Denny and Secretary, Department of Family and Community Services
[2005] AATA 708
•27 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 708
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1605
GENERAL ADMINSTRATIVE DIVISION ) Re COLIN DENNY Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr I R Way, Member Date27 July 2005
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution thereof decides:
(a) that a debt of Disability Support Pension, in the amount of $2,809.68, is due to the Commonwealth by Mr Colin Denny, for the period 5 July 2000 to 10 February 2004.
(b) that pursuant to section 1237A(1) of the Social Security Act 1991, that part of the Disability Support Pension debt due to the Commonwealth by Mr Denny for the period 24 October 2002 to 10 February 2004 is waived.
(c) that the matter be remitted to the Respondent for recalculation of the amount of Disability Support Pension debt to be recovered from Mr Denny, taking into account money already recovered from him and money, if any, due to him as a result of excess recovery.
..............................................
Mr I R Way Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Worker’s compensation payment – Classed as income - Administrative error –Applicant overpaid by Centrelink – Debt owed by Commonwealth – Waiver of debt – Special circumstances – Decision varied.
LEGISLATION
Social Security Act 1991 ss1233, 1237A, s1237AAD
CASES
Beadle v Director –General of Social Security (1985) 7 ALD 670
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Department of Social Security v Hales (1998) 51 ALD 695
Department of Social Security and McAvoy (1996) 44 ALD 721
Groth v Department of Social Security (1995) 40 ALD 541
Sekhon v Secretary Department of Family and Community Services (2003) 76 ALD 105
REASONS FOR DECISION
27 July 2005 Mr I R Way, Member 1. This is an application by Colin Denny for the review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 24 November 2004, which affirmed a Centrelink decision dated 9 June 2004, to raise and recover a debt of Disability Support Pension (“DSP”) in the amount of $2,809.68, in relation to the period of 5 July 2000 to 10 February 2004.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T49) and other documentary evidence as follows:
Exhibit No
Description
Date
A1
Statement of Colin Denny
21April 2005
A2
Copy of 2 weeks worker’s compensation payment
30/9/02 – 12/10/02
A3
Statement of Facts and Contentions (with attachment A)
2 May 2005
A4
Payslips – Australian Jockey Club
30 November 1999
A5
Copy of historical document display
29 October 2001
R1
Statement of Facts and Contentions
26 May 2005
3. The Applicant was represented by Ms N Reiner, a solicitor from Legal Aid of NSW. The Respondent was represented by Mr L Carter, an advocate from Centrelink Service Recovery Team. The Applicant gave oral evidence.
facts
4. There is no dispute between the parties about the background facts of this matter. In view of this and on the material provided, the Tribunal finds as follows:
· The Applicant was born on 2 January 1947 and is now 58 years old.
· The Applicant has been receiving DSP since 1993 because of anxiety and stress.
· The Applicant undertook part-time employment in the horse racing industry as a car park attendant during 1996, 1997 and 1998.
· The Applicant ceased his employment after suffering a work-related injury in April 1998 and he was awarded weekly compensation payments.
· During the period 5 July 2000 to 10 February 2004 (the relevant period), the Applicant was not in full-time employment and continued to receive DSP because of his poor health.
· During the relevant period, Centrelink paid the Applicant DSP at a reduced rate because of income payments he was recorded as receiving. These recorded payments were related to the income the Applicant received for work as a car park attendant.
· During the relevant period, the Applicant received worker’s compensation payments of $197.08 per week.
· The worker’s compensation payments he received are to be treated as income for the purpose of calculating DSP. The compensation payments he received were in excess of income payments recorded by Centrelink (namely as income from various racing bodies), which Centrelink was continuing to record as the Applicant’s sole income.
· On 9 June 2004 Centrelink raised a DSP debt against the Applicant in the amount of $5,227.32 because the Applicant’s recorded income during the relevant period was less than the actual income he had received. As a result, there had been an overpayment of DSP during the relevant period.
5. The Tribunal accepts that the overpayment figure of $5,227.32 has been correctly calculated, based on the income Centrelink had recorded and the actual income the Applicant had received.
6. Prior to the debt of $5,227.32 being raised on 9 June 2004, Centrelink had raised and recovered two DSP pension debts as follows:
· $1,232.99 for the period 4 July 2001 to 18 July 2002 raised on 11 September 2002
· $1,184.65 for the period 5 July 2000 to 3 July 2001 raised on 20 November 2002
These debts totalling $2,417.64 were raised on the same basis as the debt that was raised on 9 June 2004 and were in effect, part of the debt of $5,227.32. $2,417.64 was recovered so the existing DSP debt, which is the subject of this review, is $2,809.68
·As at 16 June 2005, Mr Denny had an outstanding debt of $937.98 and the debt was being recovered from his DSP payments at the fortnightly rate of $70.00
·Mr Denny continues to receive worker’s compensation payments of $197.08 per week and this, with his reduced DSP payments, as at 16 June 2005, amounts to approximately $700.00 per week net.
issues and legislative framework
7. This matter is to be decided within the provisions of the Social Security Act 1991 (“the Act”).
8. Section 1233(1) of the Act provides that if a person receives a Social Security payment which they were not entitled to obtain, then the amount of such a payment is a debt due to the Commonwealth by that person. As indicated above, there is no dispute between the parties that during the relevant period the Applicant received $5,227.32 which he was not entitled to obtain. In view of this and on the material before it, the Tribunal finds that this amount is a debt due to the Commonwealth by the Applicant.
9. The central issue of this case is whether the whole debt or part of the debt should be waived.
10. The relevant provisions of the Act are 1237A and 1237AAD. Section 1237A provides:
“(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.”
Section 1237AAD provides:
“ 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 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.”
applicant’s evidence
11. The Applicant provided a written statement dated 21 April 2005 (Exhibit A1) and gave oral evidence.
12. In his written statement the Applicant included the following paragraphs:
“…
4. I thought Centrelink knew I was receiving compensation payments to the amount of $197.00 because at a time in 1999 I went to the Centrelink office at Merrylands and said words to the effect of ‘I’m no longer working but my compensation payments from now come to $197.00.
…
7. In 1999 or 2000, I can’t remember exactly when, I informed Centrelink in person that I was receiving weekly compensation payments and how much these were. I showed the Centrelink officer at Merrylands branch my pay slips.
…
10. I remember taking my pay slips to the Merrylands branch because on one of those occasions I realised when I got to Merrylands train station that I had forgotten my payslips and had to go back home to get them, which I did.
11. On another occasion some time in 1999 or 2000 I again took my payslips into the Merrylands branch of Centrelink and showed one of the staff there.
12. On both occasions when I went into the Merrylands office, I had conversations with an Indian woman whose name I think was Shushek. I said to her words to the effect of ‘Here are my payslips which show how much my compensation payments are’.
13. In addition I had a worker’s compensation solicitor working on my worker’s compensation claim. At the time my claim was being processed she said to me words to the effect ‘I’ll contact Centrelink and discuss the effect of your compensation payments on your pension’. She then told me that she had called Centrelink and had told them.
14. My compensation solicitor also said words to the effect of ‘the insurer will tell Centrelink that you are now in receipt of compensation payments and will tell them the amount.”
13. In his oral evidence, the Applicant told the Tribunal that he could not remember when he went to Centrelink in 1999 or 2000 to show Centrelink his worker’s compensation payslips. He initially said he thought he went in once only but subsequently said it was probably twice; once in 1999 and once in 2000. He further told the Tribunal that he thought that the person he saw had typed up the details he had provided on a Centrelink computer. He told the Tribunal he recalls leaving his payslips at the Merrylands office and having to go back to Centrelink to get them before going home by train. It was put to the Applicant by the Tribunal that this was contrary to what he had said in his written statement. The Applicant said that the written statement was not the correct version and when he had signed the statement, prepared in consultation with Legal Aid, he had not noticed the error. Following his visits in 1999 and 2000, the Applicant’s evidence was that he had not received any related correspondence from Centrelink.
14. The Applicant initially told the Tribunal that he had not consulted his worker’s compensation solicitor about the effect of worker’s compensation on his Social Security benefits, however, he subsequently recalled what was recorded in his written statement about his solicitor telling him she would contact Centrelink. The Tribunal notes that there is a file memorandum from the Applicant’s worker’s compensation solicitor, dated 30 October 2001, stating that she had contacted Centrelink about the effect of the Applicant’s compensation payments on his DSP. Centrelink had told the solicitor that they had no details of the Applicant’s worker’s compensation claim, that worker’s compensation payments would change the Applicant’s pension entitlements and that details could be faxed to them. The Tribunal notes that this contact on 29 October 2001 is confirmed by Centrelink records (Exhibit A5), however, there is no record on Centrelink files or any evidence from the Applicant’s solicitor that any relevant details or amounts of worker’s compensation were subsequently provided following this contact.
15. The Tribunal also notes that the Social Security Tribunal records the Applicant giving evidence as follows:
“…
10. Mr Denny said he told Centrelink that he had stopped working and was getting compensation but was not asked to show payslips.
…
13. Mr Denny told the Tribunal that when he completed his tax forms his accountant was recording it under salary and not compensation. He said he has never hidden anything from Centrelink.
…”
16. There is no record in the SSAT reasons for decision that Mr Denny had told the Tribunal that he had declared his worker’s compensation payments to Centrelink.
17. A letter from Centrelink to the Applicant (at T11-48), dated 8 October 2002, informed him that data matching with the Australian Tax Office (ATO), showed a difference between Centrelink records of his income for the financial year ending 30 June 2001 and the records of the ATO for the same period. Centrelink recorded his income for this period to be $7,436.00 and the ATO recorded his income for the same period to be $10,445.00. In response to this, the Applicant told the Tribunal that he went to the Centrelink office in Blacktown, where the letter originated from, and told them he had ceased working. He showed an officer there his worker’s compensation payslips to confirm the amounts of worker’s compensation he was receiving. He said he did not own a telephone and that he always went to a Centrelink office to respond to Centrelink or to give Centrelink information. The Tribunal notes that Centrelink has on file a copy of the Applicant’s worker’s compensation payslip showing him receiving $394.16 for the fortnight ending 12 October 2002 (Exhibit A2). Mr Carter accepts that the file sequencing indicates that this payslip would have been received by Centrelink in October 2002.
18. The Tribunal asked the Applicant why he had not responded to letters from Centrelink which indicated that he was being assessed at an income less than his worker’s compensation income. The Applicant told the Tribunal that he relied on Centrelink to know what they were doing. He was not sure how they assessed his position and thought he had done the right thing by telling them about his worker’s compensation. The Tribunal notes that around the time of the ATO data matching and shortly thereafter, Centrelink had raised two DSP debts against the Applicant and were in the process of taking recovery action in respect of these debts.
19. In respect of special circumstances, the Applicant included the following paragraphs in his written statement: (Exhibit A1)
“…
5. I am receiving a disability support pension for anxiety and stress related illness. This anxiety has worsened since the stress associated with repaying my pension arose.
6. In 1999 I began to bleed from my bowels and also had chronic diarrhoea. I was in very bad pain for about 11 months which I tool [sic] pain killers for. Dr Salama told me my bleeding bowel condition resulted from my anxiety condition and, I think n [sic] it was in 1999, I was diagnosed with haemorrhoids.
…
15. The work place injury was to my ankle and I am still receiving treatment and medication for it. It gives me a lot of pain and has made it very difficult for me to get around. I need to use a walking stick when I walk.
16. I often see Dr Loftus at Pennant Hills about my injury and rehabilitation and have been prescribed Phosomax for bones and Panamax for the pain, which I am still taking. I also get regular podiatry assistance to ease the pain which is costly.
17. At a time in 2000 I was admitted to Auburn hospital for an operation where they removed part of my bowel along with the haemorrhoids.
18. Since that time I have had chronic diarrhoea which I can not take any medication for because the condition will worsen if there is any blockage of my bowels.
19. Because of the diarrhoea I have to go to the toilet approximately 5 or 6 times a day. This means that I have to stay close to my house or only go out when I know I can be close to a toilet. It is very frustrating and causes me even greater anxiety. My quality of life has decreased a lot because of this.
20. I have to eat a special diet because of my bowels and this makes my food much more expensive than before the operation.
21. I feel anxious most of the time and have very disturbed sleep. I get very upset about my bowels and cry a lot and grind my teeth. I have seen Dr Chan from Guildford Medical Centre on a number of occasions about my anxiety and other problems.
22. My feelings of anxiety and worry have increased even more since the trouble with my Centrelink payment. I worry how I am going to afford my medical bills and my normal living expenses.
23. In October 2004 I again had bleeding from the bowels causing great pain.
24. In 2004 I had my dentures replaced for my top and bottom teeth. I need to have them replaced regularly – probably every three or four years because I grind my teeth a lot. My dentures cost about $1,200 each time.
25. In 2005 I had skin grafts for the cancers removed from my arm. This procedure took place at the Merrylands Clinic.”
20. In his oral evidence, the Applicant told the Tribunal that he was in shared rented accommodation, costing him $195.00 a week and that while his financial situation was difficult, he was able to “keep his head above water”. He said that he was not currently suffering any ill effects from the skin grafts on his arm, his anxiety condition, his bowel condition or his fractured right ankle and he was not having any difficulty in sleeping. He said he had to use a stick to walk. He occasionally went to a TAB on a Saturday and would occasionally visit the Fairfield RSL and a friend. Each day he would get the newspaper to read. He tries to keep as active as possible.
submisions
21. Ms Reiner, for the Applicant, submitted that there were two separate administrative errors on Centrelink’s behalf which led to the overpayment of the Applicant.
22. The first error, it was contended, occurred when Centrelink failed to record the Applicant’s worker’s compensation payments. He reported these payments to Centrelink officers at Merrylands on two separate occasions, once in 1999 and once in 2000. There is no evidence to contradict the Applicant’s statement.
23. The Tribunal notes the Applicant’s contentions (Exhibit A3 ):
“…
6. Because Mr Denny was already in receipt of the Disability Support Pension prior to his receipt of worker’s compensation, the worker’s compensation payment is treated as “ordinary income” under section 1173(4) of the Act.
7. It will be contended below that on at least two occasions, in the years 1999 or 2000, Mr Denny entered the Merrylands branch of Centrelink and declared his income personally to Centrelink staff. It will be contended below that Mr Denny declared this income by showing his compensation ‘payslips’ to Centrelink officials.
…”
24. Further, the Tribunal notes the SSAT comment on this matter in its reasons for decision (T2-7)
“The Tribunal was unfortunately unable to ascertain the full details of the overpayment from the authorised review officer Mr Paul Fitzell. After careful examination of Centrelink/s records however, the Tribunal was satisfied with the evidence as follows:
·On 27 August 1996, Mr Denny declared to Centrelink that he was receiving $122.40 per fortnight in earnings from the AJC. Based on this information, Centrelink calculated that Mr Denny was earning $3,182 gross per year and adjusted Mr Denny’s disability support pension payments accordingly.
·On 12 September 1996 Mr Denny declared that he was now also receiving income from Rosehill Racecourse in the amount of $70.38 per fortnight. Centrelink added these earnings to the amount Mr Denny was earning from the AJC and assessed Mr Denny’s rate of pension on the basis of earnings of $5,012 gross per year.
·On 16 September 1996 Mr Denny declared that he was now also receiving income from Canterbury Racecourse in the amount of $82.11 per fortnight. Centrelink added these earnings to the amount Mr Denny was earning from the AJC and Rosehill and assessed Mr Denny’s rate of pension on the basis of earnings of $7,147 gross per year.
·Centrelink has no record of Mr Denny updating his statement of earnings after this time until 27 October 2000 when Mr Denny notified that his earnings from the AJC had increased to $133.51 per fortnight. Centrelink then assessed Mr Denny’s rate of disability support pension on the basis of earnings of $7,436 per year.
·Centrelink has no record of Mr Denny updating his earnings after that time or of notifying that he was receiving worker’s compensation payments. It continued to assess Mr Denny’s entitlement to disability support pension on the basis of gross yearly earnings of $7,436 until a data matching exercise on 8 October 2002 revealed that Mr Denny’s earnings were in excess of this amount from 1999 to 2002.
·On 21 November 2002, a debt was raised for the amount of $1,184.65 due to under declared earnings for the period 5 July 2000 to 3 July 2001 (Debt 19162994).
·On 11 September 2002 another debt was raised for the amount of $1,232.99 due to under declared earnings for the period 4 July 2001 to 18 July 2002 (Debt 24966661).”
25. The Tribunal notes the Applicant’s submissions (Exhibit A3)
“…
9. Centrelink records show that an income declaration was made by Mr Denny on 27 October 2000, however the income recorded is below income actually earned for that period.
10. There are no indications on Centrelink records available to the Applicant as to what method was used to make that declaration.
11. On 29 October 2001 Mr Denny’s worker’s compensation solicitor contacted Centrelink to ascertain the effect of Mr Denny’s worker’s compensation payments on his disability support pension.”
26. In respect of the second administrative error, it was contended that Centrelink failed to correctly record the Applicant’s worker’s compensation payments, following data matching with ATO in October 2002. It was stated that the Applicant presented his worker’s compensation payslip to Centrelink at its Blacktown office at this time.
27. It was also submitted that as of 11 September 2002 when the first debt was raised against the Applicant, Centrelink was aware that the Applicant’s compensation payments amount to $197.08 per week.
28. It was submitted that the Applicant, at this time and subsequently, received his payment of DSP in good faith and that any debts raised after 11 September 2002 were incurred solely as a result of an administrative error on behalf of Centrelink. Even if an administrative error be not accepted before this date, it was submitted that any amount owing to Centrelink from 11 September 2002 to 10 February 2004 should be waived under the provisions of section 1237A(1) of the Act.
29. In the alternative it was submitted that there were special circumstances in this matter, such that the Applicant’s debt should be waived pursuant to section 1237AAD of the Act. It was the Applicant’s contention that the special circumstances in this matter included (Exhibit A3):
“…
4. Mr Denny lodged a worker’s compensation claim against the NSW Thoroughbred Racing Board (“TBR”), the relevant insurer.
5. From approximately 26 July 1999 until the current date Mr Denny received weekly worker’s compensation payments. The gross amount of such payments was $197.08 per week (or $394.16 per fortnight).
6. Because Mr Denny was already in receipt of the Disability Support Pension prior to his receipt of worker’s compensation, the worker’s compensation payment is treated as ‘ordinary income’ under section 1173(4) of the Act.
7. It will be contended below that on at least two occasions, in the years 1999 or 2000, Mr Denny entered the Merrylands branch of Centrelink and declared his income personally to Centrelink staff. It will be contended below that Mr Denny declared this income by showing his compensation ‘payslips’ to Centrelink officials.
...”
30. Mr Carter, for the Respondent, submitted that the debt subject to this review was correctly raised and should be recovered.
31. Mr Carter said that there were no Centrelink records to support the Applicant’s claim to have informed Centrelink of his worker’s compensation payments in 1999 or 2000 and it was contended that the Applicant’s evidence was suggestive of him not attending Centrelink offices in 1999 or 2000. The Respondent said this contention was reinforced by the lack of any record of the Applicant being sent relevant correspondence during this period. It was submitted that it was incumbent on Centrelink to code and review information given by a customer and for the customer to be informed of outcomes of any review by letter. Furthermore, it was submitted that even if Centrelink became aware of the Applicant’s worker’s compensation by data matching, it was still the Applicant’s obligation to inform Centrelink of his payments and of any changes to the amounts of income being used by Centrelink to calculate his DSP if those amounts were not correct. In effect, Mr Carter accepted that there may have been an administrative error within a particular Centrelink department because there was a Centrelink file showing a record of the Applicant’s worker’s compensation payments from October 2002, however, because the Applicant failed to meet his notification obligations (in respect to numerous letters sent to him during that period), it could not be said that the debt arose solely because of a Centrelink administrative error.
32. In respect of special circumstances, it was submitted that there was nothing unusual, exceptional or uncommon about the Applicant’s situation to set him apart from others in receipt of income support payments. As a result, there are no special circumstances in the Applicant’s case which warrant a waiver under section 1237AAD and Mr Carter submitted that the decision under review should be affirmed.
consideration
33. As has already been found by the Tribunal, the DSP debt of $5,227.32 due to the Commonwealth, for the period 5 July 2002 to 14 February 2004, has been correctly raised.
34. The first question for the Tribunal to address is whether the debt was raised solely because of a Centrelink administrative error.
35. In summary, the Applicant’s contention is that Centrelink has made two administrative errors, firstly by failing to record and act on the Applicant’s declaration to Centrelink on worker’s compensation payments during 1999 and 2000, and secondly by failing to record and act on the Applicant’s declaration to Centrelink on worker’s compensation payments in October 2002.
36. Turning to the Applicant’s contention of the first administrative error, the Tribunal is not impressed by the Applicant’s inconsistent and confused evidence about his alleged visits to the Merrylands Centrelink office in 1999 and 2000. The Tribunal has taken into account the lack of any evidence presented in the first instance to the SSAT in respect of this matter, the Applicant’s inconsistent recall of events, the lack of any records whatsoever of the Applicant’s declaration of worker’s compensation period payments at this time and the lack of any record of related Centrelink correspondence to the Applicant following his alleged visits to Centrelink.
37. After careful consideration of all material before it and the submissions of both parties, the Tribunal is satisfied that the Applicant’s evidence about visiting Centrelink in 1999 and 2000 cannot be relied upon. The Tribunal is satisfied that it cannot accept the Applicant’s submission in respect of the “first administrative error”.
38. Turning to the second administrative error, evidence clearly shows and the Tribunal accepts that the Applicant did present Centrelink with details of his worker’s compensation payments in October 2002. The Applicant’s relevant payslip in respect of worker’s compensation at this time is contained in Centrelink records. It is also clear that at this time Centrelink were on notice that the Applicant was in receipt of worker’s compensation payments, notwithstanding that ATO records of income obtained from data matching did not distinguish the type of income the Applicant had received.
39. The Tribunal was not persuaded that it should give weight to any argument that relied on disparate sections within Centrelink failing to share relevant customer information. Centrelink customers should expect to be able to go to a Centrelink office and make a declaration about their income and have that information acted upon appropriately by the relevant Centrelink officers.
40. After consideration of all the material before it and the submissions of both parties, the Tribunal is satisfied that Centrelink has made an administrative error that resulted in the Applicant being overpaid DSP during the relevant period and with effect from 24 October 2002. In arriving at the date of 24 October 2002, the Tribunal has looked carefully at the circumstances of the debt raised on 11 September 2002 and the chronological sequence of the Applicant’s worker’s compensation payslip in Centrelink records and has based its finding on the latter.
41. The question then is to whether any such overpayment was caused partly by administrative error and partly by one or more other factors such as error by the debtor. The Tribunal is satisfied that the Applicant believed he had responded appropriately to various Centrelink letters and his obligations as set out in those letters. The Tribunal accepts that the Applicant believed he had done the right thing by Centrelink. The Tribunal has taken into account the confusing picture facing the Applicant at the time because of raising (and recovery) of the debts in September and November 2002, coupled with the high level of anxiety he suffered at the time because of these debts.
42. The Tribunal is satisfied that the Applicant did not contribute to any error in the payment of his DSP from 24 October 2002 to 10 February 2004 and that the payments he received during that period were received in good faith. In so finding, the Tribunal is satisfied that the only cause that can be ascribed to a debt during this period is an administrative error. See Sekhon vSecretary Department of Family and Community Services (2003) 76 ALD 105 at 113.
43. The remaining question before the Tribunal is whether pursuant to section 1237AAD of the Act, there are special circumstances which should be considered.
44. With respect to special circumstances, the Tribunal notes that although special circumstances are not defined in the Act, the approach to be taken in the interpretation and application of the discretionary provisions of the Act have been dealt with by the Tribunal and the Federal Court in numerous cases. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 it was said:
“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.”
45. This decision was generally affirmed on appeal by the Full Court of the Federal Court of Australia in Beadle v Director –General of Social Security (1985) 7 ALD 670, where it was said:
“the phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”
46. Furthermore, the Tribunal is mindful that all of the circumstances in a particular case must be considered and the Tribunal should adopt a flexible response to such circumstances, bearing in mind the need to consider community interest in the recover of public monies.
47. In this respect, the Honorable Justice French in Department of Social Security v Hales (1998) 51 ALD 695 said:
“The evident purpose of section 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial constraint upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the Section a fetter upon its application which is not mandated by its words is to erode its useful purpose.”
48. Furthermore, to waive the debt under this provision, it must be more appropriate to waive rather than write off the debt. In these circumstances, the Applicant has the capacity to repay the debt. In Re Department of Social Security and McAvoy (1996) 44 ALD 721, the Tribunal referred to the need to balance the competing interests of the burden of repayment for the individual over a period of time against the community interest in recovery of public moneys. In Hales (supra), the Federal Court said:
“From time to time in the administration of social security benefits, overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.”
49. The Tribunal is also mindful that his Honour Justice Keifel in Groth v Department of Social Security (1995) 40 ALD 541 stated, in respect of special circumstances, that it would require something to distinguish an Applicant’s case from others, to take it out of the usual or ordinary case.
50. In considering special circumstances, the Tribunal finds that in the Applicant’s case, there are no special circumstances in relation to finances or health or any other special circumstances. The Tribunal is therefore satisfied that the provisions of section 1237AAD of the Act do not apply in this matter.
DECISION
51. The Tribunal sets aside the decision under review and in substitution thereof decides:
(a) that a debt of Disability Support Pension, in the amount of $2,809.68, is due to the Commonwealth by Mr Colin Denny, for the period 5 July 2000 to 10 February 2004.
(b) that pursuant to section 1237A(1)of the Social Security Act 1991, that part of the Disability Support Pension debt due to the Commonwealth by Mr Denny for the period 24 October 2002 to 10 February 2004 is waived.
(c) that the matter be remitted to the Respondent for recalculation of the amount of Disability Support Pension debt to be recovered from Mr Denny, taking into account money already recovered from him and money, if any, due to him as a result of excess recovery.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Member I R Way
Signed: .....................................................................................
AssociateDate/s of Hearing: 17 June 2005
Date of Decision: 27 July 2005
Solicitor for the Applicant: Ms Naomi Reiner
Solicitor for the Respondent: Mr Luke Carter
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