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

This matter concerned an application by Mr Costa Englezos (the Applicant) against the Secretary, Department of Social Services (the Respondent), heard by Senior Member B. Pola of the Administrative Appeals Tribunal. The dispute centred on whether the Applicant had been overpaid carer payments, whether such an overpayment constituted a debt, and if so, whether all or part of that debt could be written off or waived.

The Tribunal was required to determine if the Applicant had been overpaid carer payments and if this overpayment resulted in a legally recoverable debt. Specifically, the Tribunal needed to assess the period of alleged overpayment, from 18 January 2018 to 29 July 2019, and consider the Applicant's notification to the Agency regarding his change in circumstances, namely becoming a member of a couple. The Tribunal also had to consider the Applicant's absence from Australia in January 2018 and its impact on his eligibility for carer payments, as well as whether the circumstances warranted the exercise of discretion under s1237AAD of the Social Security Act 1991 (Cth) to waive the debt.

The Tribunal found that the Applicant had been in receipt of carer payments incorrectly calculated on the basis of a combined annual income of $17.50 for himself and his wife during the specified period. Evidence, including payslips and tax assessments for his wife, demonstrated her substantial earnings, indicating the Applicant's notification of becoming a member of a couple was not adequately reflected in his payment calculation. While acknowledging the Applicant's advice to the Agency prior to his marriage and his brief overseas absence, the Tribunal concluded that these factors did not negate the existence of an overpayment. The Tribunal determined that the Applicant's circumstances were not sufficiently special or unusual to justify waiving the entire debt.

Consequently, the Tribunal set aside the decision under review and substituted its own determination. It found that the Applicant had a legally recoverable debt arising from the overpayment of his carer payment between 18 January 2018 and 29 July 2019. However, in accordance with s1237A of the Social Security Act 1991 (Cth), the right to collect part of the debt relating to the period of 22 January 2018 to 3 May 2018 was waived. The matter was remitted to the Respondent to recalculate the Applicant's debt in accordance with this decision.