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

This matter concerned an application by the Applicant for review of decisions by the Secretary of the Department of Social Services regarding Newstart allowance debts totalling $48,340.76. The Applicant had received Newstart allowance between November 2009 and October 2013. Debts were raised due to the incorrect assessment of the Applicant's earnings from various employers, including Wellen Pty Ltd, Myer, TS14 Plus, Visy Board, and Pro-Pac Packaging. The Applicant did not dispute that the overpayments constituted debts due to the Commonwealth but argued for waiver or write-off on grounds of no capacity to pay, being in hiding, not receiving correspondence, and special circumstances.

The Tribunal was required to determine whether the debts were recoverable at law, whether the Applicant had no capacity to pay, whether her whereabouts were unknown, and whether it was cost-effective for the Commonwealth to pursue recovery, as per section 1236 of the relevant Act. The Applicant contended that she had no capacity to pay due to lack of income and an inability to work, and that she had been in hiding. The Applicant also raised the possibility of special circumstances warranting waiver.

The Tribunal found that the debts were not irrecoverable at law. Regarding the Applicant's capacity to pay, the Tribunal noted her superannuation balance of over $66,000, which she had not demonstrated an inability to access. The Tribunal also rejected the claim of an inability to work due to psychological conditions, finding no supporting medical evidence and noting that the Applicant had been employed during periods when she claimed to be unable to work. The Tribunal concluded that a person choosing not to work or claim entitlements does not equate to having no capacity to pay. The Tribunal also found no evidence that the Applicant's whereabouts were unknown or that recovery would be uneconomical.

Ultimately, the Tribunal set aside the reviewable decisions and remitted the matter for recalculation of each of the three debts and their total. This recalculation was necessitated by discrepancies identified in the total debt amounts presented during the proceedings, including a revised total of $49,545.20 provided by the Respondent post-hearing, which the Tribunal could not reconcile with the individual debt figures.