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

This matter concerned an application by Mr Fumberger for a second review by the Administrative Appeals Tribunal (AAT) of a decision by an authorised review officer that confirmed an overpayment of jobseeker payment. The dispute arose because the overpayment was due to an error by the Department of Social Services, and Mr Fumberger contended that the subsequent garnishee order and deduction of the overpayment and interest were unlawful as they occurred while his matter was still under review.

The Tribunal was required to determine the substantive questions before it, which included whether there was an overpayment of jobseeker payment to Mr Fumberger during the specified period, whether this overpayment was solely attributable to administrative error by the Department, and if so, whether the debt could be waived on the basis that Mr Fumberger received the money in good faith or that special circumstances warranted a waiver. The Tribunal also considered the legislative history of section 42B of the *Administrative Appeals Tribunal Act 1975* and whether the application lacked substance.

The Tribunal reasoned that it was constrained to consider the reviewable decision before it, which was the authorised review officer's decision. While acknowledging that the Department's actions in garnisheeing funds and deducting the overpayment and interest may have been precipitate, particularly given the pending second review, the Tribunal noted that it was lawful for the Respondent to act in that manner. The Tribunal also observed that the applicant's conditions for accepting a settlement offer were extensive and went beyond the scope of the reviewable decision. Ultimately, the Tribunal found the application to be lacking in substance.

The Tribunal ordered that if a copy of an agreement to settle the proceedings was not provided by 5:00 pm on 27 October 2023, the application would be dismissed from 5:01 pm on that date, pursuant to section 42B(1)(a) of the *Administrative Appeals Tribunal Act 1975*.