Gebers and Secretary, Department of Family and Community Services

[2005] AATA 530

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 530

ADMINISTRATIVE APPEALS TRIBUNAL      )

)      No Q2004/659,660

GENERAL ADMINISTRATIVE DIVISION		)
Re		ERWIN HEINRICH GEBERS and EUNICE JOAN GEBERS

Applicants

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date7 June 2005

PlaceBrisbane

Decision

1.      The Tribunal varies the decision under review. Recovery under the circumstances in which Mr and Mrs Gebers dealt with Centrelink, is a “special circumstance” insofar as it relates to the debts for the period 11 September 1996 to 22 January 2000.

2.      The debts in respect of the period 11 September 1996 to 22 January 2000 are waived in respect of each of the applicants.  The debts in respect of each of the applicants for the period 23 January 2000 to 26 September 2001 only are recoverable.  This means that the total debts recoverable are:

(a)       In respect of Erwin Heinrich Gebers     $3,284.29; and

(b)       In respect of Eunice Joan Gebers         $3,223.54.

Any amounts already repaid in excess of these amounts should be refunded to the applicants.

.......[Sgd]........

KS Levy
  Member

CATCHWORDS

SOCIAL SECURITY - Pensions benefits and allowances – debt recovery – overpayment of age pension and partner allowance – whether the applicants have a debt due to the Commonwealth – whether all or part of the debts relating to the applicant should be waived or written off – failure to declare assets – applicants have capacity to pay – not appropriate to write off debts – applicants contributed to administrative error – not appropriate to waive under administrative error provisions – special circumstances exist – debts for certain period waived – decision under review varied.

Social Security Act 1991 ss 1223, 1224, 1236, 1237A, 1237AAD

Repatriation Commission v Harrison (1997) 148 ALR 590; (1997) 46 ALD 193  
Dingli and Secretary, Department of Social Security [1996] AATA 11436
Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 10941
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (2003) 76 ALD 105
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Dranichnikov v Centrelink (2003) 75 ALD 134
Groth v Department of Social Security (1995) 40 ALD 451
Secretary, Department of Social Security v Hales (1988) 153 ALR 259; (1998) 51 ALD 659
Secretary, Department of Social Security v Thompson (1994) 53 FCR 580; (1994) 36 ALD 563

REASONS FOR DECISION

7 June 2005 Dr KS Levy, Member

1. This is an application made by the applicants under section 29(1) of the Administrative Appeals Tribunal Act 1975.  This application is an appeal against the decision of the Social Security Appeal Tribunal (the “SSAT”), which was made on 21 July 2004.  That decision affirmed decisions reviewed by Centrelink dated 2 March 2004 in respect of each of the applicants.

2.     The decisions of Centrelink dated 2 March 2004 which were affirmed by the SSAT, were as follows:

(a)      In respect of Erwin Heinrich Gebers –

(i)to raise and recover a debt in the amount of $12,641.09 in respect of payments of partner allowance and mature age allowance made to him for the period 11 September 1996 to 22 January 2000; and

(ii)to raise and recover a debt in the amount of $3,284.29 in respect of age pension payments made to him for the period 23 January 2000 to 26 September 2001.

(b)In respect of Eunice Joan Gebers –

i.to raise and recover a debt in the amount of $3,518.50 in respect of age pension payments made to her for the period 11 September 1996 to 22 January 2000; and

ii.to raise and recover a debt in the amount of $3,223.54 in respect of age pension payments made to her for the period 23 January 2000 to 26 September 2001.

3.     This matter was heard in the Administrative Appeal Tribunal (“the Tribunal”) on 10 March 2005.  Mr and Mrs Gebers represented themselves and were assisted by Mr G Rogers, a financial adviser from Retireinvest.  The Secretary, Department of Family and Community Services (“the respondent”) was represented by its advocate, Mr J Howard.

4.     The applicants themselves gave sworn evidence.  Their adviser, Mr Gavin Rogers, also gave sworn evidence.  No other witnesses were called.  Documentary evidence was also admitted as follows:

§ Exhibit 1 Documents lodged pursuant to s 37 of the Administrative   Appeals Tribunal Act 1975 (Volume 1)

§ Exhibit 2 Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Volume 2)

§  Exhibit 3     Six-page printout of assessment of debt from Centrelink records

§  Exhibit 4     Retireinvest letter dated 7 December 2004 and attachments

Issues

5.     The issues in this matter are –

a.whether either or both of the applicants were overpaid mature age allowance or age pension;

b.if overpaid, whether either or both of the applicants have a debt due to the Commonwealth; and

c.whether all or part of the debts relating to the applicants should be written off or waived.

The Evidence

6.     The background facts were essentially accepted by all parties. 

7.     Mr Gebers, in his evidence at the hearing, indicated that advice from Centrelink in 1996 was that both he and Mrs Gebers may be entitled to some amount of pension, although they were not previously aware of that.  They were further advised that if some of their assets were in a complying annuity, it may not prohibit their eligibility for pension.  He further indicated that after completing the application forms and lodging it with Centrelink, they heard nothing more until the advice some months later that the pensions applied for had been granted.  A copy of the applicants’ family trust deed was requested, which was supplied.

8.     Mr Gebers further stated in evidence that in 1998, a review form was sent to them, which was completed showing the trust had been in existence for five years.  His evidence was that he had been advised that this trust was therefore not an asset to be taken into consideration as it had been in existence for more than five years.  He emphasised that he had never hidden anything from Centrelink.

9.     Mr G Rogers, financial adviser from the Mackay branch of Retireinvest, provided evidence on behalf of the applicants.  He stated that he attended with the applicants when they were interviewed by Centrelink in early August 1996.  At that time, Centrelink advised Mr Gebers that he would be entitled to a partner allowance, except that his assets were probably in excess of the threshold.  He said he was told that he would have to reduce his assets by about $35,000, and investing such an amount in a complying annuity would then satisfy the requirements.

10.   In late September or October 1996, a Form I was completed, after which Mr Gebers was granted the age pension.  He said that when being interviewed by the Centrelink officer, they were just asked about the quantum of assets.  No information was sought about the trust.  He also stated that approximately two months elapsed between the claim being lodged and the payments being granted, but at no time in that period was any further information sought. 

11.   In cross-examination, Mr Rogers stated that he did not look at or give copies of forms about the Centrelink applications.  His involvement was inconsequential to the original claims.

12.   Mr Gebers stated in cross-examination that a Mod I Form was completed by himself although paragraph 13 on that form was completed by Mr Rogers.  He was referred to the “income and investments” pro forma where question 10 in relation to gifting assets to another person was answered “no” (see T8, folio 42 of Volume 1 of the “T” Documents).  It was also noted that in question 4 of the same pro forma, which referred to having bonds, debentures, loans or unsecured notes, that he answered “no”.  However, contrary to that answer, he did provide details of term deposits amounting to $100,000, but he did not include a loan made from the trust to one of the applicants’ children.  Mr Gebers stated that he answered it honestly and correctly at that time but he did not see the amount on his tax return until two years later (T8, folio 40, Volume 1 of the “T” Documents).

13.   In question 15(a), referring to income from family trusts and other investments, this question was not answered at all.  Mr Gebers’ response was that the form should not have been accepted by Centrelink.

14.   The respondent referred to the legislative provisions of the Social Security Act 1991 (“the Act”).  In particular, it was submitted that s 1224 was relevant prior to 1 July 2000.  Section 1223 was relevant after 1 July 2000.  It was argued that if money is received to which a person is not entitled, then it is a debt due to the Commonwealth. 

15.   The respondent further mentioned that Mr Rogers had asked for a recalculation of the amounts outstanding to Mr and Mrs Gebers, which was done.  It was submitted that the parties had accepted and understood the debt as presently defined and that the only real question was one of waiver.

16.   Reference was made to the statements at Exhibit 3.  This indicated that Mr and Mrs Gebers were repaying the debt by deduction from their pension amounts at the rate of approximately $140 per fortnight. 

17.   The following findings of fact are made:

a.In 1993, the applicants established a trust company based on advice received, in order to protect their assets for old age.

b.On 11 July 1996, after Mrs Gebers became of pensionable age, she signed a completed Centrelink application form.  This form was lodged with Centrelink on 11 September 1996.

c.On 11 July 1996, Mr Gebers also signed a completed Centrelink application form for partner allowance.  This form was also lodged with Centrelink on 11 September 1996.

d.In respect of Mrs Gebers, a Form A entitled “Asset Details” was also completed and accompanied the claim for age pension.  In the Form A, she did not answer question 4, that is “Do you or your partner have any other assets which you have not advised us about in answer to other questions on forms completed by you?”.

e.In relation to the claim for partner allowance by Mr Gebers, his application was accompanied by a Form I entitled “Income and Investments”.  In that document, Mr Gebers wrongly answered question 10 which stated:

“Have you gifted (given away to someone else as a gift) any assets or sold assets for less than their value in the last five years?”

To that question Mr Gebers answered “No”.

In respect of question 15(a) the question was as follows:     

“Do you (or you and your partner) have any money invested in, or receive income from family trusts or any other investments not previously mentioned?”

That question was left blank in its entirety by Mr Gebers.

f.Without any further enquiry, Mrs Gebers was advised that her claim for aged pension had been approved and would commence as from the payday dated 19 September 1996.  Mr Gebers was advised in writing on 20 March 1997 that he also had been granted the mature age allowance for which he had applied.  This was to be effective from 4 March 1997.

g.Numerous letters were written by Centrelink to Mr and Mrs Gebers over the ensuing years advising of changes in entitlements (and the basis of calculations) from time to time.  On the reverse of all of those letters, they were advised of their obligation to notify Centrelink of any change in circumstances.  The applicants did not respond to any of these letters.

h.On 2 March 2004, Centrelink advised that two debts had been raised against Mrs Gebers - $8,060.19 for the period 19 September 1996 to 19 January 2000;  and another debt for $4,093.43 for the period 20 January 2000 to 26 September 2001.  In respect of Mr Gebers, a debt of $23,763.01 was raised from 19 September 1996 to 22 January 2000;  and a further debt of $4,027.30 for the period 23 January 2000 to 26 September 2001.

i.Both the applicants requested a review of the debts raised.  Following advice provided by Mr G Rogers, financial adviser of Retireinvest, Mackay on behalf of Mr and Mrs Gebers, the original decision-maker advised the applicants on 14 May 2004 that their debts had been reduced to $3,518.50 and $3,223.54 respectively for Mrs Gebers;  and $12,641.09 and $3,284.29 in relation to Mr Gebers.  These debts emanated from non-disclosure of a loan to one of their children from the family trust.

j.Not all of the repayments from the loan were repaid to the trust.

k.Both Mr and Mrs Gebers suffer from poor health.  Mrs Gebers has a heart condition while Mr Gebers requires a hearing aid and has also had quadruple heart bypass surgery.

l.It is accepted that the applicants were truthful at all times and that the information they provided to Centrelink was given in good faith. 

m.It is apparent that the applicants had no more than a superficial understanding of many of their financial arrangements and relied on their financial adviser for advice in many respects.

Consideration

18.   I have carefully considered all of the evidence presented by the applicants and the respondent in relation to the issues to be determined by the Tribunal. 

The Debts

19.   It has been accepted by the parties that the amounts determined to be the debts owing to the Commonwealth by both applicants are correct. 

20.   These debts arose from loans (assets) which should have been declared to Centrelink.  This is relevant to the present case as the loan to one of their children is central to the purpose of the test which is applied in assessing pension.  The test is designed to compare an applicant with others so that an equitable determination is made in granting the age pension (see Repatriation Commission v Harrison (1997) 148 ALR 590; (1997) 46 ALD 193).

21. The relevant statutory provisions of the Act in relation to Debts are as follows:

a.From 1 July 2000 – s 1224

“1224(1) If:

(a) an amount has been paid to a recipient by way of social security payment; and

(b)        the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of the social security law or this Act as in force immediately before 20 March 2000 or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth.

Note: If the person does not pay the debt or enter into an agreement to pay the debt within a certain time, interest may become payable on the debt (see section 1229). If the person enters into an agreement to pay the debt and breaches the agreement, interest may become payable on the debt (see section 1229A).”

b.From 1 July 2000 – s 1223

“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.

…..

1223.(1AB)  Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:

(a)the payment was made to the person by mistake as a result of a computer error or an administrative error;

(b)the person for whose benefit the payment was intended to be made was not qualified to receive the payment;

(c)       the payment was not payable;

(d)the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;

(e)the payment was made in purported compliance with a direction or authority given by the person who was entitled to obtain the benefit of the payment but the direction or authority had been revoked or withdrawn before the payment was made;

(f)the payment was intended to be made for the benefit of someone else who died before the payment was made.

…..

1223.(1AC)  If a social security payment was made by mistake as a result of a computer error or an administrative error, subsection (1) applies:

(a)whether or not the payment was made under a determination that had effect at the time when the payment was made; and

(b)whether or not a determination in relation to the payment could be made after that time with effect from and including that time.

1223.(1AD)  Subsection (1AC) does not apply if the social security payment was made when it should not have been made because of the occurrence of an event or a change in circumstances where the event or change had not been notified to the Secretary but no valid requirement for notification had been made under the social security law.”

22. The Tribunal determines that the debts accepted as being due to the Commonwealth have arisen under the above sections. That is, Mr and Mrs Gebers did receive payments of allowance or pension which were not payable to them under the Act. These debts arose due to false or incomplete statements made by the applicants (s 1224(1)(b)(i)) and the debt arose by virtue of s 1224(1) and s 1223(1), as the applicants received amounts of age pension greater than those to which they were legally entitled.

Write-Off

23. The statutory provisions relating to write-off are contained in s 1236 of the Act. This prescribes 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)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

(aa)the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 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:

(a)       deductions from the debtor’s social security payment; or

(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

(c)       setting off under section 84A of that Act;

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.”

24. The respondent urged that write-off is precluded in the circumstances of this case. I agree with the respondent. Section 1236 applies in limited circumstances only. Write-off is applicable only if the debt is irrecoverable at law, if the debtor is impecunious or has otherwise no capacity to repay the debt; where the debtor’s whereabouts are unknown; or where it is not cost effective for the Commonwealth to recover the debt. In the present case, the applicants have received social security payments and, on the evidence before the Tribunal, the applicant’s have the capacity to repay. It is therefore not an appropriate case to write-off the debts according to section 1236.

Waiver – Statutory Provisions

25. In considering whether waiver is applicable to the applicants, reliance can be placed on s 1237A which is concerned with administrative error or under-estimating the value of property as being the cause of the debt. Alternatively, reliance can be placed on s 1237AAD, where there are “special circumstances” involved.

Waiver Due To Administrative Error

26.   Section 1237A(1) provides as follows:

“1237A.(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.”

27.   It was argued by the respondent that waiver is only relevant in the case where administrative error can be seen to be “solely” attributable to the debt being incurred.  The respondent also referred to the case of Dingli and Secretary, Department of Social Security [1996] AATA 11436. The respondent further submitted that as the applicants had not responded to various questions on the pro forma required by Centrelink, then it cannot be said to be “solely” due to administrative error. Here, the respondent also referred the Tribunal to the case of Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 10941 where Deputy President Forgie said that “solely” should be given its ordinary meaning. She also pointed out that the Secretary’s duty to waive extends only to errors attributable to the Commonwealth. The Secretary does not have a duty to waive debts where errors or other factors, independent of the Commonwealth’s administrative error, are concerned.

“If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error.  Whether it is or is not attributable in that situation to the Commonwealth’s administrative error, will be a question of fact”. (See paragraph 40 in Gerhardt’s case).

28.   Subsection 1237A(1) does not provide for discriminating between the proportion of a debt due to the Department’s administrative error and a proportion of a debt due to the applicant’s action or inaction.

29.   But whether the circumstances of the debts could be said to arise solely because of administrative error, assistance is provided from the judgment of Selway J in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (2003) 76 ALD 105. There, his Honour said:

“The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event.  The word ‘attributable’ means ‘capable of being attributed’.  It involves an objective assessment of causation.  The words a debt attributable solely to an administrative error can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.”

30.   It was conceded by the respondent that the Department made an administrative error.  But it is also conceded by the applicants that they are liable for the debt based on the information about the loans which were not provided to Centrelink.  It is noted that the information provided was incomplete, although the applicants expected that Centrelink and their financial adviser would rectify anything of which they did not feel competent in answering from the pro formas provided.  It is undoubtedly true that the applicants were honest in their undertakings and that they needed advice and assistance.  However, it seems that the letters which they received from Centrelink, and to which they did not reply, were never given to their financial adviser or other adviser.  While they needed assistance in many respects and while Centrelink officers did not seek any further information, it is also true that there appears to be no responsibility on Centrelink to find the missing information which was not provided by Mr and Mrs Gebers.  In the circumstances, the Tribunal concludes the debts did not arise “solely” because of administrative error.

31.   Therefore, based on the evidence before the Tribunal, the applicants have not satisfied the Tribunal that the error which led to the debts is solely attributable to Centrelink error. 

Waiver Due To Special Circumstances

32. Section 1237AAD of the Act provides:

“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.”

33. In relation to s 1237AAD(a), the Tribunal finds that the applicants did not knowingly make false statements or false representations, and they did not fail or omit to comply with a statutory provision of the Act.

34.   But are there “special circumstances”?  In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3, the Administrative Appeals Tribunal determined that:

“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition….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.”

35.   “To some extent, the question whether there were special circumstances must depend on how it came about that the error occurred.”  (Dranichnikov v Centrelink (2003) 75 ALD 134. There, the Tribunal found that special circumstances involve a situation which is peculiar or exceptional in amount, degree of intensity etc. These circumstances may relate to personal circumstances, health issues, financial circumstances or other matters.

36.   But “special circumstances” also is concerned with avoiding unfairness.  In Groth v Department of Social Security (1995) 40 ALD 541 at 545. Keifel J said that “special circumstances” involves showing that the facts of a case are distinguished from other cases “….to take it out of the usual or ordinary case…..it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary”.  Likewise in Secretary, Department of Social Security v Hales (1998) 153 ALR 259 at 267, French J emphasised that “special circumstances” as specified is intended “to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness…”.  Further, “special circumstances” is intended to relate to the overall situation of the applicant rather than isolated aspects of evidence.  (Secretary, Department of Social Security v Thompson(1994) 53 FCR 580; (1994) 36 ALD 563).

37.   The Tribunal accepts that the applicants have poor health and are not well off.  It also is conscious that Centrelink sought to recover the debts more than 7½ years after the incorrect payments were made.  This arose from more recent information from the Australian Taxation Office.  There was also the reliance by the applicants on the advice of their financial adviser.  At the time of their respective applications for pension or allowances, the applicants stated they thought any additional information required would be found for them and inserted on their application forms or sought from their financial adviser or themselves.  They heard nothing more before being advised of approval of their applications.  While they clearly needed assistance in a number of respects, the Tribunal accepts that this was generally understood by their financial adviser and the Centrelink officer who dealt with them on a number of occasions. 

38.   Nevertheless, in accordance with the purpose of the test in assessing eligibility for pension, the Tribunal must be satisfied that the situation of Mr and Mrs Gebers is sufficiently different from that of many other social security recipients who have received overpayments.  While their honesty is not in question, they still nevertheless required some advice which was not sought on all relevant occasions.  It is also relevant however, that there was no obligation on Centrelink to find any missing information in their application forms or about the Trust.  Therefore, there do not appear to be “special circumstances” which would make it appropriate to waive this debt based on the individual factors mentioned above.

39.   But in considering these individual factors in the totality of the situation, the Tribunal finds that in the circumstances in which Mr and Mrs Gebers dealt with Centrelink, that is, where they had been truthful at all times with Centrelink and provided information in good faith and in the context of poor health and not being well off, and where they had clearly needed assistance in being able to provide information about their financial affairs, and where the delay in recovery of debts for approximately 7½ years since the commencement of incorrect payments (which spanned in excess of a 3 year period), then the recovery of amounts after such an excessively lengthy period would be unreasonable, unfair and unjust, and out of the ordinary (Groth’s Case).  Consequently, the Tribunal varies the decision under review so that the circumstances taken as a whole is a “special circumstance” insofar as it relates to the debts of the period 11 September 1996 to 22 January 2000

40.   Therefore the debts in respect of the period 11 September 1996 to 22 January 2000 are waived in respect of each of the applicants.  The debts in respect of each of the applicants for the period 23 January 2000 to 26 September 2001 are recoverable.  This means that the total debts recoverable are:

a.In respect of Erwin Heinrich Gebers        $3,284.29; and

b.In respect of Eunice Joan Gebers            $3,223.54.

41.   Any amounts already repaid in excess of these amounts should be refunded to the applicants.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member

Signed:   Camille Banks

Associate

Date/s of Hearing  10 March 2005
Date of Decision  7 June 2005
For the Applicant  Mr G Rogers, Financial Adviser
For the Respondent                  Mr J Howard, Departmental Advocate