Dankha and Department of Family and Community Services - [2000] AATA 564

DECISION AND REASONS FOR DECISION [2000] AATA 564

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1502

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SALWA DANKHA
  Applicant
           And    SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date11 July 2000
PlaceSydney

Decision      The Administrative Appeals Tribunal ("the Tribunal") sets aside the decision of the Secretary, Department of Family and Community Services ("the Department") of 11 February 1999 which found that the Applicant Mrs Salwa Dankha had incurred an overpayment of $5,208. for receipt of parenting allowance to which she was not entitled for the period 28 March 1996 to 10 April 1997. The Tribunal notes that the decision of the Department was affirmed by the Authorised Review Officer dated 16 March 1999 and varied by the Social Security Appeals Tribunal on 20 August 1999. The Tribunal substitutes its decision to find that there was no debt owed by the Applicant to the Respondent pursuant to section 1224(1) of the Act. In the alternative, the Tribunal substitutes its decision to find that the debt be waived on the grounds of sole administrative error pursuant to section 1237A(1) of the Act.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Social Security - whether overpayment - or - whether special circumstances - decision of the Social Security Appeals Tribunal set aside - waiver for sole administrative error

Legislation
Social Security Act 1991 ss 950, 1224, 1236, 123, 1237A and 1237AAD

Cases
De Newman and Secretary, Department of Social Security (AAT 11280, 4 October 1996)
Director General of Social Services v Hangan (1982) 45 ALR 23
Gerhardt v Department of Employment, Education and Training (Federal Court, 20 August 1997, 815/97)
Gerhardt v Department of Employment, Education and Training (AAT 10941, 17 May 1996)
Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997)
Lego Australia Pty Limited v Paraggio (1993) 44 FCR 151
Mid Density Development Pty Limited v Rockdale Municipal Council (1993) 44 FCR 290
Re Beadle and Director-General of Social Security (1985) 60 ALR 225
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169
Secretary, Department of Social Security and Hales (1998) 51 ALD 695
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186

REASONS FOR DECISION

11 July 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal (the Tribunal") was the decision of the Secretary, Department of Family and Community Services ("the Department") (T14) which found that the Applicant had incurred an overpayment of $5,208. for receipt of parenting allowance to which she was not entitled for the period 28 March 1996 to 10 April 1997. The decision under review was affirmed by the Authorised Review Officer on 16 March 1999 (T23) and varied by the Social Security Appeals Tribunal ("SSAT") dated 20 August 1999 (T2) so that the period of the debt was reduced to be from 15 May 1996 until 10 April 1997.
Notwithstanding, the Tribunal, in coming to the correct and preferable decision is not bound to follow the decision of the SSAT and finds that the period of the debt as varied by the SSAT, is not relevant to the instant case.
The Applicant was represented by Ms S Koller, principal solicitor of the Welfare Rights Centre and the Respondent Department by its advocate, Ms A Smith.
ISSUE BEFORE THE TRIBUNAL
The issues to be decided were:
(a)Whether there was an overpayment of parenting allowance to Mrs Dankha pursuant to section 1224 of the Social Security Act 1991 ("the Act");
(b)If an overpayment had occurred, whether waiver pursuant to section 1237A of the Act was applicable; or
(c)If an overpayment was found to have occurred, whether special circumstances existed to waive the debt pursuant to section 1237AAD of the Act; or
(d)If an overpayment was found to have occurred, whether the debt should be written off pursuant to section 1236 of the Act.

LEGISLATION

The relevant legislation was the Social Security Act 1991 as it applied in 1996, in particular sections 950, 1224, 1236, 1237A and 1237AAD.
Section 950 outlines the disclosure requirements once a notice has been issued from the Department:
"950 (1) The Secretary may give a person to whom a parenting allowance is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b)the person becomes aware that a specified event or change or circumstances is likely to occur.

(2)An event or change or circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.

(3)Subject to subsection (4), a notice under subsection (1):
(a)must be in writing; and
(b)must be given personally or by post; and
(c)must specify how the person is to give the information to the Department; and
(d)must specify the period within which the person is to give the information to the Department; and
(e)must specify that the notice is a recipient notification notice given under this Act

(4)A notice under subsection (1) is not invalid merely because it fails to comply with paragraph 3(c) or (e)."

Section 1224(1) describes the circumstances which give rise to a recoverable debt, and follows as relevant:
"1224(1) If:
(a)an amount has been paid to a recipient by way of social security payment; and
(b)the amount was paid because the recipient or another person:
(i)made a false statement or a false representation; or
(ii)failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth.
Note: If the person does not pay the debt or enter into an agreement to pay the debt within a certain time, interest may become payable on the debt (see section 1229). If the person enters into an agreement to pay the debt and breaches the agreement, interest may become payable on the debt (see section 1229A).
..."

A debt due to the Commonwealth by a recipient may be written off by the Secretary pursuant to section 1236 of the Act. Alternatively, the debt may be waived by the Secretary pursuant to section 1237A of the Act because of sole administrative error, or waived if special circumstances, pursuant to section 1237AAD, apply. As relevant, the sections follow.
"1236(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..
...
1237A (1) Subject to section (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.
1237AADThe 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 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.
Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth."

THE EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits.
ITEM DATE NAME
Folio 81 – Printout from Centrelink regarding Applicant 11 February 1999 Exhibit A1
Form SU19 and attachments 30 November 1999 Exhibit R1

Oral evidence was given by Mrs Salwa Dankha and her husband, Mr Ouaya Dankha, both assisted by an interpreter in the Assyrian language.
EVIDENCE OF MRS SALWA DANKHA THE APPLICANT
Mrs Dankha said in oral evidence that she had completed the equivalent of Year Six at school before emigrating from Syria to Australia in 1990. She said she also completed a course of English for two months but could not read or write English. She told me she had two children, aged eight and three.
Mrs Dankha said that her husband worked for the period between 1990 and 1993. From 1993 until 1996, the Applicant and her husband received social security benefits because her husband had been dismissed from his employment.
The Applicant said that in March 1996, her husband commenced work with Crystal Products Pty Limited and was earning between $320. and $390. per week. The Applicant said that her husband went to the Department (sic) to inform them of his employment and was told by his case manager that his income support payments would stop, but that the Applicant would still receive the "family money".
From the examination of Mrs Dankha before the Tribunal, it was clear that she did not comprehend the difference between family payments and parenting allowance. Her answers also made it clear that she was unaware as to what level of payment she would receive once her husband recommenced employment, however, she was aware that he had reported the fact he was employed to the Department (sic).
Mrs Dankha told the Tribunal that she could not recall whether she received a letter regarding her social security payments after her husband commenced working in 1996. She said that letters from the Department did come from time to time and that she kept some, and threw others away. The Applicant said that neither she nor her husband could read English and that she did not show the letters to anyone else as everyone was busy. I noted the Applicant's comments to the Social Security Appeals Tribunal which were reported at T2/8:
"Ms Dankha told the Tribunal that she always ensured that a friend assisted her to read and understand the full text of the letters that she received from the Department."
Mrs Dankha told me that she did look at the figures on the letters from the Department to see what amounts she would be receiving. She also said that both she and her husband looked after the family's budget, and that she alone or together with her husband would visit banks and government departments depending on who was available.
Mrs Dankha detailed the family's financial situation for the Tribunal. Mrs Dankha said that the income support payment that they received when her husband was not working was approximately $299. per fortnight. She said that the family expenses were as follows:

$190. per week for rent.
$200. for electricity bills.
$99. per month for telephone bills due to the volume of overseas calls.
$50. to $100. per month in repayments on a loan in the amount of $2,700. to buy a car.
$50. to $100. per week for food expenses.
$24.80 per week for childcare for her youngest child.
$10. per week in additional school expenses;
$9.-10. for uniforms.

Mrs Dankha said the family also received assistance from cousins and aunts, but that they were not able to buy nice things for the house on their income.
Mrs Dankha said that she first found out about the overpayment in February 1999 when a letter came telling her she owed $5,200. She said she was surprised because the overpayment had apparently occurred in 1997.
When questioned about forms that were filled in for the Department, Mrs Dankha indicated that the forms at T10 were not filled in by her husband as he could not write English. She said that an Assyrian woman, Claudia Hasso, had prepared the forms at T3 (sic) and at T24 for them. I noted that at T3/19 where question 36 requested details of persons assisting with the completion of Departmental paperwork, a woman called Jacqueline Youhanna was documented as assisting the Dankhas to fill out the Claim for Parenting Allowance form. There were no similar disclosure provisions at T10 or T24.
EVIDENCE OF MR OUYA DANKHA HUSBAND OF THE APPLICANT
Mr Dankha told the Tribunal that he had been unemployed from 1993 until 1996 and had then obtained casual employment at Crystal Products Pty Ltd. When he was employed as a permanent member of staff, Mr Dankha said that he was only earning $319. per week, which he considered to be "not much".
Mr Dankha said that he went to inform the Commonwealth Employment Service ("CES") about his change in earnings and was told by his case manager that while he would no longer receive a newstart allowance: "Don't worry about the family money". He said that he was also told by the case manager that the CES would send a letter to the (then) Department of Social Security to inform it of Mr Dankha's change in employment status as had been reported by him. Mr Dankha said that he was satisfied with the action taken as his payments stopped, but his wife's continued. I noted that the Department's records indicated that Mr Dankha's newstart allowance payments were discontinued from 9 February 1996 (T29) and that he was paid an employment entry payment in the amount of $100. on 6 March 1996 (Exhibit R1).
Mr Dankha said that when his wife's cousins visited, they would read letters for her. As an example, he said that they would read letters received from his son's school. When questioned about the completion of the Department's forms, Mr Dankha said his wife's cousins did not fill in the forms for him as he was not generally there for them to do it. Although, his signature appeared at T10/49, he gave evidence that somebody else filled in the form for him. However, he was unable to identify who that person was.
When asked about the overpayment of the parenting allowance, he said they had found out only three years later that there was a problem.

SUBMISSIONS AND CONCLUSIONS

Having heard the evidence, I had to take it into account the submissions of the parties, the case law and legislation to make the correct and preferable decision with regard to the overpayment of parenting allowance which had been raised in relation to Mrs Salwa Dankha for the period 28 March 1996 to 10 April 1997 in the amount of $5,208, noting that the SSAT had varied the period to commence on 15 May 1996.
Ms Koller submitted I should find on the evidence that no debt had arisen pursuant to section 1224 of the Act with regard to Mrs Dankha's receipt of parenting allowance during the relevant period in 1996/7. In considering this submission, I had to turn my attention to the operation of section 950 of the Act and whether any failure or omission on the part of the Applicant in complying with any notice issued pursuant to it affected the rate of her parenting allowance.
Section 950 of the Act, as relevant, provides:
"950(1) The Secretary may give a person to whom a parenting allowance is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b)the person becomes aware that a specified event or change or circumstances is likely to occur.

(2)An event or change or circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.

(3)Subject to subsection (4), a notice under subsection (1):
(a)must be in writing; and
(b)must be given personally or by post; and
(c)must specify how the person is to give the information to the Department; and
(d)must specify the period within which the person is to give the information to the Department; and
(e)must specify that the notice is a recipient notification notice given under this Act
(4)A notice under subsection (1) is not invalid merely because it fails to comply with paragraph 3(c) or (e)."

Section 950 of the Act requires a recipient of parenting allowance to advise of specified events or changes in circumstances that would, or would be likely, to affect the payment of the benefit.
Ms Smith, in her submissions, argued that the failure of Mrs Dankha to comply with the notices issued (T5,T6 and T7) and the provisions of the Act under which they were issued resulted in the overpayment of the parenting allowance which constituted a debt pursuant to section 1224(1) of the Act.
She submitted that the Tribunal consider the comments of Senior Member Hotop in Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997) acknowledging that section 132(1) of the Act as it related to disability pensions corresponded with section 950 of the Act, which was applicable in the instant case. I was mindful that Senior Member Hotop held at paragraph 29:
"In the Tribunal's opinion, although s.132(1) of the Act does not expressly impose an obligation on the recipient of a notice given under that subsection to comply with that notice, it does so impliedly. That implied obligation arises from the express authorisation of the respondent, by that subsection, to give to a recipient of DSP "a notice that requires the person to inform" the DSS if a specified change of circumstances occurred . It follows that a failure by a recipient of such a notice to inform the DSS of the matter specified therein constitutes not only a failure to comply with a notice given under s.132(1) but also a failure to comply with s.132(1) itself."

Ms Smith emphasised that the decision of Senior Member Hotop was affirmed on appeal to the Federal Court in Secretary, Department of Social Security v Hales (1998) 51 ALD 695, and I endorse the applicability to the present case had the appropriate notices been sent.
I noted also the submissions of Ms Smith with regard to the decision of Toohey J in Director General of Social Services v Hangan (1982) 45 ALR 23 where his Honour addressed the considerations to be taken into account by the Tribunal in reviewing overpayments (at 33):
"In my view the Administrative Appeals Tribunal in the present case should have asked itself whether any of the payments of child endowment made to Mrs Hangan … were made as a result of any failure on her part to comply with s.104A and whether any of those payments would have been made had there not been such a failure."
The evidence before the Tribunal which I accepted, was that Mr Dankha who had been unemployed for most of the time between 1993 and 1996, was on 15 March 1996, engaged on a casual basis at Crystal Products Pty Limited ("Crystal"). He gave evidence which I accepted that he informed his case manager at the CES and that his newstart allowance was subsequently discontinued.
Mr Dankha also gave evidence which I accepted, that he acted in reliance on the case manager at CES who told him that he, the case manager, would inform the (then) Department of Social Security of the change in Mr Dankha's employment. Mr Dankha told me he relied on that representation, but more importantly, the evidence before the Tribunal was that he also relied on the case manager advising him that his wife's parenting allowance would remain unchanged. I accepted Mr Dankha's recollection that he understood the case manager to have said: "Don't worry about family money." I also accepted his evidence that on the basis of the advice Mr Dankha obtained from the Department, he told his wife that the allowances she received would remain payable.
Furthermore, I accepted from the evidence before me, that neither Mr nor Mrs Dankha knew that Mrs Dankha was receiving both a parenting allowance and family payment, and considered the payment that she received from the (then) Department of Social Security as just one allowance.

I also accepted from the evidence given that Mrs Dankha acted in reliance on the information her husband believed he received from the case manager at the CES and did not approach the Department of Social Security independently to check the status of her entitlements. Naturally we do not know what the case manager actually said to Mr Dankha.
I noted that a number of other events had taken place; on 14 April 1997, Mrs Dankha applied (T10) for Additional Parenting Allowance Review.
On 20 May 1997 Mr Dankha reclaimed a newstart allowance due to a shortfall in his income (Exhibit R1).
The calculation of the overpayment was at T14/57, dated 11 February 1999, approximately three years after the commencement of the period claimed to be an overpayment. After receiving notification of the overpayment, Mrs Dankha attended at the offices of the Department at Fairfield on 10 March 1999. A record of that visit is at T21.
Ms Koller submitted that when the CES case manager told Mr Dankha he would contact the Department of Social Security, he did in fact do so. What occurred as a result was that Mr Dankha's social security payments were stopped, and Mrs Dankha was sent a series of three letters in short succession, that is on 19, 22 and 26 February 1996 (T5, T6 and T7).
I noted that the Respondent conceded at T14/55 that, as part of the process, the Transaction Activity Generator ("TAG") failed. A letter dated 19 February 1996 went out to Mrs Dankha indicating that her parenting allowance would be $280.20 per fortnight. The back of the letter indicated that:
"THE FORTNIGHTLY INCOME WE HAVE USED TO WORK OUT YOUR ENTITLEMENT IS $0.00
THE FORTNIGHTLY INCOME WE HAVE USED FOR YOUR PARTNER IS $0.00".
The letter also referred to section 950 of the Act and informed Mrs Dankha that she was obliged to let the Department know if certain things happened, for example, a change in her partner's personal circumstances, or if "your total personal income goes over $0.00 a fortnight or your partner's total personal income goes over $0.00 a fortnight".
Ms Koller submitted that neither Mr or Mrs Dankha could read English and that Mrs Dankha's evidence was that she only read the figures provided on the Department's correspondence.
Ms Koller pointed out that following the initial letter dated 19 February 1996, an additional two letters were sent, dated 22 February and 26 February 1996. They were initial "grant" letters, and incorrect for the circumstances.
In reply, Ms Smith submitted that these were computer-generated letters, and that they were not sent by a particular person. That is of no particular import. My interest was whether they were the appropriate letters to be sent.
At the hearing Ms Smith submitted that the computer system at the Department had since been modified so that a questionnaire would now have been sent to Mrs Dankha as a result of the notification which took place. However, she conceded that in Mrs Dankha's case, the three computer-generated 'grant' letters rather than the 'appropriate' questionnaire had been sent to her when the TAG notified the Department's computer system of the change in Mr Dankha's employment status in 1996.
At the end of the hearing, Ms Smith was also given the opportunity of making a final written submission with regard to the three letters. She stated:
"This submission is provided in addition to the Respondent's statement of facts and contentions dated 10/1/2000 and oral submissions at the hearing of 9/5/2000.
This submission is concerned with the question "Was the issue of the letters to Mrs Dankha on 19/2/96, 22/2/96 and 26/2/96 'correct'?" The short answer to this question would be "no", however this submission seeks to clarify this answer by providing background information."
Notwithstanding, Ms Smith further submitted that:
"… whether the letters of 19/2/96, 22/2/96 and 26/2/96 were issued 'incorrectly', they were in fact issued, and there is no evidence that they were not received by Mrs Dankha. These letters were sufficient to have put her on notice that she needed to advise the respondent on any occasion that her husband's income changed and also that the income being used to calculate her rate was not correct."

In her written reply to the final written submissions of the Respondent, Ms Koller submitted that:
"… the fact remains that the CES case manager had told Mr Dankha that the then Department of Social Security would be notified of his employment and in fact it was. The problem arose from the action, whether taken by the computer or otherwise, undertaken in response to that notification … The appropriate response to receipt of information that a person's partner is working is to ask for details of the wages and verification. The letters to Mrs Dankha did not do this. As far as she knew, the Department had been advised of her husband's employment."

WHETHER AN OVERPAYMENT AROSE PURSUANT TO SECTION 1224 OF THE ACT

I then moved to consider whether an overpayment regarding Mrs Dankha's parenting allowance for the period 28 March 1996 or 15 May 1996 until 10 April 1997(T15) had been correctly raised pursuant to section 1224 of the Act.
Section 1224 of the Act provides that:
"1224(1) If:
(a)an amount has been paid to a recipient by way of social security payment; and
(b)the amount was paid because the recipient or another person:
(i)made a false statement or a false representation; or
(ii)failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth."
From the evidence before the Tribunal, I noted that there was no suggestion that the Applicant had received the parenting allowance as a result of a false statement or false representation, so that I find that no debt arose pursuant to section 1224(1)(b)(i) of the Act.
I then turned to consider Mrs Dankha's situation in relation to section 1224(1)(b)(ii) of the Act which contemplates a debt arising where a person has failed or omitted to comply with a provision of either the 1947 or 1991 Act. As the 1991 Act was the one in force at the relevant time in 1996, I reviewed the evidence regarding the actions of Mr Dankha, Mrs Dankha and the Department in relation to it.
Neither Mr Dankha's evidence that he had reported commencing paid work to the CES and had been assured the information would be passed to the Department, nor his evidence that he told his wife that her social security allowance would not be disturbed as a result, were rebutted. I accepted the veracity of their evidence that they relied on what Mr Dankha was told by the CES officer, that is that the "family money" would not be disturbed.
I relied on the fact that correct action was taken to cancel Mr Dankha's newstart allowance but that Mrs Dankha received three "incorrect" letters. These did not alert her that anything had changed with regard to her situation, and with her limited knowledge of English, I accepted her evidence that she simply looked at the figures, and took no action. I was mindful also of the admission by Ms Smith with regard to the TAG system (Exhibit R1):
"In relation to the TAG failure, I obtained advice from Centrelink's Parenting Systems Helpdesk, who advised me that although the TAG was passed from the Newstart system to the Parenting system after the CES computer interface caused the DSS computer system to cancel Mr Dankha's payment, the TAG produced unexpected results."
There was also a file note of the Department at T14/55 as follows:
"Partner RTW via SU19 Tag failed. Customer received advice dated 19/2/96 of notification obligations PGA Review lodged 16/4/97declaring income from 20/3/96. PGA Rev on GWW income from 20/3/96 and debt raised to recover.
no debt between 9/2/96 to 19/3/96 Tag fail."
Ms Koller submitted that no change in Mrs Dankha's income had occurred so the case was apposite with that of Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169. In that case she said, Mr Vitalone's income had always been greater than zero. I noted the comments of Mathews J, then President of the Tribunal at 175 that:
"Had the notices required notification only of any changes in the recipient's income, then the applicants' failure to inform the respondent of Mrs Vitalone's current wage level would … have constituted a failure to comply with a notice … However, even this cannot be stated with complete certainty, for Mrs Vitalone had already informed the respondent in her original application that her wages "varied". But the notices which were sent to the applicants required not only that there have been a change in their income, but also that that change had the effect of increasing their income so that it crossed a particular threshold. In the applicants' case, this threshold was never crossed, for their income already exceeded it."

I also noted the observation of Mathews J at 174 that:
"An element of fault on the part of the individual concerned is thus inherent in the concept of "refusing or failing" to comply with the section."

and confirm that I accepted the evidence of Mr Dankha that he believed that by attending the CES, he had discharged both their obligations for disclosure under the Act. I find that Mrs Dankha was entitled on that occasion to rely, in discharge of her duties under the Act, on what her husband had reported to her regarding the assurances given him by an officer of the CES. I am unable therefore to find the requisite element of fault as described by Mathews J. in Vitalone (supra).

Ms Koller submitted that the three 'grant' letters sent to the Applicant dated 19, 22 and 26 February 1996 (T5, T6 and T7) as well as the letter of 1 May 1996 (T9) were all structured according to the same formula and had the same notification requirements. Ms Koller submitted that no change in Mrs Dankha's income had occurred because she believed that the Department was in 1996 made aware that her husband's employment circumstances had changed, and that she was being paid the correct parenting allowance based on the information that had been provided. Accordingly, there could be no overpayment raised.
Ms Smith submitted that the letters now sent out to recipients of social security benefits would overcome the defect of the letters in Vitalone (supra). Notwithstanding, Ms Smith said that the letters sent out on 19, 22 and 26 February 1996 indicated that Mrs Dankha should have informed the Department if her income or her partner's income changed. In her submissions, Ms Smith argued that because Mrs Dankha's husband's income changed, she had a separate obligation under the Act to advise the Department which was not discharged by her husband when he attended the CES to cancel his newstart allowance. Ms Smith submitted:
"These letters were sufficient to have put her on notice that she needed to advise the respondent on any occasion that her husband's income changed and also that the income being used to calculate her rate was not correct."
(Written submission of the Respondent dated 11 May 2000).
I accepted the submission of Ms Smith that where language difficulties arose, as in this case, there was a free interpreter service available at the Department, and directed my attention to the evidence of the Applicant that her friends or relatives read the correspondence that she received from the Department.
Ms Smith submitted that because Mrs Dankha had failed to discharge her separate obligations under the Act and provide information about her husband's changed circumstances pursuant to section 950 of the Act as it was in force at the time, she had incurred an overpayment for the period 28 March 1996 to 10 April 1997.
Ultimately, the question for the Tribunal was whether the overpayment of parenting allowance was a debt repayable to the Commonwealth on the basis that the Applicant failed or omitted to comply with section 950 of the Act.
I accepted the evidence of Mr and Mrs Dankha notwithstanding a slight contradiction regarding whether cousins read the letters or not. Therefore accepting the evidence of both Mr and Mrs Dankha regarding their course of action and what followed, and for the reasons discussed above, I find that no debt was created pursuant to section 1224 of the Act for Mrs Dankha's parenting payment received between 28 March 1996 or 15 May 1996 to 10 April 1997.
However, if I am wrong, and a debt can be found to have been created, then I have considered whether section 1237A of the Act can be applied to waive it.
WHETHER SECTION 1237A OF THE ACT APPLIES TO WAIVE THE DEBT
In her oral submissions, Ms Koller then moved to deal with section 1237A of the Act saying that if the Tribunal should find an overpayment had occurred, then it was due solely to the administrative error of the Department and accordingly, should be waived pursuant to section 1237A of the Act.
Section 1237A of the Act provides that:
"1237A (1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt."
This subsection prescribes two requirements which when satisfied, require the Secretary to waive the right to recover the debt, that is either that the debt is attributable solely to an administrative error of the Commonwealth and, that the debtor received the payments in good faith.
Ms Smith submitted that the word "sole" should be given its ordinary meaning as defined by the Concise Oxford Dictionary: "one and only, exclusive, alone, unaccompanied" (Respondent's Statement of Facts and Contentions dated 10 January 2000). She submitted that this approach had been adopted by the Tribunal in Re Gerhardt and Department of Employment, Education and Training (AAT 10941, 17 May 1996) at paragraph 40:
"Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error. The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor."

and approved by the Tribunal in De Newman and Secretary, Department of Social Security (AAT 11280, 4 October 1996).

Ms Koller drew my attention to the Federal Court review of Gerhardt in Gerhardt v Department of Employment, Education and Training (Federal Court, 20 August 1997, 815/97). She submitted that while the Federal Court, in that case, had ultimately found against Mrs Gerhardt, Mrs Dankha's case could be distinguished on the facts. In Gerhardt (supra), the Court held that:
"If the assessing officer had been made aware of the overseas income and had chosen to ignore it, then any omission by Mrs Gerhardt in not attaching the statutory declaration would surely have been overtaken by the error of the assessing officer. The assessing officer's administrative error would then have been the sole cause of the overpayment to the two applicants. However, the findings of fact in this case are that the assessing officer, rather than being aware of the figures in the notice of assessment and choosing to disregard them, had simply overlooked those figures."
Ms Smith submitted that, in this case waiver was not appropriate pursuant to subsection 1237A(1) of the Act because the TAG failure was not the sole cause of the overpayment of the parenting allowance to Mrs Dankha:
"The unexpected results of the application of the TAG meant that the applicant's rate of parenting allowance remained unchanged after her husband's newstart allowance was cancelled. This fact was not the sole cause of the debt from 14 days after the 19/2/96, the date of the first letter received by the applicant. Mrs Dankha contributed to the continuance of the debt by failing to advise of changes to her husband's income within 14 days, despite having been repeatedly put on notice of that requirement in February 1996 and also that the incomes being used to calculate her rate were nil."
(Respondent's Statement of Facts and Contentions dated 10 January 2000)

From the evidence before the Tribunal, I agreed with Ms Koller that Mrs Dankha's case could be distinguished from Gerhardt (supra) in that the Department had been made aware of Mr Dankha's employment, but that TAG had failed to "alert the system that there may need to be some action taken in relation to Mrs Dankha's parenting payment as a result of the cancellation of her husband's payment" (Written submission for the Respondent dated 11 May 2000).
While I noted Ms Smith's submissions that the letters, though incorrect in form, constituted actual notice of the Applicant's obligations under the Act pursuant to section 950, I could not agree with those submissions. I was not satisfied that the debt raised was not the result of the sole administrative error of the Department. The information regarding Mr Dankha's changed employment status had not been overlooked, rather it had not been properly processed. The result was that instead of review of the Applicant's parenting allowance, a "grant" letter dated 19 February 1996 and subsequent "grant" letters dated 22 and 26 February 2000 were sent to Mrs Dankha indicating that her parenting allowance would be $280.20 per fortnight.
As to the second requirement of section 1237A(1) of the Act, Ms Koller then raised Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186 which dealt with the issue of "good faith". She submitted that Finn J, in determining the question as to whether the payments were received in "good faith", held (at 189), that the concept of "good faith" as envisaged by the Act was concerned:
"… with 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."
Ms Koller submitted that Mrs Dankha did not know of any adverse situation that would affect her parenting allowance and this was not a case of wrongful or wilful blindness where she had ignored questions or directives. Ms Koller submitted that in Prince (supra), Mr Prince "knew" or had "reason to know" that he was receiving payments; however, in Mrs Dankha's case this was not so. She had no inkling something was wrong for over two years. Ms Koller said that even if the letters had been translated, they would not have alerted Mrs Dankha to the fact anything was wrong.
Ms Smith submitted that the decision in Prince (supra) was applicable to the facts of this case, as Mrs Dankha had every reason to know that her situation had changed, namely that her husband gained employment with Crystal Products Pty. Ltd. Further, according to Ms Smith, even though the TAG failed to alert the Department to Mr Dankha's changed employment circumstances and send out a questionnaire to the Applicant regarding the reappraisal of her benefits, the letters sent to the Applicant dated 19, 22 and 26 February 2000 advising that her parenting allowance was based on Mr Dankha's nil income, were sufficient that Mrs Dankha "ought to have known" her separate obligations to disclose changed circumstances, that is, circumstances different from those recorded on the letters (T5, T6 and T7). I did not agree with those submissions.
In considering this argument, I noted also that on 14 April 1997 (T10), the Applicant disclosed her husband's employment status in an Additional Parenting Allowance Review form required by the Department. I am persuaded by the evidence before me that when the Applicant provided this information, she did so by way of a supplement to information she believed the Department was already aware, having been so informed by her husband in 1996.

I also noted the comments of Wilcox J in Lego Australia Pty Limited v Paraggio (1993) 44 FCR 151 at 171-2 where he discussed the good faith requirement against the failure to make adequate inquiries in respect of an application for the issue of a search warrant. He held that:
"Deliberate abstention from inquiry has been equated to actual knowledge … There is no doubt that it negatives good faith; the applicant is deliberately ignoring factual information which he/she knows may be material to the decision … But wilful blindness is very different from ignorance caused by a failure to make more extensive inquiries; the former is akin to fraud, the latter amounts, at most, to negligence. Fraud is inconsistent with good faith, negligence is not … I think that the better view … is that a failure by an Applicant to disclose material information that is in fact unknown to him/her at the time of seeking a search warrant invalidates the warrant only in a case where that information was previously known to the applicant but forgotten, or where the Applicant's ignorance results from his/her wilful blindness or other bad faith."
I agreed with Ms Koller's submission and accepted that the Applicant had neither the knowledge nor the reason to know that her receipt of parenting allowance in the amount of $280.20 per fortnight, was anything other than the correct amount payable. She had relied on information obtained by her husband when he provided details of his employment with Crystal Products Pty Ltd to the CES in 1996. The termination of Mr Dankha's newstart allowance together with the unchanged nature of the parenting allowance received by Mrs Dankha, reinforced to them that they had fulfilled their notification obligations under the Act. Therefore, Mrs Dankha's reliance on the information obtained by her husband and failure to follow-up and confirm the details with the Department do not constitute deliberate abstention from inquiry or wilful blindness.
Furthermore, I was mindful of the comments of Gummow, Hill and Drummond JJ in Mid Density Developments Pty Limited v Rockdale Municipal Council (1993) 44 FCR 290 in respect of the provision of information pursuant to a section 149 certificate, though equally applicable in this case:
"The statutory concept of "good faith" with which the legislation in this case is concerned calls for more than honest ineptitude."

I accepted that Mr and Mrs Dankha, through Mr Dankha's disclosure, believed that they had fulfilled their requirement to disclose changes in their circumstances to the Department. Accordingly, I was satisfied that they turned their mind to their obligations under the Act and were not honestly inept in their actions.
Thus, in considering whether section 1237A of the Act can be applied to the instant case to waive a debt raised under section 1224 of the Act, I have taken into account the evidence before the Tribunal, submissions of the parties and the relevant legislation and case law. I am satisfied that the debt should be waived pursuant to section 1237A of the Act for the following reasons:

The failure of the TAG system constituted administrative error by the Commonwealth and was the sole reason for the accrual of the debt by the Applicant.
Rather than a questionnaire reviewing her parenting allowance, three incorrect "grant" letters were sent by the Department to the Applicant. These letters did not put the Applicant on notice of her separate obligations under the Act.
The Applicant and her husband believed that they had discharged their notification requirements to the Department when Mr Dankha informed his case manager at the CES that he had obtained employment, and accepted the assurances of the case manager that he would advise the (then) Department of Social Security.
The Applicant and her husband relied on the information that Mr Dankha obtained from his case manager at the CES, that the family payments would remain unchanged.
After the cessation of his newstart allowance and the continued payment of a parenting allowance, Mr and Mrs Dankha believed that they were receiving benefits at the correct rate and obtained those payments in good faith.
Based on her reliance on the information obtained by her husband, Mrs Dankha did not know or have reason to know that she was being paid at an incorrect rate.
Furthermore, her reliance on the information provided by the husband meant that Mrs Dankha did not verify or confirm whether the information had been correctly provided to the department. However, this did not constitute deliberate abstention or wilful blindness.

WHETHER SPECIAL CIRCUMSTANCES APPLY PURSUANT TO SECTION 1237AAD TO WAIVE THE DEBT

I was satisfied that if an overpayment occurred, it was due to administrative error on the part of the Commonwealth in accordance with section 1237A(1) of the Act. However, I am mindful that section 1237AAD provides a discretion to waive the debt in certain circumstances and I traverse the legislation because submissions were made about the Applicant in this regard. Section 1237AAD follows as relevant:
"1237AADThe 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 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."
I was satisfied that the debt did not arise because either Mr or Mrs Dankha made a false statement or failed to comply with a provision of the Act (section 1237AAD(a)). I therefore considered the submissions of the representatives of the Applicant and Respondent with regard to whether special circumstances might be invoked to waive Mrs Dankha's debt to the Commonwealth if indeed one had arisen.
I noted the comments of Senior Member Hotop in Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997) that the purpose of the discretionary power conferred on the Department by virtue of section 1237AAD, to waive the right to recover a debt is to:
"… enable the respondent and, on appeal the Tribunal to mitigate the application … of the provisions of Part 5.2 of the Act (including s. 1224(1)) whereby recoverable debts are created where, by reason of 'special circumstances (other than financial hardship alone)' … the strict application of such a provision would be 'unjust, unreasonable or otherwise inappropriate'."
In determining the intent of the legislation with regard to the concept of "special circumstances" set out in subsection 1237AAD(b) of the Act, the Tribunal held in Re Ivovic and Director-General of Social Services (1981) 3 ALN N95 at N96-97 that:
"Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount of 'special circumstances' … the use of the word 'special' is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … The reference to special circumstances 'by reason of which' a person liable 'should be released' requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes."
Similarly, in Re Beadle and the Director-General of Social Security (1984) 6 ALD 1 at 3, the Tribunal held that
"An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."
This approach was approved by the Federal Court on appeal in Re Beadle and Director-General of Social Security (1985) 60 ALR 225. The Court did note, however, that they would place less emphasis on the dictionary definition of special.
Ms Koller submitted that if the Tribunal could not find sufficient reason to waive the debt pursuant to section 1237A of the Act, then special circumstances should be considered pursuant to section 1237AAD of the Act. She submitted that administrative error of the Department could be held to be a special circumstance pursuant to subsection 1237AAD(b) of the Act.
Ms Koller also submitted that the delay in raising the overpayment, and the fact that the family were in poor financial circumstances also formed part of the special circumstances in the instant case. Furthermore, she said that as the children had grown older, life had changed for Mr and Mrs Dankha, and now Mrs Dankha suffered anxiety as related by Mr Dankha in his oral evidence.
In her submission, Ms Smith argued that when considering special circumstances, each case had to be considered on its merits and that to meet the requirement of the special circumstances envisaged by subsection 1237AAD(b) of the Act, the situation had to be unusual, uncommon or exceptional. She submitted that the lack of good English was not a special circumstance as many recipients of social security were in the same situation as the Dankhas, and interpreters were provided free of charge by the Department. Ms Smith also said that the situation of Mrs Dankha's health was not a special circumstance. In this regard, I was mindful that there was no medical evidence before me as to the Applicant's health noting that health can form part of the consideration for special circumstances.
Ms Smith further submitted that the administrative error used to support the argument for sole administrative error in section 1237A of the Act could not be a special circumstance.
I have taken into account the indicia for special circumstances to apply to waive a debt, and whilst I feel that Mr and Mrs Dankha have a hard time making do, and suffer from isolation through their lack of English and note Mrs Dankha's anxiety, I find that their situation is not very different from many other recipients of social security. Certainly from what I have before me, I cannot make the decision that taking into account all the circumstances, and considering them globally, the situation of Mrs Dankha and her family is so unusual, uncommon or exceptional that special circumstances can be found to waive any debt for parenting payment which she might owe.
Furthermore, while I noted that there was disagreement as to whether administrative error could constitute a special circumstance, I do not intend to make a ruling on whether special circumstances apply to waive the debt in this case because I have already found that either no debt arose with regard to Mrs Dankha's parenting allowance or in the alternative if one arose, I was satisfied it should be waived with the application of section 1237A of the Act.
WHETHER SECTION 1236 OF THE ACT SHOULD BE INVOKED TO WRITE-OFF THE DEBT
The parties did not present argument on whether the debt should be written off. Writing off a debt is appropriate where the debt may be reduced or repaid at a future date. I find from the evidence before me that the situation of the Applicant is not likely to change for the better in the foreseeable future. I also note that Mrs Dankha, who has two small children, now suffers anxiety, and is isolated. Having considered the tests contained in section 1236 of the Act, I did not find that this was an appropriate case for write off.
DECISION
The Tribunal sets aside the decision of the Secretary, Department of Family and Community Services of 11 February 1999 which found that the Applicant Mrs Salwa Dankha had incurred an overpayment of $5,208. for receipt of parenting allowance to which she was not entitled for the period 28 March 1996 to 10 April 1997. The Tribunal notes that the decision of the Department was affirmed by the Authorised Review Officer on 16 March 1999 and varied by the Social Security Appeals Tribunal on 20 August 1999.
The Tribunal substitutes its decision to find that there was no debt owed by the Applicant to the Respondent pursuant to section 1224(1) of the Act.
In the alternative, the Tribunal substitutes its decision to find that the debt should be waived on the grounds of administrative error pursuant to section 1237A(1) of the Act.

I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  9 May 2000
Date of Decision  11 July 2000
Counsel for the Applicant            N/A
Solicitor for the Applicant            Ms S. Koller
Counsel for the Respondent        N/A
Solicitor for the Respondent        Ms A. Smith