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

[2021] AATA 722

Glover; Secretary, Department of Social Services and (Social services second review) [2021] AATA 722 (31 March 2021)

Division:GENERAL DIVISION

File Number:2019/5448          

Re:Secretary, Department of Social Services  

APPLICANT

AndGrant Stephen Glover

RESPONDENT

DECISION

Tribunal:Member P Ranson

Date:31 March 2021

Place:Brisbane

The decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal made on 29 July 2019 is set aside and in substitution the Tribunal decides a Newstart debt of $13,223.82 is due to the Commonwealth and is recoverable.

................................[SGD]..................................

Member P Ranson

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – overpayment – income reporting – whether there is a debt – what is the amount of debt – whether debt should be recovered – whether debt should be written off debt or waived – whether there is sole administrative error – whether there are special circumstances – reviewable decision is set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Guide to Social Security Law - Version 1.280 - Released 22 March 2021

REASONS FOR DECISION

Member P Ranson

31 March 2021

Table of Contents

Decision

Catchwords

Legislation

Secondary Materials

REASONS FOR DECISION

APPLICATION FOR REVIEW

PROCEDURAL BACKGROUND

FACTS, ISSUES AND CONTENTIONS

SECRETARY’S EVIDENCE

What did the Department do?

How was the debt of $13,223.82 calculated?

MR GLOVER’S EVIDENCE

What is Mr Glover’s position in relation to the debt?

Mr Glover’s written submissions

SECRETARY’S RIGHT TO RECOVER

Write off

Administrative error waiver

Special circumstances waiver

CONCLUSION

DECISION

APPLICATION FOR REVIEW

1. The Australian government provides a range of social security benefits to its citizens and other eligible residents. The delivery of those payments and services, especially social security payments, is provided by Services Australia through Centrelink.

2. At various times from 2010 to 2015, Mr Grant Glover (Mr Glover) was a recipient of both Newstart Allowance and Austudy Payment. For part of that time Mr Glover was studying at university and working to support himself. He knew there were rules about disclosing his income to Centrelink, which he says he complied with, and he arranged his work and non-work time to both maximise his benefits and properly disclose his income. As a result of overpayment of benefits, Mr Glover now has a debt due to the Commonwealth of just over $13,000, reduced from just over $31,000 when the debt was originally created.

3. Mr Glover was in receipt of Austudy Payment from July 2010 to March 2011 and Newstart Allowance from March 2011 to June 2015. Numerous notices were sent to Mr Glover during 2010 and 2011 reminding him of his reporting obligations, which he complied with. However, some inaccuracies and misinterpretation of the rules may have crept into the information he reported. In September 2016, the Department of Social Services (the Department), through Services Australia (formerly the Department of Human Services), became aware of new information about Mr Glover’s income. That information came from the Australian Taxation Office (ATO) and was based on either Mr Glover’s income tax returns as lodged by him or payment summaries lodged by his employers.

4. Based on the new information, the Department recalculated Mr Glover’s entitlement to Newstart Allowance and Austudy Payment by dividing his annual employment income by 26 to reduce it to a fortnightly equivalent and applying the result in determining his entitlement to benefits. That process created a debt in excess of $31,000 and that methodology has since been found to be incorrect. The matter came before this Tribunal in 2019 and the debt was reduced to just over $6,000 based on a reasonable estimate by the presiding Member. The Department subsequently obtained detailed payroll records for the relevant period from two of the five employers Mr Glover derived income from over that time. The income from the three employers who did not respond was excluded and the debt was then recalculated to just over $13,000.

5. For the reasons set out below, the previous decision of this Tribunal, see paragraph [‎15], should be set aside and in substitution the Tribunal finds the amount of the overpayments to Mr Glover are $13,223.82. That means Mr Glover has a debt due to the Commonwealth of that amount and it is recoverable.

PROCEDURAL BACKGROUND

1. The parties in this case are:

Applicant	Secretary, Department of Social Services (the Secretary)
Respondent	Grant Stephen Glover (Mr Glover)

1. The hearing in this application occurred on 22 February 2021 (the Hearing). Mr McQuinlan, representing the Secretary, attended the Hearing by video link facilitated by the Tribunal utilising Microsoft Teams (MS Teams). Mr Glover did not appear despite having been informed of the hearing. Attempts made before and during the hearing to telephone him were unsuccessful.

2. Instructions had been provided to Mr Glover to participate in the online hearing by MS Teams, although it was also foreshadowed it could proceed by telephone, the intent being to offer such option to him. On Friday 19 February 2021 Mr Glover indicated to my associate he would prefer not to appear by video preferring a telephone call. He said this was to allow him to view documents on his laptop computer during the hearing. The Tribunal agreed to that arrangement.

3. Several attempts were made by my associate from the outset of the Hearing at 10:00 am until 10:30 am to contact Mr Glover by telephone, as he had requested, and once by e‑mail to enable him to join the Hearing. There was no indication the e-mail was not successfully transmitted. No message could be left advising Mr Glover the Tribunal was ready to proceed with the Hearing because there was no voicemail facility on the number called to enable a message to be left. The Hearing proceeded at 10:30 am without Mr Glover present.

4. All e-mail communications with Mr Glover have been directed to the e-mail address provided by him. His e-mail address was confirmed as accurate as recently as 19 February 2021 when my associate was in contact with him in preparation for the hearing. His mobile phone number was also confirmed on 19 February 2021 as Mr Glover’s contact phone number because my associate spoke with him that afternoon on that number.

11.  On 23 February 2021, the day after the hearing, an e-mail was sent to Mr Glover which said:

This application was listed for a hearing by videoconference on Monday, 22 February 2021, at 10:00 am (AEST). At the commencement of the hearing, the Tribunal attempted to call your mobile number [redacted – number ending 6504] four times. Because you did not answer any of the calls, the hearing proceeded in your absence.

Given your readiness for the hearing on Friday, 19 February 2021, was there any reason why you were not available to join the hearing? If so, please provide reasons and supporting evidence (for example, a medical certificate).

If you do not respond to this email within 14 days, then the Tribunal will decide this application on the evidence currently before the Tribunal.

The contents of the e-mail were also sent to Mr Glover by post to his last known address. Later it came to the attention of the Tribunal Mr Glover has a new address at Coral Cove Qld 4670 (the Coral Cove Address) which he had advised only to the Secretary. The Secretary passed on the new address to the Tribunal on 8 March 2021 and all subsequent correspondence, which had been sent to his previous address, was sent to the Coral Cove Address including a copy of the Tribunal’s letter of 23 February 2021. The Tribunal confirmed via Australia Post tracking the letter of 8 March 2021 was delivered on 10 March 2021 at 9:52 am.

12.  On Monday 8 March 2021 the Tribunal called Mr Glover three times on the mobile number he provided and there was no answer and still no voicemail on which to leave a message.

13.  Having regard to the circumstances set out above, the Tribunal considers Mr Glover had every opportunity to participate in the Hearing and present evidence in support of his position and he has chosen not to do so. Having concluded there was no lack of procedural fairness to Mr Glover the Tribunal has proceeded to decide the matter in his absence.

FACTS, ISSUES AND CONTENTIONS

14.  At various times, Mr Glover was in receipt of benefits from the Department. The time periods which are relevant to this decision and the benefits received are as follows:

a)    Austudy during the period 3 July 2010 to 11 March 2011; and

b)    Newstart during the period 12 March 2011 to 28 June 2015.

15.  On 29 July 2019 the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal set aside the decision of the Department to raise and recover a debt due from Mr Glover for overpaid Newstart Allowance (Newstart) and Austudy Payment (Austudy) of $31,346.86 and, in substitution, decided Mr Glover had incurred a debt of $6,260 during the period 3 July 2010 to 28 June 2015 (the Relevant Period) (AAT1). The AAT1 decision otherwise found the debt was recoverable from Mr Glover’s income tax refund although a 10% recovery fee was not to be applied.

16.  On 2 July 2019, the Secretary lodged an application for review of AAT1 with the General Division of this Tribunal. In the application for review, the Secretary states the reason why he believes the decision is wrong. He states: ‘The AAT1 erred in finding that the debt amount to be recovered was $6,260 and in particular erred in adopting an "estimation" of the amount of the overpayment per annum.’ The Secretary acknowledges the Member who presided in the AAT1 case did not have the benefit of detailed payroll records obtained by the Department after the AAT1 decision was handed down.

17.  In his e-mail of 20 December 2020, Mr Glover reiterates the basis of his case and asserts:

I have had already explained to them I moved work days around to allow me to spend one fortnight focusing on Univesity [sic - University] studies and the next fortnight focusing on make enough money to stay alive. the one or two days they are moving around each fortnight makes up a big difference. Until they can demonstrate that each fortnight where I have claimed the wrong among [sic – amount] I ask that the entire amount be set aside as they have still not found and method on calutating [sic – calculating] properly or even to there on [sic – their own] guidelines of money earned on days of pay period. They should have demonstrated each pay peroid [sic – period] they believe I was over paid and by how much and I am sure the simply be moving one day in that fortnight the earnings I submitted were correct.

18.  The Secretary provided a Statement of Facts & Contentions, including the issues identified by the Secretary, dated 21 September 2020 (SFIC), which sets out in detail the law relevant to this case with which the Tribunal concurs. As a copy of the SFIC was provided to Mr Glover prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in Social Security Act 1991 (Cth) (the Act) and Social Security (Administration) Act 1999 (Cth) (the Administration Act). The SFIC also refers to the Guide to Social Security Law (the Guide) which contains the relevant policy. The Secretary asserts policy in the Guide should be applied in the absence of cogent reasons not to do so.

19.  The SFIC identified the issues to be decided in this case as:

a)    Whether Mr Glover was overpaid benefits during the period 3 July 2010 to 28 June 2015 and if so;

b)    what is the amount of the overpayment; and

c)    whether the overpayment constitutes a debt to the Commonwealth; and

d)    whether all or part of the debt may be written-off or waived.

20.  The following documents were admitted into evidence:

Exhibit 1	Section 37 T-Documents of 683 pages.
Exhibit 2	Secretary’s Statement of Facts & Contentions dated 21 September 2020 of 109 pages.
Exhibit 3	The Secretary’s Statement of Position dated 27 February 2020 of 69 pages.
Exhibit 4	Secretary’s e-mail of 16 February 2021 with a copy of relevant extracts for the legislation in force in 2010 of 40 pages
Exhibit 5	E-mail from Mr Glover dated 20 December 2020 of 2 pages.
Exhibit 6	E-mail from Mr Glover dated 20 January 2021 of 2 pages.

1. The historical facts around the social security benefits paid to Mr Glover, and the origin of the debt currently in dispute, are set out in detail in [5] to [26] of the SFIC. On 5 August 2010, the Department issued Mr Glover with an information notice requiring him to report his income. Numerous other such notices were issued to Mr Glover during 2010 and 2011.

22.  The Secretary acknowledges Mr Glover regularly reported his earnings from employment. Austudy and later Newstart benefits were paid to him based on his reported earnings. In a telephone call to the Department on 9 March 2017 Mr Glover is recorded as saying: ‘he may have under declared his income but was not intentional.’[1]

[1] SFIC Annexure 1, page 6.

23.  At some point Mr Glover may have lodged some or all of his personal income tax returns for the 2011 to 2015 financial years inclusive, or his employers lodged payment summaries with the ATO, because on 27 September 2016 the ATO reported his income from employment to the Department. That indicated Mr Glover had earned more than he had reported.

24.  This discrepancy was advised to Mr Glover by letter on 5 October 2016, which was followed up by letter on 13 October 2016. It seems Mr Glover did not respond to these letters.

25.  Without a response from Mr Glover and with no better information to go on, the Department apportioned his annual employment income across each financial year and recalculated his entitlement to Austudy and Newstart. This process resulted is a debt of $31,346.84, including a 10% recovery fee, due by Mr Glover to the Commonwealth, which was advised to him by letter dated 23 October 2016.[2]

[2] T20, page 102.

1. Mr Glover was dissatisfied with the recalculation of his entitlements and on 9 March 2017 he requested a review of the decision, which was conducted by a Subject Matter Expert from the Department and resulted in a reduction of $140.23. On 5 July 2017 an Authorised Review Officer (ARO) reviewed the calculations again and reinstated the debt to $31,346.84, still inclusive of a 10% recovery fee. Almost two years later, on 28 May 2019, Mr Glover requested a review of the ARO decision by the Social Security and Child Support Division of the Tribunal. The resultant decision is referred to in this decision as AAT1, see paragraph [‎15]. The AAT1 decision did not have the benefit of detailed payroll records obtained by the Department after the AAT1 decision was handed down.

2. At a Telephone Directions Hearing on 12 February 2021, Mr Glover complained the Department did not attend the AAT1 hearing, which is consistent with his e-mail of 23 September 2019 where he states: ‘Since centelink [sic – Centrelink] could not be bother [sic – bothered to] turned up to the orginal [sic – original] hearing …’. Mr Glover may not be aware the Department does not attend such hearings until they are heard in the General Division of the Tribunal, so their absence from the AAT1 hearing meant no disrespect to him.

28.  Mr McQuinlan tendered evidence at the Hearing which showed the Department had written to all five employers from whom Mr Glover derived income during the Relevant Period. Only two responded, viz, Surf Life Saving Queensland and Restaurant Ventures Queensland. The entitlements of Mr Glover to Austudy and Newstart were then recalculated based on the records received from those two employers and the income from the three employers who did not respond was ignored.

29.  As a result, the amount of overpaid benefits was revised down to $13,223.82 comprised of Newstart Allowance debts of:

a)    $154.02 for the period 22 November 2010 to 25 February 2011.

b)    $2,801.73 in respect of the period 10 September 2011 to 10 August 2012

c)    $10,268.07 in respect of the period 21 February 2013 to 8 July 2015.

30.  In his letter dated 27 February 2020, the Secretary states: ‘The Secretary notes that no Austudy debts have been calculated as there are no verified earnings for periods where Mr Glover was in receipt of Austudy.’ This arises apparently because there is no verified employment income for the period when Mr Glover was in receipt of Austudy.

31.  The SFIC notes at [27] the debt to the Commonwealth, which is wholly due to overpaid Newstart Allowance, is currently paused with no repayments being made at this time. The Tribunal notes from the Services Australia website the pause on debt activity will end from 11 January 2021 with repayments restarting in February 2021.

32.  Newstart (now referred to as Jobseeker Payment)[3] is calculated in accordance with a Payment Rate Calculator which states the daily rate is worked out by dividing the fortnightly rate by 14. The ordinary income of the recipient is ‘an income amount that is earned, derived or received by the person’ unless it is maintenance income or otherwise exempt.

[3] As of 20 March 2020, pursuant to s 2 of the Social Services Legislation Amendment (Welfare Reform) Act 2018 (Cth).

33.  If a social security payment is made and the person who receives it was not entitled for any reason to obtain some or all of that benefit, the amount of that payment or overpayment is a debt due to the Commonwealth by that person.[4]

SECRETARY’S EVIDENCE

[4] Section 1223(1) of the Act.

What did the Department do?

34.  Mr Glover had been in receipt of social security benefits since 2008 although this decision is only concerned with the period from 3 July 2010 to 28 June 2015. On 20 April 2010, the Department issued an information notice to Mr Glover advising him he was required to report his earnings.[5] On 5 August 2010 the Department issued another information notice requiring Mr Glover to report his income.[6]

[5] T31, pages 136-138.

[6] T31, pages 141-142.

35.  Various other such notices were issued by the Department to Mr Glover over the period from December 2010 to July 2011. The Secretary acknowledges Mr Glover did report his earnings and his benefits were paid to him based on that information.

36.  Responding to income information provided by the ATO from employer payment summaries it had received, on 5 October 2016 the Department wrote to Mr Glover advising of the income information provided by the ATO asking him to check his records and comment accordingly. This letter was followed up with a reminder and no response was received from Mr Glover.

37.  In summary, the ATO information was as follows:

Period	Payer	Gross Income
17-07-2010 to 30-06-2011	Sassi Dining[7]	10,491
01-07-2010 to 30-06-2011	Topswim Enterprises	109
04-10-2011 to 10-11-2011	Workcover Qld	6,763
01-07-2010 to 22-06-2011	Surf Life Saving Qld	10,370
01-07-2011 to 30-06-2012	Surf Life Saving Qld	19,745
01-07-2012 to 30-06-2013	Surf Life Saving Qld	26,224
01-07-2013 to 30-06-2014	Surf Life Saving Qld	32,333
01-07-2014 to 30-06-2015	Surf Life Saving Qld	33,839

[7] Pacific Waters Pty Ltd trading as ‘Sassi Dining’.

38.  With no response from Mr Glover and no better information, the Department apportioned the employment income on an annualised basis and reassessed Mr Glover’s entitlements to Austudy and Newstart on the basis his earnings had not been correctly reported. That reassessment created a debt of $31,346.84 inclusive of a 10% recovery fee. This debt was advised to Mr Glover by letter dated 21 October 2016. Relevantly, this method of reassessing entitlements to social security benefits has since been found to be incorrect.

1. Mr Glover was understandably dissatisfied with this reassessment and on 9 March 2017, almost six months later, he requested a review of the decision. A Subject Matter Expert in the Department checked the calculations and revised the debt down by $140.23.

40.  Still dissatisfied with the decision Mr Glover requested a review by an ARO who reset the debt back to the original level of $31,346.84. Mr Glover then applied to the Social Security and Child Support Division of this Tribunal, which resulted in the AAT1 decision setting the recoverable debt at $6,260 with no recovery fee to be applied.

41.  The Department was dissatisfied with the AAT1 decision and applied to the General Division of this Tribunal for a review of that decision. They also sought payroll records for the Relevant Period from the five employers identified by the ATO.

42.  The Department was only able to obtain payroll records from two of the five employers identified by the ATO, see paragraph [‎37]. They decided not to pursue the three employers who did not respond and rely on the two who had, viz, Surf Life Saving Qld and Restaurant Ventures. Applying the actual payroll records for the two employers on a fortnightly basis the debt was recalculated to $13,223.82.

How was the debt of $13,223.82 calculated?

43.  The SFIC provides details of how benefits are calculated for both Austudy and Newstart. As the current debt is only in respect of Mr Glover’s entitlement to Newstart the methodology for Austudy will not be reproduced here. The process by which entitlement to Newstart benefits is determined is set out in detail in the SFIC in [41] to [48] and so will not be reproduced in detail in this decision.

44.  In summary for Newstart purposes, a person’s ordinary income, which is used in Benefit Rate Calculator B, is income that is earned, derived or received (emphasis added) by the person determined on a fortnightly basis. There is a sliding scale by which the amount of ordinary income reduces the amount of Newstart payable, and that scale is indexed in line with CPI.[8]

[8] Consumer Price Index.

45.  Importantly, where a person is receiving a social security benefit and they derive employment income, the amount of employment income is worked out by dividing the total amount of the employment income, whether earned, derived or received during the whole or a part of a Centrelink instalment period, by the number of days in that period.[9]

[9] Section 1073B of the Act.

46.  In the SFIC, the Department provided examples at [59] of how they applied the above principles in determining Mr Glover’s ordinary income and benefit entitlements for each fortnight using the apportionment method described in the previous paragraph. Three examples are given which Mr McQuinlan took the Tribunal to during the hearing and which the Tribunal has since re-examined and found to be accurate.

47.  When applied across the Relevant Period, the recalculation of the benefit entitlements of Mr Glover results in an overpayment of $13,223.82, remembering this only applies to Newstart.

48.  Where a person is in receipt of a social security benefit and they are not entitled to that benefit either in whole or in part the amount of the benefit to which they were not entitled becomes a debt due to the Commonwealth.[10]

MR GLOVER’S EVIDENCE

[10] Subsection 1223(1) of the Act.

What is Mr Glover’s position in relation to the debt?

1. Mr Glover’s evidence consists of two e-mails dated 20 December 2020 and 20 January 2021 included as Exhibit 5 and Exhibit 6 respectively.

50.  Over the course of the matter with this Tribunal Mr Glover has maintained he has done nothing wrong and has declared his income to the Department correctly and at the appropriate time, albeit in his phone call to the Department on 9 March 2017 it is recorded he said he may have unintentionally under declared his income. He also asserts the income reported by the ATO to the Department was partly incorrect because income derived when he was job sharing with another person was wholly attributed to him by the ATO. As a result, he says there is no debt due by him to the Commonwealth.

51.  Two e-mails particularly refer to this and extracts of them appear below:

3 October 2019:

Since [the Department] is unwilling to accept the initial finding I intend taking the process through fortnight by fortnight for the entire 7 years and would be force to appeal any finding greater than the intitial [sic – amount] that doesn't follow such a procedure.

I have also subsequent been in contact with the tax department regarding errors in income whilst I was "job sharing" with an international student where the entire income has been attributed to myself.

Amendment for the years that can be are being produced were evidence exists. However I have been advised for taxation purposes some such amended are not necessary or would be of no consequences (so of those over 8 and 9 years ago) or substantive effect to the ATO.

20 October 2020:

[The Department] has gone from dividing over a year to dividing over a fortnight which while much more accurate $20,000 more accurate in fact is still wrong as I had advised them I deliberately ran my roster to coincide with my Centrelink fortnights so I could work the maximum one fortnite [sic – fortnight] and then work very little the next fortnite [sic – fortnight] so I could claim CentreLink and catch up on my studies this means that they're averaging method still works very much against me and leads to a debt which is not at all owed.

I would also swap shifts with other lifeguards to move shifts into particular fortnite swear [sic – fortnight where] I either work slots or worked very little I am seeking to gain the log books which will show a much more accurate indication of when I actually worked.

52.  The Tribunal understands from the above Mr Glover’s case involves two issues as follows:

a)    He has already advised his earnings correctly, even though he is recorded as saying on 9 March 2017 he may not have, and at the appropriate time; and

b)    Some of the income reported as his by the ATO to the Department is overstated where a job-sharing arrangement was in place with another person and where all the income has been attributed to Mr Glover.

53.  Mr Glover does not identify in his e-mails the name of the employer where he says he was job-sharing with another person or the amount of the overstatement and, as he did not attend the hearing, this assertion could not be tested.

54.  The Tribunal is aware the ATO sets time limits for amending income tax assessments. For individuals the time limit is generally two years from the day after the notice of assessment for the year in question. Whilst the ATO may not have the power to amend Mr Glover’s personal income tax returns for the years when the job-sharing arrangement was in place due to the two year time limit, that would not prevent the Tribunal taking such an overstatement of his income into account if there was evidence before the Tribunal to that effect. Unfortunately, there is no such evidence.

Mr Glover’s written submissions

55.  In support of his objection to the revised debt, being the subject of this review, Mr Glover sent an e-mail dated 20 December 2020 to the Tribunal. This was entered into evidence at the Hearing as Exhibit 05 and is reproduced in full below:

I never recieved [sic – received] any call or contact on the day in question. [The Department] is trying to average out fortnights after the averaging out years failed. I have had already explained to them I moved work days around to allow me to spend one fortnight focusing on Univesity [sic – University] studies and the next fortnight focusing on make enough money to stay alive. the one or two days they are moving around each fortnight makes up a big difference. Until they can demonstrate that each fortnight where I have claimed the wrong among I ask that the entire amount be set aside as they have still not found and method on calutating [sic -calculating] properly or even to there on guidelines of money earned on days of pay period. They should have demonstrated each pay peroid [sic – period] they believe I was over paid and by how much and I am sure the simply be moving one day in that fortnight the earnings I submitted were correct.

I had ask for the entire matter to be dropped and agreed that centrelinks [sic - Centerlink’s] orignal [sic – original] 32 000 dollar debt was is acceptable. Failing that I would like each fortnight worked out individually and can explain with lifeguard logs where they are in error. It sets and very bad public policy they when you suffer a gross injustice such as being subject to annually averaging and you seek to help the system by poiinting [sic – pointing] out there [sic – their] error that am inturn [sic – in turn] punished.

[The Department] had no basic [sic – basis] to raise this debt in the first place and I ask the [redacted repeated word] tribunal find so and set the debt aside. If not the tribual [sic – Tribunal] is simply promoting that if you have treated wrong by the government you should not do anything about it and shut and deal with it. Not a good direction for our society to head.

56.  On 10 December 2020, the Tribunal made directions requiring Mr Glover to make a submission outlining his contentions and to provide any evidence upon which he intended to rely. Mr Glover did not comply with this direction and no evidence was provided by him.

57.  On 20 January 2021 Mr Glover replied to an e-mail from the Tribunal to him reminding him of the direction of 10 December 2020. This was entered into evidence at the Hearing as Exhibit 06 and is reproduced in full below:

I need a court order the gain the logs from Southbank. until [the Department] can provide me absolute itemised week by week evidentiary records to the exact day. (Include policy from surf qlds on how the days that are work but paid in subsequent periods) then they have failed to provide any evidence whatsoever give the averaging method has been thrown out and dismissed.

Given [the Department’s] lawyers haven't even bothered to gain surf life saving Queensland policy on how days worked that extends past hours of pay period are paid in subsequent pay periods it is laughable to think that they have the gall to think they have evidence of anything.

58.  The Tribunal conducted a Case Management Telephone Directions Hearing (CMTDH) with Mr McQuinlan and Mr Glover on 12 February 2021. The purpose of the CMTDH was to discuss Mr Glover’s reply e-mail of 20 January 2021 and what action if any he wanted the Tribunal to take. Mr Glover said he had not sent an e-mail to the Tribunal. It later became apparent he considered his reply e-mail as not an e-mail by him. In any event Mr Glover said at the CMTDH he did not want the Tribunal to issue a court order to obtain records and no action was taken.

59.  The gist of Mr Glover’s contentions and the response of the Secretary can be summarised as follows:

a)    He did report his income to Centrelink during the Relevant Period. The Secretary acknowledges this, and notes inaccuracies and potential misinterpretations of the rules may have crept into his reporting. Mr Glover apparently said to an officer at the Department on 9 March 2017 he may have under reported his income and if so, it was not done intentionally, indicating he was aware of potential under reporting of his income;

b)    He deliberately ran his roster to coincide with the Centrelink fortnights so he could work the maximum one fortnight and then work very little the next fortnight so he could claim the maximum benefits. The Tribunal and the Secretary do not doubt Mr Glover was diligent in his reporting and in timing his work as he suggests. It is also the case he was recorded by an officer of the Department on 9 March 2017 as saying he may have under reported his income and had not done so deliberately. It is also possible he misinterpreted the rules for reporting his income all of which conspired to create a situation where he was overpaid benefits;

c)    The original method of calculating his entitlement based on annual income as reported by the ATO divided by 26 was flawed and incorrect. The Secretary acknowledges this and notes he had no better information to work with since Mr Glover had not responded to requests for information. In any event the original calculation was later abandoned, and a fresh calculation was made based on actual payroll records obtained by the Department;

d)    He wanted each fortnight worked out individually and said he could explain with ‘lifeguard logs where they are in error’. Once the Department obtained payroll records, including from Surf Life Saving Qld, they did recalculate his entitlements on a fortnight by fortnight basis using the methodology prescribed by the Act. Assuming the reference to ‘lifeguard logs’ is a reference to Surf Life Saving Qld work rosters or similar, Mr Glover did not provide such logs nor has he directly challenged the calculations published by the Department on 20 January 2020;

e)    Some of the income reported by the ATO to the Department was not his because he was job-sharing with another person yet the whole of the income was attributed to him. The Tribunal is aware it may not be possible for Mr Glover to amend his personal tax returns if they are more than two years old. That does not matter for the purpose of this decision. It was open to Mr Glover to provide evidence of the job-sharing arrangement. He did not do that. The Tribunal cannot speak for the Secretary however it believes a recalculation would have been made if it was established income belonging to another person had been incorrectly attributed to Mr Glover;

f)     The Department’s lawyers haven't even bothered to gain Surf Life Saving Queensland policy on how days worked that extends past hours of pay period are paid in subsequent pay periods. As demonstrated above, there is specific law as to how ordinary income is calculated when the work fortnight does not correspond with the Centrelink fortnight. The Act speaks of income bring earned, derived or received (emphasis added). It does not matter when the income was paid rather when it was earned, derived or received.

60.  The Tribunal finds Mr Glover has a debt of $13,223.82 due to the Commonwealth and it is recoverable.

SECRETARY’S RIGHT TO RECOVER

61.  The Secretary’s right to recover a debt may be either written-off or waived in certain circumstances, such as where the debt is due solely to the Department’s administrative error or due to the applicant’s special circumstances.

Write off

62. Section 1236 of the Act provides for the possibility of delaying the recovery of the debt for a period. This is referred to as write-off. If a debt is irrecoverable at law, or the debtor has no capacity to repay the debt, or the debtor’s whereabouts are unknown despite reasonable efforts to locate the debtor, or it is not cost-effective for the Commonwealth to take action to recover the debt, the Secretary may decide to write-off the debt for a stated period.

63.  Mr Glover has not demonstrated he has no capacity to repay the debt, his whereabouts are known and repayment by way of deduction from his current benefits makes it cost-effective for the Commonwealth to recover the debt.

64.  The SFIC notes at [68] Mr Glover is currently receiving Jobseeker payment of $1,270.30 per fortnight however the SFIC is dated 21 September 2020 and the Tribunal is aware the coronavirus supplement has since ceased.

65.  The Tribunal finds there is no case for the debt to be written-off.

Administrative error waiver

66. Pursuant to section 1237A of the Act, the Department must waive its right to recover the proportion of a debt that is attributable solely to an administrative error by the Commonwealth if the debtor received the funds in good faith and the debt is not raised within a period of six weeks from the first payment that caused the debt.

67.  The word ‘solely’ is defined as ‘only, merely, exclusively; also (contextually), entirely’.[11] The plain reading of section 1237A of the Act is the error on the part of the Department must be the only cause of the debt and no other factor is involved. Whilst the original calculation of the debt was an error on the part of the Department, the amount of the debt now subject to this decision is not. It was caused by the under reporting of his income by Mr Glover, albeit unintentionally.

[11] Oxford English Dictionary.

68.  Whilst he was in receipt of benefits, Mr Glover was reporting his income albeit incorrectly at times. There is no evidence the benefits were not received in good faith.

69.  In Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746 (10 August 2018) at [78] the AAT observed:

It is at least arguable that, had the Applicant fully complied with the reporting requirements imposed on him, the debt for which he now finds himself liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given his failure to comply with the reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth.

70.  The above quote reveals the heart of the problem for Mr Glover. He was sent many notices to comply with his reporting requirements. He was reporting his income as he understood it should be nonetheless his reporting was inaccurate. He admitted as much in the phone call to the Department on 9 March 2017. Even if the debt arose partly due to administrative error on the part of the Department it also arose due to errors by Mr Glover is reporting his income.

71.  The Tribunal finds there is no ability for the Secretary to waive the debt.

Special circumstances waiver

72. Pursuant to section 1237AAD of the Act, the Secretary may waive the right to recover all or part of a debt which does not arise by the debtor making of a false statement or representation, and there are special circumstances, other than financial hardship, that make it desirable to waive the debt.

73.  The term ‘special circumstances’ is not defined in the legislation, however, the courts[12] have sought to define the expression as being unusual, uncommon or exceptional circumstances, but not unique, in the case at hand.

[12] For example, in Re Beadle and Director-General of Social Security (1984) 6 ALD 1.

1. As has been stated many times in this decision, the Secretary and the Tribunal agree Mr Glover was reporting his income on a regular basis. In the SFIC at [79]: ‘the Secretary concedes it is open to find the Respondent did not knowingly under declare his income.’ The concession must be tempered by the admission in the telephone call of 9 March 2017 when Mr Glover is reported to have said he may have under reported his income.

75.  There is no evidence before the Tribunal to suggest Mr Glover’s circumstances are unusual, uncommon or exceptional. Whilst he is on Jobseeker now, he has in the past earned income from employment. Indeed, it is his employment income that has caused the overpayment of his benefits.

76.  There is nothing before the Tribunal to suggest he cannot obtain employment again, and even if he is in financial difficulties, that does constitute special circumstances.

77.  The Tribunal finds the circumstances of Mr Glover and his financial circumstances, both now and in the Relevant Period, do not amount to special circumstances for the purpose of debt waiver.

CONCLUSION

78.  The issues in this case are set out in paragraph [‎‎19]. In summary, the issues are whether Mr Glover was overpaid Newstart Allowance from 3 July 2010 to 28 June 2015, if so, does that overpayment constitute a debt due to the Commonwealth and whether the recovery of any of the debt should be written off or waived.

79.  Mr Glover does not acknowledge he was overpaid Newstart Allowance in the amount of $13,223.82, yet the detailed calculations made by the Department from employer payroll records clearly show otherwise and he has not challenged them even though he was invited to do so. As such, the debt must be repaid to the Commonwealth and there are no circumstances in which the Secretary should either write-off or waive the debt.

DECISION

80.  The decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal made on 29 July 2019 is set aside and in substitution the Tribunal decides a Newstart debt of $13,223.82 is due to the Commonwealth and is recoverable.

1.       I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

…………………[SGD]…………………..

Associate

Dated: 31 March 2021

Date of Hearing:	22 February 2021
Solicitor for the Applicant:	Services Australia
Respondent:	No appearance