Gardner and Secretary, Department of Family and Community Service S

[2003] AATA 226

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 226

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W2002/226

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Katren Mary Gardner

Applicant

And  SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr Murray Allen (Member)

Date10 March 2003

PlacePerth

Decision The Tribunal affirms the decision of the SSAT of 15 May 2002 that a debt  to the Commonwealth has arisen for the period 9 October 1997 to 18 June 1998, that the portion of this debt for the period 9 October 1997 to 15 January 1998 should be waived, but that the debt of $2475 for the period 29 January 1998 to 18 June 1998 should not be waived or written off.

...….....(sgd M Allen).......................

Member

CATCHWORDS

SOCIAL SECURITY ––Parenting payment - whether debt is due to the Commonwealth – whether debt should be waived– whether debt is attributable solely to administrative error by the Commonwealth –  whether special circumstances exist – whether debt should be written off

Social Security Act 1991 ss 1223, 1236, 1237A, 1237AAD

Secretary, Department of Social Security v Hales [1998] 219 FCA

Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76

Re Jonauskas and S, DFCS (2001) AATA 72

Re Beadle and Director–General of Social Security (1984) 6 ALD 1

Boscolo v S,DSS(1999) 53 ALD 277

REASONS FOR DECISION

10 March 2003-03-07  Mr M Allen, Member

1.      This is an application made by Ms Katren Mary Gardner for a review of a decision made by the Social Security Appeals Tribunal (SSAT) on 15 May 2002.  On that day the SSAT decided to affirm a decision made on 26 May 1999 by an authorised review officer (ARO) of Centrelink (varying an original decision made on 5 May 1999) to raise a debt for overpayment of parenting payment (PP), formerly known as parenting allowance ( PA) for the period 9 October 1997 to 18 June 1998; to waive recovery of the portion of the debt for the period from 9 October 1997 to 15 January 1998, and to recover the balance of the debt (being the sum of $2475) for the remaining period to 18 June 1998.

2.      At the hearing of the application on 22 November 2002 Ms Gardner represented herself, with assistance from Mr Robert Evans (a financial counsellor from the City of Joondalup), and the Secretary was represented by Mr Ellis from Centrelink’s Advocacy and Administrative Law Team.   

3. The Tribunal received into evidence the documents (the T documents) lodged by the Secretary in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Oral evidence was given by Ms Gardner and the Tribunal also received into evidence three documents tendered by Ms Gardner and marked A1 to A3.

Background evidence

4.        Many of the facts of the case are not significantly in dispute.  They can be summarised as follows and I make the findings of fact set out below.  Other evidence adduced in the case is referred to later in these reasons.

(a)In April 1997 Ms Gardner applied for and was granted PA.  Her application included details of her income and that of her then husband (Mr Mathyer). The information concerning Mr Mathyer’s income consisted of a taxation assessment (showing taxable income for the year to 30 June 1996 of $28377 and the amount of provisional tax payable for the year to 30 June 1997) and financial information for the half year to December 1996 for Mr Mathyer’s business.  At this time, and at all times thereafter, this information was provided to Ms Gardner by her husband’s accountant.

(b)Centrelink apparently assessed Mr Mathyer’s income for the 1996 year as being $25925 but incorrectly calculated Ms Gardner’s benefit entitlement on the basis that both she and her partner had fortnightly income of only $10.76 each.  The letter from Centrelink to Ms Gardner (dated 9 April 1997 – T4) advising her that she would be paid PA stated that the entitlement had been calculated using the amount of $10.76 per fortnight as the income of both Ms Gardner and her husband.  The letter set out a list of the matters about which Ms Gardner was required to notify Centrelink within 14 days should they occur, including if Ms Gardner’s income went over $60 per fortnight or Mr Mathyer’s income went over $498 per fortnight. 

(c)A similar letter was sent to Ms Gardner (dated 16 January 1998 –T5) in early 1998 and advised that the entitlement had been worked out on the basis that Ms Gardner and her partner each had a fortnightly income of $8.07.  Again she was advised of an obligation to notify if her income exceeded $60 per fortnight or her partner’s income exceeded $498 per fortnight.

(d)In March 1998 a letter (T6) was sent to Ms Gardner advising of the change from PA to PP but was otherwise in the same terms as T5.

(e)At the end of 1998 Ms Gardner separated from her husband and with her two children moved into another property owned by her and her husband.  However, because payments of mortgage instalments due to a bank had not been made the bank took recovery proceedings in respect of both the former matrimonial home and the property in which Ms Gardner was living.  Eventually both properties were sold with no surplus over that which was owing to the bank and Ms Gardner was obliged to obtain rented accommodation – in which she has remained.

(f)In April 1999 Centrelink conducted a data matching exercise with the Australian Taxation Office and established that, in the 1997/98 year Ms Gardner had no income but her husband had net income from a business of $34266.  Ms Gardner was advised in May 1999 (T15) that in the year to 30 June 1998 she had been paid benefits at the rate of $290.10 per fortnight but was entitled to only $65.10 per fortnight.  A debt of $5850 was therefore raised for the period from 3 July 1997 to 18 June 1998. 

(g)On internal review by an ARO it was determined that there was no debt for the period 3 July 1997 to 1  October 1997  “because it is reasonable to presume that [Ms Gardner] thought [she] had advised [Centrelink] as required.” (T21, folio 62).  A debt was considered to exist for the period 9 October 1997 to 18 June 1998 but the ARO concluded that because Ms Gardner received no recipient notices (advising of notification obligations ) between April 1997 and January 1998 and because there had been administrative error in the original assessment of entitlements, the debt for the period from 9 October 1997 until 15 January 1998 would be waived because Ms Gardner should be considered to have received the money in that period in good faith.  However, good faith could not be found for the period after 15 January 1998 because the letter of 16 January 1998 (T5) clearly set out the notification requirements. Accordingly the debt for the period 16 January 1998 to 18 June 1998 would be recovered.

(h)The Social Security Appeals Tribunal (SSAT) concluded that the debt for the January to June 1998 period was due but that the debt could not be waived under s1237A(1) of the Social Security Act 1991 (the Act) because it did not arise solely because of administrative error because Ms Gardner had been notified of her obligations to notify in January 1998.  The SSAT considered whether the debt should be waived pursuant to s 1237AAD of the Act and concluded that, although accepting that Ms Gardner has difficulty living off the pension – and that this is stressful – and that her medical conditions have had a large impact on her life and prevented her from working, these could not be regarded as exceptional and therefore special circumstances for the purpose of s1237AAD.

The issues

5.        Neither Ms Gardner nor the Secretary contested the conclusion (of the ARO and the SSAT) that a debt existed (but should be waived) for the period from 9 October 1997 to 15 January 1998 – indeed the Secretary contended that decision was correct and should be affirmed.  Accordingly, the issues for determination in this proceeding are:

(a)Was Ms Gardner overpaid for the period 29 January 1998 to 18 June 1998 and, if so, is the amount concerned a debt due to the Commonwealth?

(b)If a debt does arise, should the debt be recovered, waived or written off?

Consideration of the issues

Is there a debt due to the Commonwealth?

6.        The case was presented by both the applicant and the respondent on the basis that there was no dispute that, because of the error made by Centrelink when Ms Gardner originally applied for benefits, she had been overpaid for a period of time.  No arguments were advanced that the decisions of the ARO or the SSAT were incorrect in relation to the period or amount in question.  On the evidence I find that the benefits paid to Ms Gardner in the period 29 January 1998 to 18 June 1998 were in excess of the amounts  to which she was entitled having regard to the correct income of her partner at that time.  Section 1223(1) of the Act provides as follows:

1223(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.

7.        I therefore find that the amount of $2475 paid to Ms Gardner in the period mentioned above is a debt due to the Commonwealth.

Should the debt be recovered, waived or written off?

8.        French J observed in Secretary, Department of Social Security v Hales [1998] 219 FCA as follows:

“From time to time in the administration of social security benefits overpayments occur.  Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place.  The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.  However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arises.  There are provisions in the Act which recognise that reality.  They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.” 

9. Section 1237(1) of the Act grants to the Secretary, and hence to this Tribunal by virtue of s43(1) of the AAT Act, the ability to waive the Commonwealth’s right to recover the whole or part of a debt due from a debtor only in the circumstances described in a number of specified sections of the Act. Two waiver sections are relevant in the current proceeding, namely s1237A and s1237AAD.

Mandatory waiver under s1237A

10.      Section 1237A(1) of the Act provides that (subject to the proviso in s1237A(1A), which is not relevant in the present case) 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.”

11.                  Two questions must be answered in the affirmative for the obligation to waive to arise; first, whether the debt was attributable solely to administrative error by the Commonwealth and, second, whether the payment(s) were received by the recipient in good faith.  As regards the first of these two factors, Beaumont J in Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76 recently emphasised that the significance of the word “solely” must not be overlooked. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.

12.      Mr Ellis acknowledged that there had been administrative error in the original calculation of the benefit in April 1997 and that this error continued until it was identified in April/May 1999.  However, he submitted that the extent to which it could be said that this error had been the sole cause of the problem and the debt must diminish over time.  Benefit recipients have an obligation to read the correspondence that they receive and advise of errors that are apparent - and the fact that this had not occurred in the present case meant that it could not be said that the debt was solely due to the administrative error made by Centrelink beyond the period in respect of which the ARO had determined to waive the debt.  Ms Gardner made no submissions on this point.

13.      In my opinion the evidence in the case is clear that the original error of assessment by Centrelink started the process of the debt arising.  However, documents T5 and T6 from January and March 1998 state clearly that the benefits of $290.10 per fortnight had been worked out using incomes for Ms Gardner and her partner of only $8.07 per fortnight each – or approximately $210 per annum each – even though the documents also required notification if the annual income for Ms Gardner’s partner exceeded $498 per fortnight (or approximately $12950 per annum) and the original application disclosed annual income of in excess of $26000 for Mr Mathyer. 

14.      Considerable evidence was given by Ms Gardner, which was not contested by Mr Ellis and which I accept, about how she knew nothing about the income and financial affairs of her husband (other than that there were periods when he did not work and others when he was busy), that he gave her no money for household expenses, and that she relied totally on information given to her by her husband’s accountant when she had to provide financial information to Centrelink.  Ms Gardner also gave evidence that she read the Centrelink correspondence and understood her obligation to notify any changed circumstances and income, but simply never turned her mind to the discrepancies mentioned above, perhaps because of the stressful circumstances under which she and her children were then living. 

15. Much of that evidence is relevant to the issue of whether the payments made in error were received in good faith, but in my opinion it is also relevant to the issue of whether there were factors at play other than the original Centrelink error that contributed to the creation of the debt. The failure to notify Centrelink about the inaccurate and inconsistent amounts in the correspondence and the failure to notify that Mr Mathyer did have an annual income of more than approximately $12950 may well have been innocent (and there was no evidence before me that it was not) but, in my opinion, that failure was a factor that contributed to the creation of the debt in the period in question. In my opinion it cannot, therefore, be said that the debt was solely attributable to the administrative error by Centrelink. That being the case, it is not necessary to consider whether the payments were received in good faith and I conclude that a waiver of the debt under s1237A(1) is not possible.

Discretionary waiver under s1237AAD

16.      In certain circumstances a debt may be waived in the exercise of a discretion to do so.  Section 1237AAD of the Act is as follows:

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.

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

17.      The Secretary has not contended that the requirements of s1237AAD(a) are not satisfied and I am satisfied on the evidence before me that all the information provided to Centrelink by Ms Gardner was provided by her husband’s accountant (and upon whom she relied) and that her failure to notify Centrelink about its errors and the actual income of her husband was not the result of any actual knowledge and deliberate choice to fail to comply with a notification obligation – and, hence, was not a knowing failure: see  Re Jonauskas and S, DFCS (2001) AATA 72 at paras 68 – 73 (Deputy President Forgie).

18.      Section 1237AAD(a) being satisfied, I must then turn to s1237AAD(b) and consider whether there are special circumstances (other than financial hardship alone) in the case that would make it desirable to waive the debt.

19.      What should be regarded as special circumstances is an issue that confronts this Tribunal regularly.  Reference is frequently made, with approval, to the decision of the Tribunal in Re Beadle and Director–General of Social Security (1984) 6 ALD 1 at 3, that one should look for circumstances that are unusual, uncommon or exceptional. They need not be unique, but they must have a particular quality of unusualness that permits them to be described as special. In Boscolo v S,DSS (1999) 53 ALD 277 at 281, 282 French J described the core of the requirement as being that there be something unusual or different to take the matter out of the ordinary course, but without requiring that the case be extremely unusual, uncommon or exceptional.

20.      As noted above, the SSAT recorded that it had looked at whether there were any special circumstances but considered that none arose, although it did mention briefly the possible circumstances noted at para 4(h) above.  Ms Gardner submitted that special circumstances did exist and gave the following evidence in support of that contention.

(a)      She is 57 years old.

(b)      At no time had she ever attempted to defraud Centrelink or to get a benefit to which she was not entitled.  She was not aware of the financial details of her husband’s business and she relied on the accountant at all times.

(c)      The period in question had been very stressful.  The breakdown of her marriage had involved considerable physical and emotional abuse from her husband and that had been followed by the loss of her home and other property because of her husband’s failure to meet the bank payments.  Litigation in court had resulted in a debt to her lawyer of $11000, which she still has and is unable to pay.

(d)      Her decision to leave the matrimonial home was made because she feared for her daughter’s safety and because she wanted to provide a stable home for her daughter who was about to enter her final year at school.  She had not been eligible for emergency public housing and had been obliged to find rental accommodation in the private market.  At times she has had to rely on money from charities and friends to manage.

(e)      She has suffered from ill health with a variety of symptoms for many years and had finally been diagnosed with fibromyalgia in 1993.  This is a condition that flares up at times and is most painful.  It is described by her general practitioner (T22) as “a chronic severe illness that has multiple musculo-skeletal symptoms with resulting chronic fatigue and depression with anxiety attacks.  Stress often exacerbates the illness with worsening of …symptoms.”  She has also suffered from post-menopausal oestrogen deficiency which has been managed by regular injections.

(f)       More recently she has suffered from hypertension and investigations to establish possible causes of this have revealed a left renal artery stenosis of greater than 60% diameter reduction.   Further renal function tests are to be undertaken, but the advice that she has received is that she should have a stent inserted into the artery or, instead, artery surgery to clear the artery.  Her physician recommends the latter because the former is likely to require surgery eventually.  At the time of the hearing Ms Gardner had not decided how to proceed, but was concerned about the surgery option because her experience with two other surgical procedures in the past was that it exacerbated her fibromyalgia and required a very extended period to recover.

(g)      Since the end of her marriage she has lost about 48 kilograms of weight as a result of stress anxiety.  Although the loss of weight has obviously had its benefits it is an indication of the difficult period she has been through.

(h)      She tried to work full time in the past but was not able to manage it.  At the time of the SSAT hearing she was not able to work and thought she could not manage even a part time job because of her chronic illness and stress (see T2 para 10).  However, more recently she had been able to find a casual part time job that she could manage and which currently involves five afternoons –or about 22 hours - a week.  If she were to have surgery in future the time needed to recover would mean that she would have to give up this job – and with it the chance to generally improve her position in life.

(i)        Her son (aged 22) and daughter (20) both live at home with her.  Both are employed full time, and she thinks that her son earns about $400 per week after tax and her daughter about $314 per week after tax.  They are both paying off cars and saving for a holiday.  Their present intention is to buy a house together in future in which they would live with their mother.  Ms Gardner thought that this would be a good outcome if it were to eventuate - and she believes that there is a good chance that this will occur within the next two years.

(j)        Ms Gardner earns approximately $300 per week from her part-time job or about $260 per week after tax.  She also receives a disability support  pension from Centrelink of about $220 per fortnight when she earns that amount of income.  If she was not working the maximum pension she would receive would be about $520 per fortnight.  In addition, the two children pay her board of $70 a week from her son and $60 a week from her daughter.  Mrs Gardner readily conceded that the board paid by the children does not meet all the costs of maintaining them.  She offered the comment that the amount paid by her son would not even pay for the sandwiches he has at lunchtime each week.  She has raised the possibility of the children paying increased board but they have both indicated that they would consider leaving home if they had to do so.  Mrs Gardner says that that would be both a good thing and bad thing.  Her cost of living overall would be reduced very considerably, but she would of course miss their presence and their assistance around the house.

(k)       Ms Gardner pays rent of $360 per fortnight, utilities of about $90 per fortnight, motor vehicle expenses of about $40 per fortnight and medical expenses of about $30 per fortnight.  Food generally costs about $230 per fortnight.  Her motor car is now 11 years old and recently required repairs costing about $1800, $180 of which is still owing.  Her other debts include $350 owing to her doctor, about $100 to her pharmacist, $300 on a credit card and $11,000 owed to her solicitor.  At one stage Centrelink had been deducting a regular amount from her benefit payments to reduce the outstanding debt but a decision had been made in October 2001 by Centrelink to defer recovery by way of instalment because she had been very upset and the review process that was underway at the time had been causing her a lot of stress.

(l)        Overall, her great fear is that she will have to have surgery for her kidney condition at some time in the near future.  This will have the double consequence of forcing her to give up her part-time job and the income that brings, as well as requiring an extended period of convalescents to regain her health based on her previous experience with surgery.  This will put her back into the position of being totally dependent on her Centrelink benefits and will give her no prospect of gradually improving her overall financial situation.  Ms Gardner obviously feels very strongly that her reduced circumstances (compared to her previous living circumstances) have been a very great hardship to her and that insufficient weight has been given to this aspect of her circumstances in the reviews regarding the recovery of the debt that have occurred thus far.  She believes that she has suffered greatly, medically, emotionally and financially, and that she should now be left to do whatever she can in the remainder of her working life to improve her position.  .  She contended that whether or not there are special circumstances should be judged by the considerable impact that her changed living situation has had upon her, rather than by comparing her situation with that of other people when looking for special circumstances that are somehow out of the ordinary.

21.      Mr Evans made a somewhat similar point when submitting that the need to compare the position of one person with that of other people when looking to see if circumstances were exceptional or out of the ordinary had the effect of constantly "raising the bar” and that this could eventually be taken to unreasonable lengths.    

22.      Mr Ellis argued that, although the Secretary had considerable sympathy for the position that Ms Gardner found herself in, her circumstances were not dissimilar from the position that many other disability support benefit recipients may be in.  Some work for shorter or longer hours, some had absolutely no extra income.  Mr Ellis contended that Ms Gardner's circumstances are really not special or unique and there is no evidence of the sort of extreme financial hardship that one would expect to find for circumstances to be considered special.  Although her changed circumstances may be devastating to her personally, the social security system is not designed to subsidise her normal weekly household expenses and in cases such as this it in the public interest for public money to be collected. 

23.      I have considered carefully the evidence that is available about the totality of Ms Gardner's circumstances.  It is without question that she has been through a difficult period in her life at a time when she might have expected to be living in comfortable financial circumstances.  Her marriage has failed, she has some long-standing medical conditions that have been stressful and which may require future treatment including, possibly, surgery.  She is in some respects fortunate to have the company and support of two adult children who presently live with her and who might at some time in the future purchase a home together that would enable her to live with them.  How likely that is is by no means clear.

24.       What is clear is that at times Ms Gardner has found it difficult to manage a budget and make ends meet.  Notwithstanding that, and having regard to the totality of the situation, I am not satisfied that Ms Gardner has experienced financial hardship to a degree that can be said to be extraordinary, exceptional or out of the ordinary.  I have noted the conceded inadequacy of the board that the children pay to her and I have also noted that she has continued to maintain the monthly contribution of $120 for a life insurance policy.  Although I acknowledge that there is some uncertainty ahead for Ms Gardner, both financially and health-wise, on balance I do not believe that it can be said that her circumstances are so exceptional, unusual, or out of the ordinary to be categorised as special..  I therefore conclude that the requirements of s1237AAD(b) are not satisfied in this case and it would not be appropriate to way of the debt under the discretion available in this section..

25.      In view of the conclusion reached above, it is not necessary to consider whether the requirements of s1237 AAD(c) are satisfied. 

Discretionary write off under ss1236

26.      Section 1236 of the Act permits a debt to written off (ie its collection delayed) for a stated period or otherwise, but only in the circumstances referred to in the section.  At the relevant time the section was as follows:

1236(1)         Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(1A)       The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a)      the debt is irrecoverable at law; or

(b)      the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.

1236(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

(a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

(d) the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.

1236(1C)      For the purposes of paragraph (1A)(b), if a debt is recoverable by means of deductions from a person’s social security payment, the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

1236(2)         A decision made under subsection (1) takes effect:

(a) if no day is specified in the decision—on the day on which the decision is made; or

(b)if a day is specified in the decision—on the day so specified (whether that day is before, after or on the day on which the decision is made).

1236(3)         Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.

27.      Neither party made submissions about whether the discretion available in this section should or should not be exercised in this case.  Nevertheless, it is appropriate for me to consider the issue, if only because, as noted above, at one stage the debt was being reduced by instalments deducted from Ms Gardner's benefit payments. 

28.      On the evidence, I am satisfied that three of the four circumstances that would permit a write-off (namely paragraphs (a), (c) and (d) of s1236(1A)) do not exist.  Only paragraph (b) of that subsection may be applicable, in which case regard must be had to subsection 1236(1C).  In the present case the debt could be recovered by means of deductions from Ms Gardner's social security payments and Ms Gardner must therefore be taken to have a capacity to repay the debt unless recovery by those means would cause her severe financial hardship.

29.      On the evidence available to me about Ms Gardner's financial situation as outlined above I am not satisfied on balance that Ms Gardner would experience severe financial hardship if a periodic instalment was deducted from her social security benefits.  I believe that would be the case even if at some point in future she was obliged to give up her part-time job because of the need to undergo surgery - in which case she would revert to receiving a maximum disability support benefit.  In the circumstances of the case as presently before me, I do not consider that it would be appropriate to write off the debt under this section - whether for a particular period or otherwise.  Should, for any reason, Ms Gardner's financial circumstances deteriorate during any period in which the debt is being recovered by way of deductions from her benefits, then it would be open to her to apply to the Secretary for a write-off of the debt at that time in the light of the then prevailing circumstances.

Conclusion

30.      For the reasons set out above I have concluded that a debt to the Commonwealth has arisen for the period 9 October 1997 to 18 June 1998, that the portion of this debt for the period 9 October 1997 to 15 January 1998 should be waived, but that the debt of $2475 for the period 29 January 1998 to 18 June 1998 should not be waived or written off.  I therefore affirm the decision of the SSAT of 15 May 2002, which in turn affirmed the decision of the delegate of the Secretary to raise and recover a debt of $2475.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member

Signed:         ..............(sgd V Wong).................................
  Associate

Date/s of Hearing  22 November 2002        
Date of Decision  10 March 2003
Counsel for the Applicant          Mr R Evans
Counsel for the Respondent     Mr S Ellis
Solicitor for the Respondent      Advocacy & Administrative Law Team,
  Centrelink