Glover and Department of Family and Community Services - [2001] AATA 582

DECISION AND REASONS FOR DECISION [2001] AATA 582

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/716

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PATRICK GLOVER
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr. I.R. Way, Member

Date26 June 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................Signed..............................
I.R. WAY
MEMBER

CATCHWORDS
SOCIAL SECURITY – Family Allowance – Overpayment – whether discretion to write off or waive debt wholly or in part should be exercised – failure to notify true financial position
Social Security Act 1991: s 860, 861, 885 (1), (2), (3), 885, 891 Module H1-H21,1223, 1236,1237AAD
James v Secretary, Department of Family and Community Service (AAT A1997/168)

REASONS FOR DECISION

Mr. I.R. Way, Member

This is an application by Patrick Glover (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 17 March 1999 which affirmed a decision of Centrelink to raise and recover an overpayment of Family Allowance to Wendy Glover (the applicant's wife) in the amount of $3,459.60 paid from 25 August 1997 to 1 July 1999.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T52). The applicant was self-represented and also represented his wife, Mrs. Glover. He gave oral evidence.
ISSUES
The issues in this matter are:

Whether Mrs. Glover was overpaid Family Payment in the amount of $3,459.60 and if so;
Whether the debt should be written off or waived wholly or in part.

LEGISLATIVE FRAMEWORK

The Social Security Act 1991 (the Act) relevantly provides as follows:
"SECTION 860 RATE STRUCK FOR CALENDAR YEAR
860 If the rate of the family allowance payable to a person in a calendar year has been worked out in accordance with the Family Allowance Rate Calculator in section 1069, the rate of family allowance payable to the person only has to be worked out again during that calendar year if:
(a)the person notifies the Department or an officer that a notifiable event has occurred in relation to the person; or
(b)a notifiable event has occurred in relation to the person and the person fails to notify the Department that it has occurred; or
(c)the Secretary makes a determination in relation to the person under point 1069-H21 in Module H of the Family Allowance Rate Calculator in section 1069; or
(ca)family allowance advance is or is not payable for a particular period; or
Note:(Omitted by No 106 of 1995, s 3(1), Sch 2(20)).
(d)the person revises an estimate of his or her income; or
(e)the person has underestimated his or her income; or
(f)the Commissioner of Taxation changes an assessment of the person's taxable income.
History
S 860 substituted by No 69 of 1992, s 3; amended by No 134 of 1992, s 7, Sch; No 106 of 1994, s 3(1), Sch 2(19), (21); No 197 of 1997, s 3. Sch 3, Pt 1(43).
Note: (Omitted by No 106 of 1994, s 3(1), Sch 2(22).)
Note 2: (Omitted by No 69 of 1992. S 3.)
SECTION 861 HOW TO WORK OUT A PERSON'S FAMILY ALLOWANCE RATE
861 The rate of family allowance payable to a person or to an approved care organisation for an FA child is worked out using the Family Allowance Rate Calculator at the end of section 1069.
History
S 861 (former s 861(1) amended by No 194 of 1991, s 73. Sch 2: substituted by No 69 of 1992, s 3; amended by No 197 of 1997, s 3. Sch 3. Pt 1 (43).
Notes 1-3: (Omitted by No 106 of 1994. S 3(1), Sch 2(23).)
SECTION 885 RECALCULATION IF INCOME EXCEEDS 110% OF ESTIMATED AMOUNT
885(1) [Recalculation of rate] If:
(a)in working out the rate of family allowance payable to a person, regard is had to the person's income for a tax year; and
(b)the income to which regard was had consisted of an amount estimated by the person; and
(c)the person's income for that tax year is more than 110% of the amount of the income on which the determination of the rate of family allowance was based;
the person's rate of family allowance is to be recalculated on the basis of that income.
History
S 885(1) inserted by No 106 of 1994, s 3(1). Sch 2(31); amended by No 197 of 1997, s 3, Sch 3, Pt 1(43).
885(2) [Definition of income] For the purposes of this section, a person's income for a particular tax year is the sum of:
(a)       the person's taxable income for that year; and
(b)       the person's adjusted fringe benefits value for that year; and
(c)       the person's target foreign income for that year; and
(d)       the person's net rental property loss for that year.
History
S 885(2) inserted by No 106 of 1995, s 3(1) Sch 2(31).
885(3) [Adjusted fringe benefits value] In this section:
          "adjusted fringe benefits value" has the same meaning as in points 1069-H25 and 1069-H26 in Module H of the Family Allowance Rate Calculator in section 1069.
History
S 885(3) substituted by No 106 of 1995, s 3(1), Sch 2(31):
Amended by No 197 of 1997. S 3, Sch 3. Pt 1(43).
Note 1:     For taxable income see subsection 23(1).
Note 2:     For target foreign income see subsection 10A(2).
Note 3:     For net rental property loss see subsection 10A(15).
History
Notes substituted by No 106 of 1995. S 3(1). Sch 2(31).
SECTION 891 UNDERESTIMATE OF INCOME – DATE OF EFFECT OF DETERMINATION
891    If:
(a)the Secretary makes a determination of a person's rate of family allowance; and
(b)in making the determination, the Secretary had regard to the person's income for a tax year; and
(c)the income to which regard was had included an amount or amounts estimated by the person; and
(d)the person's income for the tax year is more than 110% of the amount of the income on which the determination referred to in paragraph (a) was based; and
(e)the Secretary makes a determination varying the person's rate of family allowance, or cancelling the person's family allowance, to give effect to the recalculation required by section 885;
the later determination takes effect on the day on which the earlier determination took effect.
History
S 891 substituted by No 106 of 1995, s 3(1), Sch 2(39); amended by No 197 of 1997, s 3, Sch 3, Pt 1(43).
MODULE H – FAMILY ALLOWANCE INCOME TEST
Persons to whom the income test applies
1069-H1. The family allowance income test in Submodule 3 applies to a person unless the person, or the person's partner, is receiving a social security pension, a social security benefit, a youth training allowance or a service pension.
History
Point 1069-H1 substituted by No 106 of 1995, s 3(1), Sch 3(1); amended by No 197 of 1997, s 3, Sch 3, Pt 1(131).
Income
1069-H2. For the purposes of this Module, a person's family allowance income for a particular tax year is the sum of the following amounts (income components):
(a)       the person's taxable income for that year;
(b)       the person's adjusted fringe benefits value for that year;
(c)       the person's target foreign income for that year;
(d)       the person's net rental property loss for that year.
History
Point 1069-H2 substituted by No 106 of 1995. S3(1), Sch 3(1); amended by No 197 of 1997, s 3, Sch 3, Pt 1(131).
Income of members of couple to be added
1069-H3 For the purposes of this Module, if a person is a member of a couple, the person's income for a tax year includes the income for that year of the person's partner.
Fringe benefits value
1069-H4 For the purposes of this Module, a person's fringe benefits value for a tax year is the sum of the values of all the assessable fringe benefits received by the person in that tax year.
Assumed notifiable events
1069-H4. For the purposes of this Module, a person's fringe benefits value for a tax year is the sum of the values of all the assessable fringe benefits received by the person in that tax year.
Assumed notifiable events
1069-H5 An event is an assumed notifiable event for the purposes of the applciation of this Module in respect of a person if a family allowance claim form approved by the Secretary that was lodged by or on behalf of the person states that the event is an assumed notifiable event for the purposes of this Module.
1069-H6 An event is a notifiable event for the purposes of the application of this Module in respect of a person if a notice given to the person under subsection 872(1) states that the event is a notifiable event for the purposes of this Module.
Person with unknown income for tax year
1069-H7(1) If a person does not have any one or more of the income components for a tax year in accordance with point 1069-H8, the person is taken to have an unknown income for that year.
Note 1: For income component see point 1069-H2.
Note 2: A person is not qualified for family allowance if an income component of the person for the tax year is unknown (see points 1069-K1 and 1069-K2).
1069-H7(2) For the purposes of subpoint (1), a person has an income component even though the amount of the component is nil.
Income components for tax year
1069-H8(1) A person's taxable income for a tax year is:
(a) the person's assessed taxable income for that year; or
(b) if the person does not have an assessed taxable income for that year--the person's accepted estimate of taxable income for that year.
1069-H8(2) A person's adjusted fringe benefits value for a tax year is:
(a) the amount of that value as determined by the Secretary; or
(b) if a determination of that amount for that year has not been made by the Secretary--the person's accepted estimate of that amount for that year.
1069-H8(3) A person's target foreign income for a tax year is the person's accepted estimate of the amount of that income for that year.
1069-H8(4) A person's net rental property loss for a tax year is the person's accepted estimate of the amount of that loss for that year.
Assessed taxable income
1069-H9 A person's assessed taxable income for a tax year at a particular time is the most recent of:
(a) if, at that time, the Commissioner of Taxation has made an assessment or an amended assessment of that taxable income--that taxable income according to the assessment or amended assessment; or
(b) if, at that time, a tribunal has amended an assessment or an amended assessment made by the Commissioner--that taxable income according to the amendment made by the tribunal; or
(c) if, at that time, a court has amended an assessment or an amended assessment made by the Commissioner or an amended assessment made by a tribunal--that taxable income according to the amendment made by the court.
Accepted estimate
1069-H10 A person's accepted estimate of an income component for a tax year is that income component according to the most recent notice given by the person under point 1069-H11 and accepted by the Secretary for the purposes of this Module.
Notice estimating income component
1069-H11 A person may give the Secretary a notice setting out the person's estimate of an income component of the person for a tax year.
Acceptance of notice
1069-H12 The Secretary is to accept a notice referred to in point 1069-H11 for the purposes of this Module only if the Secretary is satisfied that the estimate is reasonable.
Appropriate tax year
1069-H13 Subject to the following provisions of this Submodule, the appropriate tax year for a family allowance payday is the base tax year for that payday.
Base tax year
1069-H14 The base tax year for a family allowance payday is the tax year that ended on 30 June in the calendar year that came immediately before the calendar year in which the payday occurs.
Example:
A family allowance payday occurs on 25 January 1995--this day occurs in the calendar year 1 January 1995 to 31 December 1995--the calendar year that came immediately before this one is the calendar year 1 January 1994 to 31 December 1994--the base tax year is the tax year that ended on 30 June 1994
(ie the year of income that began on 1 July 1993).
Current tax year to be retained for consecutive calendar years in certain circumstances
1069-H15 If:
(a) family allowance is payable to a person:
(i) on the last family allowance payday in one calendar year; and
(ii) on the first family allowance payday in the next calendar year; and
(b) the person's family allowance rate on the last family allowance payday in the earlier of the 2 calendar years is worked out on the basis that the person's appropriate tax year is the tax year in which the payday occurs (the current tax year); and
(c) the person's family allowance rate on that payday was worked out on that basis because the person had made a request under point 1069-H21; and
(d) the person's income for the current tax year is less than the person's income for the base tax year;
the person's appropriate tax year, as from the beginning of the later calendar year, is the current tax year and not the base tax year unless the income for the base tax year is less than the person's income free area.
Note: For income see point 1069-H2.
Change to appropriate tax year because of assumed notifiable event
1069-H16 If:
(a) an assumed notifiable event in relation to a person occurs after the end of the base tax year and before the beginning of the family allowance period; and
(b) the person's income for the tax year in which the assumed notifiable event occurs exceeds:
(i) 110% of the person's income for the base year; and
(ii) 110% of the person's income free area;
the appropriate tax year, for the purpose of applying this Module to the person from the beginning of the family allowance period, is the tax year in which the assumed notifiable event occurs.
Note 1: For assumed notifiable event see point 1069-H5.
Note 2: For income free area see Table H2.
Note 3: For family allowance period see subsection 6(1).
Note 4: For income see point 1069-H2.
Change to appropriate tax year because of effect of assumed notifiable event on income for later tax year
1069-H17 If:
(a) an assumed notifiable event occurs in relation to a person after the end of the base tax year and before the beginning of the family allowance period; and
(b) point 1069-H16 does not make the year in which the event occurs (the event tax year) the appropriate tax year; and
(c) the person's income for the tax year that follows the event tax year is likely to exceed:
(i) 110% of the person's income for the base tax year; and
(ii) 110% of the person's income free area;
the appropriate tax year, for the purpose of applying this Module to the person for:
(d) the part of the family allowance period in which the event occurs that comes after the end of the event tax year; and
(e) the next family allowance period after the one referred to in paragraph (d);
is the year that follows the event tax year.
Note: For income see point 1069-H2.
Change to appropriate tax year because of notifiable event
1069-H18 If:
(a) a notifiable event occurs in relation to a person; and
(b) the person's income for the tax year in which the notifiable event occurs exceeds:
(i) 110% of the person's income for the base tax year; and
(ii) 110% of the person's income free area;
the appropriate tax year, for the purpose of applying this Module to the person for the remainder of the family allowance period, is the tax year in which the notifiable event occurs.
Note 1: For notifiable event see point 1069-H6.
Note 2: For income see point 1069-H2.
Change to appropriate tax year because of effect of notifiable event on income for later tax year
1069-H19 If:
(a) a notifiable event occurs in relation to a person; and
(b) point 1069-H18 does not make the year in which the event occurs (the event tax year) the appropriate tax year; and
(c) the person's income for the tax year that follows the event tax year is likely to exceed:
(i) 110% of the person's income for the base tax year; and
(ii) 110% of the person's income free area;
the appropriate tax year, for the purpose of applying this Module to the person for:
(d) the part of the family allowance period in which the event occurs that comes after the end of the event tax year; and
(e) the next family allowance period after the one referred to in paragraph (d);
is the year that follows the event tax year.
Note: For income see point 1069-H2.
Change to appropriate tax year at recipient's request
1069-H20 If:
(a) a person requests the Secretary to make a determination under point 1069-H21; and
(b) as a result, the Secretary determines under that point that the appropriate tax year, for the purpose of applying this Module to the person for a family allowance payday on or after the day on which the request is made, is the tax year in which the person makes the request;
the appropriate tax year, for that purpose, is the tax year in which the person makes the request.
Family allowance recipient may ask Secretary to change appropriate tax year
1069-H21 If:
(a) family allowance:
(i) is not payable to a person because of this Module; or
(ii) is payable at a reduced rate because of this Module; and
(b) the person gives the Secretary an estimate of the person's income for a tax year; and
(c) the person requests the Secretary to make a determination under this point; and
(d) the person agrees that the person's rate of family allowance for that tax year is to be recalculated if the person's actual income for that tax year exceeds 110% of the amount estimated by the person;
the Secretary must determine that the appropriate tax year, for the purpose of applying this Module to the person for a family allowance payday on or after the day on which the request is made, is the tax year in which the request is made.
Note 1: For income see point 1069-H2.
Note 2: For the consequences of underestimating income see section 885.

SECTION 1237AAD WAIVER IN SPECIAL CIRCUMSTANCES
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 a false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
Note:Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

SECTION 1236 SECRETARY MAY WRITE OFF DEBT
1236(1) [Write off of debt] 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) [Class of debts] 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.

1223(3) Recalculation of rate of family allowance Subject to subsection (4), if:
(a) an amount (the received amount) has been paid to a person by way of family allowance; and

(b) the person's rate of family allowance is recalculated under:
(i) section 884 (amendment of assessable income); or
(ii) section 885 (underestimate of income); or
(iii) section 886 (failure to notify notifiable event); or
(c) the received amount is more than the amount (the correct amount) of the family allowance payable to the person;

the difference between the received amount and the correct amount is a debt due to the Commonwealth.
Note: For the date of effect of a determination made to take account of an amendment of assessable income, see section 890.

Family allowance recoverable after end of tax year
1223(4) Family allowance recoverable after end of tax year. If:
(a) family allowance is paid to a person in a tax year; and
(b) apart from this subsection an amount of family allowance would become recoverable under subsection (3) before the end of the tax year; and

(c)      the amount would be recoverable because of:
(i)       an increase in the person's income; or
(ii)      an underestimate of the person's income;

the amount is recoverable only after the end of the tax year.
Note: a person's taxable income is defined in point 1070-D11. A person's taxable income may increase, amongst other reasons, because the person underestimated his or her taxable income and the Commissioner of Taxation has made a subsequent assessment of the person's taxable income.
Incorrectly paid amount
1223(5) Incorrectly paid amount. If:
(a) an amount (the received amount) has been paid to a person by way of social security payment on or after 1 October 1997; and
(b)because the received amount had not been correctly calculated using the relevant rate calculator, or for any other reason, the received amount is greater than the amount (the correct amount) of social security payment that should have been paid to the person under this Act;

the difference between the received amount and the correct amount is a debt due to the Commonwealth.
Amount calculated using non-income/assets tested add-on amount."

APPLICANT'S EVIDENCE

The applicant told the Tribunal that he was married with three children at school and that he had worked all his life, had been "brought up on principle" and always paid his debts.
He came to Queensland in 1997 after leaving METRO with a redundancy payment. He said that he did not realise his redundancy payment would be added to his total income, that he had put the payment into the money market and thought that the interest earned by his invested Eligible Termination Payment (ETP) would be the only "income" received.
He said both he and his wife work and that the family is not in financial hardship.
He said that the family combined income in 1989 was approximately $45,000 which was well below the threshold for payment of Family Allowance. He said he accepted that as a result of his misunderstanding about declaring his ETP in 1997/98 and this subsequently being assessed by Centrelink, his combined net income in 1997/98 was $95,569 and because of this there was an overpayment of Family Allowance at this time. He said that what he could not accept was that this level of income had also been used to assess eligibility for Family allowance in 1998/99 when in reality his combined income for that period was only $45,600 and any Family Allowance payments during this period should not be treated as overpayments.
He admitted he was at fault in 1997/98 and said that he had willingly paid back approximately half of the total debt as a result of this. However, he strongly objected on principle and on the fact that his real combined income in 1998/99 was well below the threshold for Family Allowance, to being penalised by the raising of an overpayment for 1998/99. He said that the outstanding debt at present was $1,637.53 and in view of the circumstances he requested that this amount be waived.
CONSIDERATION
In order to understand more fully why Centrelink used the 1997/98 tax year as the basis for assessment of Mrs. Glover's Family Allowance during the overpayment period, it is necessary to look more closely at the legislative requirements and how these requirements relate to Mr. and Mrs. Glover. The application of the requirements were well summarised at the hearing by the respondent and the applicant, while not accepting outcomes, accepted the summary as presented by the respondent fairly represented what had happened.
The Tribunal is also satisfied that the summary as presented by the respondent and as set out below in paragraphs 12 to 27 is accurate and so finds.
The Family Allowance income test is set out in section 1069 Module H. Under the Family Allowance Income Test it is necessary to work out what is the appropriate tax year from time to time. Family Allowance is calculated by using the couple's combined taxable income (assessed or estimated) for the appropriate tax year.
Subject to certain exceptions the appropriate tax year will be the tax year ending in the previous calendar year. The main exceptions are:

If a notifiable event (eg changing jobs) occurs, the approximate tax year may become the current tax year if certain criteria are met;
If the customer requests to be paid on a current tax year estimate.

At all times during the overpayment period Mrs. Glover was paid the minimum rate of Family Allowance, not the additional amounts which are payable to families with lower incomes. The maximum and minimum rates, and thresholds at which maximum rates can be paid and beyond which not even the minimum rate can be paid are as set out at T4/39-41.
From January 1997 Mrs. Glover was paid on combined 1995/96 income of $52,906 (T5/43, T7/46).
In August 1997 Mr. Glover changed jobs which was a notifiable event as per T5/43. Therefore, a 1997/98 estimate was required to determine if H18 applied. On a Changes to Income and Assets form processed on 8 September 1997, the Glovers gave an estimate of combined income of $42,000 for 1997/98 and Mrs. Glover was then paid on this estimate (T7/46). Centrelink no longer has this form so it is not clear if the Glovers requested to be paid on this estimate. If they had H21 required Centrelink to pay Family Payment on the basis of this estimate. As it turned out to be an underestimate, Centrelink (when it was informed of actual 1997/98 assessed income) had to recalculate Mrs. Glover's rate of Allowance based on actual 1997/98 income (section 885 and section 891 of the Act). If the Glovers did not request to be paid on the estimate, then Centrelink would still have had to have regard to the estimate to determine if H18 applied. Thus a recalculation would still be required when Centrelink was ultimately informed of assessed 1997/98 income. The rationale for this is that if the Glovers had supplied an accurate 1997/98 estimate in September 1997, H18 would have been triggered; 1997/98 would have become the appropriate tax year and combined income of $95,569 would have resulted in Mrs. Glover's rate being nil. Family Allowance would have been cancelled.
On 27 October 1997 the Glovers lodged an end of year review form (T14/67-68). As explained in the Question Guide, answers would be used to work out Mrs. Glover's rate in 1998 and may also be used to re-assess her current rate (T13/53). On the form the Glovers advised that 1996/97 combined income had been $56,597 (T14/67). 1996/97 would become the base tax year for calendar year 1998.
In Question 7 it was indicated by ticking box G that 1997/98 income would be less than 1996/97 income and that the applicant wished to have Family Allowance assessed on 1997/98 income (T14/67, T13/60), estimated at $40,000 (T14/68).
For the remainder of 1997 calendar year, Mrs. Glover was paid Family Allowance based on the $40,000 estimate for 1997/98 (T19/73-75, T44/148). For the reasons explained earlier, a re-calculation was subsequently required when assessed 1997/98 income was known, whether one regards H18 or H21 as the operative provision.
In calendar year 1998, Mrs. Glover was paid Family Allowance on the basis of the 1997/98 estimate of $40,000, as requested in the end of year form and in accordance with H21. Centrelink's letter dated 14 December 1997 informed Mrs. Glover of the basis of payment (T20/76-78). The letter said she should tell Centrelink if 1997/98 income would be more than $44,000, and that she could change her estimate at any time.
As it was, 1997/98 was being used as the appropriate tax year by virtue of the Glovers request in T14.
On 19 November 1998 a end of year review form was lodged (T31/106-107). In Questions 4 to 6, the Glovers were asked about 1997/98 income. 1997/98 would become the base tax year for calendar year 1999. The Glovers advised that in 1997/98 Mrs. Glover's taxable income had been $18,000 and that they had not yet lodged a return but that an estimate of 1997/98 income would be $22,000. There was no request in Question 7 to be paid on 1998/99 income.
Accordingly, in calendar year 1999 the appropriate tax year was the base tax year namely 1997/98 (H13). Centrelink's letter to Mrs. Glover dated 27 December 1998 explained that from January 1999 Family Allowance would be paid on the basis of estimated 1997/98 income as tax returns had not yet been lodged. The letter asked Mrs. Glover to tell Centrelink the amount of taxable income shown on the returns when they were lodged. It advised that updated information would be required by the end of March 1999 (T32/108-109).
On 1 March 1999 Centrelink wrote to Mrs. Glover asking her to provide within fourteen days the 1997/98 notice of assessment or the 1997/98 tax return, or proof of a further extension of time to lodge (T13/111).
On 19 March 1999 Mrs. Glover telephoned Centrelink as evidenced by the document at T34/113. The officer has recorded "as we have client income indicated from taxation notice of assessment we only need partner income details", which would be a summary of what the officer advised Mrs. Glover. As the person being paid Family Allowance, Mrs. Glover would be the client and Mr. Glover would be the partner.
On 23 March 1999 a copy of the Glovers 1997/98 return was lodged at Palm Beach Centrelink, which indicated a taxable income of $45,490 (T35/114-119). Centrelink then updated the 1997/98 estimate to $63,490 which is the sum of Mrs. Glover's $18,000 and Mr. Glover's $45,490. Centrelink's letter of the same date advised that the $63,490 figure was being used.
Then the data match in October 1999 alerted Centrelink to a fact that combined taxable income for 1997/98 had been $95,569 (T39/127).
It was the respondent's contention that the debt had been correctly raised, that it was as a consequence of complying with the legislation in force at the time, that the Department had not made any administrative errors and that as the circumstances were not unusual, uncommon or exceptional there were no special circumstances which would warrant waiver.
After consideration of the material before it and the submissions made by both parties the Tribunal is satisfied that Mrs. Glover was paid Family Allowance for three children for the period 25 August 1997 to 1 July 1999 and the Glover's combined income for the 1997/98 financial year was $95,569. The Tribunal also is satisfied that in the absence of earlier notification from the Glovers about their true financial position, Centrelink correctly applied the relevant legislation provision in assessing the applicant's eligibility for Family Allowance during the period 25 August 1997 to 1 July 1999. Had the Glovers notified the Department earlier about their true financial position things would have been different. As the Tribunal noted in James v Secretary, Department of Family and Community Services (AAT A1997/168) at paragraph 16:
"In Dr. James case there is no suggestion that she intentionally or dishonestly withheld the information from the Department. However, Dr. James belief that the ETP did not form part of her taxable income is not the determining issue. Whether or not she is eligible for the Family Payment is an objective matter. It is her failure to notify the Department of her changed circumstances, no matter how innocent that failure was, that gave rise to the overpayment."

The Tribunal finds that Mrs. Glover during the period 25 August 1997 to 1 July 1999 was paid $3,459.60 in excess of her entitlement. The Tribunal also finds pursuant to section 1223(3) of the Act that this amount is a recoverable debt due to the Commonwealth.
Turning to the question of write off or waiver of the debt.
Section 1236 of the Act codifies the circumstances in which a debt can be written off, as set out in paragraph 4 above. The Tribunal is satisfied that none of the criteria of section 1236 are met in this case and that write off of the debt is not possible.
Waiver must be applied pursuant to section 1237A where there has been an administrative error made by the Commonwealth and if the debtor received in good faith the payment that gave rise to the debt. The Tribunal has already found that Centrelink correctly applied the relevant legislation. The Tribunal is satisfied that there is no administrative error and hence waiver under this section of the Act is not appropriate.
With respect to waiver under special circumstances pursuant to section 1237AAD of the Act, there is no suggestion in this matter that the Glovers knowingly made false statements or false representations. Insofar as special circumstances (other than financial hardship only) are concerned the Tribunal accepts the applicant's evidence that the family does not suffer financial hardship. The Tribunal is mindful that in considering special circumstances regard is to be had to the particular circumstances of each case and whether or not there are factors which would satisfy the Tribunal that waiver would be appropriate.
The Tribunal is sympathetic to the applicant's contention that the application of the provisions of the legislation in this matter have resulted in harsh and unfair consequences for the Glovers. However, it is not the Tribunal's role to determine matters outside of the relevant provisions of the legislation. In this case the provisions have been correctly applied and, as submitted by the respondent, the circumstances here are not so unusual, uncommon or exceptional as to warrant waiving of the debt and the Tribunal finds there are no special circumstances which make it desirable to waive the debt. In making this finding the Tribunal notes that the legislation as it applied at the time of determining this matter has been changed and that the current provisions are less complex and avoid the confusion of "matching financial years with calendar years".
The Tribunal affirms the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. I.R. Way, Member
Signed:         .....................................................................................
           R. Hayes, Associate
Date/s of Hearing  1 June 2001
Date of Decision  26 June 2001
Applicant  Mr. Glover, himself
Respondent  Mr. P. Kanowski, departmental advocate