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

This matter concerned an appeal by HLYB against a decision of the Secretary, Department of Social Services, regarding a debt raised for an overpayment of Disability Support Pension (DSP). The dispute centred on whether a portion of the debt should be waived due to administrative error by the Department. The case was heard by Mr D. J. Morris, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the extent to which the debt, arising from an overpayment of DSP, was attributable solely to administrative error by the Commonwealth, and whether the conditions for waiving such a debt under section 1237A of the relevant Act were met. This involved assessing whether HLYB had received the overpayments in good faith and whether the debt was raised within the prescribed timeframes, considering the notification period.

The Tribunal found that HLYB had correctly informed the Department of her change in partnered status in April 2010, but the Department failed to update its records accordingly, leading to an incorrect calculation of her DSP entitlement based on insufficient asset details. This failure to promptly update records was deemed a sole administrative error for the period from 14 April 2010 to 19 July 2010, and therefore, the debt for this period was waived. However, for the subsequent period, the Tribunal concluded that special circumstances for waiving the debt did not exist. This was because HLYB received periodic notices from the Department detailing her payment rate and financial information, and despite these notices prompting her to report any inaccuracies, she failed to alert the Department to the omission of her partner's private trust income and assets, which exceeded the reporting threshold. This failure on HLYB's part meant the subsequent overpayment was not solely attributable to administrative error, as it also involved her own error in not reporting the omission.

Consequently, the Tribunal ordered that the portion of the debt from 14 April 2010 to 19 July 2010 be waived due to sole administrative error. The remaining portion of the debt was not waived, as the Tribunal found no special circumstances to justify such an exercise of discretion.