Heldoorn and Secretary, Department of Family and Community Services

[2005] AATA 39

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 39

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/703

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHANNES HELDOORN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date17 January 2005

PlaceSydney

Decision The reviewable decision dated 10 May 2004 is varied in so far as the Commonwealth's right to recover 75 per cent of the debt of $22,104.25 is waived.

[SGN]   Dr J D Campbell
  Member

CATCHWORDS

Social Security - aged pension - overpayment – Applicant receiving foreign pension - sole administrative error - special circumstances – decision under review varied.

Social Security Act 1991, sections 8, 68, 69, 1064, 1223, 1224, 1237A 1237AAD

Social Security (Administration) Act 1999, section 68

REASONS FOR DECISION

17 January 2005  Dr J D Campbell, Member            

1.      Mr Johannes Heldoorn is a 79 year-old widower, who has been receiving a pension under the Dutch General Old Age Act (AOW) since 1 April 1992 and an age pension from the Australian Department of Social Security since 11 February 1993.

2.      On 14 July 2003, a Centrelink delegate determined that Mr Heldoorn had been overpaid the age pension in an amount of $22,044.71 for the period 9 April 1992 to 6 May 2003.  This in the delegate’s opinion had occurred because Mr Heldoorn’s AOW pension had not been taken into account when assessing his Australian pension.

3.      On 3 February 2004, an authorised review officer (ARO) varied the earlier decision, having recalculated the debt.  The new debt was $22,309.25 for the period 11 February 1993 to 6 May 2003, with an amount of $205 waived for the period 11 February 1993 to 1 March 1993, leaving a recoverable debt of $22,104.25. 

4.      On 10 May 2004 the Social Security Appeals Tribunal (SSAT) set aside the decision under review, and substituted a new decision that the Commonwealth’s right to recover 50 per cent of $22,104.25 is waived, leaving a recoverable debt of $11,052.13 owed by Mr Heldoorn.

issue

5. The issue in this matter is whether all or part of the remaining recoverable debt of $11,052.13 should be waived pursuant to either section 1237A of the Act (sole administrative error) or section 1237AAD of the Act (special circumstances).

decision

6.      For the reason’s detailed later in this decision I conclude:

a)that there is a debt owed by Mr Heldoorn to the Commonwealth in the amount of $22,104.25; and

b)following a consideration of all the circumstances, special circumstances exist; and

c)the decision under review is varied in so far as the Commonwealth’s right to recovery, 75 per cent of the debt of $22,104.25 is waived.

evidence on file

7.      Mr Heldoorn applied for age pension on 10 February 1993 (T5).  Included in the nominated application was advice from Mr Heldoorn that an age pension income in the amount of a monthly payment of $546.44 in the name of JC and H Heldoorn was received from SVB, the latter being the bank paying authority for the Dutch Government (T6).  Further documents pertaining to a Dutch pension were listed as being required by the Respondent on 10 February 1993 (T8).

8.      On 1 March 1993 the Respondent (Secretary, Department of Family and Community Services/Centrelink) approved the age pension to Mr Heldoorn, commencing from 11 February 1993, while detailing the combined annual income at $1129, and requesting Mr Heldoorn to notify within 14 days if the combined income of he and his wife exceeded $76 per week (T9).

9.      On 23 December 1994 the Respondent forwarded a further letter to Mr Heldoorn concerning the payment of telephone allowance, again detailing a combined yearly income of $1180, and a requirement to be notified within 14 days if the combined weekly income exceeded $78 (T10).

10.     From July 1997 to February 2000, interaction between Mr Heldoorn and the Respondent occurred in relation to a change of address, payment of rent allowance, failure to advise of proceeds from sale of property and an issue of overpayment (T11, T14, T21).

11.     On 30 December 1997 Mrs Heldoorn lodged a document with the Respondent at the Centrelink Sutherland Office in which she stated that she had been receiving a Dutch pension since 1989 and that during 1996/97 she received an amount of $6602.73 (T12).

12.     On 2 January 1998 the Respondent wrote to Mr Heldoorn reducing his rate of age pension payment because of the increase in combined yearly income to $7650.36 and to notify within 14 days if the stated combined yearly income is not correct (T13).

13.     Further, letters were sent by the Respondent to Mr Heldoorn on 27 July 1999 (T16), 10 August 1999 (T17), 12 August 1999 (T18), 24 August 1999 (T19), 8 September 1999 (T20), 9 December 1999 (T22), 20 January 2000 (T23), 30 July 2001 (T25), 15 November 2001 (T26) and 19 March 2002 (T30), all of which related to adjustment in age pension rate as a consequence of variations in personal assets, with a resultant change in combined annual income, which again varied after the death of Mrs Heldoorn in 2001.

14.     On 15 November 2001 the Respondent sent a letter to Mr Heldoorn requesting the most recent statement from The Netherlands, showing all payments in order that they can assess his entitlements accurately (T27).  Letters from the Respondent 1 February 2002, 1 May 2002, 1 August 2002, 1 November 2002 and 1 February 2003 (T28, 31, 32, 33, 34) to Mr Heldoorn were concerned with handling of  exchange rates (T28, T31) while a letter of 15 February 2002 from the Respondent to Mr Heldoorn was concerned with overpayment of carer allowance (T29).

15.     On 23 April 2003, the Respondent advised Mr Heldoorn that it regularly compares its payment of age pension information with the social security authorities in The Netherlands, and requested that he provide all details as to income from The Netherlands (T38).  This letter appears to have been sent following the receipt of information tabled at T36, 37 that Mr Heldoorn was receiving a foreign pension (Dutch) in March/April 2003.  On 8 May 2003 the Respondent sent a letter to Mr Heldoorn advising him of a new rate of age pension payment, having increased the assessment of his annual income to $14,843.60, which includes his Dutch pension payment (T40).

16.     Following further enquiry by the Respondent on 30 May 2003, Mr Heldoorn advised he had two accounts at St George Bank, totalling $38,601 (T42).

17.     On 23 June 2003 (T43) the Respondent advised Mr Heldoorn that:

a)the amount of pension he receives is based on his total combined income, which includes a Netherlands age pension, indexed annually;

b)tables of the rates of Netherlands pensions for each of the past increases have been provided by The Netherlands authorities;

c)that The Netherlands age pension amounts have been used to recalculate his Australian pension; and

d)that it is possible that the Centrelink benefit has been overpaid for periods in the past.

18.     On 14 July 2003 the Respondent noted in an overpayment print out (T46) that Mr Heldoorn had received income form an overseas pension, which he had failed to advise and that he had been overpaid $22,044.71.

19.     In a reply dated 24 July 2003 (T48) Mr Heldoorn advised that he attended Centrelink at Sutherland twice a year to give proof of his Dutch pension by showing them the last SVB payment.  Further, Mr Heldoorn advised that he had included his Dutch pension payments in his annual tax return, and presumed that Centrelink would have double checked with the Australian Taxation Office at some stage over an eleven year period.

20.     In a response dated 5 August 2003 (T50) the Respondent advised that he, Mr Heldoorn had failed to advise Centrelink of the twice yearly CPI increases in the Dutch pension and that receiving a foreign pension was not “a strong viable reason” for a data match activity with the Australian Taxation Office.

21.     On 19 August 2003 (T54) Mr Heldoorn advised that:

·     the breakdown of the overpayment had not been enclosed; and

·     the overpayment could not go back to 1992 as he did not receive Australian age pension payments until April 1993.

22.     The Respondent confirmed to Mr Heldoorn in a letter dated 1 September 2003 that the overpayment had occurred as a consequence of his failure to notify the Dutch pension CPI changes every six months, and that he had been advised to notify of any changes on the combined annual income (T55A).

23. On 3 February 2004 (T62), an authorised review officer (“ARO”) affirmed the decision that an overpayment had occurred and noted that Mr Heldoorn’s advice as to his overseas income from his Dutch pension was not coded by the Respondent during the processing of the age pension claim. Further, the ARO indicated that a data match of 20 March 2003 with information held by SVB provided Centrelink with details of both his and his spouse’s Dutch pension from 1 April 1992. It was this information that indicated that the correct amount of foreign income was not used to calculate the payments of the Australian age pension. Similarly, the ARO stated that he was unable to obtain any mention in Mr Heldoorn’s computer record of any SVB advice during the period of the debt ever being recorded by Centrelink. Likewise the ARO reported that after speaking with the team leader of the Retirement Services section at the Sutherland office, the officer, being a long term officer, had no recollection of any one customer submitting SVB notifications twice a year for over a decade. Further, the ARO advised that while Mr Heldoorn may have advised the Australian Taxation Office of his foreign income, this does not release him from his obligation under section 68 of the Social Security (Administration) Act 1999 to report changes in income direct to Centrelink.

24.     Mr Heldoorn in both oral and written statements either made by him or on his behalf detailed the following:

·that he had detailed the receipt of the Dutch pension in his application for age pension on 10 February 1993;

·that when he received the letter dated 1 March 1993 from the Respondent approving a rate of age pension, he would have read the letter in detail, although he is unable to remember now what was in it.  Mr Heldoorn made a similar comment in relation to the letter of 23 December 1994;

·that having declared his Dutch pension in his application, he would have assumed that such was taken into account in calculating his Australian age care payment, with the increase nominated referring to other than his Dutch pension (T2, p15);

·that it was his understanding that the Dutch authorities advised the Australian authorities of both his Dutch pension rate and any changes in that pension rate as evidenced by:

·the letter issued 13 February 1998 (T14, p57) detailing the mechanism for dealing with fluctuating exchange rates which involved a system of automatic monthly updates, which involved no requirement by the recipient to contact Centrelink, and a three-monthly advice of rates used, with a recipient being able to request a reassessment if there was a five per cent or more difference between the exchange rate used and the actual rate received;

·a letter to Mr Heldoorn dated 15 November 2001 (T27, p86) from the Respondent requesting the most recent statement from The Netherlands which shows all details relating to payments from The Netherlands;

·a letter form the SVB Netherlands Bank dated 12 February 2003 (T35, p100) in which, in response to an enquiry they state:

“Centrelink is informed about the rate on the date of commencement of your pension. Centrelink is receiving a summary of the full rates of pensions when amounts change to economic policy reasons…We understood that Centrelink derives the individual amounts from this summary.  To leave no doubt: Centrelink does not receive copies of your payment advice.”

·a letter from the Respondent dated 23 April 2003 (T38, P103) in which it is stated:

“Centrelink regularly compares its payment information with the social security authorities in The Netherlands.”

·the information provided in 1993 by both the Respondent (Department of Social Security), and the Dutch SVB Bank representatives that the Netherlands would continuously inform DSS of all changes to the Dutch AOW as they occur (T65, p232).

·in the Respondent’s letter of 15 March 2004 (T66, p237), the Respondent details that SVB sends personal details to Centrelink in the case of grants of AOW pension under the agreement (Article 24, Article 16 in the former agreement operating until 1 April 2003).  It further details that information is sometimes provided in the case of some extraordinary rate changes, for example, from partnered to single rate.  In relation to cost of living increases the letter’s author states that the SVB sends such to each individual every six months, with Centrelink not receiving individual customer details of such increases.

·in an article in the Dutch Courier in May 2004 (T69, p245) it is stated:

“Centrelink was always informed of what the new recipient was receiving in guilders (now euros) and a full explanation about the individual calculations of holiday payments and mutations with full English translation was added… Centrelink admitted to the SVB delegation that they did get the information, however Centrelink insisted that they did not have the system to follow up the information from the Netherlands”.

·in a letter to all recipients of an AOW pension the SVB in February 1992 (T3, p21) stated:

“We are obliged to send the Australian DSS a copy of our decision which shows the AOW pension rate you are entitled to as from the date the Agreement comes into effect.  If after the date on which the agreement comes into effect, there are changes in your circumstances which may affect the rate of your AOW, we will be obliged to apply the provisions of the Agreement.”

considerations and findings

25.     After a careful consideration of all the material, I find the following pertinent facts to exist:

·Mr Heldoorn applied for an age pension on 10 February 1993 in which he disclosed that he was receiving a Dutch pension (AOW) of some $546.44 per month.

·The advice as to the receipt of the Dutch pension was not considered when calculating the rate of age pension payment paid to Mr Heldoorn from 11 February 1993. The reason for non inclusion is not known.

·The Respondent did advise Mr Heldoorn on 1 March 1993 that he was to notify them if the combined income of he and his wife exceeded $76 per week (this letter being in response to the claim for age pension).

·The Respondent sent a further letter on 23 December 1994 to Mr Heldoorn concerning the payment of a telephone allowance and requested that Mr Heldoorn notify them within 14 days if the combined income of he and his wife exceeded $78 per week.

·That on 30 December 1997 Mrs Heldoorn lodged a document with the Respondent in which she stated that she had been receiving a Dutch Pension since 1989.  On 2 January 1998 the Respondent issued a letter to Mr Heldoorn reducing his rate of age pension payment because of the increase in combined annual income.  There is no evidence in the documents to indicate action to assess any overpayment of age pension to Mr Heldoorn as a result of his wife’s declaration.  Similarly there is no suggestion in the material that any consideration was given by the Respondent as to whether Mr Heldoorn may not have been receiving a Dutch pension.

·In July 1999, an overpayment of age pension arising from the sale of the principal place of residence in 1997 was determined after an examination of Mr Heldoorn’s bank accounts.   I again note that the Respondent did not act on any information in that accounts that may have indicated that Mr Heldoorn may have been receiving a Dutch Pension.

·That from 27 July 1999 to 19 March 2002 the Respondent wrote to Mr Heldoorn advising him of changes to his rate of age pension payment, arising from a variation in personal assets, with subsequent change to the combined annual income (this included the death of his wife in 2001).

·On 15 November 2001 the Respondent sent a letter to Mr Heldoorn requesting the most recent statement from the Netherlands, showing all payments, in order that they can assess his entitlements accurately.  Subsequent letters throughout 2002 and up to April 2003 were concerned with the issue of handling exchange rates, with a letter of 15 February 2002 being concerned with overpayment of carer allowance.

·That in the period from March 2003, the Respondent established that Mr Heldoorn had been receiving a Dutch pension since 1992, and that twice yearly CPI adjustments to the pension had not been declared to the Respondent by Mr Heldoorn.

·That as a consequence, an overpayment of age pension had been made to Mr Heldoorn during the period 11 February 1993 to 6 May 2003 in the amount of $22,104.25.

26. I note that the overpayment in the amount of $22,104.25 is a debt owing by Mr Heldoorn to the Commonwealth pursuant to sections 1223 And 1224 of the Social Security Act 1991 (“the Act”) in relation to particular time periods.  I further note that the SSAT determined that the Commonwealth’s right to recover 50 per cent of that debt is waived and that the Respondent does not seek to have that decision altered.

27. I further note the relevant legislation in this matter, sections 68 and 69 of the Social Security Act 1991 (“the Act”) and section 68 of the Social Security (Administration) Act 1999, which empowers the Respondent to seek and obligates the recipient of an age pension to provide, particular information as to a specified event or change in circumstances, or the provision of a particular statement within 14 days.

28. Section 1237A(1) of the Act which provides for waiver of a debt that has arisen as a consequence of sole administrative error made by the Commonwealth, but only in circumstances were the debtor has received the payment in good faith.

29. Section 1237AAD of the Act provides for waiver of a debt either in part or in whole if special circumstances exist that make it desirable to waive as opposed to write off the debt, provided the debt did not arise wholly or partly from the debtor making a false statement or representation or failing or omitting to comply with a provision of the Act.

sole administrative error

30.     it is evident that the Respondent failed to code or include the advice given by Mr Heldoorn in his application of 10 February 1993 for age pension that he was in receipt of a Dutch pension, with a monthly amount detailed.  This was certainly an administrative error, and an error which continued until March 2003, at which time the Respondent matched data with that received from the Dutch pension authority.  It is to be noted that this failure to include such data over a ten year period occurred despite being advised of Mrs Heldoorn’s Dutch pension in December 1997, adjusting Mr Heldoorn’s age pension rate as a consequence of such advice, having access to Mr Heldoorn’s bank statements in 1999 in relation to an age pension overpayment, having requested and received the most recent statement from the Netherlands detailing Mr Heldoorn’s payments in November 2001 and engaging in a series of quarterly correspondence with Mr Heldoorn in relation to exchange rate issues concerning such a Dutch pension throughout the year 2002.  While I acknowledge that hindsight often promotes significant assistance to an administrative reviewer, in this matter I can only conclude that there has been a series of administrative errors made by the Respondent up to the period in April 2003 when the issue of overpayment was initially canvassed with Mr Heldoorn.

31.     On the other hand I note that Mr Heldoorn was obligated to inform the Respondent if the combined annual income exceeded $76 per week (10 March 1993), $78 per week (23 December 1994), $7650.36 including overseas pension – not exempt of $6089.64 (2 January 1998), $1537.02 (30 July 2001 following death of his wife), $11321.96 (15 November 2001 following receipt of pensioner entitlement income form) and $10,250.66 (19 March 2002).  I also note that while Mr Heldoorn stated that he would have read each letter in detail at the time, his memory of the contents of each letter received is remote, and that each letter would have been read in the context of what Mr Heldoorn perceived to be the situation at the time.

32. Nevertheless in the context of sole administrative error, I conclude that Mr Heldoorn had an obligation to notify the Respondent if the combined annual income exceeded a nominated amount. That Mr Heldoorn had a belief that his Dutch pension was excluded from the calculation, while being clearly contrary to the definition of income, and the definition of earned, derived or received as contained in section 8(1) and 8(2) of the Act respectively does not assist his position in the determination of whether there is a sole administrative error. While such a belief may be significant in determining the issue of whether Mr Heldoorn received the money in good faith, such a belief does not excuse him from his fundamental obligation to notify, when so requested. In failing to so notify when requested, I conclude that Mr Heldoorn contributed to the continuation of the ongoing administrative error up to November 2001, at which time the annual income is his alone, following the death of his wife earlier in that year.

33.     As a consequence I conclude that the administrative error situation in this matter was contributed to by both parties, and hence any question of sole administrative error by the Commonwealth is negated.

special circumstances

34.     In addressing the issue of special circumstances, a request was made to the Respondent’s advocate, to provide an overview document detailing the Respondent’s administrative processes and mechanisms, and the advice rendered to recipients in implementing the outcomes of the agreement with the Netherlands in 1992.  Unfortunately the submission document provided on 7 December 2003 is of limited assistance in this regard.  In the absence of a better understanding of the Respondent’s implementation strategy, I can only assume that the Respondent’s normal mechanisms were in play with the entitlement to a rate of age pension being determined by the Respondent on receipt of the necessary data by a claimant and a continuing obligation imposed on the claimant to report changes as requested.

35.     On the other hand I note the following:

·in the information memorandum of the SVB dated February 1992 (T3) which states:

“We are obliged to send the Australian DSS a copy of our decision which shows the AOW pension rate you are entitled to as from the date of the Agreement came into effect.  If after the date on which the Agreement comes into effect, there are any changes in your circumstances which may affect the rate of your AOW pension, we will be obliged to apply the provisions of the Agreement.”

·the letter issued by Centrelink on 13 February 1998 (T14) detailing how overseas income and assets are to be dealt with from 5 March 1998, and that a recipient’s social security payment will be updated automatically, with there being no need to inform of the exchange rate.

·a letter from SVB dated 12 February 2003 (T35) in which it is stated:

“Centrelink is informed about the rate of the date of commencement of your pension. Centrelink is receiving a summary of the full rates of pensions when amounts change due to economic policy measures . . . Centrelink does not receive copies of your payment advice.”

·a letter from the Respondent to the Applicant dated 23 April 2003 (T38) in which it is stated:

“Centrelink regularly compares its payment information with the social security authorities in The Netherlands”

·a letter from the Respondent dated 15 March 2003 which states in part:

“SVB sends personal details to Centrelink in case of grants of AOW pension…and also in the case of some extraordinary rate changes. SVB sent personal details of cost of living rate changes to their customers each six month and the customer is required to inform Centrelink of changes.”

·In an article in the Dutch Courier in May 2004 (T69) it is stated following a meeting between the Respondent and SVB:

“Centrelink was always informed of what the new recipient was receiving in guilders (now euros) and a full explanation about the individual calculations of holiday payments and mutations with full English translation was added…Centrelink admitted to the SVB delegates that they did get the information, however Centrelink insisted that they did not have the system to follow up the information from the Netherlands.”

·an assertion made on behalf of Mr Heldoorn on 26 February 2004 (T65) that:

“In 1993, at the time of my father applying for the Australian pension, the Department of Social Security (DSS) advised him that formal arrangements had already been made with the Netherlands Government to automatically pay Dutch pensions…Part of the agreement between DSS and the Dutch SVB was that the Holland would continuously inform DSS of all changes to the Dutch AOW as they occur.”

36.     In detailing both understandings as to their prescription as to how the arrangements were to work, I come away with the distinct impression that over a period of ten years there was considerable areas about which misunderstanding between the Respondent and Mr Heldoorn occurred.  That these areas focussed on reporting responsibilities is understood.  It is within such an environment that I must address the issue of special circumstances.

37.     I have already outlined the administrative failings of the Respondent and the failure, albeit because of a mistaken belief by Mr Heldoorn, to report in response to letters of obligation.  I note that the letter of 2 January 1998 to Mr Heldoorn mentioned overseas pensions not being exempt, but such nomination was not made in any other letters from the Respondent to Mr Heldoorn.  What I do not understand, is the Respondent’s lack of activity to address and redress an overpayment situation when it was evident on receipt of documentation in both early 1998 and in late 2001 until April 2003 and thereafter.

38.     I further note that Mr Heldoorn is a man of some 79 years, and that while his financial circumstances are not generous, nor are they dire, in that he has savings ($25,000), receives a pension and lives in effectively subsidised accommodation.  I do not consider that his financial circumstance alone would constitute special circumstances.

39.     Similarly, while I note that Mr Heldoorn is of advancing age, with some memory deficiencies, and that the current proceedings are causing anxiety and stress, I would conclude that such circumstances do not constitute special circumstances, as they are not necessarily unusual or uncommon.

40.     In addressing the totality of circumstances in this matter I am left to weigh up and adjudicate as to whether Mr Heldoorn has been treated unfairly and to such an extent that they constitute special circumstances.  In so doing I recognise the environment in which decisions have or have not been made in this matter and the relative and relevant information sources available to the two parties.  I also recognise that administrative error is a construct of administrative activity, and that such error is often the result of inadequate administrative systems.  I also acknowledge that Mr Heldoorn has made a contribution to any outcome, because of his perceptions formed over time which have led to his misunderstandings as to his reporting obligations.

41.     In the overall analysis of this matter I find that any issue of unfairness must relate to the issue of debt accumulation over a ten year period.  In analysing the 10 year debt accumulation I note the administrative error in 1993, the reporting obligation errors in 1993 and 1994, the failure to investigate any overpayment in January 1998 as a consequence of Mrs Heldoorn’s declaration, let alone any checking as to whether Mr Heldoorn may have been receiving an AOW pension, the failure to adequately peruse bank statements at the time of overpayment in July 1999 and the failure to implement constructive review, having sought and received Mr Heldoorn’s AOW pension advice payment in 2001.

42.     Further, such circumstances must be considered with the information that had been made available to Mr Heldoorn by both SVB and Centrelink, and which has been detailed earlier in paragraph 25.

43.     From such an analysis I conclude that Mr Heldoorn has been treated unfairly to the extent that it can be considered both unusual and uncommon.  In making such a finding I conclude that such unfairness arises from a failure by the Respondent to pursue proper administrative process to prevent an aged person accumulating debt over a period of 10 years.  In so stating I am mindful of the uneven distribution of resources and information between the parties, as well as the evidence pointing to both a general systems difficulty in processing AOW pensions and in the particulars of this matter, a number of points at which timely intervention by the Respondent would have prevented further debt accumulation.  Further, there is material from both SVB and Centrelink which is permissive of ambiguous and erroneous interpretation by a recipient.

44. Further, I recognise that the imposition of a significant accumulated debt on an elderly person can create increasing anxiety and concern as to the financial well being if the debt is to be repaid. Nevertheless, while finding that special circumstances have been found to exist in this matter, I further conclude that Mr Heldoorn did not knowingly omit to comply with a provision of the Act. In so finding I acknowledge and accept the evidence of Mr Heldoorn as to his perception and beliefs, the ambiguity contained within information provided by both SVB and the Respondent to Mr Heldoorn, as to what information was being provided and what data was accessible for matching. Further, I conclude that in the circumstances of this matter it is not appropriate to write off the debt; as such an action would increase Mr Heldoorn’s anxiety as well as leaving as debt against an estate of limited asset value.

45.     In addressing the issue of waiver, I have already acknowledge that Mr Heldoorn made a contribution to his eventual circumstances, albeit by way of false belief, and as a consequence I vary the decision of the SSAT in so far as the Commonwealth’s right to recovery, 75 per cent of the debt of $22,104.25 is waived.  This I believe fairly reflects error attribution in this matter which led to the accumulated debt.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: M. Di Condio
  Associate

Date/s of Hearing  23 November 2004
Date of Decision  17 January 2005

Representative for the Applicant    Mr John Heldoorn      

Advocate for the Respondent        Mr G Lozynsky