (Mod C) form after the deposit of $1,241,726.57 into Ms “M”’s bank account on 10 February 2016. They were informed about the requirement to complete this form in the Centrelink “Income and Assets” (SA369) form they signed on 25 November 2015.

    ·Centrelink was not informed in writing about both the final amount of Ms “M”’s compensation payment and the date it was paid into her bank account until Ms “M” provided an undated handwritten statement that was received by Centrelink on 21 June 2018.

    ·Mr Chamoun and Ms “M” completed Centrelink “Real estate details” (Mod R) forms on 10 March 2017, 28 June 2017 and 8 November 2017. Based on these forms:

    ofrom 10 March 2017, Centrelink was informed in writing that Mr Chamoun and/or Ms “M” owned or had an interest in two properties and received rental income from the “S” property in the amount of $520 per week;

    ofrom 28 June 2017, Centrelink was informed in writing about the value, ownership and details of the “B” property.

    ·Centrelink records show Centrelink staff were aware from 8 February 2018 that Mr Chamoun was in receipt of the incorrect rate of carer payment because his partner owned two properties.

    ·Centrelink continued to pay Mr Chamoun the maximum rate of carer payment until 14 June 2018.

1. Based on these findings, I am satisfied that Mr Chamoun and Ms “M” did not inform Centrelink in writing about the amount of Ms “M”’s compensation payment and the date it was deposited into Ms “M”’s bank account until 21 June 2018. I am also satisfied that Mr Chamoun and Ms “M” did not fully inform Centrelink in writing about the purchase and value of the properties at “S” and “B” until 28 June 2017.

2. I accept that there was some disorder in the forms provided to Centrelink by both Mr Chamoun and Ms “M”. I also note Mr Chamoun’s evidence to the Tribunal – that the Public Trustee and Centrelink are “all government” – possibly indicated he was confused about the different roles and organisations of the Public Trustee and Centrelink.

3. By 28 June 2017, however, Mr Chamoun and Ms “M” had completed Centrelink Mod R forms that showed Ms “M”’s ownership of the properties at “S” and “B”, the value of these properties, and the amount of rental income being received by Ms “M” from the property at “S”. I am therefore satisfied that from 28 June 2017, Centrelink was sufficiently informed in writing to make a clear assessment about the combined income and assets of Mr Chamoun and Ms “M”. It is also clear from the Centrelink record dated 8 February 2018 that Centrelink was fully aware that Mr Chamoun was being paid the incorrect rate of carer payment and continued to pay him at this rate for a further four months.

4. For these reasons, I find that for the period from 15 February 2016 to 27 June 2017, Mr Chamoun did not comply with the requirement to report changes to his and/or Ms “M”’s circumstances within 14 days (or within seven days for compensation) as required by the Administration Act and this means that Centrelink was not solely responsible for any administrative errors prior to 28 June 2017.

5. I also find that for the period from 28 June 2017 to 14 June 2018, any overpayment of carer payment to Mr Chamoun was attributable solely to administrative error by Centrelink because Mr Chamoun had fully informed Centrelink in writing about his and/or Ms “M”’s circumstances, and believed he was entitled to the carer payments received in this period.

6. I am therefore satisfied the Secretary must waive the carer payment debt for Mr Chamoun for the period from 28 June 2017 to 14 June 2018 in accordance with section 1237A of the Act.

   Should the debt be waived by reason of special circumstances?

7. Section 1237AAD of the Act provides:

   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.

8. In Groth v Secretary Department of Social Security,[28] the Federal Court said:

   The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss… it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied... [29] [emphasis added]

   [28] [1995] FCA 1708.

   [29] Above, at [12].

9. The Social Security Guide at 6.7.3.40 also notes:

   The integrity of the social security system relies on recovery of overpayments. In general, if a person has had the use and advantage of the money paid incorrectly to them and has the means to repay it without excessive hardship (e.g. through withholdings), they should do so. In such a case, special circumstances of waiver would be appropriate only if the person’s particular circumstances made it unjust for the general rule to apply. Their circumstances would need to distinguish their situation from that of the many other people who do have to repay their debts. [emphasis added]

10. Mr Chamoun provided a written statement dated 31 May 2019, which noted that his family is currently experiencing financial hardship because he is caring for his father and Ms “M” is unable to work because she has sustained a brain injury. He stated that:

    Currently we have a big mortgage of $800,000 and we are struggling to make the payment as there is no income and we are using the refinance money to as our spending and we are thinking of selling our house at [S] just to reduce our mortgage as we have two kids and life is not easy at all with no income.[30]

    [30] Exhibit R1.

11. Mr Chamoun also explained to the Tribunal that he has had operations for cataracts on his right eye and will soon require an operation for cataracts on his left eye. Medical documents verifying this information is contained in the evidence before the Tribunal.

12. While I accept that Mr Chamoun believes his financial situation is stressful, I also note that Ms “M” owns two properties: Mr Chamoun and Ms “M” have now built a home on the property at “B” and receive rental income from the property at “S”.

13. Unfortunately, I find there is nothing which takes Mr Chamoun’s situation out of the “usual or ordinary case” and no occurrence that is “unfair, unintended or unjust” that would support him experiencing “special circumstances”.

14. I am not satisfied that Mr Chamoun’s debt for the period of 15 February 2016 to 27 June 2017 should be waived due to special circumstances.

    DECISION

15. The decision under review is set aside and in substitution, the Tribunal decides:

    ·Mr Ashour Chamoun has a debt to the Commonwealth due to the overpayment of carer payment in the amount of $36,483.30 for the period 15 February 2016 to 14 June 2018;

    ·the debt for the period 28 June 2017 to 14 June 2018 is waived pursuant to section 1237A of the Social Security Act 1991 (Cth); and

    ·the remainder of the debt is recoverable in accordance with section 1223 of the Social Security Act 1991 (Cth).

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[SGD].........................................

Associate

Dated: 16 October 2019

Date(s) of hearing:	10 September 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services