Field and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 747

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 747

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION

)          
)          N2005/1563
)

Re

JOHN FIELD

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr I R Way, Member

Date

1 September 2006

Place

Sydney

Decision

The decision under review is affirmed.

Mr I R Way
  Member

CATCHWORDS

SOCIAL SECURITY – Whether overpayment of Carer Payment – Whether overpayment has been calculated correctly – Whether overpayment is a debt due to the Commonwealth – Whether grounds exist for not recovering the debt, in whole or in part – Whether entitlement to Newstart Allowance exists – the decision under review is affirmed.

Social Security Act 1991; ss198(1), (2), (3); 1223(1); 1237A(1), (1A); 1237AAC(1), (1A), (2), (2A), (3), (4), (5), (6); 1237AAD(a), (b), (c)

Social Security (Administrative) Act 1999; ss68(2), 94(1)

Beadle v  Director-General of Social Security (1985) 60 ALR 225

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Schulze and Secretary, Department of Family & Community Services [2004] AATA 705

Varhegy;i and Secretary, Department of Family and Community Services [2005] AATA 635

REASONS FOR DECISION

1 September 2006	Mr I R Way, Member
introduction

1. This is an application by Mr John Field (“the Applicant”) for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) dated 3 November 2005, which affirmed a Centrelink decision to raise and recover an overpayment of carer payment to the Applicant, in the amount of $32,409.89, for the period 30 January 2002 to 2 November 2004.

2. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T35) and other documentary evidence from the Secretary, Department of Families, Community Services and Indigenous Affairs (“the Respondent”), marked as Exhibits R1, R2 and R3.

3. The Applicant was self-represented and gave oral evidence. Oral evidence was also given by Ms Lyn MacDonald, a Centrelink officer located at Cowra. Mr J Kenny represented the Respondent.

issues and legislative framework

1. The issues in this matter are:

   (a)Whether the Applicant received an overpayment of carer payment in the amount of $32,409.89 (“the Overpayment Amount”) covering the period 30 January 2002 to 2 November 2004 (“the Relevant Period”); and if so

   (b)Whether the Overpayment Amount has been correctly calculated; and if so

   (c)Whether the Overpayment Amount is a debt due to the Commonwealth by the Applicant; and if so

   (d)Whether the debt should not be recovered, in whole or in part; and

   (e)Whether the Applicant has a notional entitlement to Newstart allowance during the Relevant Period.

2. This matter is to be decided within the provisions of the Social Security Act 1991 (“the Act”) and the Social Security (Administrative) Act 1999 (“the Admin Act”).

3. The relevant provisions of the Act are:

   …

   198           Qualification for carer payment

   (1)A person is qualified for a carer payment if the requirements of this section are met.

   Note: Sections 198AA, 198AB and 198AC allow the person to qualify in certain short-term circumstances where the requirements would not be met.

   Constant care of disabled etc. persons

   (2)     The person must personally provide constant care for:

   (a)     either:

   (i)if the person is the only person providing the constant care—a disabled adult (the care receiver ) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

   (ii)if not – a disabled adult (the care receiver ) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or

   (b)     a profoundly disabled child (the care receiver ) aged under 16; or

   (c)     2 or more disabled children (the care receivers ) aged under 16; or

   (d)     a disabled adult and a dependent child of the adult (the care receivers ), where:

   (i)the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and

   (ii)the child is aged under 16; and

   (iii)if the child is aged 6 or more—carer allowance is payable for the child.

   Note 1: In a paragraph (c) case, subsection (8) contains an additional requirement about care that must be satisfied.

   Note 2: In a paragraph (d) case, subsection (9) deems certain supervision to constitute care.

   Care in home

   (3)The care must be provided in a private residence that is the home of the care receiver or care receivers.

   …

   1223         Debts arising from lack of qualification, overpayment etc.

   (1)Subject to this section, if:

   (a)     a social security payment is made; and

   (b)     a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

   the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

   …

   1237A       Waiver of debt arising from error

   Administrative error

   (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).

   (1A)   Subsection (1) only applies if:

   (a)     the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

   (b)     if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

   whichever is the later.

   …

   1237AACWaiver where debtor or debtor’s partner would have been entitled to an allowance

   Waiver if there was an unclaimed entitlement to family payment or family allowance

   (1)     If:

   (a)     a debt arises from overpayments made to the debtor; and

   (b)     the debtor or the debtor’s partner does not claim family payment or family allowance for the period when the overpayments were made; and

   (c)     an amount of family payment or family allowance would have been payable for the period when the overpayments were made if the debtor or the debtor’s partner had lodged a claim;

   the Secretary must waive the right to recover the debt to the extent set out in subsection (2).

   (1A)   If:

   (a)     a debt arises from overpayments to a youth allowance recipient (the debtor ); and

   (b)     the debtor would have been an FA child of another person for the period when the overpayments were made if the debtor had not been a youth allowance recipient; and

   (c)     an amount of family allowance would have been payable to the other person in respect of the debtor for the period when the overpayments were made if:

   (i)the debtor had been an FA child of the other person for that period; and

   (ii)the other person had lodged a claim;

   the Secretary must waive the debt to the extent set out in subsection (2A).

   Amount of debt Secretary must waive

   (2)The Secretary must waive under subsection (1) the right to recover the amount of debt equal to the amount of family payment or family allowance that would have been payable to the debtor or the debtor’s partner in the 3‑year period ending on the day the overpayment is stopped if:

   (a)     the overpayments had not been made to the debtor; and

   (b)     the debtor or the debtor’s partner had lodged a claim for the payment.

   (2A)The Secretary must waive under subsection (1A) the right to recover the amount of debt equal to the amount of family allowance that would have been payable to the other person in the 3‑year period ending on the day on which the overpayment is stopped if:

   (a)     the debtor had been an FA child of the person; and

   (b)     the other person had lodged a claim for family allowance.

   Reference to amount of family allowance is a reference to minimum rate plus guardian allowance and large family supplement

   (3)     For the purposes of subsections (2) and (2A):

   (a)     an amount of family allowance is the minimum standard family allowance rate plus any guardian allowance that is payable plus any large family supplement that is payable; and

   (b)     an amount of family allowance does not include multiple birth allowance.

   Waiver if there was an unclaimed entitlement to parenting allowance or parenting payment

   (4)     If:

   (a)     a debt arises from overpayments to the debtor; and

   (b)     the Secretary is satisfied that the overpayments 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

   (c)     the debtor or the debtor’s partner did not claim parenting allowance or parenting payment for the period (the overpayment period) when the overpayments were made; and

   (d)     an amount of parenting allowance or parenting payment would have been payable for that period if the debtor or the debtor’s partner had lodged a claim;

   the Secretary must waive the right to recover the debt to the extent set out in subsection (5).

   Waiver of amount equal to notional entitlement to parenting allowance or parenting payment (as the case requires)

   (5)The Secretary must waive under subsection (4) the right to recover the amount of debt equal to the amount of parenting allowance or parenting payment (as the case requires) that would have been payable to the debtor or the debtor’s partner during so much of the overpayment period as was not earlier than 3 years before the day on which the overpayment is stopped if:

   (a)     the overpayments had not been made to the debtor; and

   (b)     the debtor or the debtor’s partner had lodged a claim for the allowance or payment (as the case requires).

   Calculating the amount equal to notional entitlement to parenting allowance

   (6)For the purposes of working out the amount of parenting allowance or parenting payment that would have been payable to the debtor or the debtor’s partner, the rate of parenting allowance or parenting payment for the debtor or the debtor’s partner:

   (a)     if the Secretary is satisfied that the rate would have been greater than the maximum basic component if parenting allowance or parenting payment had been claimed—is taken to have been that greater rate; or

   (b)     in any other case—is taken not to have exceeded the maximum basic component of parenting allowance specified at the relevant time in the Parenting Allowance Rate Calculator or the PP (Partnered) Rate Calculator (as the case requires).

   …

   1237AAD   Waiver in special circumstances

   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.

   Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

   Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt.

   …

1. The relevant provisions of the Admin Act are:

   …

   68Person receiving social security payment or holding concession card

   (2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:

   (a)     inform the Department if:

   (i)a specified event or change of circumstances occurs; or

   (ii)the person becomes aware that a specified event or change of circumstances is likely to occur;

   (b)     give the Department one or more statements about a matter that might affect the payment to the person of the social security payment.

   …

   94Automatic cancellation – recipient not complying with subsection 68(2) notice

   (1)Subject to subsection (2), if:

   (a)     a person who is receiving a social security payment is given a notice under subsection 68(2); and

   (b)     the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

   (c)     the event or change of circumstances occurs; and

   (d)     the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

   (e)     because of the occurrence of the event or change of circumstances:

   (i)the person ceases to be qualified for the social security payment; or

   (ii)the social security payment ceases to be payable to the person;

   the social security payment is cancelled, by force of this subsection, on the day on which the event or change of circumstances occurs.

   …

background

1. The background facts of this matter are not in dispute and in view of this and on the material before it, the Tribunal finds:

   (a)The Applicant was born on 1 July 1946;

   (b)The Applicant lives at 69 Redfern Street, Cowra (“Redfern Street”) in a house owned jointly by himself and his ex-wife;

   (c)The Applicant is single;

   (d)The Applicant’s father, Oliver Field, was born on 13 July 1905 and died in April 2006, aged 101;

   (e)The Applicant applied for carer payment on 2 October 2001 on the basis of caring for his father (from 9 September 2001) at Redfern Street;

   (f)Centrelink informed the Applicant by letter dated 28 November 2001 that his claim for carer payment had been accepted, with payment commencing 2 October 2001; and

   (g)On 29 January 2002, the Applicant’s father was admitted to the Weeroona Nursing Home, Cowra (“the Nursing Home”), where he continuously resided during the Relevant Period.

consideration of the issues

1. The first question before the Tribunal is whether the Applicant was qualified for carer payment during the Relevant Period. Section 198 of the Act sets out the requirements for qualification. The requirements, inter alia, are that the carer must personally provide constant care and that care must be provided for in a private residence; that is the home of care receiver.  Prior to the Applicant’s father moving to the Nursing Home he was living with the Applicant and the Applicant was personally providing care to his father on a daily basis because of his disability/medical condition.  In his written and oral evidence the Applicant stated that his father would continue to visit him at Redfern Street after moving into the Nursing Home, about every second day or so and on weekends.  The Applicant said he also visited his father in the Nursing Home once or twice a week.  The Applicant said that all of the visits were during the day.  He said his father always slept at the Nursing Home, that he always had breakfast at the Nursing Home but he was not sure if his father had dinner at the Nursing Home.  It was the Applicant’s evidence that his father was not happy about being put into the Nursing Home by the Applicant’s other siblings and that his father liked being with him. He further stated that he assisted his father with shopping, visits to the doctor and preparation of meals when his father visited him.

2. The Tribunal is satisfied that pursuant to s198 of the Act Oliver Field’s home and place of residence during the Relevant Period was the Nursing Home and that the care provided to Oliver Field by the Applicant at the Nursing Home and during his father’s visits to Redfern Street and at other times was not such that it constituted constant care. However, the Tribunal accepts the Respondent’s submission that the care provided by the Applicant to his father during the Relevant Period was occasional care. However the Tribunal therefore finds that the Applicant ceased to qualify for carer payment when his father entered the Nursing Home.

3. The next question for the Tribunal is what amount of Carer Payment was paid to the Applicant while his father was in the Nursing Home. Carer Payment ceased to be paid on 3 November 2004. The Tribunal has examined the documentation in respect of the amount of carer payment paid to the Applicant during the Relevant Period and is satisfied that this amount has been correctly calculated by Centrelink at $32,409.89 (the Overpayment Amount). The Tribunal is also satisfied that the Applicant received this payment to which he was not entitled, to obtain and that therefore, pursuant to s1223(1) of the Act, the Overpayment Amount is a debt due to the Commonwealth by the Applicant.

4. The question then for the Tribunal is whether the debt should be waived.

5. The Applicant submits that the debt should be waived because Centrelink had advised him that carer payment would continue after he had notified Centrelink of the change in his father’s circumstances as well as explaining the level of care that he continued to provide towards his father.  He said he had “been honest right through” in this matter, that he had relied on Centrelink’s advice and that, in effect, the debt was caused solely by an administrative error made by Centrelink.  The Applicant highlighted that Centrelink often made mistakes, that this was well known and that subsequently this is what happened in this case.

6. The Applicant further submitted that if he had been told he was not entitled to carer payment he could have claimed Newstart allowance. Furthermore in the event that the debt stands he is permitted to a notional entitlement to Newstart allowance during the Relevant Period.

7. The Applicant has made a number of statements about what he told Centrelink about his father’s circumstances when he moved to the Nursing Home and a summary of these statements is set out below.

8. The Applicant provided a written statement shortly after the debt was raised in October 2004 in which he said (T23/105-106):

   …

   … my father … went to Weeroona Nursing Home at the age of 96.

   I rang the call centre at that time and I spoke to someone called Alex.  I also advised him that I continued to look after my father on weekdays and weekends, when he would come to my home, but these times were only during day times.

   I also helped him with meals, shopping and other general daily chores.

   I was advised by Centrelink that while I continued to care for my father on these days during the week, I was still entitled to continue the Carers Pension [sic].

   With this advise [sic] in mind I continued to accept the Carers Pension, until a debt had been raised.

   I am 58 years of age and have no other source of income, and at the time was the only member of my family to be able to care for him and still am.

   …

1. Ms Lyn MacDonald, during the Relevant Period gave written and oral evidence that no-one with the name of “Alex” or anyone whose first name could be contracted to Alex had worked in Centrelink Cowra since its foundation.

1. The Applicant in his oral evidence said that he had never claimed that Alex was at Cowra but he spoke to someone called Alex by phone (on the 1300 call number) in May June or July 2002 and that this person led him to believe he continued to be entitled to Carer’s Payment.  The Tribunal notes that the Applicant’s father was admitted to the Nursing Home on 29 January 2002.

2. The SSAT, in its reasons for decision, records the Applicant telling the SSAT (T2/5):

   …

   7.…  About 2-3 weeks after his father was admitted to the nursing home Mr Field went into the Centrelink Office at Cowra and spoke to a Centrelink employee named Robyn.  Mr Field said that after initially speaking with Robyn he then spoke to a lady called Lyn and he told her that his father was in the Weeroona Nursing Home but would still come home to him most days for meals, shopping and general caring contact.  He said that Lyn had suggested that in those circumstances it appeared as though Mr Field was still providing constant care in respect of his father and accordingly would remain qualified for the carer payment.

   8.Mr Field also told the Tribunal that towards the end of the 2001/2002 financial year he spoke to another Centrelink employee named Alex and told him that his father would come to his home every day or every second day for meals and would stay there until 6 or 7 o’clock in the evenings.  Mr Field said Alex told him that since he was still providing constant care in respect of his father he was qualified to receive the carer payment.

   9.…

1. Ms MacDonald stated that Centrelink Cowra does not have and has never had an employee whose first name is Robyn and that, at the relevant time, she was the only Lyn at Centrelink Cowra and she was reasonably sure that the Applicant did not discuss with her the circumstances surrounding his father’s residency in the Nursing Home and his Carer Payment.  Ms MacDonald also stated that there was a CES employee named Robyn (and one named Lyn) who worked for the CES at Cowra and that the CES office at Cowra was abolished when Centrelink established a Cowra office.

2. In his oral evidence the Applicant said that he did speak with someone called Lyn about mid-2003.  He said that there had been a stop in payment of his carer payment at the time because he had failed to meet an appointment at Centrelink and he had called Michael McDowell and Shane Jeffries at Centrelink Cowra who had put him onto Lyn.  He said he never said that Lyn worked at Cowra, however she had arranged for a late payment of his benefit after he had explained why he had not kept his appointment with Centrelink.  At a later stage in his oral evidence, the Applicant said he was not sure when his payment was stopped and that it was either 2002 or 2003.  Ms MacDonald gave evidence that Michael McDowell only commenced work at Centrelink Cowra in about March/April 2003 and that Shane Jeffries was employed at Centrelink Cowra during the Relevant Period.

3. A Centrelink review of the Applicant’s carer arrangements in October 2003 records that the Applicant told the review officer that, at that time, the amount of care provided by the Applicant to his father had not changed and that his father was still living at home with the Applicant.  The Applicant, in his oral evidence, agreed that he would probably have said that the amount of care had not changed but denied saying that his father still lived at home with him, his father only coming to his house for visits as he had already explained.  The Applicant said he was being as honest as he could be but that his memory was not too good due to problems concerning alcoholism.  He told the Tribunal that he was an alcoholic who suffered from binge drinking, would drink when he had the money to buy alcohol and would drink to “almost blackout” stage.  When it was put to him by Mr Kenny that he was not capable of looking after his father because of his drinking problem, the Applicant said he would have done the best he could.  The Applicant said that a likely reason that his three brothers and one sister, still living in Cowra, had arranged for their father to enter the Nursing Home was probably due to his drinking.

4. The Tribunal notes that Centrelink records (at T33/124) revealed the Applicant advising that his father was temporarily admitted to hospital for five days in January 2003 but that he (the Applicant) was still providing care.  When asked by Mr Kenny why he had only told Centrelink about the January 2003 occurrence, the Applicant said he had no recollection of telling Centrelink about his father’s hospitalisation in January 2003.

5. The Tribunal notes that on 13 October 2004 (at T8/63) the Centrelink file records document a “tip off” being made to Centrelink concerning the Applicant. The informer claimed that the Applicant’s father was in a nursing home and had been for the last 12 months. Arising from this, Centrelink investigated the Applicant’s circumstances.  On 3 November 2004, an investigator records the Applicant saying that his father had been in the Nursing Home for a few months and that he looked after him on occasions when he comes out of the Nursing Home, maybe “½ a day a week from time to time” (T17/85).  When asked to confirm that he had said this, the Applicant stated that he had told the investigator that his father had been in the Nursing Home but could not recall saying it was for a few months and further that he did not tell the investigating officer that he looked after his father “½ a day a week from time to time”.  It was the Applicant’s evidence that his father had not come to visit him for a few months because his father could not walk.  When it was put to the Applicant by Mr Kenny that his evidence was misleading, the Applicant answered “No”.  The Tribunal notes a Centrelink officer’s handwritten annotation from folio 62 of the T documents “2-3 times.  ½, few hrs from time to time”.

6. Mr Kenny asked the Applicant if he could remember receiving a Centrelink letter dated 28 November 2001, advising him about payment of his Carer Payment as well as that he needed to tell Centrelink within 14 days if his father stopped being cared for at Redfern Street.  The Applicant said that he could not remember the letter, however, he agreed that at no time in the 14 days after the date of the letter did he notify Centrelink that his father had moved into the Nursing Home.

7. The Tribunal has considered the evidence, both written and oral, of the Applicant and Ms MacDonald.  Ms MacDonald was an impressive witness and the Tribunal accepts her evidence.  In respect of the Applicant’s evidence, clearly there are significant inconsistencies in his evidence in relation to who he spoke to at Centrelink (either at Cowra or elsewhere) concerning his father’s circumstances; likewise there are inconsistencies in his evidence in relation to when he spoke to the various Centrelink officers he claimed to have contacted.  The Applicant’s recall of events is poor and confused, and this state of affairs is consistent with the Applicant’s evidence that he is an alcoholic.  Furthermore, the Tribunal is of the view that, when presented with the fact that Centrelink knew his father was living in the Nursing Home, the Applicant was less than forthright in declaring the true circumstances of his father’s admission to and residence in the Nursing Home.  The Tribunal is mindful of the Applicant’s submission about Centrelink making mistakes, however, in this case Centrelink’s records are consistent and clear.

8. Taking into account all of the material before it and the submissions of both parties, the Tribunal is satisfied that the Applicant’s evidence in respect of his notification to Centrelink of his father’s care arrangements during the Relevant Period cannot be relied upon; and that the Centrelink records of the Applicant’s interaction with Centrelink concerning his father’s circumstances are correct.  The Tribunal is further satisfied that the Applicant did not advise Centrelink about his father’s admission to the Nursing Home until the matter was investigated by Centrelink following a “tip off” from an informer in October 2004.  The Tribunal is satisfied that the Applicant was not incorrectly advised by a Centrelink officer that his carer payment would continue while his father was a resident at the Nursing Home.

9. It follows from these findings that the Tribunal is satisfied that the payment of carer payment to the Applicant during the Relevant Period did not result from a Centrelink mistake in administering the Applicant’s Carer Payment and furthermore that the overpayment of carer payment to the Applicant did not arise solely due to administrative error. Therefore the Tribunal is satisfied that the Applicant’s carer payment debt cannot be waived pursuant to s1237A of the Act.

10. Now turning then to whether the debt can be waived under the provisions of s1237AAD of the Act. For the debt to be waived under this section, the Applicant must, inter alia, demonstrate that there are “special circumstances” (other than financial hardship alone) that make it desirable to waive the debt.

11. The Applicant has told the Tribunal that he is an alcoholic, ceased working in about 2001, last drove a car in the late 90s, suffers from arthritis and a degenerative eye condition, and recently commenced received disability support pension, at a current rate of $505.55 per fortnight. It is to be noted that $70 of this amount is being withheld to recover his carer payment and carer allowance debts.  The Applicant owns his own home, does not own a car and his only outstanding debt is for rates related to his residential property.

12. “Special circumstances” are not defined in the Act however the meaning of special circumstances has been addressed comprehensively by the Tribunal and the Federal Court. For special circumstances to exist the circumstances must be unusual, uncommon or exceptional and markedly different from the usual run of cases. In assessing the circumstances of any particular case, all of the circumstances must be taken into account and each case must be considered on its merits; see Beadle v Director-General of Social Security (1985) 60 ALR 225. The circumstances in question must also be unjust, unreasonable or otherwise inappropriate in order for consideration of recovery of the debt; see Groth v Secretary, Department of Social Security (1995) 40 ALD 541.

13. The Tribunal has considered all the material before it and the submissions of the Applicant and is satisfied that while the Applicant’s financial circumstances are straitened, he cannot be said to be suffering financial hardship and indeed does have the capacity to repay the debt over time.  Further, it can not be said that his health and family issues make his case markedly different from the usual run of cases.

14. An issue before the Tribunal is whether the Applicant has a notional entitlement to Newstart allowance for the Relevant Period.  The Respondent submitted at para 25 of its Statement of Facts and Contentions:

    …

    25.Mr Field asserts a notional entitlement to newstart allowance for the period of the debt.  There is no underlying factual basis for this assertion as Mr Field was not registered with the Job Network during his carer/debt period and was not looking for work; yet he has demonstrated in the past that he can find work.  And there is no legal basis for his assertion as the only notional entitlements recognised by the social security law concern unclaimed entitlements to family payment or family allowance or notional entitlements to parenting payments in the limited circumstances set out in section 1237AAC of the Social Security Act 1991. …

    …

15. In considering this issue, Mr Kenny referred the Tribunal to Schulze and Secretary, Department of Family & Community Services [2004] AATA 705 and Varhegyi and Secretary, Department of Family and Community Services [2005] AATA 635.

16. In Schulze (supra), Deputy President Jarvis noted that in the past notional entitlement has been found to constitute part of the factual matrix of special circumstances in several cases, but he went on to state at 35 of his decision:

    …

    35.… However, I note that the legislature has seen fit to amend the Act to provide for set-off of notional entitlement in the circumstances provided for in s 1237AAC. That provision provides for set-off of notional entitlement in only very limited circumstances and by reference to specific payments. It was the respondent’s contention that any attempt to expand notional entitlement by virtue of the special circumstances provision would defeat the intention of Parliament. I think this submission is well founded. …

    …

17. In Varhegyi (supra), Deputy President Forgie agreed with DP Jarvis and stated “There is no room to introduce a concept of notional entitlement in that of special circumstances in s 1237AAD(1) of the Act”.

18. The Tribunal adopts the position taken by Deputy President Forgie and therefore is satisfied that any notional entitlement which the Applicant may have had to Newstart allowance is not a matter relevant to consideration of special circumstances in this case.

19. Taking all of the material before it into account, the Tribunal is satisfied that there are no special circumstances in the Applicant’s case that would make it appropriate to waive recovery of his carer payment debt pursuant to s1237AAD of the Act.

20. For the above reasons the Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member.

Signed:  Associate

Date of Hearing  21 July 2006
Date of Decision  1 September 2006
Representative for the Applicant              Self-represented
Advocate for the Respondent                  Mr J Kenny