Donnelly; Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 433

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: N2001/1265

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Department
           And    ANNE DONNELLY
  Respondent

DECISION

Tribunal Professor T Sourdin, Member

Date2 May 2002
PlaceSydney

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal on 17 July 2001 that the recovery of two debts in respect of a sole parent pension debt of $6,869.40 and a parenting payment (single) debt of $10,789.30 be waived.

[SGD] Prof T Sourdin Member
CATCHWORDS
SOCIAL SECURITY – whether a debt is owed to the Commonwealth – whether debt should be waived - whether the debt is solely attributable to administrative error - whether the Respondent received the payments in good faith- overpayments – obligation to notify the department- failure to notify- recipient notification notice - whether the Respondent failed or omitted to comply with notices –– special circumstances

Social Security Act 1991 - sections 1224, 1237A, 1237 AAD
Student and Youth Assistance Act 1973 – section 289(1)

Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169
Re Secretary, Department of Social Security and Hoy (1998) 52 ALD 477
Dingli & Secretary, to Department of Social Security (AAT 11436, 28 November 1996)
Secretary, DEETYA v Prince (1997) 26 AAR 385
Gerhardt and Department Employment, Education and Training (Unreported, AAT 10941, 17 May 1996)

REASONS FOR DECISION

Professor T Member

The Department in this application is the Department of Family and Community Services (the "Department"). The Respondent is Ms Anne Donnelly (the "Respondent"). The application is in respect of a review of the decision of the Social Security Appeals Tribunal ("the SSAT") on 17 July 2001 to set aside the decision of a Centrelink delegate to recover two debts from the Respondent:
(1) In respect of a sole parent pension debt of $6,869.40 and a parenting payment (single) debt of $10,789.30; and
(2) A sole parent of invalid pension and disability support pension of $11,052.50.

APPEARANCES

A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") on 2 May 2002, at which the Department was represented by Ms Collis, a departmental advocate. The Respondent was represented by Ms Clark of the Welfare Rights Centre.
The Respondent gave oral evidence to the Tribunal.
DOCUMENTARY EVIDENCE
The following documents were taken into evidence:
Exhibit          Document    Date
TD1 T1-T63 pp1-181 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")
A1      Department's Amended Statement of Facts and Contentions 24 April 2002
A2      Department's Statement of Facts and Contentions      13 February 2002
A3      Department's Statement of Issues           19 September 2001
R1      Respondent's Statement of Facts and Contentions
R2       Respondent's List of Cases         1 May 2002
R3      Report of Dr J. Pickering    4 October 2001
R4      Report of Philip Hull 26 November 2001
R5      Report of T. Lorentz 21 November 2001
R6      Report of Chris Probets     27 July 2001

BACKGROUND

The background to these applications was summarised by the SSAT in its Statement of Reasons. However, some of the dates noted in that Statement were clearly incorrect. In particular, the Statement of Reasons noted that the Respondent had been receiving social security payments from 13 July 1975. The Statement also noted that the Respondent had been working for Dr Noyce from 3 July 1975.
These dates are agreed to be incorrect as, in 1975 Ms Donnelly was only 11 years of age having been born on 6 March 1964. The reasons for this discrepancy in dates is not clear, however, it is possible that the SSAT relied upon the advice given to it by the Department rather than Ms Donnelly. In this regard it was noted by Centrelink at T54 at p157 that:
"…there had been a mix-up between this customer and another Anne Donnelly, the wrong pension file had been stored with this customer's file."

As noted above, the respondent was born on 6 March 1964. On the 30th of November 1990, the Respondent left her husband following some domestic violence and began to receive the sole parent pension. At that time, the department had two children a three-year-old girl and a nine-month old boy.
The Respondent then moved to a caravan park at Vineyard and attempted to obtain employment. The Respondent was successful in obtaining some casual employment for approximately an hour and a half per day in 1994. She was casually employed by G.E.C Electronics on this basis until 1996.
In July 1995 the Respondent also started working with Dr Noyce on a casual basis and continues to work there. At around this time, it would appear that the Department of Social Security ("the Department") wrote to the Respondent and noted her actual income. At paragraph 10 of the SSAT decision, the income earnt by the Respondent was noted to be $17,417.00 (T2, pp3).
It is somewhat difficult to reconstruct what happened after this time. Most of the documentation that would be held by the Department appears to have been destroyed. The clerical error referred to above appears to have led to some confusion.
It does appear, however, that at some point in August 1995 the Respondent asked about her sole parent pension payments. She was unable to supply pay slips in respect of either her G.E.C Electronics employment or her employment with Dr Noyce. In evidence before the Tribunal the Respondent indicated that she had been paid out of petty cash by G.E.C and that she received a cheque from Dr Noyce. No pay slips were received from either employer. It would appear that the Department checked with her employers and adjusted her income amount. The SSAT noted at paragraph 11 that "this change was reflected in a second letter, dated 8 August 1995, that adjusted her income to $15,275.00" (T2, pp4).
In October 1995, the Respondent completed her first sole parent review form (T13, pp34). On that form she indicated that she was earning $61 per week from G.E.C Electronics and $206 per week from Dr Noyce. From that occasion until 1999 there are no review forms available relating to the Respondent. It would appear that the Respondent completed a number of review forms during the period, however, they are not available and cannot be produced.
In early 1996, the Department apparently asked the Respondent's employers about her earnings. Replies to the request for more detailed information in relation to her earnings were apparently received by the Department prior to 11 April 1996. It would appear that a raising of a debt occurred at that time that was then waived. This debt was waived on the 24th of June 1996 however; there is no record of any letter being sent to the Respondent about this waived debt. A further letter raised her income to an amount of $19,428.24.
The next correspondence that is available includes copies of letters sent to Ms Donnelly over various periods from 1996 onwards. That correspondence related to late review forms that were then apparently forwarded in by the Respondent (these are not available). In relation to the three monthly review forms that were completed by the Respondent and have been retained by the Department, Ms Donnelly consistently completed question 9, which asked about her work in the past period as "still with Dr Noyce nothing changed". No information was provided in relation to the income amount received by Ms Donnelly who assumed that this information was being obtained from her employers directly.
During the period from 1996 onwards it appears that Mr Ron Smith, the accountant for Dr Noyce provided a regular information to the Department about the earnings of the Respondent. The SSAT noted that Mr Ron Smith stated in a letter dated 19 October 2000 (T57, p161) that:
"it is surprising to me that the figures covering the missing period after available to you for the reason that when you are operated under the name of social security which I think the situation was two to three years ago I was then asked every six to nine months what Mrs Donnelly's earnings had been at it is only since Centrelink originated that this procedure has ceased."
It would appear that in April 2000, a data match with the Australian Taxation Office showed that the Respondent was earning more than the amount that Centrelink thought she was (T46A, pp132A-132B).
As the SSAT has noted, on 5 April 2000, Centrelink wrote a letter that said "information obtained in conjunction with the ATO indicates that you may have received income at the same time as you received social security payments " (T46, p132). The SSAT noted that this was a fact that Centrelink clearly already knew. The overpayments were subsequently calculated and the debts raised.

ISSUES

The issue to be considered by the Tribunal in this application is, first, whether Ms Donnelly owes a debt to the Commonwealth (this is particularly relevant in respect of the period prior to 1 October 1997 when section 1224 applies) and, if so, whether the debt owed by the Respondent should be waived pursuant to sections 1237A or 1237AAD of the Social Security Act 1991 ("the Act").
Section 1237A raises two ancillary issues: whether the debt was solely due to an administrative error made by the Commonwealth and whether the Respondent received the payments in good faith. Section 1237AAD requires a consideration of whether special circumstances make it desirable to waive the debt.
LEGISLATION
The legislation relevant to these applications is sections 1224, 1237A and 1237AAD of the Social Security Act 1991.
Section 1224(1) provides:
"1224(1) If:
(a) an amount has been paid to a recipient by way of social security payment or fares allowance; 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 the social security law or this Act as in force immediately before 20 March 2000, the 1947 Act or the Social Security (Fares Allowance) Rules 1998;
the amount so paid is a debt due by the recipient to the Commonwealth."

Section 1237A(1) of the Act provides:

"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.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor)"

Section 1237 AAD of the Act provides:

"1237AAD 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."

THE RESPONDENT'S EVIDENCE

The Respondent said that she had believed that throughout the period from 1996 to the year 2000, Centrelink and the Department had been obtaining information in relation to her income directly from her employers. The Respondent formed this belief because she said that she had never provided information about her income to either Centrelink or the Department directly, apart from the initial review form that she had completed in 1995.
The Respondent indicated that she had discussed this matter with inquiry persons in the Department. She indicated that at the time of this inquiry, she told the persons in the Department that she did not have payslip information, to which the departmental officers had replied, "we will write to your employer and his accountant."
The Respondent said in evidence that she had understood from late 1995 onwards that either the Department or Centrelink was in contact with her employer to obtain information about her income. She had come to this understanding as the accountant in the medical practice where she worked, had indicated to her that he had received correspondence from the Department or Centrelink seeking information about her income.
The Respondent indicated that she had regularly received letters from the Department or Centrelink in the form of a computer printouts. However, she indicated that she had understood that the Department and Centrelink were continuing to receive information from her employer Dr Noyce about her income.
The Respondent indicated that she completed each form that came to her in the same way. That is, she indicated that the situation with Dr Noyce was still continuing. She indicated that when she dropped these forms in at the counter at Centrelink they were accepted. The Respondent also indicated that when she would drop the forms in, a Centrelink or departmental officer would check them at the counter.
The Respondent's evidence was consistent and credible. She indicated that she had no intention to conceal any income from the Department or Centrelink and that she had understood that as her employer, the accountant at her workplace had been forwarding information about her earnings to Centrelink and the Department, keeping them informed of her earnings. In response to questions about the income, as noted on the letters forwarded to the Respondent, she indicated that as a single working mother with two small children, she had little time to read and check the contents of the letters.
The Respondent also gave evidence in relation to her current medical condition and past history in relation to counselling. In that regard, the Tribunal noted that the Respondent had a history of panic disorder attacks and phobias that may have stemmed, in part, from a sexual assault that she experienced whilst a young teenager. In addition, the Respondent gave evidence about her addiction to cannabis and her intensive treatment and counselling in 1999 in respect of cannabis dependence. During that time the Respondent maintained her employment and indicated that she had been frank with her employer about the problems.
Dr Chris Probets in his report dated 27 July 2001 (Exhibit R6) noted that:
"in all probability based on the results of my interview assessment and the psychometric assessments, in my opinion Anne Donnelly is suffering from post traumatic stress disorder which is moderate and chronic and is likely to be as a direct result of the sexual assault of January 1979."
The Respondent indicated that prior to her admission into St John of God hospital in 1999 in respect of her cannabis dependence, she had completed taxation returns covering the past three years. She said that when she received the department's advice in relation to the debt in 2000 she had been very distressed and concerned. She indicated that when she had completed her tax returns, she had no concerns about the information being forwarded to the Department. The Respondent also indicated that she had nothing to hide as she had thought that "social security already had all the details from my employer."
The Respondent also brought to the attention of the Tribunal that the letters that she had been sent from Social Security and Centrelink stated that "in addition, we will obtain the information directly from your employer."
In cross-examination, the Respondent indicated that she did not check the income amounts noted in the correspondence from Centrelink. She stated that "she believed that the information was correct that the Department was getting."
The Respondent acknowledged that she received regular notices from Centrelink throughout the period, which advised her "You must tell us within 14 days if… your income (before tax) is incorrect". She said, however, she thought nothing was amiss in relation to the rate of payment she was receiving and that throughout the period she had no idea that she was being paid an incorrect rate.
The Respondent said that he did not make any enquires as to the correct amount of payment she should be receiving because she assumed that Centrelink knew precisely what her earnings were and was paying her the correct amount after taking those earnings into account. Again, she stressed that she thought there was communication between Centrelink and her employer.

OTHER EVIDENCE

The T-documents contain many computer-generated copies of the Department's letters to the Respondent. All of these letters contained the statements about the yearly income (not a weekly amount). There are almost no records of any responses to those letters. There are also no records of the correspondence that was forwarded to Centrelink by the Respondent's employer. As noted previously, at paragraph 2 of this decision, there is a statement from the Department that there had been a mix-up between these customers file and another file.
It may be that relevant documentation was placed on the other file due to an administrative error. It would also appear that in 1996 the Department had confirmed that the Respondent's earnings had been under-assessed, however, it had waived the debt as the Department accepted that the overpayment was caused by administrative error on their part and was received in good faith by the Respondent. Despite forming this view, in respect of that under-assessment, it appears that the Department failed to proceed to properly reassess the Respondent's continuing entitlements on the basis of the available information.
In one sense, it is that administrative failure in 1996, and the continuing failure to respond to information that had been requested and received from the Respondent's employer that had led to the overpayment to the Respondent.
At T58 at p165 the Welfare Rights Centre indicated that:
"We propose that the ongoing assessment of Ms Donnelly's income tested entitlement over the period of not only the debts under review, but in fact since she commenced work, was flawed in that it was careless. Ms Donnelly acted responsibly by seeking advice from DSS as to how best to complete the SPR's upon receipt of the first one sent to her after she commenced work, and followed the advice given to her as she understood it. She was clearly not advised to attach payslips or another pay record for the preceding 12 weeks, as would have been appropriate and preferable. Instead DSS/Centrelink continued to process her SPR's despite the fact they contained minimal information. This led Ms Donnelly to believe that DSS rather than she would be responsible for maintaining contact with her employer's accountant, Mr Smith. Mr Smith also was led to the same understanding."

SUBMISSIONS AND CONSIDERATION

Ms Clark, an advocate for the Respondent referred the Tribunal to section 284 of the Act and submitted that there had been no contravention of the Act of the type envisaged by the section. She referred the Tribunal to the decision of the then President of the Tribunal, Mathews J, in Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169 and submitted that this decision has application to the circumstances of the Respondent. She also referred the Tribunal to its decisions in Re Secretary for Department of Social Security and Hoy (1998) 52 ALD 477.
Ms Collis for the Department, submitted that it was incumbent on the respondent to read the whole of the notice forwarded to them by the Department. In this respect, the Tribunal accepts that Ms Donnelly advised DSS and then Centrelink that she was in receipt of income over the relevant period. The Tribunal considered that Ms Donnelly's evidence was credible and consistent and accepted her evidence that during 1996 to 2000 she considered nothing in the rate of her Social Security payments to be amiss. The Tribunal further accepted that Ms Donnelly considered that the Department was in communication with her employer.

The Tribunal considered the decisions in Vitalone and Secretary, Department of Social Security (supra), in particular the following passages, where Matthew J referred to similar, notice provisions and stated at ALD 174:
"31. Section 163 is a penal provision. Non compliance with it is potentially punishable by imprisonment. Accordingly, it needs to be interpreted in a manner which is favourable to the individual concerned. It should certainly not be construed so as to impose a strict liability. 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."
In relation to notification obligations generally, the Tribunal, in Re Secretary for Department of Social Security and Hoy ), said at ALD 480 :

"The primary responsibility in cases like the present is the responsibility of the DSS to ensure that the notification obligations imposed by the recipient notification notices given under the various provisions of the Act - including section 872 - are expressed with sufficient certainty as to leave a recipient in no reasonable doubt as to the content of the relevant obligation. It is especially important that the DSS ensure that such notices are certain in their meaning because of the potentially very adverse possible consequences to the recipient in the event of failure to comply with the notification requirements of such a notice - namely, the incurring of a debt to the Commonwealth and a criminal penalty of up to six months imprisonment."

In Re Secretary for Department of Social Security and Hoy (supra), a similar argument to that raised by the Respondent in this application was considered and rejected at ALD 480:
"Before parting with this case the tribunal notes that, in the course of a written submission made on behalf of the applicant, it was stated in connection with the requirement of the notice of 20 September 1995 that the respondent notify the DSS if she or her partner "change jobs":
"If Mrs Hoy had been unsure if it [that is, the change in Mr Hoy's employment circumstances on 16–19 January 1996] constituted a change of jobs she may have requested clarification from the department but she did not."
The Tribunal's comment on that submission is this. The primary responsibility in cases like the present is the responsibility of the DSS to ensure that the notification obligations imposed by recipient notification notices given under the various provisions of the Act — including s 872 — are expressed with sufficient certainty as to leave a recipient in no reasonable doubt as to the content of the relevant obligation. It is especially important that the DSS ensure that such notices are certain in their meaning because of the potentially very adverse possible consequences to the recipient in the event of failure to comply with the notification requirements of such a notice — namely, the incurring of a debt to the Commonwealth and a criminal penalty of up to six months imprisonment. As regards cases like the present, if recipient notification notices are intended to impose a broad obligation to notify the DSS of changes in employment circumstances generally — not merely changes of jobs in the strict sense — that intention can easily be made clear by a simple re-wording of such notices."

A similar approach was adopted by the Tribunal in Dingli & Secretary, to Department of Social Security (AAT 11436, 28 November 1996):

"7. The respondent relies on s.1224(1)(b)(ii) and says Mrs. Dingli failed to comply with a provision of the Act. It is contended that the notice of 20 September 1993 amounted to a requirement pursuant to s.68(1)(a) of the Act that Mrs. Dingli notify the Department if the combined income her husband and herself went above $76 per week. I reject that argument. Their combined income was already above $76 per week. It did not go above $76 per week after the receipt of that notice. Therefore no event occurred which Mrs. Dingli was required to notify the Department of. "

The situation can be distinguished from that in Dingli & Secretary, to Department of Social Security, where the Department had failed to include vital information on her claim form:
"8. However in my view Mrs. Dingli's claim form of May 1992 included a false representation within the meaning of s.1224(1)(b)(i) of the Act. As I have said, she made no response in relation to her husband to the question asking whether she or he had been employed in the previous twelve months. The claim form also required her to state the gross amount per week that her husband was then earning, and the gross amount earned by him in the last twelve months. She left those parts of the form blank. As a result, her form conveyed the impression that her husband was not earning anything, and had not earned anything in the last twelve months. Submitting the form with the parts in question left blank therefore amounted to a representation that her husband was not earning an income and had not done so within the previous twelve months. "
Here there was no checking of the form or on the information provided to the Department by the Respondent's employer. There was no misrepresentation by the Respondent.
The consequence of this is that there was no failure or omission to comply with the requirement of the Act nor was there any false statement or false representation by the Respondent. It follows that there is no debt due by the Department to the Respondent pursuant to section 1224 of the Act for the period prior to 1 October 1997.
For the period post 1 October 1997, Ms Clark submitted that the debt should be waived pursuant to either section 1237A(1) or section 1237AAD of the Act. Taking first section 1237A(1) of the Act, it provides that:
"…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."
In this case, I am satisfied that the Respondent received the payments in good faith as that expression was interpreted by the Federal Court in Secretary, DEETYA v Prince (1997) 26 AAR 385 at 387-388 (Finn J). She thought that she had complied with all of her obligations to notify the Department or Centrelink of her changing circumstances. Her payments appeared to fluctuate and it is reasonable to accept that she would not have had any reason to think, and did not think, that she was being paid more than that to which she was entitled.
In an unreported decision of Gerhardt and Department Employment, Education and Training (Unreported, AAT 10941, 17 May 1996), the meaning of "solely" as it formerly appeared in section 289(1) of the Student and Youth Assistance Act 1973 was considered. That sub-section was in terms similar to section 1237A(1) of the Act and a submission had been made that the word "solely" did not mean that the error had been made exclusively by the Commonwealth. After reviewing the authorities, it was noted that the word "solely" meant "exclusively", "only" or "to the exclusion of all else". There is no substantive difference between section 289(1) of the Student and Youth Assistance Act 1973 and section 1237A(1) of the Act. Consequently, it is appropriate to take the same view in relation to section 1237A(1).
This means that 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 Department's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Department's administrative error (i.e. they are incidental to the Department's error), then it may be that the debt is attributable solely to the Department's administrative error.
Ms Clark submitted that there are occasions on which the Commonwealth erred. Each arose, she submitted, because Centrelink failed to respond to the notification of the Respondent's change in income that was provided by her employer.
Alternatively, it was submitted that throughout the overpayment period the Respondent believed that payments were calculated in accordance with information provided directly to the Department by her employers. The Respondent therefore it was submitted, relied on the Department continuing to gather the information from her employers. The Department failed to advise the Respondent that it was changing the arrangements that it had put in place.
Further, Ms Clark indicated that the Respondent had sought advice from the Department about how best to fill out of the review forms, and that she had in fact, followed the advice given by the Department to her as she understood it.
It was also submitted by the advocate for the Respondent, that the Department continued to process or review forms despite the fact that they contained no information as to her actual income. This had served to reinforce the Respondent's belief that the Department was responsible for obtaining information about her actual income.
The issue in this case is not whether Centrelink has made an administrative error but whether the debt is attributable to that administrative error and, if it is, whether it is solely attributable. The question of whether there is an administrative error and whether the debt is solely attributable to that error are two different things. Had Centrelink reassessed the Respondent's income it would have concluded that her income was greater.
However, the matters raised by the Department are also relevant. There is an onus upon a person who is within the position of the Respondent to consider correspondence that is forwarded from the office of Centrelink. In my view, it would have been reasonable for the respondent to have made some further enquiries with the Department at some point about the moneys that were being paid to her. This is particularly the case, as it would appear that the frequency of checking by the Department increased fairly significantly throughout 1999 and 2000.
It follows that the debt did not arise solely because of an administrative error by the Commonwealth but was contributed to, in small part, by the actions or inaction of the Respondent. In view of that and in accordance with the decision of the SSAT, the power to waive under section.1237A(1) cannot be exercised.
Ms Clark also sought to rely on the power to waive found in section 1237AAD. This section 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 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."
In respect of the first limb of that test the Tribunal is satisfied and agrees with the SSAT that there is an administrative error in this case. The information that the Respondent provided was inadequate for the purposes of income review yet it provoked absolutely no response by Centrelink or the Department. In this way administrative error certainly contributed to the debt.
The next question that needs to be asked is whether the Respondent, knowingly failed in her obligations? In this regard, the Tribunal agrees with the findings of the SSAT that the Respondent did not knowingly make a false statement or fail to comply with some requirement imposed by law.
The Respondent may not have provided all of the information required when she completed the review forms. However, she thought that her employer was being contacted and her income was being verified. In this regard the Tribunal concludes that the Respondent did not knowingly fail in her obligations and therefore passes the test in subsection 1237AAD (a).
The second limb of section 1237AAD requires consideration of the Respondent's special circumstances. The case to which regard is usually had in considering the meaning of the words "special circumstances" is that of Beadle v Director-General of Social Security (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ). As Kiefel J said in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 said:
"The phrase 'special circumstances', it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle's case (at ALR 229; ALD 674), and for the present purposes 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. "
In this case, the Tribunal is satisfied, as was the SSAT, that there are some special circumstances that create a conjunction of circumstances that would suggest that the debt should be waived. In this regard, the Tribunal notes that the Respondent is a survivor of sexual assault, and domestic violence, who has worked hard to raise her family of two children. Further, the Respondent has also suffered from depression and substance abuse. The Tribunal also has regard to the comments of the SSAT (T2, pp14) that:
"Her life experiences have led her to depression and substance abuse. Both of these conditions have been present during the time that the debt was accumulating. It is reasonable to suggest that they may have lain behind her frequent failures to return review forms on time. She has reported additional distress because of the debt itself. In the tribunal's view, she tried hard to comply with the demands of the Social Security payments she received."
Based on all of these circumstances the Tribunal finds that the Respondent meets the requirements of s1237AAD.
DETERMINATION
For these reasons, I affirm the decision of the Social Security Appeals Tribunal dated 17 July 2001 that the recovery of two debts in respect of a sole parent pension debt of $6,869.40 and a parenting payment (single) debt of $10,789.30 be waived.
I certify that the preceding 65 paragraphs are a true copy of the reasons for the decision herein of Professor T Sourdin, Member
Signed:       S. Swamy           .....................................................................................
  Associate
Date of Hearing  2 May 2002
Date of Decision  2 May 2002
Advocate for the Department   Ms Collis
Advocate for the Respondent Ms Clark

[2002] AATA 433

2 May 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Overpayments

Administrative Error

Notification Obligations

Good Faith

Recipient Notification Notice