Gentle and Department of Education, Training and Youth Affairs

[2000] AATA 795

DECISION AND REASONS FOR DECISION [2000] AATA 795

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1302

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      KEITH ALLAN GENTLE   
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION TRAINING & YOUTH AFFAIRS.           
  Respondent

DECISION

Tribunal       Mr R P Handley, Senior Member 

Date8 September 2000

PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes a new decision that recovery of that portion of the debt which relates to the period 13 May to 3 July 1998 be waived, with the balance of the debt to be recovered by instalments.
  [Sgd] Mr R P Handley
  Senior Member
CATCHWORDS
SOCIAL SECURITY – Austudy overpayment – failure to fill in form correctly – failure to advise spouse receiving Parenting Payment – waiver – administrative error – special circumstances
Student and Youth Assistance Act 1973, sections 287, 289, 290C
Re Beadle and Director-General of Social Security (1984) 6 ALD 1; (1984) 1 AAR 362
Beadle v Director-General of Social Security (1985) 7 ALD 670; (1985) 60 ALR 225
Re Caldar and Secretary, Department of Education, Training and Youth Affairs (AAT 12575, 3 February 1998)
Re Callaghan and Department of Social Security (1996) 45 ALD 435
Re Elkin and Secretary, Department of Education, Training and Youth Affairs [2000] AATA 537
Groth v Secretary, Department of Social Security (1995) 40 ALD 541; (1996) 2 SSR 10a
Secretary, Department of Social Security v Hales (1998) 82 FCR 154; (1998) 153 ALR 259; (1998) 26 AAR 511; (1998) 3 SSR37b; (1998) 51 ALD 695

REASONS FOR THE DECISION:

1. This an application by Keith Gentle ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 21 July 1999 to affirm a decision of a delegate of the Secretary of the Department of Education Training and Youth Affairs ("the Respondent") and a review officer not to waive recovery of a debt of $3801.48 in respect of AUSTUDY paid between 1 January 1998 and 3 July 1998.

2. At the hearing, the Applicant represented himself and the Respondent was represented by Susan Fraser of the Australian Government Solicitor. The evidence before the Tribunal comprised the documents produced pursuant to the Administrative Appeals Tribunal Act 1975 ("the T documents") together with exhibits tendered by the parties. The Applicant and his wife, Sharon Gentle, gave oral evidence at the hearing.
   BACKGROUND:

3. Mr Gentle was born on 31 October 1963 and is aged 37. In the years 1997 to 1999, he studied for a Bachelor of Computer Science at the University of Wollongong. He received AUSTUDY payments during 1997. On 17 December 1997, the Applicant lodged an 'AUSTUDY Continuing Application 1998' form ("AUSTUDY Form") (T4) in which Mrs Gentle stated, in answer to question 22, that she would be financially dependent on her husband in 1998. She also stated, in answer to question 23, that she would not receive any income (other than Family Payment) during 1998 and, in answer to question 25, that she would not receive or did not expect to receive a social security pension, benefit or allowance from Centrelink other than Family Payment, Child Disability Allowance or a Health Care Card. At the time, and during the first half of 1998, Mrs Gentle was receiving a Parenting Allowance (from 20 March 1998, renamed Parenting Payment).

4. On 19 December 1997, Centrelink advised the Applicant that he would be eligible for AUSTUDY and Dependent Spouse Allowance from 1 January 1998 to 31 December 1998 (T7). On 15 July 1998, the Respondent became aware that Mrs Gentle was receiving a Parenting Payment and a debt of $3,801.48 was raised in respect of Dependent Spouse Allowance paid between 1 January 1998 and 3 July 1998. The Applicant sought a review of this decision contending that recovery of the debt should be waived.

5. On 8 October 1998, a departmental officer decided that recovery of the debt should not be waived (T18). This decision was reviewed by a review officer and the SSAT who, on 4 February 1999 (T24) and 21 July 1999 (T2) respectively, affirmed the decision. On 27 August 1999, the Applicant lodged an application for a review by the Tribunal (T1).
   APPLICABLE LEGISLATION:

6. The issue in dispute is whether the debt should be recovered. The relevant waiver provisions are set out in the Student and Youth Assistance Act 1973 ("the Act"), section 289(1) and section 290C.

Section 289
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable 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.
Section 290C
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; 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.

THE APPLICANT'S EVIDENCE:

1. The Applicant said that about 3 weeks before the hearing, he had contracted a viral infection as a result of which he experienced chest pain. He was admitted to Nowra Hospital but, later that day, he again experienced chest pain and was transferred to Royal Prince Alfred Hospital ("RPA") in Sydney (A1). He remained at RPA from Saturday to Tuesday undergoing tests to establish whether he had suffered a heart attack. During this time, he again experienced chest pain which was diagnosed as probably being a mild heart attack brought on by the viral infection.

2. The Applicant said it appeared that his heart has not suffered any permanent damage. He has now completed a course of medication but is seeing his doctor this afternoon and will be having monthly checkups in future. His cholesterol level and diet will also be monitored.

3. The Applicant said personal problems had probably contributed to his condition. He and his wife separated on 8 January 2000. His wife had applied for an Apprehended Violence Order ("AVO") against him which he had contested. The last 6 months have been messy and have involved appearances in court over their marital breakdown. A conciliation conference which had been arranged 2 weeks before the hearing was postponed until 15 August 2000 because of his illness. The Applicant's application for a stay in respect of his present Child Support payments will be heard in Nowra Local Court on 18 August 2000 (A2).

4. The Applicant said his wife prevented him from seeing their 3 children for 3 months after the separation. She also refused to give him access to any personal property at the family home including his files concerning this matter. He had not been able to look at these files until she brought them to the hearing, for which he had to summons her.

5. The Applicant graduated from Wollongong University with a Bachelor of Computer Science in December 1999. He began working as a software engineer with Computer Sciences Corporation Australia in July 1999. Although the company is based at St Leonards in Sydney, the Applicant is working on site with a client, HMAS Albatross, in Nowra. This is a permanent position. His salary is about $45,000 per annum. He also has a RAAF pension of $4,500 per annum which has been paid into a trust account for their 3 children. His wife is the sole trustee for this account and, in January this year, the Applicant discovered that there was only $100 in the account when there should have been $30,000. The Applicant said he currently earns about $1,700 gross per fortnight. His expenditure per fortnight is $2,100.

6. Mrs Gentle and their children continue to live in the rented family home. The Applicant has rented a unit in Nowra at a cost of $110 per week. After the separation, he took out a personal loan of $14,500, including an insurance component, in order to purchase the necessary white goods and furniture for the unit. He has only bought the basics and does not even have a TV or stereo. He pays $250 per month on the loan.

7. In May 1997, the Applicant and Mrs Gentle purchased a block of land at Shellharbour with the intention of building a house there. The Applicant said he is continuing to make the mortgage payments of $475 per month together with Council rates although he has not been able to make the last 2 mortgage payments. He is also continuing to pay other family bills including paying off credit cards for which his wife has refused any responsibility. The Applicant owns a ski boat and trailer, purchased for $7,000 about 15 years ago. He is unable to sell this because his wife refuses to give him access to it.

8. The Applicant has a 1988 EA Falcon, valued at about $4,500. He has recently had to pay $2,000 for car repairs. Now that he access to his children every second weekend, he has to drive a considerable distance from Nowra to Oak Flats to collect them on Friday afternoon. He has to drive back to Oak Flats on Saturday morning to take his son to soccer, and he returns them to Oak Flats on Sunday evening. The Applicant hopes to get additional access to his children during the week. He has purchased a mobile phone so that they can contact him at any time.

9. The Applicant is contesting the $420 per fortnight he has been ordered to pay for Child Support. He has been told that he has a back-payment due of $2,500. To date, he has incurred about $6,000 in legal costs. He is hoping that the property settlement, which he applied for in March this year, can be resolved quickly. He also hopes some of the issues can be resolved at the forthcoming conciliation conference.

10. The Applicant said he was concerned about deficiencies in departmental procedures which had affected this matter. He noted that in the Additional Parenting Allowance Review completed by his wife on 12 May 1998 (R2), she had not included the amount of his then AUSTUDY payments in answering question 6. She marked this with an asterisk to remind her to complete this when visiting the Centrelink office at Shellharbour. She had taken all the relevant documentation with her, some of which had been photocopied by the Centrelink officer who also said he would complete question 6 for her. The officer had obviously not done so and should not have lodged an incomplete document. The Applicant said he tried to obtain  a copy of this document last year, but Centrelink said they were unable to provide this.

11. The Applicant said he had always acted with honesty and integrity in his dealings with Centrelink. When he became aware of a potential problem with the rate at which he had been paid AUSTUDY, in July 1998, it was he who raised the matter with Centrelink with a view to sorting out the matter. He and his wife had met with Mark Cartledge, the unit manger in Wollongong, for over an hour on 15 July 1998. After that, it took until October 1998 for the Respondent to inform them about the overpayment. The Applicant said he became aware of the potential problem following the restructuring of AUSTUDY and a Centrelink letter of 27 June 1998 (T12), received 2 weeks later, which stated that Dependent Spouse Allowance would stop from 1 July 1998, as he had explained in his letter dated 16 August 1998 (T13).

12. The Applicant was asked about the AUSTUDY Form lodged on 17 December 1997 (T4). He said that he completed the first part of the form, questions 1 to 17. He acknowledged that he had been supplied with accompanying Notes on AUSTUDY for 1998 (T5) and an AUSTUDY Information Book. He gave the form to his wife for her to complete the second part, questions 18 to 33. His wife would not, however, have seen the Notes or Information Book. She was confused about the different payments and allowances, particularly as a result of difficulties they had experienced in dealing with Centrelink when she was working casually until July 1997, when the rate of payments was always changing and Centrelink made a series of mistakes. 

13. The Applicant said neither he nor his wife actually requested payment of the Dependent Spouse Allowance. They did not know what procedure should be followed, and they were in a rush to get the form in before Christmas 1997. The Applicant said he signed the declaration in Question 17 of the form in good faith. It was he who lodged the form with Centrelink after his wife had completed and signed her part.

14. The Applicant was asked about the significant increase in the rate of AUSTUDY he received in early 1998. Up until the end of 1997, he had only been receiving $290 per fortnight. The Applicant said that at the time he was aware of the increase but thought this must have been due to their change of circumstances, in particular, that his wife had worked until July 1997.

15. The Applicant acknowledged that his wife had made a mistake in answering questions 23 and 25 of the AUSTUDY Form (T4). Similarly, Centrelink had made a whole series of mistakes with their rates of payment over the preceding 2 years. The Applicant noted that while the SSAT had not considered his circumstances unusual or uncommon (T2), Mr Cartledge had thought them to be uncommon (T16). The Applicant concluded by asking for the Tribunal's compassion and understanding, noting that he had no financial capacity to repay the debt. He confirmed that he did dispute the calculation of the debt but asked that it should be waived on the ground that neither he nor his wife knowingly made a false statement or representation and because of the special circumstances of the case.
    MRS GENTLE'S EVIDENCE:

16. Mrs Gentle was shown the AUSTUDY Form (T4). She said she answered "Yes" to question 22 ("Will you be financially dependent on your partner (the Student) in 1998?") because she was financially dependent on him. She was not working and she was pregnant. She did not have access to any Notes about AUSTUDY nor to an Information Book. She was not aware that she might be seeking a Dependent Spouse Allowance. She thought that she would have been provided with information about the procedure to follow had this been the case.

17. With regard to question 23 ("Will you receive any income (other than Family Payment) for the period you will be financially dependent on the student?"), Mrs Gentle said she thought this referred to whether she would be working and earning income. She did read the words "(other than Family Payment)", but confused Family Payment with the allowance parents were paid.

18. Mrs Gentle was asked about a typed document in the T Documents relating to the SSAT hearing (T27, page 87), which states:

• The words Family Payment are what I found confusing.

• Changes to the name are confusing.

Mrs Gentle said this document was not something prepared either by herself or her husband. Perhaps these were notes prepared by the SSAT.

25.With regard to question 25, which asked whether she would receive or expect to receive a social security pension, benefit, or allowance excluding Family Payment, Mrs Gentle said she assumed this was not referring to receipt of Parenting Allowance.

1. Mrs Gentle confirmed that she had completed questions 18 to 33 and signed the declaration. Her husband was busy studying at  the time – he had lectures to go to.

2. Mrs Gentle was asked about the Additional Parenting Allowance Review (R2). She said she remembered taking the form into the Centrelink office at Shellharbour. The form said if you needed help to fill in the form, you should visit the office. She did so, taking with her a bag of documents she might need to refer to. She marked with an asterisk the other income box in question 6, because she was not sure of her husband's income, either from AUSTUDY or from his Navy pension. This was the reason for the 2 asterisks.

28.Mrs Gentle said she showed the Centrelink officer the form and a number of documents, including bank statements, some of which he photocopied. The officer said he would keep copies of the documents and complete the form for her. She relied on him to do so and left the form with him.

THE RESPONDENT' S SUBMISSIONS:

29.Ms Fraser, for the Respondent, said that section 290C presented two main hurdles for the Applicant. First, he must show that neither he nor his wife knowingly made a false statement or representation. Second, he must show special circumstances. Ms Fraser said the Respondent submits that the Applicant did make a false statement or representation. He signed the AUSTUDY Form (T4) and took it to the Wollongong Centrelink office. In that form, Mrs Gentle said that she was not receiving any income other than Family Payment, whereas she was, in fact, also receiving Parenting Allowance.

1. Ms Fraser said the Applicant had acknowledged that, at the time, he had the AUSTUDY Notes and Information Book (R1). Page 5 of the AUSTUDY Notes states, in respect of Dependent Spouse Allowance, "refer to AUSTUDY Information Book – 1998 for more information". Page 33 of the Information Book states: "Your partner/ de facto partner cannot get the Additional Parenting Allowance if you are paid Dependent Spouse Allowance".

2. Ms Fraser contended that the Applicant knew that his wife was receiving Parenting Allowance and was therefore aware that her answers to questions 23 and 25 of the AUSTUDY Form (T4) were false. Ms Fraser referred to Re Elkin and Secretary, Department Education Training and Youth Affairs [2000] AATA 537 where the Tribunal found that the applicant either had knowledge or constructive knowledge of her responsibility to notify the Respondent. With regard to constructive knowledge, the Tribunal observed, at 26, that the applicant

   was probably aware that she had to study full time to receive Austudy and apart from making a quick inquiry at re-enrolment, she did not give the matter much thought.

3. Ms Fraser said that, in the same way, if the Applicant did not have actual knowledge of the false statement, then he should be taken to have constructive knowledge. Ms Fraser also referred to Re Caldar and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 12575, 3 February 1998), at paragraph 23, where the Tribunal considered that the Applicant "should have been aware that he was not complying with the conditions of his AUSTUDY grant".

4. With regard to the second hurdle, that of special circumstances, Ms Fraser submitted there was no evidence of special circumstances. She said the circumstances were not unusual or uncommon in the sense described in Re Beadle and Director General of Social Security (1984) 6 ALD 1 or in Groth v Secretary, Department of Social Security (1995) 40 ALD 541. Moreover, Ms Fraser submitted that it was not desirable to waive the debt given the dual Commonwealth payments paid in respect of Mrs Gentle.

5. With regard to waiver by reason of administrative error made by the Commonwealth under section 289(1), Ms Fraser submitted that the debt did not arise solely or even in part as a result of an administrative error by the Commonwealth. The debt arose as a result of the way in which the AUSTUDY Form (T4) was completed. Nor was it appropriate to write off the debt under section 287 of the Act in such circumstances: the Applicant has secure, permanent employment and this is not a situation where the debt is not recoverable.
   THE APPLICANT'S SUBMISSION: 

6. The Applicant acknowledged that he had made a mistake in submitting the AUSTUDY Form (T4). However, it was one mistake compared to a series of mistakes made by the Respondent. He had assumed his responsibility was fulfilled at question 17 and that the other questions were his wife's responsibility. Nevertheless, the Applicant said he submitted the application believing the information given to be true and correct. When the Applicant first became aware that there might be a problem, following receipt of the Centrelink letter dated 27 June 1998 (T12), it was he who drew it to the Respondent's attention and met with Mr Cartledge on 15 July 1998.

1. The Applicant said that the time when the AUSTUDY Form (T4) was completed on 17 December 1997 was a difficult period when he was studying, they had little money and his wife had discovered she was unexpectedly pregnant. The AUSTUDY Notes and Information Booklet had not been at hand when his wife had completed her part of the form.

2. The Applicant said the Respondent's data matching process should have picked up the error earlier. When his wife took her Additional Parenting Allowance Review form (R2) into the Shellharbour Centrelink office on 2 May 1998, the form should not have been processed without the officer completing the box in question 6, as he had told Mrs Gentle he would. If this had been done, the error would have been picked up then and the debt would not have continued to grow. The Applicant said the failure to complete the form was an administrative error by the Commonwealth.

3. With regard to special circumstances, the Applicant said there had been a whole series of problems in dealing with Centrelink as a result of its mistakes. On one occasion when he complained to the staff of his local Federal MP, Colin Hollis, a telephone conference had been arranged with Centrelink and the Applicant had been given a formal apology by Centrelink.

4. The Applicant asked the Tribunal to take into account his situation over the last 6 months: the separation from his wife and consequent family problems, and the severe financial hardship and personal stress that he has suffered which contributed to his illness a few weeks before the hearing.
   CONSIDERATION OF LAW AND FINDINGS:

5. The issue for the Tribunal to determine is whether the Applicant's debt of $3,801.48 should be recovered and, in particular, whether there are grounds upon which recovery of the debt should be waived. The relevant waiver provisions in the Applicant's case are section 289(1) and section 290C. Under section 289(1), the Secretary must waive recovery of the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth, provided the debtor received the payments which gave rise to the debt in good faith.

6. The Tribunal agrees with Ms Fraser's submission that the debt did not arise solely as a result of an administrative error by the Commonwealth. Whilst the debt may have continued to accrue over a longer period as a result of a Centrelink officer's inaction on 2 May 1998, nevertheless, the debt arose in the first place because of incorrect information in the AUSTUDY Form (T4). Thus, in the Tribunal's view, waiver under section 289(1) is not available in this matter.

7. The other relevant waiver provision is section 290C. Three conditions must be satisfied for this discretion to waive recovery of all or part of a debt to be exercised. First, the Applicant and Mrs Gentle must not knowingly have made a false statement or false representation, or failed or omitted to comply with a provision of the Act. The Respondent contends that the Applicant made a false statement or representation when he lodged the AUSTUDY Form (T4) knowing it to contain incorrect information about his wife's income.

8. The Tribunal finds that Mrs Gentle's answers to questions 23 and 25 were incorrect in so far as she was receiving income other than Family Payment, namely Parenting Allowance. However, the Tribunal accepts Mrs Gentle's oral evidence that this was a mistake arising from her confusion over the social security benefits for which she was eligible and her not having the AUSTUDY Notes and Information Booklet to refer to. The Tribunal also accepts the Applicant's oral evidence that he was not aware of the mistake. He appears to have been preoccupied with his study and left his wife to complete the second part of the form without handing her the AUSTUDY Notes and Information Booklet. The Tribunal notes that it was the Applicant who drew the Respondent's attention to a potential problem with his payments in July 1998 as a result of which the overpayment was detected. The Tribunal also accepts the Applicant's evidence that while he was aware of the increase in his AUSTUDY payments in January 1998, he thought this was due to their change of circumstances, in particular that his wife had not worked since about July 1997. 

9. Ms Fraser suggested that if the Applicant did not have actual knowledge of the false statement or representation then he should be taken to have constructive knowledge. In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, the Tribunal, after an examination of the relevant case law, concluded that the word "knowingly" in the parallel provision in the Social Security Act 1991, section 1237AAD, means that the person:

   has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or act of omission (at 445).

1. The Tribunal notes the decisions in Re Elkin (supra) and Re Caldar (supra) where the issue was whether, in each case, the applicant was aware of his/her obligations. In the Tribunal's view those matters which pointed to the applicants' awareness were part of "the events surrounding the false statement or the act of omission" referred to in Re Callaghan (supra). However, in the present case, the Tribunal is not persuaded by the mere fact that the Applicant had been supplied with a copy of the AUSTUDY Notes and Information Booklet, that he made a false statement knowingly.

2. The second requirement of section 290C is that "there are special circumstances (other than financial hardship alone) that make it desirable to waive" recovery of the debt. Although the Act provides no guidance as to the meaning of "special circumstances", it has been the subject of statutory interpretation by the Federal Court and the Tribunal.

3. The leading case is Beadle v Director-General of Social Security (1985) 7 ALD 670, a decision of the Full Federal Court. In Beadle (supra), the Court did not think it possible to lay down precise limits or precise rules. It would depend upon the particular circumstances of a case as to whether they constituted special circumstances. Moreover, even though the phrase "special circumstances" lacks precision, it "is sufficiently understood in our view not to require judicial gloss" (at 674).

4. The Court affirmed the decision of the Tribunal under review in that case, Re Beadle (supra), in which the Tribunal, whilst acknowledging that the phrase "special circumstances" is "incapable of precise or exhaustive definition", said, nevertheless, that the circumstances "must have a particular quality of unusualness that permits them to be described as special" (at 3).

5. In Groth (supra), at 545, Keifel J, after referring to the Full Federal Court's decision in Beadle (supra), observed that special circumstances:

   Would require something to distinguish Mr Groth's case from others, 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.

1. In the Federal Court decision in Secretary, Department of Social Security v Hales (1998) 82 FCR 154, French J said of the "concept" of special circumstances in the parallel provision in the Social Security Act 1991, section 1237AAD:

   The evident purpose of section 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words: (at 162).

1. Are there "special circumstances" in the present case? The Applicant has acknowledged that it was his mistake which led to the debt arising in the first place. Essentially, it appears that he did not take sufficient care in checking the AUSTUDY Form (T4), in reading the AUSTUDY Notes and Information Booklet, or providing his wife with these latter documents to refer to when she was completing her part of the form in December 1997.

1. However, it appears there was also a mistake by Centrelink in processing Mrs Gentle's Additional Parenting Allowance Review form in May 1998 (R2). The Tribunal accepts Mrs Gentle's oral evidence that she took the form in to the Shellharbour Centrelink office on 12 May 1998, with a bag of other documentation including bank statements, to seek help in completing question 6 which required her to state her husband's income. She explained that the asterisks on the form were to remind her to seek assistance in completing her answer to this question. She said that a Centrelink officer took photocopies of some of her documentation and said he would complete this question for her. Mrs Gentle relied on this in leaving the form with the officer.

2. Had the form been completed correctly, detailing the Applicant's income, then this should have triggered a review of Mrs Gentle's Parenting Allowance and/or the Dependent Spouse Allowance paid to the Applicant as part of his AUSTUDY payment. As a result, the overpayment would have ceased on or about 12 May 1998 when Mrs Gentle lodged the form. In the Tribunal's view, recovery of the debt in respect of the period after 12 May 1998 would be unfair in these circumstances, especially in the light of the other personal and financial problems currently facing the Applicant.

3. The third and final requirement of section 290C is that it is more appropriate to waive than to write off recovery of the debt. To write off recovery of a debt under the Act is to postpone recovery until a later date. Given the Applicant's secure employment and regular income, the Tribunal does not consider write off appropriate despite his current financial problems. At least some of those financial problems will, hopefully, be resolved in the forthcoming discussions with his wife and in the court proceedings relating to their property settlement and his Child Support payments.

4. The Tribunal therefore considers it is appropriate to waive recovery of that portion of the debt which relates to the period 13 May to 3 July 1998. With regard to the balance of the debt, while the Tribunal acknowledges the Applicant's current difficult circumstances as a result of his marital separation, consequent financial situation and illness, it is of the view that this part of the debt should be recovered. The debt arose out of the Applicant's mistake. Although the Tribunal accepts that he was not aware of the mistake at the time, nevertheless, had he taken more care in completing the form, a degree of care which was not onerous in view of the clear information provided to him, then the debt would not have occurred. The Applicant's other circumstances are not sufficiently special to warrant disregarding this.

5. However, in the light of the Applicant's current financial situation, he would be well advised to negotiate payment of the debt by such instalments as are reasonable in his present circumstances. Such instalments may be reviewed from time to time to take into account any change in his circumstances.

6. In conclusion, the Tribunal sets aside the decision under review and substitutes a new decision that recovery of that portion of the debt which relates to the period 13 May to 3 July 1998 be waived, with the balance of the debt to be recovered by instalments.

I certify that the preceding 57 paragraphs are a true copy of the reasons for the decision of :

Mr R P Handley, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  4 August 2000
Date of Decision  8 September 2000
Self represented Applicant
Solicitor for the Respondent    Ms Susan Fraser