Duarte; Secretary, Department of Family and Community Services - [2000] AATA 927

DECISION AND REASONS FOR DECISION [2000] AATA 927

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1038

GENERAL ADMINISTRATIVE DIVISION      )                N1999/1039
           Re      SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Applicant
           And    MARIA DUARTE First Respondent
           And    CARLOS DUARTE

Second Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date25 October 2000
PlaceSydney
DecisionThe Tribunal determines that the decisions under review be set aside and in substitution thereof finds that:
(a) the first Respondent did receive an overpayment of parenting allowance during the period 28 August 1996 to 7 August 1997 and that a debt of $6041.80 is owed to the Commonwealth; and
(b) the second Respondent did receive an overpayment of income support payments during the period 28 August 1996 to 7 August 1997 and that he accrued a debt of $4547.30, which has been extinguished by the recovery of $27,669.11 by the Applicant from the lump sum compensation payment paid to the second Respondent for income support payments made to him during his preclusion period of 7 December 1994 to 14 March 2000.

[Sgd] Dr J D Campbell
Member

CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – parenting payment – data matching – overpayment – debt – waiver – sole administrative error – good faith – special circumstances – lump sum compensation payment – preclusion period.

Social Security Act 1991
Data Matching Program (Assistance and Tax) Act 1990
Privacy Act 1988
Income Tax Assessment Act 1997

Re Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1991)
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Re Greenwood and Secretary, Department of Social Security (1991) 64 SSR 897
Department of Education Training and Youth Affairs v Prince (1997) 50 ALD 186
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 Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Re Secretary, Department of Social Security and VYS 40 ALD 745

REASONS FOR DECISION

Dr J D Campbell, Member.

The Secretary, Department of Family and Community Services ("the Applicant") in these matters seeks a review of the decisions of the Social Security Appeals Tribunal ("the SSAT"), both dated 25 May 1999, which found that neither Mrs Maria Duarte ("the first Respondent") nor Mr Carlos Duarte ("the second Respondent") owed money to the Applicant and any money so far recovered be returned. These two decisions had set aside the primary decision by a delegate of the Applicant on 1 October 1999 which in turn had been varied by the authorised review officer on 8 March 1999 to the effect that the first Respondent owed $6041.80 in respect of parenting allowance and the second Respondent owed $4547.30 in respect of disability support pension.
A hearing was held before the Tribunal on 29 May 2000 at which both Respondents attended and presented oral evidence. The Applicant was represented by Ms Smith and Ms Mantaring, advocates from the Administrative Law section of Centrelink. The Respondents were represented by Ms Koller, a solicitor from the Welfare Rights Centre.
The following material was placed in evidence before the Tribunal:
Exhibit No.   Description Date
T1–T46 pp 1-153 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Applicant's statement of facts and contentions 28 February 2000
A2      Applicant's submissions     24 May 2000
A3      Documentation relating to use of data matching in Commonwealth Administration November 1995
R1      Respondents' statements of facts and contentions      21 February 2000
R2      Letter to the first Respondent re parenting allowance 20 April 1996
R3      Letter to the first Respondent re parenting allowance 12 September 1996
R4      Photocopy of the first Respondent's diary note 16 September 1996
R5      Pay slip for the first Respondent   10 September 1996
R6      List of income and expenses for Respondents' family Undated
ISSUES:
The relevant issues in this matter are:
(1)whether the employment declaration form ("EDF") match conducted by Centrelink on the first Respondent's EDF which she signed on 27 February 1996 is subject to the requirements of the Data Matching Program (Assistance and Tax) Act 1990 ("the DMP Act");
(2)if the DMP Act does not apply; whether the Social Security Appeals Tribunal was incorrect to decide that there were no recoverable debts in these cases;
(3)in the case of the first Respondent, whether a debt exists of parenting allowance for the period from 27 August 1996 to 7 August 1997, this being the period relating to employment with Camden Nursing Home;
(4)in the case of the second Respondent, whether a debt exists of disability support pension for the period from 27 August 1996 to 7 August 1997, this being the period relating to the first Respondent's employment with Camden Nursing Home; and
(5)whether the administrative error or special circumstances waiver provisions should be exercised to waive any, or all, of the debts.

legislation:

The relevant legislation in this matter is:
The Social Security Act 1991, and in particular sections 132, 133, 937,950, 951, 1064, 1223, 1224 and 1237;
The Data Matching Program (Assistance and Tax) Act 1990, sections 10 and 11; and
The Privacy Act 1988, section 14.

BACKGROUND:

The first Respondent was born in East Timor and migrated to Australia in 1975, where she attended school. She left school in year 12 to care for her sick mother. Following this she commenced working, with most employment occurring in nursing, without at any stage completing her professional nursing qualifications.
The second Respondent was born in East Timor, educated in Portugal and worked in a wide variety of jobs, including pastry cooking. In 1990 he suffered a work related accident, receiving weekly incapacity payments until 1991, when he returned to work and was later dismissed. In 1997 the second Respondent received a small compensation settlement, plus costs for this injury. Since February 1997, the Respondents have been receiving social security payments. In December 1994, while undertaking a Commonwealth Employment Services course the second Respondent was involved in a motor vehicle accident, causing spinal damage. The second Respondent has been unable to work since the accident in 1994. Lump sum compensation of $230,000 less authorised deductions was received on 17 August 1999 by way of settlement of his claim relating to the motor vehicle accident. A preclusion period was nominated to exist between 7 December 1994 and 14 March 2000, resulting in the second Respondent paying $27,669.11 to the Applicant for particular disability support pension received during the preclusion period.
The Respondents have three children, aged 14, 11, and 9. On 28 February 1996 the Applicant sent the first Respondent a letter concerning parenting allowance and amongst many items she was instructed pursuant to section 950 of the Act to inform the Applicant, within 14 days, if either her or her partner's income were to exceed $0.00 per fortnight (T3). On 28 February 1996 the second Respondent was advised of his disability support pension payments and pursuant to section 132 and 133 of the Act he was advised to inform the Applicant, within 14 days, if combined income, not including maintenance, was more than $118 per week (T4). A further letter to the first Respondent concerning parenting allowance was forwarded on 11 March 1996 with similar instructions on the necessity to advise the Applicant within 14 days if either her or her partner's personal income exceeded $0.00 per fortnight (T5). On 19 April 1996 The second Respondent was advised of a reduction in his disability support pension payment, because of an increase in combined earnings of himself and his partner, and was advised to tell the Applicant within 14 days if combined income, not including maintenance, was to exceed $272.82 or if he or his partner started work or recommenced work (T6).
On 20 April 1996 the first Respondent was advised of a reduction in parenting allowance because it was affected by the earnings audit scheme, and again she was instructed to advise the Applicant within 14 days if her income exceeded $542.65 per fortnight, or her partner's income exceeded $0.00 per fortnight (T7). On 20 June 1996 she was advised that her parenting allowance had been cancelled, because her personal income of $1275.42 per fortnight exceeded the payment limits (T8). The second Respondent was advised on 20 June 1996 that his disability support pension payments would be decreased because of the increase in combined income, and that he must advise if combined income exceeded $364.92 per week (T9). On 25 June 1996 he was informed of a variation in disability support pension payments, because of a change in circumstances (T10) and again on 12 July 1996 because of an increase in the combined income of the Respondents (T11). On 25 July 1996 the first Respondent was advised of the recommencement of her parenting allowance, and instructed to advise the Applicant if her personal income exceeded $768.20 per fortnight (T12). On 9 August 1996 The first Respondent was advised of an increase in parenting allowance and advised to notify the Applicant within 14 days if her total personal income exceeded $60.00 a fortnight, and if she or her partner started or recommenced work (T13). Similarly, the second Respondent's pension payments were increased at this time (T14).
On 12 September 1996 the Applicant advised both Respondents of employment declaration form matching and their need to confirm employment details by 28 September 1996 (T16). The Applicant had forwarded a recipient statement notice to the first Respondent on 6 July 1997 seeking employment details (T18). A similar letter was sent to the second Respondent wanting confirmation of his partner's employment details on 16 July 1996 (T19). On 22 July 1997 the first Respondent was advised of a reduction in parenting allowance (T20). On the same day, she rang the Applicant and said that she had declared her earnings at Camden Nursing Home in September/October 1996 (T17). A similar letter was sent to the second Respondent on 22 July 1997 reducing his pension payments, because of a change in the combined income (T21).
On 29 August 1997 the Applicant received a completed employment verification report from Camden Nursing Home which indicated that the first Respondent had been employed there from 27 August 1996, and that her gross income for the period 27 August 1996 to 28 August 1997 was $27,526.76 (T23). On 24 November 1997 she was advised of an increase in parenting allowance, because of a decrease in her partner's income (T24). The second Respondent received a similar letter increasing his pension payments on 24 November 1997 (T25).
On 22 June 1998 a completed employment verification form from Hibiscus before and after school centre stated that the first Respondent had been employed part-time from 14 February 1996 until 13 May 1996 and because of a break in the previous year only net fortnightly wage figures could be provided (T26).
As a consequence of the two employment verification reports, the Applicant determined on 10 October 1998 that there had been an overpayment of parenting allowance to the first Respondent covering the period 15 February 1996 to 14 August 1997; that this overpayment was a recoverable debt, (section 1224 of the Act) and that administrative error was involved in the creation of the recoverable debt, which amounted to $5776.90. It would appear that notification of her employment at the Hibiscus Centre was nominated as occurring on 15 April 1996 as opposed to 14 days after commencement, namely 29 February 1996. A determination was made to recover the total debt (T27). A similar determination was made in relation to the second Respondent, nominating similar failures to notify the Applicant of his partner's work/activities on 1 October 1998, with the recoverable debt being nominated as $4356.70 (T28). The second Respondent was advised of his debt on 8 October 1998 (T31) and the first Respondent on 9 October 1998 (T30).
On 29 October 1998 both Respondents requested a reconsideration of the two decisions as both believed there had been an administrative error at the Maroubra office of the Applicant, in that all employment and payments were made known to them (T32). Following a reconsideration on 27 October 1998 the Applicant advised that both debts were to stand, as the first Respondent had failed to declare earnings within 14 days from Hibiscus and failed to declare earnings from Camden Nursing home at the time of commencement (T37).
On 23 November 1998 the authorised review officer returned the matter for recalculation and further consideration of the issue of administrative error (T38), and further advised both Respondents of this activity on 3 December 1998 (T39). Following the recalculation the second Respondent's debt was confirmed at $4547.30 (T41). On 8 March 1999 he was advised that his debt of $4547.30 was confirmed, with debt being waived for the period 14 February 1996 to 13 May 1996 because of sole administrative error and receipt of payment in good faith, but not being waived for the period 13 May 1996 until 7 August 1997 because, while administrative error occurred, the overpayments were not received in good faith (T45). A similar letter was issued to the first Respondent nominating her debt at $6041.80 on 8 March 1999, with the same reasons being given for the decision (T44).
On 25 May 1999 the Social Security Appeals Tribunal set aside the two decisions for the reason that the action to raise the overpayment was taken solely or partly because of information provided by a data matching exercise under the DMP Act, which required recovery action to commence within 12 months of the relevant data (T2).
Evidence of The first Respondent:
In evidence to the Tribunal the first Respondent stated that she dealt with all the matters concerning social security, with her partner dropping off any forms as necessary. She further stated that she received a child care certificate in 1996, and that she was employed at Hibiscus preschool between February and May 1996, and as a trainee enrolled nurse at Prince of Wales Hospital from May to 2 August 1996. The first Respondent stated that her husband took in her pay-slips three weeks after she started at Prince of Wales and further that she had told the Applicant of her employment at Hibiscus, where she worked between 15 and 25 hours per week.
The first Respondent confirmed that she received a letter in June/July 1996 from the Applicant stating their income was too high and both parenting allowance and disability support pension payments were to decrease. She stated that she and her husband went to the Maroubra office of the Applicant to discuss the issue; that they then moved to Campbelltown and some two months later received a letter from the Maroubra office saying that the matters raised had been addressed.
The first Respondent stated that following an interview at the Camden Nursing Home she commenced employment there in late August 1996, and she waited for her first pay-slip before advising the Department. Following the receipt of a letter from the Department dated 12 September 1996, The first Respondent stated that she spoke with Pamela as nominated in the letter on 16 September 1996 (and she has a diary note to this effect) and advised her that she was casually employed at Camden Nursing Home. The first Respondent stated that she received a pay-slip for the period ending 10 September 1996 from the Camden Nursing Home a few days late. She stated that she gave the details to the Department and expected them to update her records. She did note that there was no change in her or her husband's rates, but did not believe anything was wrong. In July 1997 she received a call from the Department wanting details of her employment and she indicated that they had already been sent.
In relation to current circumstances the first Respondent detailed the following issues for consideration as special circumstances:
(a) a detailed income and expenditure statement, including bank loan ($841 per month) associated with home purchase; clothing requirements ($4,000 to $6,000 per annum); health insurance ($703 per annum); property maintenance ($1,200 per annum); sports fees, food, petrol, cigarettes, rates, medication ($537 in total per week); telephone ($600 per year); third party car insurance ($250 per annum); and contact lens and spectacles ($1,000 per annum). Income was derived form the first Respondent's two jobs, family payment and the second Respondent's disability support pension after the end of the preclusion period, and dependent upon the level of the first Respondent's personal earnings;
(b) in relation to assets and liabilities, the first Respondent stated that they had purchased a three-bedroom house; that they had a bank loan; and that with $57,000 remaining from the compensation, $7,000 was required for fencing and a new driveway and $50,000 for house expansion;
(c) in relation to employment the first Respondent stated that she intends to keep working and is currently doing two jobs;
(d) in relation to personal health issues the first Respondent stated that she had a hysterectomy in 1993, had a low blood count in late 1998; and suffered from dizzy spells and saw a doctor in 1999 because one side of her body was cold and was concerned that this may have been a stroke and/or stress induced; and
(e) in relation to the second Respondent, the first Respondent stated he was a difficult person to live with; that he is in a lot of pain; that he does not do anything; that he complains a lot; that he takes a lot of medication; that he is weak on his left side and right leg; and that he drives the first Respondent to work and takes the children to sports.
In response to questions asked in cross examination the first Respondent stated that she was happy to commence her job at Camden Nursing Home without knowing her rate of pay. She stated that she did speak to Pamela (departmental officer) and told her about current payment at Camden and that the officer said she would send her a letter and that her parenting allowance would be less, although as stated in re-examination she still expected to receive some parenting allowance because of the casual nature of the employment. The first Respondent confirmed that paragraph 22 of the Social Security Appeals Tribunal decision was an accurate reflection of her understanding of issues relating to the payment of parenting allowance at that time. She stated that she read the front and back of all letters received, but did not necessarily understand all that was stated, and in such a situation she would ring and enquire or her partner would visit the department and make enquiries. On this occasion she stated that she did nothing because payments were always different and she did not think it was her place to tell the Applicant what to do. In relation to the letter of 9 August 1996 (T13) she could remember receiving the letter, but could not remember the contents of the back of the letter.
The second Respondent:
The second Respondent told the Tribunal of his work related accident in 1990 and his car accident in 1994 and his resulting spinal disability, and his experience of no paid employment since this later accident. Since his accident and operation he had been on disability support pension. He stated that he would go to the departmental office about his disability support pension. He remembered the issue when his wife commenced working at Camden and the receipt of a letter concerning pension payments, but on this occasion he did not think that his payment would change and as such believed he did not have to do anything.

The second Respondent stated that as a result of his spinal injury he is unable to do anything. Further he stated that he stopped taking anti-depressants last year (1999) and analgesics two months before the hearing. In cross examination he stated that he only reads the front of letters received, and that he continues to suffer from pain in the spine and legs and headaches, for which he may take either digesic or Panamax now and again.
Submissions
Applicant:
The Applicant submitted that the matching of data between Centrelink and the Australian Taxation Office records is not governed by the DMP Act, but by the information privacy principles contained in section 14 of the Privacy Act 1988 ("the Privacy Act"), and the Privacy Commissioner's guidelines published in November 1995. As a consequence the Applicant argues that the decisions of the Social Security Appeals Tribunal were in error.
Further the Applicant submitted that the first Respondent did not comply with her obligation to notify the Applicant within 14 days of her commencement of work at Camden Nursing Home and that her personal income exceeded $60 a fortnight and these failures to notify were breaches of section 950 of the Act, which resulted in an overpayment which constitutes a debt under section 1224(1).
Similarly the Applicant submitted that the second Respondent, having an independent obligation to notify of his partner's commencement of employment at Camden Nursing Home, failed to do so, which constituted a breach of sections 132 and 133 of the Act resulting in an overpayment, which constitutes a debt under section 1224(1).
The Applicant, while acknowledging that the second Respondent had been paid income support payments during the preclusion period, and that these payments had been recovered as part of the compensation charge of $27,699.11, submitted that the debt of $4547.30 could have been recovered under two separate provisions of the Act, in that the amount in question was later found to be not payable under section 1165(2AA) of the Act, a decision having been taken on 8 October 1998 to find that the amount was not payable by virtue of Module E of section 1064 of the Act.
The Applicant contends that both Respondents failed to comply with their obligations and any administrative error by the Applicant could not be said to be the sole cause of the debt. Further it is the Applicant's contention that neither of the Respondents received the payments in good faith.
Finally the Applicant submits that because of both Respondents' failure to comply with a provision of the Act, with it being reasonable to conclude that this was done "knowingly", then the issue of a special circumstances waiver is not available. In relation to nominated circumstances, the Applicant argues that none of these constitute "special circumstances".
Respondents:
The solicitor for the Respondents submitted that the overpayment to the second Respondent is no longer an issue as the compensation recovery has recovered all income support payments to The second Respondent.
In respect of the first Respondent, Ms Koller submitted that as the overpayment arose purely from administrative error, and that as such an overpayment occurred prior to October 1997 amendments, it is not recoverable as it was neither a section 1223 nor a section 1224 debt due to the Commonwealth.
In the alternative Ms Koller contended that the debt should be waived pursuant to section 1237A, as it arose solely as a result of administrative error and the money was received in good faith by the first Respondent.
Further Ms Koller contended that the debt should be waived because of special circumstances pursuant to section 1237AAD of the Act and these include:

the extent of departmental error;
the delay in notification between the Department becoming aware of the overpayment and the Respondents being informed; and
general circumstances of the Respondents' family and the issue of the level of stress that this matter has created for the first Respondent.

Considerations and findings:

The legislative framework for each matter is briefly outlined:
(a)The second Respondent: Sections 132, 133, 1064, 1224, 1237–1237B of the Act.

sections 132 and 133 state that a disability support pension recipient is required to notify of a change of circumstances or the happening of an event;
section 1064 details how to calculate a rate of pension;
section 1224 allows the Department to recover monies paid in excess of entitlement, if the excess payment was made as a result of a person making a false statement or representation or failing or omitting to comply with a section of the Act or the Social Security Act of 1947; and
section 1237–1237B allows for the recovery of a debt to be waived in limited circumstances.
(b)The first Respondent: sections 937, 950, 951, 1223, 1224, 1237A and 1237AAD.
section 937 explains how the rate of Parenting Allowance is calculated;
sections 950 and 951 detail recipient notification obligations and 14 day timeframe to undertake such notification;
section 1223 relates to recovery of monies that should not have been paid;
section 1224 relates to raising and recovery of debt where there had been a failure to notify nominated events within 14 days;
section 1237A relates to sole administrative error, and receipt of payments in good faith and waiver of debt; and
section 1237AAD relates to waiver of debt because of special circumstances.

The Tribunal, in considering the preliminary but important issue of whether matching information from the employment declaration form with information on customers and their spouses of the Applicant is subject to the provisions of the DMP Act, notes that this issue was not further argued in this matter by the Respondents.
In examining the issue, the Tribunal in noting that the Act defines particular obligations in various sections, whereby customers are required to disclose their income, and where relevant, that of their partner, and that such notice requiring specific disclosure is given in writing under different sections of the Act for different payment types. Further the Tribunal notes that paragraph 16(4)(e) of the Income Tax Assessment Act 1997 allows the ATO to pass information to the Applicant for the purpose of administering any Commonwealth law relating to pensions, allowances or benefits. As such disclosures are authorised by law, the Tribunal finds that they are governed by section 14 of the Privacy Act, and more particularly by the information privacy principle 11 within section 14. The Tribunal also notes the program protocol for this particular matching, attached as Annex B to Exhibit A3. As a consequence the Tribunal finds that the data matching program as nominated is not governed by the DMP Act and accordingly must set aside the decisions of the SSAT dated 25 May 1999 for this very reason.
The Tribunal, having examined in detail the background outlined in these matters and the evidence of the two Respondents, makes the following findings of facts:
(a)      during the period between 14 February 1996 and 13 May 1996 when The first Respondent was employed part-time at the Hibiscus centre, there was a significant amount of correspondence from the Applicant to both Respondents concerning variation in pension payments and parenting payment and that each item of correspondence detailed particular notification requirements on each of the Respondents. As a result of examining this correspondence it would be the Tribunal's finding of fact that the letters to the second Respondent of 28 February 1996 and 19 April 1996 and the letter to the first Respondent of 20 April 1996 are consistent with the first Respondent's recollection that she did advise the Applicant within 14 days of commencement of part-time work and again later on when her income increased;
(b)      during the period 13 May 1996 to 2 August 1996 when the first Respondent was employed as a trainee enrolled nurse at Prince of Wales hospital, the second Respondent lodged with the departmental office at Maroubra his partner's payslips some three weeks after she commenced working. In making such a finding of fact the Tribunal relies on the evidence of the first Respondent, and the fact that payments to both were decreased on 20 June 1996 (the first Respondent – cancelled). Further the Tribunal makes a finding of fact that there were a number of variations both of parenting payment to the first Respondent and disability support pension payment to the second Respondent during June and July and early August 1996, all associated with variations in the first Respondent's earnings;
(c)       the first Respondent commenced work at Camden Nursing Home on 27 August 1996, and on 12 September 1996 the Applicant sent the first Respondent a letter as part of a data matching exercise which commenced on 27 August 1996;
(d)      the first Respondent did speak with the Applicant on 16 September 1996 and did advise that she had commenced casual employment at Camden Nursing Home and the hourly rate of pay;
(e)      no further action was undertaken by the Applicant until a recipient statement notice was sent to the first Respondent on 6 July 1997 and to the second Respondent on 19 July 1997. On 22 July 1997 the first Respondent was advised of a reduction in parenting payment, as was the second Respondent advised of a reduction in pension payment; and
(f)       on 22 July 1997 the first Respondent contacted the Applicant and reminded the Applicant of her phone call on 16 September 1996.
The Tribunal, having made particular findings of fact, next moves to a consideration of those findings against the legal framework outlined earlier in this decision. In relation to the three periods of employment the Tribunal makes the following observations and findings:
(a)14 February 1996 to 13 May 1996.
The Tribunal has already made particular findings of fact which determine that the first Respondent did notify the Applicant of her commencement of work and a later increase in earnings and that the Applicant failed to effectively acknowledge these notifications. The Tribunal finds that the cause of any overpayment during this period was sole administrative error and that the Respondents received all payments during this period in good faith, believing any variation in pension payments to be directly related to earning variations. As a consequence the Tribunal finds that any debt for this period should be waived pursuant to section 1237A(1) of the Act;
(b) 13 May 1996 to 2 August 1996.
The Tribunal has already found that the second Respondent did take his partner's pay slip from Prince of Wales to the Maroubra office of the Department some three weeks after she commenced employment, and that the Department dealt with such notifications and variously effected changes to both Respondents' payments depending on the amount of income notified; and
(c) 28 August 1996 to 7 August 1997.
A finding of fact that notification by the first Respondent occurred, but not within the 14 day notification period, has already been made. In considering the evidence of both Respondents to the Tribunal, and to the SSAT, the Tribunal finds that both Respondents were of an opinion that during this period there should have been decreased parenting payments and disability support pension payments, once notification of the first Respondent's income had been given to the Applicant on 16 September 1996. Further the Tribunal notes that the Respondents' discussed the issue, and while not certain of their entitlements, decided not to make further enquiry on the issue, believing it was not their place to tell the Department what to do. Further the Tribunal notes that by this time both Respondents were familiar and had a working knowledge of how income variation affected their pension payments. In the light of these considerations the Tribunal finds that the overpayment of both parenting allowance and disability support pension as identified as a result of the data matching exercise were clearly overpayments resulting as a consequence of failure by both Respondents to notify the Department within 14 days as required by section 950 (parenting payment) and sections 132 and 133 (disability support pension) of the Act. The Tribunal also finds that the overpayments arose primarily as a result of sole administrative error by the Department, when no action was initiated to assess advice given by the first Respondent on 16 September.
As a consequence of the Tribunal's finding that overpayments were made to both Respondents in relation to disability support pension and parenting allowance respectively during the period 28 August 1996 to 7 August 1997, with both Respondents having an independent obligation to notify the Department of the first Respondent's commencement of employment, but failing to do so on two occasions within the 14 day period of notification (the administrative error issue being placed to later consideration), the overpayments as a result of this failure constituted debts pursuant to section 1224(1) of the Act and payable by the Respondents to the Commonwealth. In making such a finding the Tribunal considered the case of Re Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1991) and followed the finding that a failure to comply notices under section 132(1) constitutes a failure to comply with that section, leading to a debt under section 1224 of the Act. The Tribunal notes that the decision was affirmed by the Federal Court in Secretary, Department of Social Security v Hales (1998) 82 FCR 154. Further the Tribunal noted the decision in Re Greenwood and Secretary, Department of Social Security (1991) 64 SSR 897, where it was concluded that a failure or omission to comply with the Act does not need to be the dominant or effective cause of an overpayment.
With the Tribunal finding that the Respondents have debts of $4547.30 and $6041.80 pursuant to section 1224(1) of the Act and that these arose as a result of sole administrative error and the issue of the Respondents' non compliance with their notification requirements as a discrete matter, the Tribunal turns to a consideration of whether the Respondents received the payments in good faith. The Tribunal has already detailed the circumstances whereby both Respondents had frequent correspondence with the Department which related to level of pension payments and level of combined income earned (mainly by the first Respondent). More specifically, as a result of the notification by the first Respondent to the Department on 16 September 1996 there was an expectation of decreased payments and when this did not occur there were discussions between the two Respondents and a decision taken that nothing further need be done. It is the finding of the Tribunal that both Respondents had actual knowledge and possession of knowledge/constructive knowledge that such payments were made in error. Accordingly the Tribunal, noting the decision of Department of Education Training and Youth Affairs v Prince (1997) 50 ALD 186, finds that neither Respondent received such payments in good faith and accordingly waiver of the debts under section 1237A(1) of the Act is not available.
In turning to the issue of waiver under section 1237AAD, the Tribunal has already found that both Respondents failed or omitted to comply with a provision of the Act, when they failed to provide notification of particular events within the 14 day timeframe. Irrespective of the reasons given for non-compliance by the Respondents, namely awaiting pay slips, such actions of non-compliance were taken by the Respondents in circumstances where the consequences were clearly defined, and the actions being undertaken were knowingly done, without perhaps a full understanding of the consequences of their non-compliance. Nevertheless the Tribunal finds that the Respondents do not satisfy section 1237AAD(a)(ii) of the Act.
Further in considering the particular circumstances raised on behalf of the Respondents, the Tribunal notes the case law detailing what is meant by the term "special circumstances". In Re Beadle and Director General of Social Security (1984) 6 ALD 1, Toohey J stated:
"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 on 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."

Special circumstances were also considered in Re Ivovic and Director General of Social Services (1981) 3 ALN N95 where the Tribunal said:

"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… Thus whilst keeping the dominant principle of [recovery of debt] in mind, [the decision maker] must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise."

Further the Tribunal notes Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464 where it was found that ill health alone is not enough to be considered a special circumstance; in Re Secretary, Department of Social Security and VYS 40 ALD 745 it was found that there is nothing special or unusual about recipients of disability support pension being in ill health.
In examining the issues nominated on behalf of the Respondents, the Tribunal would make the following observations:
(a)while administrative error has been involved in both overpayments and while inferences of administrative tardiness have been alleged in the speed with which the overpayment issues have been dealt with since first knowledge of the overpayments by the Applicant, the Tribunal has difficulty in concluding that administrative error and/or tardiness are uncommon, unusual or exceptional by their very occurrence. In further delineation of the issue the Tribunal has looked to the effects that such actions may have had on upon the Respondents to see whether there were any effects which could be seen to be unusual, uncommon or exceptional. In this matter, at most it would have appeared to cause some stress, particularly for the first Respondent, but in terms of effect the stress does not appear to have prevented her from carrying on a normal and busy work schedule;
(b)the financial circumstances and the general household scenario has been outlined to the Tribunal. While it is acknowledged that the second Respondent has a chronic back condition, for which he qualifies for disability support pension, the Tribunal also notes that he is mobile, can drive a car and can undertake activities except where limited by his medical condition. The Tribunal also notes his current low level of medication and concludes there is nothing unusual, uncommon or exceptional in his circumstances. Similarly in noting the symptomology as described by the first Respondent, as well as limited attendance for medical attention and her apparent ability to work two jobs, the Tribunal finds that her health condition is not unusual, uncommon or exceptional; and
(c)in noting the detailed financial circumstances, the Tribunal observes that the Respondents have acquired an asset (a home) with a mortgage, as well as a cash asset of $57,000 which they intend to spend on fences, paving and house extensions. Further the Tribunal observes the composition of the annual expenditure and revenue statements, and while noting that the revenue is much dependent of the first Respondent's activities, the Tribunal concludes that while the Respondents are in a tight financial situation, the level of expenditure, the discretionary nature of some expenditure, (clothes $4,000 to $6,000 a year, cigarettes and general living expenses), the acquisition of assets (house and cash) and the intended discretionary expenditure of the cash asset is not consistent with financial circumstances which could be described as unusual, uncommon or exceptional.

As a consequence of the examination of the particular circumstances, the Tribunal finds that such circumstances either alone or together do not constitute special circumstances. Accordingly waiver of debts under section 1237AAD cannot be invoked.

Determination:

The Tribunal determines that the decisions under review be set aside and in substitution thereof finds that:
(a) The first Respondent did receive an overpayment of parenting allowance during the period 28 August 1996 to 7 August 1997 and that a debt of $6041.80 is owed to the Commonwealth; and
(b) the second Respondent did receive an overpayment of income support payments during the period 28 August 1996 to 7 August 1997 and that he accrued a debt of $4547.30, which has been extinguished by the recovery of $27,669.11 by the Applicant from the lump sum compensation payment paid to the second Respondent for income support payments made to him during his preclusion period of 7 December 1994 to 14 March 2000.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  29 May 2000
Date of Decision  25 October 2000
Advocates for the Applicant     Ms Smith and Ms Mantaring
Solicitor for the Respondents Ms Koller