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

[2017] AATA 1435

HLYB and Secretary, Department of Social Services (Social services second review) [2017] AATA 1435 (8 September 2017)

Division:GENERAL DIVISION

File Number:          2016/3717

Re:HLYB

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D. J. Morris, Member

Date:8 September 2017

Place:Perth

The decision under review is affirmed.

..........[sgd].............................................

D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – DSP Debt – Overpayment – partner and combined asset details provided – Department failed to update records – Applicant sent periodic notices about partner status and assets – Debt to the Commonwealth – sole administrative error accepted for part of debt period – failure to update details promptly – special circumstances discretion not enlivened for remainder of debt – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 35(3)

Social Security Act 1991 (Cth) – ss 1236(1A), 1237A, 1237AAD

CASES

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114

REASONS FOR DECISION

Mr D. J. Morris, Member

8 September 2017

BACKGROUND

1. On 13 September 2016 Deputy President Kendall made an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that the publication or other disclosure of the name, address or any other information tending to reveal the identity of a party, witness or any person related to or otherwise associated with a party or witness is prohibited.  The Applicant in this matter was assigned an acronym HLYB.

2. HLYB has been in receipt of a Disability Support Pension (DSP) since 2006.  Her entitlement to that benefit is not in dispute in this review.  The matter before the Tribunal is whether HLYB has a debt due and payable to the Commonwealth for the overpayment of DSP on the basis that her then partner’s income and assets were not taken into account for a period of time.

3. An officer of the Department of Human Services (the Department) wrote to HLYB raising a recoverable debt of $21,595.52 against the Applicant for the period from 14 April 2010 to 13 March 2012 (T2 p 6; T33, p 252). This was the original decision.  HLYB sought a review by an Authorised Review Officer (ARO), a Department officer not involved in the original debt decision. The ARO varied the decision by finding that the calculation of the overpayment amount, and therefore the debt, was correct but found that $3,105.65 should be waived under section 1237A of the Social Security Act 1991 (the Act) due to sole administrative error on the part of the Department (T28, p 167).

4. HLYB requested a review by the Social Services and Child Support Division of the Tribunal (AAT1) (T2, p 6).  That hearing was held on 21 June 2016 and on 28 June 2016 AAT1 affirmed the decision to raise and recover the debts and that part of the debt had been correctly waived by the ARO in the Department on the basis that this portion of the debt came about because of the sole administrative error of the Department (T2, p 6).

5. HLYB sought a further review by the General Division of the Tribunal (T1, p 1).  The hearing was held on 11 July 2017 by video-link, the Applicant appearing from Busselton.  She was assisted at the hearing by Ms Susan Thompson, a community advocate.  The Respondent was represented by Mr Chris Bishop.  HLYB made submissions, gave evidence and was cross-examined.

6. The Respondent tendered a bundle of documents submitted to the tribunal under section 37 of the AAT Act (‘T documents’), which were admitted into evidence.

7. The Respondent also submitted a Statement of Facts, Issue and Contentions dated 21 October 2016 which included as annexures the Applicant’s submission dated 6 September 2016 and the Applicant’s submissions dated 16 September 2016, which bundle was admitted into evidence as Exhibit R1.

8. HLYB tendered the following documents, which were admitted into evidence:

   ·Letter from the Applicant dated 31 October 2016 (Exhibit A1);

   ·Submission from the Applicant dated 11 November 2016 with four annexures (Exhibit A2);

   ·Covering note and St John Ambulance report dated 11 November 2016 (Exhibit A3);

   ·Submission from the Applicant received on 6 July 2017 (Exhibit A4);

   ·Submission from the Applicant for special consideration (Exhibit A5);

   ·Letter from Jill Kowalewski of Practitioner Online Referral Treatment Service (PORTS) dated 5 July 2017 (Exhibit A6); and

   ·Submission from Applicant dated 10 July 2017 (Exhibit A7).

9. After the hearing, the Tribunal gave leave for the Applicant and Respondent to provide further material.  HLYB provided a letter dated 22 July 2016 from Keystart Home Loans with annexures and the Respondent provided a further submission in response dated 21 July 2017.  These documents were taken into account in this review.

10. At the commencement of the hearing certain concessions were made. HLYB conceded that she had been overpaid DSP during a period when she was partnered because the payments should have been adjusted to take account of the assets she shared with her then partner (called in these reasons LZMC). The Respondent conceded that part of the debt arose from sole administrative error by the Department because computer records were not updated by Centrelink to take account of certain information that HLYB and LZMC had provided, and consequently the DSP payments had not reduced. HLYB agreed that the calculation of the debt by the Department was correct HLYB submitted, first, that part of the debt should be waived because of sole administrative error and, secondly, that the remaining part of the debt should be waived because special circumstances exist in her case that satisfy section 1237AAD of the Act.

    WHAT HAPPENED?

11. In April 2010 HLYB started a business together with LZMC, which I will call Yoga Business 2 (T30, p 176).  On 14 April 2010 she informed the Department that she had become partnered with LZMC.  HLYB lodged with the Department documents including Module P – Partner details and Module PC – Private Company and bank statements (T32, p 244).

12. The Department provided periodic statements to HLYB setting out her DSP payments and these statement included HLYB and LZMC’s assets.  These statements were provided on 20 July 2010, 29 March 2011 and 8 July 2011.  On these statements, the letters had exhortations (T33, pp 274–285):

    This letter gives you information about your payments, income and other details.  You need to let us know if any of these details change to ensure you are receiving your correct entitlement….You do not need to contact us if you have no changes.

    and

    Please check the information on this statement carefully.  If the details on this statement are correct there is no need for you to contact Centrelink.  If your circumstances have changed please contact us within 14 days.

13. Under the heading ‘Business income and assets’, the only business name listed on each form was a business that HLYB had established before she became partnered, which I will call Yoga Business 1, which was cited to have an assessed asset value of $2,000.

14. The business HLYB and LZMC had established in April 2010, Yoga Business 2, was not listed, nor was LZMC’s private trust.

15. On 21 September 2011 HLYB contacted the Department and requested an appointment to visit a Centrelink office to discuss her and her partner’s details. The Department’s computer record of the contact reads, in part (T32, p 246):

    Cus wants an appointment to come-in and discuss her and her Ptr’s details, as to why her Partner’s details has not been linked to her.  Cus has sent in the completed forms last year, see docs of 31/03/2010 and 14/04/2010.  Cus was very unhappy/annoyed that this has not been updated.  Please contact the customer to organise a suitable time for her to come-in and discuss the situation.

16. HLYB lodged a Module P- Partner details, Module C – Private Company (T23, p 128).

17. On 30 September 2011 the Department updated HLYB’s relationship status to reflect her becoming partnered with LZMC (T28, p 169), but did not update the private trust details at this time.  Because of their combined assets, this had the consequence of reducing her entitlement to DSP.  The Department wrote to HLYB to advise her of the information used to calculate her regular DSP payments (T33, p 286).

18. As mentioned above, on 4 December 2015 the Department raised a recoverable debt of $21,595.52 against HLYB for the period 14 April 2010 to 13 March 2012 for overpayment of DSP (T2, p 6; T33, p 252).

19. On 16 March 2016 an ARO varied the decision under review.  The ARO wrote (T28, p 169):

    From 14 April 2010 to 13 March 2012 you were paid a total of $35,342.74.  Based on your and your ex-partner’s actual circumstances and the correct amount of your combined assets, I have worked out that you should have been paid $13,747.22.  This means you have a debt of $21,395.52.

    I have considered the rules that allow a debt to be waived.  The rules regarding waiver due to a departmental error state that it must be solely attributable to an error by the Commonwealth, the person must have received the payment in good faith, and that the debt is raised more than 6 weeks from the end of the notification period.

    Departmental records show that on 14 April 2010 you lodged a Partner Details form and other documents related to your and your ex-partner’s income and assets.  I consider that at this time you advised the department that you had become partnered and also that you and your ex-partner were involved in a private company and that your ex-partner was involved in a private trust.

    At this time the department should have updated your circumstances to ensure you were receiving the correct rate of Disability Support Pension.  Unfortunately this did not happen and as a result, your entitlement to Disability Support Pension was calculated using less assets than you are your ex-partner actually owned.

    I have found that the delay in processing your information was solely a departmental error and also, as you had not previously received the partnered rate of Disability Support Pension, I find that it is reasonable for you to have not expected a change in your rate.  As such the portion of your debt from 14 April 2010 to 19 July 2010 can be waived due to administrative error.

    Consideration

20. There are provisions in the Act which require the Secretary to waive recovery of a debt where the debt is attributable solely to administrative error. These are found in section 1237A of the Act:

    Waiver of debt arising from error

    Administrative error

    (1)Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a 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.

    Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

    (1A)     Subsection (1) only applies if:

    (a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

    (b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

    whichever is the later.

21. It would appear to the Tribunal from a reading of the computer records of HLYB’s contact with the Department that she did correctly advise the Department that she had become partnered in April 2010.  It also appears that the Department omitted to update its records in relation to the Applicant to record this detail, and as a consequence the calculation of her DSP payments was not adjusted to take account of her and LZMC’s combined income and assets.

22. It is understandable that HLYB was frustrated by this omission, as is recorded in the officer’s report of her telephone contact, and that she re-submitted certain forms to record her domestic partnership.

23. After careful consideration, the Tribunal finds that the ARO’s decision in waiving this part of the debt was the correct decision. The Department took longer than six weeks to raise this debt, and because of the failure of the Department to update HLYB’s records and noting that she had not previously been partnered since becoming eligible for DSP in 2006, it is clear to me that she had received the overpayment up to 19 July 2010 in good faith.  I find that the amount of $3,105.65 should be waived for the period from 14 April 2010 to 19 July 2010.

    The debt from 20 July 2010 to 13 March 2012

    Section 1236(1A) – provisions for writing off debt

24. The next question for the Tribunal to consider is whether any other part of the debt should be waived or written off under the relevant provisions in the law.

25. The Respondent submitted that there are no grounds for the debt being written off because, the debt is not irrecoverable at law; the Applicant has the capacity to pay the debt; the Applicant’s whereabouts are known; and it is cost effective for the Commonwealth to take action to recover the debt. The Respondent therefore submitted that the provisions of section 1236(1A) of the Act do not apply in this case.

26. The Tribunal had before it a written submission to AAT1 dated 28 June 2016 (T31, p 213) on behalf of the Applicant from Welfare Rights & Advocacy Service.  The submission stated that, following her separation from LZMC, HLYB reached a settlement agreement with him in the amount of $152,714.53.  The Applicant provided to the Tribunal a copy of consent orders made by the Family Court of Australia on 6 November 2015 dividing up assets between HLYB and LZMC which stated that the settlement figure paid to HLYB was $142,183.95.

27. The June 2016 submission went on:

    [HLYB] currently has $123,401.38 left in her savings account.  Because of her various other circumstances (particularly her health issues and personal issues), [HLYB] has not yet settled into her new life post separation.  She anticipates that she will need most of this money to meet her short-term needs.

28. In evidence, HLYB agreed that she still had “around $122,000” in her savings account.  She said that she owned a car and some second-hand furniture.  She does not own any real estate and currently rents a unit.  She is currently repaying her Centrelink debt by the amount of $15 being withheld from her fortnightly DSP payments.

29. HLYB gave evidence that she had been in contact with Keystart Loans Ltd, an agency of the Government of Western Australia which provides home loans to certain categories of persons who might otherwise have difficulty in obtaining commercial finance.  After the hearing, HLYB provided a letter dated 22 July 2016 which set out the criteria for her approval for a Keystart home loan, one of which was:

    Evidence is to be provided that your Centrelink debt has been repaid in full.

30. The Respondent made a written submission in response to the provision of this letter, noting that it was not a loan offer and was advice of eligibility only, which was valid for 90 days from the date of the letter, but it did not provide independent evidence that repayment of the debt will have on her eligibility for the loan or her capacity to purchase a property.

    Consideration

31. The Tribunal has considered whether the provisions of section 1236(1A) of the Act are applicable in this case. The Tribunal finds that it is cost effective for the Commonwealth to take action to recover the debt, that the debt is not irrecoverable at law, that HLYB’s whereabouts are known and that it is cost effective for the Commonwealth to take action to recover the debt.

32. In terms of whether the Applicant has the capacity to repay the debt, the Tribunal notes the evidence of HLYB, and from the Family Court settlement document before the Tribunal, that there was, and remains, a substantial balance in her current savings account, from her divorce settlement.  On this basis, the Tribunal finds that HLYB does have the financial capacity to repay the debt caused by overpayment of DSP.

    Section 1237AAD – waiver in special circumstances

33. The Act includes provisions relating to the waiver of a debt in what are described as ‘special circumstances’, at section 1237AAD:

    Waiver in special circumstances

    The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

    (a)the debt did not result wholly or partly from the debtor or another person knowingly:

    (i)        making a false statement or a false representation; or

    (ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

    (b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

    (c)       it is more appropriate to waive than to write off the debt or part of the debt.

34. HLYB submitted that she did have a combination of circumstances special to her which, overall, made her situation ‘unusual, uncommon and exceptional’ and make it desirable to waive the debt.  She listed them in her oral submissions at the hearing as follows:

    ·She requires daily help; she has special housing needs which make renting a property difficult – she requires no steps and wider corridors. 

    ·She had to fight to get a legal settlement with LZMC. 

    ·It was unfair as she did not cause the debt to make her use her savings to repay the debt. 

    ·She does not have earning capacity because of her medical condition. 

    ·She can no longer teach yoga.  

    ·She is dependent on DSP payments. 

    ·She was devastated when she received the debt notice. 

    ·Inconsistencies in her written statements are due to her cognitive difficulties. 

    ·The Keystart home loan scheme offers her assistance in obtaining a suitable property that she can own.

    ·Her relationship with LZMC was abusive; she said he would not let her see mail and restricted her access to the Internet.

35. The Respondent submitted that, in considering the question of special circumstances in this review, the approach taken by Deputy President Forgie in Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114 should inform the Tribunal, wherein she said at [80]:

    The “special circumstances” are not merely directed to the person’s own circumstances.  Rather they are directed to those that are “special circumstances…that make it desirable to waive”.  That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.  Waiver of debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it …  He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement.

36. With respect, the Tribunal agrees with this approach taken by Deputy President Forgie. HLYB’s circumstances must be viewed in the context of her being among a group of persons who are recipients of a social security benefit and, in this case, specifically, a DSP. Persons in receipt of DSP are qualified for this benefit because they have impairments which have been assessed against the provisions of the Act which prevent them from working. As stated earlier, HLYB’s entitlement to the DSP is not in dispute. She gave evidence about the functional impact on her activities of her epilepsy condition and the challenges that this has presented, which the Tribunal accepts.

37. To the extent that HLYB put forward ‘special circumstances’ that relate directly to her qualification for DSP, they carry little weight in deciding whether special circumstances obtain, because such medical challenges are common for persons in the category of DSP recipients, indeed to be qualified for this pension requires meeting a certain level of functional impairment and the person having a continuing inability to work. To the extent that these special circumstances touch on financial hardship, section 1237AAD of the Act specifically requires, in considering the exercise of this discretion, that the special circumstances which apply must be other than financial hardship alone.

1. HLYB submitted at the hearing that LZMC would not let her see mail, so therefore she did not know that Centrelink had sent her periodic notices which should have alerted her to contact the Department to correct the wrong details they had about her being partnered and their joint assets in Yoga Business 2.

2. The Tribunal had no corroborative evidence to support this contention.  HLYB agreed in the hearing that, during the overpayment period, mail was delivered to the house she shared with LZMC and that she would collect it from the letterbox or sometimes LZMC would collect it when he came home.  She put forward no evidence that she was prevented from opening correspondence addressed to her, except for general remarks that LZMC had been reluctant to provide information to Centrelink about his own assets in the first place and was angry when the debt was raised because he felt, if the information on his assets had not been provided, the debt would not have occurred.

3. HLYB agreed at the hearing that she knew at the time there was a different DSP rate for single persons and partnered persons.  She agreed that she and her partner had jointly completed a Module – Private Company form dated 29 September 2011, that it was in her handwriting and that it was signed by both her and LZMC.  When it was suggested by the Respondent’s representative at the hearing that in order to complete the form it would have been necessary for her to have access to financial information of the company (Yoga Business 2), HLYB responded “I don’t know.”

4. HLYB said she taught yoga twice a week but was not extensively involved in the business.  In her submission dated 6 September 2016 (R1, Annexure A), in relation to Yoga Business 2, HLYB wrote:

   9.We planned to create and build [Yoga Business 2].  It was my dream that eventually, when [the business] began to make a profit, it would become our joint source of income.  Until then, we agreed that [LZMC] would pay his own way, and I would pay my own way.

   10.It took us approx. 3 years to begin to make a profit from [Yoga Business 2].  We opened a joint bank account 13/7/2012.  At the time the debt was accumulating we had separate bank accounts.

   11.The financial structure of [Yoga Business 2] was complex due to [LZMC’s] involvement in his Private Trust.  Because I had difficulty understanding financial and legal paperwork, we decided that he would be in charge of all our combined financial matters.

   12.My involvement in [Yoga Business 2] was designed to be flexible enough to accommodate my special needs.  I wrote newsletters because I could do at my own pace and rest if I felt a seizure coming on.  I taught classes and we had substitute teachers to cover my classes if I felt a seizure coming on.  I did 3 overseas retreats with [LZMC].  He knew my disability first hand and could substitute my classes if I felt a seizure coming on.  A friend recorded a CD of me conducting relaxation meditation.  [Yoga Business 2] produced copies of this CD, and sold them both in hard copy, and on ITunes.  I do not get royalties or make any income from this CD.

5. HLYB made a further submission (A4), received on 6 July 2017.  Some of the contents was the same as the 6 September 2016 submission but, relevantly, paragraph 9 set out above was deleted, and the following paragraph 9 substituted in its place:

   9.He received an income from his trust fund, I received DSP.  [LZMC] took charge of all the financials, and provided me with spending money.

6. At the hearing, HLYB was asked why she had deleted the sentence “We planned to create and build [Yoga Business 2].”  She responded that the newer version was closer to the truth.

7. The Tribunal also notes that paragraph 11 was changed.  The September 2016 version is set out above.  The July 2017 version of paragraph 11 read:

   11.The financial structure of [Yoga Business 2] was complex due to [LZMC’s] involvement in his Private Trust.  He refused me access

8. AAT1 does not record any reference to contentions by HLYB in that hearing about LZMC refusing HLYB access to financial information.  The weight of evidence before me leads me to the conclusion that, while I accept HLYB’s involvement in the business could sometimes be affected by her epilepsy, she was not involved in the business only superficially.  On her own evidence she wrote newsletters, conducted (some) classes, created a DVD and travelled overseas for business-related purposes.  I am disturbed that the alterations to her submissions as set out above attempt to paint a different picture than was before the ARO and AAT1, particularly the deletion of the statement that she and LZMC “planned to create and build” the business, and the deletion of the statement that she and LZMC had together agreed that he would be in charge of financial matters and its replacement by a new contention (not apparently raised before) that LZMC had “denied access” to financial data.  This also does not square with the fact that HLYB had herself filled in certain documents which included company information and submitted them to Centrelink.

9. HLYB said that she requires the funds in her bank account for new accommodation and for possible modifications to her residence to make it safer for her in terms of removing sharp edges and other risk elements if she has seizures or black outs, which has happened in the past.  The Tribunal had before it a letter from Dr Louise Marsh of Margaret River Medical Centre dated 8 July 2016 which stated:

   [HLYB] has Grand Mal seizures.  This means that she has sudden losses of consciousness, looses [sic] body control, and has convulsions that can last up to 90 seconds.  After the initial seizure she suffers a ‘post ictal’ phase.  This can last up to 30mins.  During this phase she suffers from an altered state of consciousness and other disorienting symptoms, leaving her vulnerable and in considerable danger.  She has no memory of what occurs during this stage, and has, in the past, sustained major injuries due to structural features of the houses she has lived in.  One time, during a seizure, she fell down stairs and broke both her feet and fractured her spine.  In another house, she had a seizure, and hit her eye on a sharp corner on the wall.  She nearly lost an eye.  Epilepsy is ranked in the top five causes of avoidable death.  This can be prevented with a purpose built house.

10. As mentioned above, the Tribunal fully accepts the medical impairment for which HLYB receives a DSP.  The Tribunal also has no reason to doubt the statement of Dr Marsh and the evidence about seizures and falls that the Applicant gave in evidence.  But the fact remains that there was an overpayment of DSP for a significant period, a debt accepted by HLYB, and the repayment of this debt should not affect the ability of HLYB to obtain other available assistance to adapt a residence to reduce these risk factors or, perhaps, construct a purpose-built residence which is designed to cater for her particular needs.  In fact, it would seem to the Tribunal on the basis of the material she provided, that repayment of the remaining portion of the debt may put HLYB in a better position to obtain a home loan from Keystart.

11. In Secretary, Department of Social Security v Hales (1998) 82 FCR 154 (Hales), French J said at 155:

    From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.

    CONCLUSION

12. Having carefully considered the provisions of section 1237AAD of the Act, the Tribunal finds that special circumstances that make it desirable to exercise the discretion to waive the remaining part of the overpayment debt do not exist in HLYB’s case. I do not overlook her epilepsy, for which she receives a DSP. However, I must also take into account that she was overpaid DSP for some 23 months; she knew, or came to know, on her evidence, that there was a single rate and a partnered rate and I find she would have expected the payment to change. When the payment rate did not, she did not advise the Department, in spite of receiving periodic notices (from 20 July 2010) from the Department setting out the rate and the personal financial information of HLYB and LZMC upon which it was calculated. I have already found that HLYB did inform the Department that she became partnered and that information was not input by department officers, so the portion of the debt for the period from 14 April 2010 to 19 July 2010 should be waived on the grounds of sole administrative error.

13. However, the Department sent periodic notices to HLYB: on 20 July 2010, 29 March 2011 and 8 July 2011.  Each of those notices included a reminder to the recipient to advise if any of the information in the notices was incorrect or incomplete.  These notices did not include information on HLYB’s partner nor details of Yoga Business 2, which was the business being operated by HLYB and LZMC.  It was not until 21 September 2011 that HLYB contacted the Department to query why the fact that she was partnered was not included in the most recent notice she received and on 30 September 2011 she provided details of LZMC’s private trust.  The Department did update HLYB’s records to record her being partnered but did not at first update the combined assets details to include the private trust income and assets.  The private trust income and assets exceeded the amount of $390,450 (which was the amount in the 30 September 2011 letter which, if exceeded, HLYB was advised to inform the Department).  HLYB did not advise the Department of this error within fourteen days so, although this was a further error by Centrelink, it cannot be attributed solely to administrative error in terms of debt waiver. The note in the Act after section 1237A(1) states:

    Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

    As HLYB erred in not alerting the Department to this particular omission, she cannot claim there was sole administrative error on the Respondent’s part.

14. As was set out in Hales, the taxpayer does expect the recovery of public funds where they have been paid in error to someone who did not have an entitlement to those funds. The Tribunal considers there is no financial hardship for HLYB to repay this debt; because of her savings account balance she is in a much better financial position than the majority of people in receipt of social security benefits. The Tribunal finds that HLYB’s circumstances do not enliven the special circumstances discretion available under the Act.

15. I therefore find that the decision of the ARO of 16 March 2016 relating to the debt was the correct decision in law and the preferable decision in regard to the exercise of the discretion available under the Act.

    DECISION

16. The decision under review is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, Member

.........[sgd].....................................................

Administrative Assistant – Legal

Dated:  8 September 2017

Date(s) of hearing:	11 July 2017
Date final submissions received:	2 August 2017
Applicant:	In person
Advocate for the Respondent:	Mr C Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers