Hebbard; Secretary, Department of Family and Community Services

[2005] AATA 285

Administrative

Appeals

Tribunal

 

DECISIONS AND REASONS FOR DECISION [2005] AATA 285

ADMINISTRATIVE APPEALS TRIBUNAL      )

N2004/819, N2004/822

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And

FILTON  HEBBARD

BETTY   HEBBARD

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date4 April 2005

PlaceSydney

Decision

The decision under review is set aside and in substitution thereof the Tribunal  decides that:
(a) A debt of $5,614.84 was owed by each Respondent due and payable to the Commonwealth, resulting from overpayment of age pension to each Respondent during the period 4 February 1999 to 17 June 2003; and

(b) An amount of $4,000 from each debt be waived for each Respondent, special circumstances having been found to exist.

[Sgd] Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY: overpayment of age pension - issue of failure to declare rent from separate dwelling - write off - waiver - sole administrative error - special circumstances.

Social Security Act 1991- sections 1223, 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 - section 68

Sekhon v Secretary, Department of Family and Community Services (2003) 76 ALD 105

Beadle and Director General of Social Security [1984] 6 ALD 1

Re Ivovic and Director General of Social Service [1981] 3 SSR 25

REASONS FOR DECISION

4 April 2005 Dr J D Campbell, Member

1.      There are two matters before the Tribunal. In the first matter N2004/819, the Secretary, Department of Family and Community Services (“the Secretary”) seeks a review of the decision of the Social Security Appeals Tribunal (“the SSAT”) dated 27 May 2004 which waived the debt of $5,614.84 owed by Mr Hebbard to the Commonwealth because it arose from sole administrative error. The debt related to overpayment of age pension during the period 4 February 1999 to 17 June 2003.

2.         In the second and related matter N2004/822, the Secretary seeks a review of the decision of the SSAT, dated 27 May 2004, which waived a debt of $5,614.84 owed by Mrs Hebbard because of sole administrative error. The debt related to overpayment of age pension during the period 4 February 1999 to 17 June 2003.

3.      The matters were heard together and involve similar factual circumstances.  In such circumstances I have combined relevant background information, findings of fact, consideration and findings into a single decision.

background

4.      Mr Hebbard was born on 18 October 1922; Mrs Hebbard was born on 23 August 1928. They were married on 6 September 1950.  In 1999, they had been living at 1 Goora Lane, Woy Woy Bay for a period of five years. There are two dwellings at 1 Goora Lane; namely number 1 in which Mr and Mrs Hebbard reside and number 1A (for postal purposes only), which is jointly owned by Mr and Mrs Hebbard and which is leased to tenants, with the net rent received equally shared between them.

5.      Mrs Hebbard and her daughter jointly own another property at 3 Goora Lane which is leased; they share the net rent equally.

6.      Mr and Mrs Hebbard discussed the issues surrounding the granting of an age pension with a Centrelink officer on 4 February 1999, at which time, Mr Hebbard states, the two leased properties were discussed (1A and 3 Goora Lane).

7.      On 10 February 1999, Mr Hebbard lodged a claim for age pension with Centrelink (T13). In this claim he listed two joint bank accounts with Mrs Hebbard containing $5,607 and $2,379 respectively. He also stated that he did not have any interest in any real estate apart from his home.

8.      Mrs Hebbard lodged a claim for age pension with Centrelink on 10 February 1999 in which she nominated four accounts; two jointly held with her husband and two others which held $102 and $20 respectively.  In the form, Mrs Hebbard declared an interest in real estate other than her family home.

9.      Mr and Mrs Hebbard completed a ‘summary of asset details’ on 10 February 1999 (T14).  In this document values of household effects were nominated at $10,000 and vehicles and boat at $11,000.

10.     Mr Hebbard completed an ‘Income and Investments Form’ on 10 February 1999 in which he declared that he had no boarders/lodgers living with him and five investments totalling $75,896. He stated that he received no income from other investments not previously mentioned or income from any other source (T15).

11.     Mrs Hebbard completed a Centrelink ‘Income and Investments’ form on 10 February 1999 in which she stated that she owned 660 shares in AMP and investments as disclosed in her husband’s form (T15).

12.     Mrs Hebbard completed a Centrelink ‘Real estate details’ document (Mod R) on 10 February 1999 (T16). In this document Mrs Hebbard declared her joint ownership with her daughter of a property at 3 Goora Lane, Woy Woy Bay and that the rent was $195 a week, which she shared equally with her daughter.

13.     On 10 February 1999 Mr and Mrs Hebbard were advised in separate letters (T17) that their claim for age pension had been accepted with date of effect being 4 February 1999.  In both letters, each was advised that the total income (“income means your gross income before payment of any tax…..”) assessed for pension calculations was $7,251.98. This amount was variably called ‘combined year income’ and ‘yearly income’.  The total of the amount was the sum of two components, namely deemed investments ($3,871.98) and real estate ($3,380).

14.     More importantly, in both letters each was advised that they each must inform Centrelink if their combined income, not including financial investments or maintenance, increases or if the combined income as shown above is incorrect.  

15.     Similar letters containing such advice was forwarded to each Mr and Mrs Hebbard on 12 March 1999 and 2 June 1999 respectively (T19), albeit with some variation in the total income amount of $7,075.94 in the latter notice.

16.     As a consequence of tax returns contained within the T-documents for both Mr and Mrs Hebbard and the data match activity undertaken by Centrelink, the following table details taxable income and net rent for Mr and Mrs Hebbard for the nominated financial years (T23, 29, 35, 39, 47):

“Financial year  Mr Hebbard  Mrs Hebbard

Taxable Income NET Rent    Taxable Income    Net Rent

Ending 30 June 1999            10,617           1,566             11,780           5,690

2000  13,181           2,872             14,658           5,758

2001  14,308           1,588             15,270           4,359

2002  14,822           3,322             15,546           6,016

2003  13166            3181              15792            5482”

17.     On 13 March 2000 Mr and Mrs Hebbard were each advised by Centrelink that their age pension, was assessed using a ‘combined annual income’ of $7,533.72, with no details of the composition of the ‘combined annual income’. Each was advised of similar reporting responsibilities as detailed in paragraph 14 (T25).

18.     On 27 April 2000 Mr and Mrs Hebbard were each advised by Centrelink that their age pensions were assessed using a combined annual income (CAI) of $6,242.42, again with no details as to the composition of the CAI. Similar reporting responsibilities were imposed on them (T25).

19.     Similar letters were sent by Centrelink to both Mr and Mrs Hebbard on 21 September 2000 (T30) in which the nominated CAI was $6,281.28, with a further obligation by each to report any increase in the CAI.

20.     A further set of letters were forwarded on 27 November 2000 with the CAI being nominated as $5,902.80 and the reporting responsibilities remaining unaltered (T30).

21.     On 2 September 2002 a Centrelink officer conducted a data matching program review on Mr Hebbard and found his taxable income for financial year ending 30 June 2001 to be $14,308. The reviewer noted the presence of a net rent of $1,588 and concluded that the rent had been declared (T40).

22.     On 1 May 2003 Mr Hebbard was requested to complete an income and assets update. In this document both Mr and Mrs Hebbard detailed the small adjoining cottage at 1 Goora Lane, with a gross rental of $165 per week, shared equally between the two. The details relating to the property at 3 Goora Lane remained unchanged with an annual gross rental of $10,140 (T42).

23.     Centrelink recorded the details of the small adjoining cottage on 1 Goora Lane with a rent of $165 per week on 13 May 2003 (T41, p260). A data matching review for Mrs Hebbard with the ATO was instigated by Centrelink on 14 November 2003 (T41, p262). On 9 January 2004, following analysis of the data from the matching reviewer, Centrelink raised a debt against Mr Hebbard for overpayment of age pension during the period 13 May 2003 to 29 July 2003. A similar debt was raised for Mrs Hebbard for the same period on 9 January 2004 (T49).

24.     The data matching review was finalised and stored on 28 January 2004 (T41, p272), with a debt being raised of $5,614.84 on 27 January 2004 for overpayment of age pension to Mr Hebbard between the period 4 February 1999 and 17 June 2003 (T50, p328). A similar action is recorded at T50, p329 in relation to Mrs Hebbard with documentation detailing the debt analysis of both at T53 and T54. The officer, who made the decisions to raise the debts, reviewed her decision and on 18 February 2004 concluded that the decision was correct for the reason that Mr and Mrs Hebbard had not told Centrelink the correct amount of other income, including rental income in accordance with their obligations.

25.     On 17 March 2004 both decisions were affirmed by the ARO. This officer concluded that while the two rental properties in question may have been discussed with the interviewing officer at Ettalong on 4 February 1999, the claim papers make no mention of the property at 1A Goora Lane.

26. On 27 May 2004 the SSAT set aside the decision under review, concluding that the debts should be waived due to sole administrative error on behalf of the Commonwealth pursuant to section 1237A(1) of the Social Security Act 1991 (“the Act”).  In so finding the SSAT made particular findings of fact and concluded that the incorrect assessment of both Mr and Mrs Hebbard’s rental income by Centrelink amounts to a sole administrative error as Mr and Mrs Hebbard provided Centrelink with correct and complete information about their income and assets.

issues

27.     The relevant issues in each of the two matters is whether:

(a)Mr and Mrs Hebbard were each overpaid age pension in the amount of $5,614.84 during the period 4 February 1999 to 17 June 2003; and if so

(b)      the amounts overpaid are debts owed to the Commonwealth; and if so

(c)       should the debt be recovered.

decision

28.     For reasons stated later in this decision, I conclude that:

(a)There was an overpayment of age pension to Mr Hebbard and Mrs Hebbard in the amount of $5,614.84 each during the period 4 February 1999 to 17 June 2003; and

(b)      Each debt is owed and payable to the Commonwealth; and 
           (c)       An amount of $4,000 of each debt should be waived, special   circumstances having been found to exist in each matter.

evidence

29.     The Secretary, in opening statement, conceded that the initial recording of rental income was incorrect and, in so stating, acknowledged that the interview on 4 February 1999 had not been documented in the age pension claim. Nevertheless it was central to the Secretary’s position that Mr and Mrs Hebbard were obliged to notify them for the obvious discrepancy between the rental income stated in various letters, namely 10 February 1999, 12 March 1999, 2 June 1999, 13 March 2000, 27 April 2000, 21 September 2000, and 27 November 2000.

30.     In further discussion, the Secretary, while noting that Mrs Hebbard had completed a Mod R form on 10 February 1999 (in which she detailed the joint ownership of a rental property at 3 Goora Lane with her daughter), advised the Tribunal that it was Centrelink’s normal practice to exclude one third of the gross rent to allow for expenses incurred in maintaining the rental property. This net rent amount was then applied in the assessment of age pension entitlement. Such an application, when applied to the 3 Goora Lane property, resulted in Mrs Hebbard’s 50 per cent share of the gross rent ($5,070) being reduced to $3,380 for the purpose of assessment.

31.     It was also pointed out that the gross rent for the 1A Goora Lane property was $6,760, with Mr and Mrs Hebbard each receiving $3,380 as their share.

32.     Mr and Mrs Hebbard detailed the following circumstances, which they believe are pertinent to the matters in contention:

·They fully discussed the ownership of both properties with the Centrelink interviewing officer on 4 February 1999;

·They entertained a belief that the phrase ‘combined annual income’ meant the combined income from all sources pertaining only to the individual;

·Mr Hebbard believed that the rent amount of $3,380 in the early letters from Centrelink related to his half share of rent from the property at 1A Goora Lane;

·Neither Mr or Mrs Hebbard were aware that an amount of gross rent was excluded (one third) in assessing age pension entitlement;

·The first time either had heard of such exclusion was at this hearing and that it was not for a want of enquiry by Mr Hebbard;

·Throughout the financial years 1999/2000 through 2002/2003 Mr and Mrs Hebbard have been fully declaring the rent and expenses from both properties, namely 1A Goora Lane and 3 Goora Lane, to the ATO;

·The reason Mr Hebbard did not answer ‘yes’ to the question concerning ownership of  interest in any real estate in his claim for age pension was because the property at 1A Goora Lane was on the same title as their house;

·Mr Hebbard was 82 yeas of age and Mrs Hebbard was 76 years of age at the time of the hearing. Both Mr and Mrs Hebbard have significant hearing impairments and hypertension and Mrs Hebbard suffers from high cholesterol and diabetes.

consideration and findings

33.     The factual circumstances in both matters rely on similar evidence.  While there is much misunderstanding between the parties; the facts are not essentially in dispute.  Accordingly I make the following findings of fact:

(a)Mr and Mrs Hebbard met with a Centrelink officer on 4 February 1999 to discuss their applications for age pension. There is no documented record of this interview, but it is accepted that they discussed the full range of their financial affairs. At this time Mr Hebbard was 76 years old and Mrs Hebbard was 71 years old.

(b)Mr Hebbard lodged an application for age pension on 10 February 1999 in which he did not detail the circumstances of the dwelling at 1A Goora Lane.  A summary of assets was jointly completed on that day. Mr Hebbard also completed an ‘Income and Investment’ form on that day, which showed that, in the main, he held his investments jointly with his wife.      

(c)Mrs Hebbard lodged an application for age pension on 10 February 1999 in which she detailed an interest in real estate. Mrs Hebbard completed an ‘Income and Investment’ document on the same day in which she indicated she owned some AMP shares, plus investments held jointly with her husband.  On the same day she completed a ‘Real estate details’ document (Mod R), in which she indicated that she jointly owned a rental property at 3 Goora Lane with her daughter and her share of the gross annual rent was $5,070.  No mention was made of the rental income stream or the property at 1A Goora Lane.

(d)In assessing entitlement to age pension, Centrelink excludes one third of the gross rent received by a claimant. In this matter the rent amount included in the age pension assessment was $3,380, (one third of $5,070 being excluded).

(e)At the time of application for age pension, the property at 1A Goora Lane was rented at $130 per week; amounting to a gross rent of $3,380 each to Mr and Mrs Hebbard (Mr Hebbard’s 1999 Tax Return T9, p41).

(f)Mr and Mrs Hebbard’s total income (variably called combined year income and yearly income) was detailed as $7,251.98 in the letter of 10 February 1999 and $7,075.94 in the notice of 2 June 1999. This total income consisted of two elements namely deemed investments ($3,871.98) and real estate ($3,380).

(g)Mr and Mrs Hebbard, in their annual tax returns for years 1999 through to 2003, declared their gross rental returns and expenses from real estate; namely for Mr Hebbard the property at 1A Goora lane, and for Mrs Hebbard, the properties at 1A Goora Lane and 3 Goora Lane.

(h) A data matching program review was conducted on Mr Hebbard’s affairs for financial year ending 30 June 2001. The gross rent declared in Mr      Hebbard’s tax return for that year was $2,760, with net rent after expenses being $1,588. The Centrelink officer concluded that Mr Hebbard was declaring rent. No data match review was undertaken by Centrelink on Mrs Hebbard at this time.    

(i)On 1 May 2003, Mr Hebbard was requested by Centrelink to complete an income and assets update. Mr and Mrs Hebbard jointly completed this document in which they detailed the gross rent received weekly from 1A Goora Lane, together with the unchanged details relating to 3 Goora Lane.

(j)A data matching exercise was instituted on both Mr and Mrs Hebbard on 14 November 2003. Following an analysis of this material, Centrelink concluded that they had each been overpaid age pension entitlements in the amount of $5,614.84, with a debt being raised for each amount on 27 January 2004.

34. I am satisfied that, upon a review of the findings of fact in both matters, Mr and Mrs Hebbard were each overpaid $5,614.84 of age pension payments during the period 4 February 1999 to 17 June 2003. I am also satisfied that such amounts are debts owed pursuant to section 1223 of the Act.

35. In addressing the issue of write off and waiver of the debts, I find that write off of the debts pursuant to section 1236(1A) of the Act is not appropriate, as the circumstances in these matters do not satisfy any of the preconditions nominated in that section.

36. In addressing the issue of waiver in circumstances where the debt has arisen from error, I note section 1237A(1) of the Act, which states:

“Subject to subsection (1A), the Secretary must waive the right to recover the proportion of the debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt. “

37.     In considering this section I note the reasoning of Selway J in Sekhon v Secretary, Department of Family and Community Services (2003) 76 ALD 105 at 113:

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

38.     In the light of the facts which have been established by the Tribunal it is evident, and I so find, that the rental income from 1A Goora Lane was never taken into consideration when assessing the age pension entitlement of either Mr or Mrs Hebbard. Such a finding is based on an absence of any mention of such rental income in either of the claim forms lodged on 10 February 1999. Further, such absence flows through other documents, including the Mod R ‘Real estate details’ completed and lodged on 10 February 1999.  Secondly, with the advice tendered by the Secretary during this hearing that one third of the gross rent is excluded in the assessment process for age pension entitlement, it becomes plainly evident that the rent of $3,380 referred to in notices to both Mr and Mrs Hebbard relates to the rent recovered by Mrs Hebbard from 3 Goora Lane, a property and rent that had been declared by her in documents submitted with her claim for age pension.

39.     I note and respect the assertion made by both Mr and Mrs Hebbard that they had canvassed issues relating to 1A Goora Lane at the interview with the Centrelink officer on 4 February 1999. I also note that, at no stage prior to this hearing, were Mr or Mrs Hebbard aware that there was a one third gross rental exclusion Centrelink policy applied in age pension assessment of entitlements. Without this knowledge it is understandable that Mr Hebbard concluded that the $3,380 nominated as the amount of rent included in ‘combined annual income’ related to his share of 1A Goora Lane, as his gross rent share for that property was $3,380 in financial year ending 30 June 1999. Further it is evident to the Tribunal that Mr and Mrs Hebbard had less than an adequate understanding of what the term ‘combined annual income’ meant.

40.     While the Tribunal accepts that Mr and Mrs Hebbard had misunderstandings as to what ‘combined annual income’ actually meant, and that in circumstances where each tended to their own affairs, I express some difficulty understanding why Mrs Hebbard did not question the nominated rent component in the Centrelink letters dated 10 February 1999 and 12 March 1999.  In so stating it is evident that Mrs Hebbard received rental income at the rate of $3,380 (1A Goora Lane) and $5,070 (3 Goora Lane) at that time.

41.     In outlining the circumstances leading to overpayment of age pension in these two related matters, it is evident that a number of circumstances, misunderstandings, failures and errors have led to the overpayments. I shall summarise these briefly:

·     The misunderstandings that have arose as a consequence of the interview with the Centrelink officer on 4 February 1999 and the inability of any record of that meeting to be produced;

·     The failure by Mr and Mrs Hebbard to document rental income from 1A Goora Lane in the documentation lodged with their claims for age pension;

·     The failure to document such a rental stream may have occurred from advice received and/or misconstrued at the interview of 4 February 1999. In so stating I am mindful that both Mr and Mrs Hebbard have been diligent in completing their respective rental income streams for financial years 1999 through to 2003 and that both have a significant hearing difficulty;

·     Mr and Mrs Hebbard did not have a clear understanding of the meaning of ‘combined annual income’ and this absence of understanding was reinforced by an absence of definition of the phrase in notices sent;  

·     Any concept of ‘combined annual income’ becomes meaningless in the circumstances that gross rental streams are amended to exclude one third of the gross rent in the assessment process, without individuals being informed of this  process;

·     It is unfortunate that the data matching program for Mr Hebbard failed to give consideration to the gross rent declared in the tax return for the financial year ending 30 June 2001, for clearly that ($2,760) was at odds with his nominated figure ($3,380). Further, and again with hindsight, a data match of Mrs Hebbard at that time would have clearly demonstrated the rental anomalies that are at the core of this matter;

·     In notices sent to both Mr and Mrs Hebbard, on 12 March 2000 and thereafter, a ‘combined annual income’ amount was nominated but the components which made up that sum were not specified (apart from detailing assets and investments).

42.     It is with the provision of further information (issue of one third net rent exclusion), and the application of hindsight that I have been able to detail the reasons in the previous paragraph for the overpayment occurring. It is further evident, and I so conclude, that both the Secretary and Mr and Mrs Hebbard have contributed to the errors leading to overpayment in both matters. In so stating I am mindful that the Hebbards maintained a series of misunderstandings over many years, with these misunderstandings never really being aired until the issue of overpayment arose.

43.     I remain concerned as to the absence of any mention of the rental stream from 1A Goora Lane in any of the documents lodged on 10 February 1999 together with the failure of Mrs Hebbard to recognise the anomalies in the amount of rent ($3,380) nominated in the Secretary’s advice of 10 February 1999.  According to the misunderstandings held by the Hebbards, the amount should have been $3,380 + $5,070.

44.     It is for these reasons that I conclude that the debts, or part thereof, were not solely attributable to an administrative error made by the Commonwealth. In so doing I set aside the decision of the SSAT and recognise that the provision of appropriate information as to Centrelink policy on exclusion from gross rent allowed the Tribunal insight into both matters.

45.     In addressing the issue of special circumstances I note the considerations in Beadle and Director General of Social Security [1984] 6 ALD 1 where Toohey J held that for circumstances to be considered special they must be unusual, uncommon or exceptional. Further in Re Ivovic and Director General of Social Services [1981] 3 SSR 25 it was considered that special circumstances may exist when “strict enforcement … would be unjust, unreasonable or otherwise inappropriate”.   

46.     In the matters to hand, I note the following:

·     Mr and Mrs Hebbard were 76 and 71 years of age at the time of seeking advice and making a claim for age pension;

·     Both Mr and Mrs Hebbard suffer from moderate to severe hearing impairments;

·     Both Mr and Mrs Hebbard completed the necessary documentation to make claims for age pension and both failed to declare a rental income stream from 1A Goora Lane in such documentation;

·     Mr and Mrs Hebbard misunderstood the meaning of ‘combined annual income’. The phrase was not defined in the numerous section 68 notices sent to them. Further, such notices referred to ‘total income’ and defined the terms ‘income’ and ‘combined year income’ (notice dated 10 February 1999). In a notice dated 13 March 2000 and thereafter, the term ‘combined annual income’ was referred to;

·     In initial section 68 notices in 1999, ‘total income’ was stated, with deemed investments and real estate amounts nominated, while in the section 68 notices in 2000 only combined annual income was stated;

·     At no point in time prior to the hearing was it explained to Mr and Mrs Hebbard that the gross rental amount nominated had one third of the amount excluded to arrive at the figure used in the assessment;

·     Because of this lack of information and the misunderstanding as to the meaning of ‘combined annual income’, an unlikely event occurred, in which both Mr and Mrs Hebbard and the SSAT concluded that the rent amount ($3,380) nominated in the Centrelink notice of 10 February 1999 related to the rental stream from 1A Goora Lane. This conclusion, albeit in error, seems also to have been drawn in part by the Centrelink officer when conducting the data match for Mrs Hebbard for year ending 30 June 2001;

·     Throughout all the years in question (1999 – 2003), both Mr and Mrs Hebbard have diligently ensured the inclusion of the appropriate rent streams, including rent from 1A Goora Lane in each and every one of their annual tax returns;

47.     In assessing the above circumstances I am concerned that Centrelink officers are not giving sufficient attention to explaining all aspects of age pension applications to claimants, particularly in circumstances where the claimants are aged, of impaired hearing, and being exposed to concepts and assessments of which they have little experience.  I also note the concession made by the Secretary in relation to the initial rental assessment.

48.     More importantly I note the failure of the Secretary to inform Mr and Mrs Hebbard that one third of gross rent is excluded in arriving at the rental figure nominated.  In the lack of such knowledge, the ‘combined annual income’, or however termed, would be a mystery figure to the uninformed person, as such would not bear any relationship to what an individual may have submitted. This is further evidenced in these matters where both Mr and Mrs Hebbard and the SSAT arrived at an erroneous conclusion in the absence of such knowledge. In such circumstances and without such knowledge, the section 68 notice which places obligations upon a claimant would in my view place the claimant in an unfair and unjust position. While it could be argued that a claimant could ring and enquire, it is equally as likely that a claimant will construct his own interpretation as to what the figure represents, as did occur in these two matters and both by Mr and Mrs Hebbard and the SSAT. I remain concerned at the failure of Centrelink to adequately detail such information to their clients.

49. Further, in general comment, I note the complexity and length of the three page routine advice provided in letters sent to Mr and Mrs Hebbard. With such routine letters there is always room for increasing the information provided while maintaining the simplicity of the letter. While meanings of such terms as ‘combined annual income’ may be defined in the Act or understood by the initiated, the uninitiated, and especially the elderly unfamiliar with such terms, require clear understanding of such terminology.

50.     It is for these reasons I conclude that in these two matters a series of circumstances have evolved which are usual and uncommon; with strict enforcement being unjust, unfair and unreasonable.  Special circumstances exist in these two matters and for the reasons I have outlined. In so stating, I recognise that much of the misunderstandings in these two matters have arisen as a consequence of inadequate or  incomplete information provided by the Secretary, which has allowed Mr and Mrs Hebbard to sustain these misunderstandings over time and to live in ignorance of what stated figures as to rental income really mean.

51.     In assessing all the evidence in these two matters and with special circumstances found to exist, I conclude that $4,000 of each debt should be waived. In so finding, I conclude that this represents that each party involved contributed to the errors that have occurred, with such errors arising due to mistake, misunderstanding, lack of information or failure to provide necessary information.

determination

52.     The decision under review is set aside and in substitution thereof I determine that:

(a)A debt of $5,614.84 was owed by each Respondent due and payable to the Commonwealth, resulting from overpayment of age pension to each Respondent during the period 4 February 1999 to 17 June 2003; and

(b)An amount of $4,000 from each debt be waived for each Respondent, special circumstances having been found to exist.        

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member  

Signed:         A. Krilis         
  Associate

Date/s of Hearing  25 February 2005
Date of Decision  4 April 2005
Advocate for the Applicant       Luke Carter