Innes and Secretary, Department of Social Services (Social services second review)
[2022] AATA 3977
•24 November 2022
Innes and Secretary, Department of Social Services (Social services second review) [2022] AATA 3977 (24 November 2022)
Division:GENERAL DIVISION
File Number: 2018/6384
Re:Peter Innes
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Member D Mitchell
Date:24 November 2022
Place:Brisbane
The Tribunal varies the decision under review to the extent that the Applicant’s Newstart Allowance debt is written off for a period of 6 months from the date of this decision. The decision under review is otherwise affirmed.
..............................[SGD]..................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – Newstart Allowance – overpayment – where income was not correctly reported – where no sole administrative error – where no special circumstances -where appropriate to write off repayment of the debt – decision under review otherwise affirmed
Legislation
Crimes Act 1914 (Cth)
Judgement Debt Recovery Act 1984 (Vic)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Cases
Boscolo v Secretary, Dept of Social Security [1999] FCA 106; (1999) 90 FCR 531
Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693; [2007] AATA 1114
Groth v Secretary, Department of Social Security (1995) 40 ALD 541; [1995] FCA 1708
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
L v Department of Social Security [1981] AATA 57
Secretary, Department of Social Security v Hales [1998] FCA 219
Sekhon v Secretary, Department of Family and Community Services (2003) 76 ALD 105; [2003] FCAFC 190
Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; [1981] AATA 57
Re Lumsden and Secretary Department of Social Security [1986] AATA 228
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553; [2001] AATA 72
Re Stubbs and Secretary Department of Families Community Services [2003] AATA 729
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639
Ward and Secretary, Department of Families and Community Services [2000] AATA 212
REASONS FOR DECISION
Member D Mitchell
24 November 2022
Introduction
Mr Peter Innes (the Applicant) has undertaken a long and challenging journey in dispute of the Respondent’s decision dated 8 May 2014 to raise and recover a Newstart Allowance (NSA) debt for the period 26 June 2009 to 27 November 2013.[1]
[1] Exhibit 1, T Documents, T11, pages 127-128, Centrelink Notice: Account Payable.
The debt was raised on the basis that the Applicant’s correct employment income was not taken into account in calculating the NSA payments made to him.
The debt period and debt amount have been recalculated and as such, the reviewable decision relates to a NSA debt raised of $21,158.63 (inclusive of a $1,923.50 debt recovery charge) in relation to the period 7 August 2009 to 6 June 2013 (the debt period).[2]
[2] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment C, Letter from the Respondent to the Applicant dated 16 September 2022.
The issues before the Tribunal are:
1.Whether the Applicant was paid more than his correct amount of NSA for the debt period;
2.If so, whether any such overpayment constitutes a debt to the Commonwealth; and
3.If so, whether the debt is recoverable in part or in full?
Background
The Applicant was in receipt of NSA since 7 April 1999 (with some periods of suspension and cancellation)[3] until he was granted the disability support pension (DSP) in October 2021.[4]
[3] Exhibit 1, T Documents, T17, pages 150-151, Centrelink Mainframe Screen Printouts.
[4] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, page 134, paragraph 3.2.
During the debt period, the Applicant’s employment history and wage details are as follows:
Employer
Period in which the Applicant was employed by this employer
Wage details
El-Electric
2 July 2009 to 27 October 2010
Total verified earnings of $5,650.00[5]
ESM Security Pty Ltd
2 November 2009 to
1 October 2013Total verified earnings of $16,333.63[6]
Glad Retail Cleaning
18 July 2012 to 10 August 2012
Total verified earnings of $1,980.00[7]
Acquired Awareness Traffic Management Pty Ltd
19 September 2012 to
26 February 2013Total verified earnings of $52,043.64[8]
[5] Exhibit 1, T Documents, T8, pages 55-61, El Electric’s response to information request with attached transaction listing and Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment A.
[6] Exhibit 1, T Documents, T6, pages 42-48, ESM Security’s response to information request with attached payroll and Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment A
[7] Exhibit 1, T Documents, T7, pages 49-54, Glad Retail Cleaning’s response to information request with payslips; Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment A.
[8] Exhibit 1, T Documents, T5, pages 22-41, Acquired Awareness Traffic Man’s response to information request with payslips; Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment A.
On 9 July 2009, the Respondent issued the Applicant with a notice pursuant to section 68(2) of the Social Security (Administration) Act 1999 (Cth) (Information Notice) advising details of his rate of NSA and outlining his reporting requirements.[9] The Information Notice outlined:[10]
[9] Exhibit 1, T Documents, T20, pages 468-469, Archived Centrelink Notices addressed to the Applicant in the period 03.06.2009 to 24.02.2011.
[10] Exhibit 1, T Documents, T20, page 468, Archived Centrelink Notices addressed to the Applicant in the period 03.06.2009 to 24.02.2011.
IMPORTANT INFORMATION
· Your Reporting Statement (Application for Payment) is enclosed. If you are using Self Service (online or phone), you do not need to return this form. You must report your earnings and other information on the Due Date.
…
What is income
Income has a very broad meaning for social security purposes. Some examples of income are earnings from employment (including fringe benefits), business income (including farms), income from rental properties, deemed income from financial investments, income from superannuation pensions and other income streams, income paid from overseas including pensions, most compensation payments.
…
You must tell us if any of these things below have happened in the period Friday 10 July 2009 to Thursday 23 July 2009
Income
o You got any money from or changed your investments.…
o Your hours of work changed.
…
o You got any other money from any other source.
The Applicant was provided with approximately forty-four Information Notices to the same effect throughout the debt period.[11]
[11] Exhibit 1, T Documents, T20, Archived Centrelink Notices addressed to the Applicant in the period 03.06.2009 to 24.02.2011 and T21, Centrelink Notices addressed to the Applicant in the period 31.08.2010 to 18.11.2013.
The Applicant’s employment history and income details outlined at paragraph 6 above were received by the Respondent from the relevant employers as a result of notices issued by the Respondent to the employers.[12]
[12] Exhibit 1, T Documents, T5, Acquired Awareness Traffic Man’s response to information request with payslips; T6, ESM Security’s response to information request with attached payroll; T7, Glad Retail Cleaning’s response to information request with payslips and T8, El Electric’s response to information request with attached transaction listing.
Based on the verified employment income information, the Applicant’s income during the debt period was $75,995.56.[13] During that period, the Applicant reported his income 54 times, however only declared a total income of $21,681.[14]
[13] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment A, Verified Earnings Details.
[14] Exhibit 1, T Documents, T20, pages 152-157, Archived Centrelink Notices addressed to the Applicant in the period 03.06.2009 to 24.02.2011; Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment A, Verified Earnings Details.
On 8 May 2014, the Respondent raised a NSA debt of $25,305.74 (inclusive of a recovery fee of $2,300.50) for the period 26 June 2009 to 27 November 2013.[15]
[15] Exhibit 1, T Documents, T11, pages 127-128, Centrelink Notice: Account Payable.
The Applicant sought review of that decision in a letter provided to the Respondent on
11 July 2014.[16] The Applicant apologised “for not being more accurate with [his] financial dealings with Centrelink” and outlined personal circumstances that had affected him during the debt period.
[16] Exhibit 1, T Documents, T12, pages 129-133, Written statement prepared by the applicant.
On 5 November 2014, an authorised review officer (ARO) affirmed the decision.[17]
[17] Exhibit 1, T Documents, T14, pages 135-141, Decision and notes of Authorised Review Officer.
On 5 December 2016, the Applicant pled guilty to two counts of ‘obtains financial advantage from a Commonwealth entity’ in relation to NSA in the amount of $16,897.34 relating to the period between 18 July 2010 and 1 March 2013.
The Applicant was ordered to:[18]
·
undertake 200 hours of community service pursuant to section 20AB of the
Crimes Act 1914(Cth) (Crimes Act);
·make reparation to the Commonwealth in the amount of $15,438.86 pursuant to section 21B of the Crimes Act; and
·pay Court costs in the amount of $89.80.
[18] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment B, Verdict and Judgment Record.
The Prosecution Report dated 8 December 2016 provided the following:[19]
FACTS: During a period of sixty (60) fortnights, whilst in receipt of Newstart Allowance the defendant failed to correctly declare the amount of his income from employment to the Department of Human Services (hereafter “Centrelink”).
The incorrect information the Defendant repeatedly provided Centrelink about his income from employment during the offence periods amounted to an ongoing course of conduct, in that they were acts of a similar nature committed with the purpose of obtaining payments of Newstart Allowance from the Commonwealth, which the Defendant knew or believed he was not eligible to receive.
REMARKS: Her Honour noted the facts, as well as the submissions of the Crown and defence. She also took into account the defendant’s plea of guilty to the offences and that the defendant had no criminal history. The Magistrate noted the psychological material before the court, and took into account the fact that the defendant had suffered from depression after the death of a family member. Her Honour also had regard to the fact that the defendant had the care of his daughter. Her Honour noted that a period of imprisonment with immediate release might have been in range, but that a CSO was the more appropriate penalty when considering the mitigating circumstances of the defendant and the unsophisticated nature of the offending.
[19] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions and Attachment B, Prosecution Report.
It is noted that the reparation amount was received by the Respondent on 16 April 2020 as part of a compensation garnishee notice and was subsequently refunded to the Applicant as a result of subsequent Tribunal proceedings.[20]
[20] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, page 138; Exhibit 1, T Documents, T17, pages 150-151, Centrelink Mainframe Screen Printouts.
On 23 May 2018, the Applicant applied to the Social Services and Child Support Division of the Tribunal (SSCSD) for review of the ARO decision dated 5 November 2014.[21]
[21] Exhibit 1, T Documents, T15, pages 142-143, Request for statement.
On 25 September 2018, the SSCSD affirmed the decision of the ARO.[22]
[22] Exhibit 1, T Documents, T2, pages 2-7, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an email dated 29 October 2018.[23]
[23] Exhibit 1, T Documents, T1, pages 1, Application for Review.
On 25 July 2019, the Applicant and Respondent signed terms of agreement, finalising the matter before the Tribunal on the basis that:[24]
(a)the Applicant would make a lump sum repayment of $10,000 towards the debt amounting to $25,305.74 on or before 30 September 2019; and
(b)subject to the payment being made the Respondent would waive the Commonwealths right to recover $5,000 of the debt.
[24] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, paragraph 3.20, pages 138-139.
The Applicant did not make the agreed lump sum repayment and as such, the right to recover $5,000 of the debt amount was not waived.[25]
[25] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, paragraph 3.21, page 139.
On 17 February 2022, the Applicant sought reinstatement of the matter before the Tribunal. The Respondent consented to the reinstatement request on 3 March 2022.[26] On
11 March 2022, Deputy President McDermott directed that the application be reinstated.
[26] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, paragraph 3.23, page 139.
On 16 September 2022, the Respondent issued the Applicant with an amended debt notice varying the SSCSD decision such that the Applicant had a recoverable NSA debt of $21,158.63 (inclusive of a $1,923.50 recovery fee) for the debt period.
Pursuant to section 182(2) of the Social Security (Administration) Act 1999 (Cth), the Respondent’s decision of 16 September 2022 is taken to be a decision by the SSCSD to vary the amount of and recover the Applicant’s NSA debt.
On 7 October 2022, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
As at 14 October 2022, the Applicant was in receipt of a net fortnightly payment of $1,168.52 (being DSP inclusive of $150.36 in rent assistance) plus a fortnightly Pensioner Education Supplement payment of $62.40. The Applicant had regular fortnightly withholdings of $20.00 from his DSP.[27]
[27] Respondent’s closing submissions, page 2, paragraphs 4.5 and Attachment A.
applicants evidence and contentions
On 9 May 2022, the Applicant provided a letter to the Tribunal with accompanying medical information outlining that he was asking for a fresh review of his debt on two grounds.[28]
[28] Exhibit 2, Joint Tribunal Book, A3, Correspondence from the Applicant to the Tribunal dated 9 May 2022 with attachments, pages 3-50.
Firstly, the Applicant submitted that his debt is a Robodebt, he is a tier 2 class action member of the Robodebt class action, that he only pled guilty to the charges regarding the debt in a court of law and the lawyer who advised him has since been banned from practicing law in Queensland. He stated that he is not guilty of the debt amount.[29]
[29] Exhibit 2, Joint Tribunal Book, A3, Correspondence from the Applicant to the Tribunal dated 9 May 2022 with attachments, pages 7-8.
Secondly, the Applicant submitted that he is seeking a review due to special/changed circumstances and sought to have the debt waived. He provided that since his last review, he had been attacked at work, received a TPD payout and common law compensation, been diagnosed with PTSD and placed on the DSP. The Applicant submitted that the Respondent incorrectly garnished his TPD payout and applied a preclusion period which led to him being homeless from May 2021 to mid-November 2021, resulting in a deterioration of his medical and physical condition.[30]
[30] Exhibit 2, Joint Tribunal Book, A3, Correspondence from the Applicant to the Tribunal dated 9 May 2022 with attachments, pages 7-8.
The Applicant submitted:[31]
I am asking for my debt to be frozen and/or waivered due to my changed special circumstances and present mental and financial position.
After the trauma I have endured through Robodebt and incorrect administration error the last few years, I am willing to contest this matter further.
[31] Exhibit 2, Joint Tribunal Book, A3, Correspondence from the Applicant to the Tribunal dated 9 May 2022 with attachments, page 9.
On 6 July 2022 and 23 August 2022, the Tribunal received further documents from the Applicant in support of his application.[32]
[32] Exhibit 2, Joint Tribunal Book, A4, Correspondence from the Applicant to the Tribunal dated 6 July 2022 with attachments; A5, Article from the Guardian in relation to Robodebt and A6, Article from Homeless Law in Practice.
Ahead of the Hearing, on 5 October 2022, the Tribunal received a submission from the Applicant enclosing a Freedom of Information decision and the documents that were released.[33] The Tribunal notes that those documents are substantially reproductions of those contained in the T Documents.
[33] Exhibit 3, FOI decision letter and released documents.
At the Hearing, the Applicant gave evidence under affirmation and provided evidence that was consistent with his written submissions. The Applicant told the Tribunal that:
·When he went to court in December 2016, he was urged to plead guilty by his lawyer.
·In his view, the only legal document before the Tribunal is the prosecutor’s document and judgement sheet.
·He believed that $10,000 of the debt was a Robodebt but this proposition was rejected by the appeal in 2018.
·His understanding was that when he reinstated this matter a few months ago, he was appealing this debt on two grounds, special circumstances and administrative error.
·He has never seen a lot of the payslips that have been received from Acquired Awareness Traffic Control.
·Acquired Awareness Traffic Control lost a contract in 2013 for not providing payslips.
·The Robodebt situation has affected his relationship with his daughter.
·He agrees with the Judge who in December 2016 said that “it was an unsophisticated matter, not a contrived matter, not a preconceived matter.”
·He was of the genuine belief that the ATO and the Respondent worked together to work everything out. He filed his income tax returns for the relevant years and if anything, he overdeclared his income.
·He had declared all of his income in his tax returns before the legal action started.
·He did not intentionally defraud anyone as he declared his income in his tax.
·In relation to special circumstances, he is a tier 2 Robodebt victim and the fact that he survived being homeless due to the Respondent’s actions in garnishing his compensation payment, is special to him.
·The Respondent in September withheld $150 from his Centrelink payment and that caused him to be unable to pay his rent and to lose his accommodation. He was now homeless.
·This is the second time that the Respondent’s actions have led to him being homeless.
·The medical reports show that Robdebt has affected him psychologically.
·“I would like to think some leeway is attributed in regard to special circumstances and the two times Services Australia’s actions, and the action of the bikies attacking me at work a few years ago, they’ve made my circumstances special because the prospects of me paying off this debt, what now I’m on a disability support pension, are limited in my opinion and Legal Aid’s opinion virtually nil.”
·He is trying to get back on his feet and contribute to society and wants to work between 10 and 20 hours a week.
·He is about to start his MR licence so that he can drive a bus as he knows someone who can get him work.
·He is judgment proof.
·When asked if he agreed that he was overpaid NSA during the debt period, that he agreed he was overpaid but he does not agree that he did it deliberately or maliciously.
·When asked if he agreed that the income details provided in the evidence before the Tribunal were correct, that he would not comment on that as he has a retired financial accountant going through the information.
·He agreed that during the debt period, he did not always report his income correctly but that was due to the information he was getting from his employers. For example, he had to estimate what he was paid by Acquired Awareness.
·When asked what being a tier 2 Robodebt victim meant, that it means that Services Australia used an algorithm to average out his income instead of using payslips or banks statements.
·He was receiving DSP and an additional $60 per fortnight as he had just completed a carer’s course, otherwise he had no other income.
·He has no other assets outside of his vehicle.
·He has no official debts owed to banks, however, has personal debts of between two and three thousand dollars owed to friends and family.
·When asked if he was able to meet his expenses from his DSP, that at the moment he could because he is sleeping in his car so he is not paying rent and can actually start to give his daughter $50 a fortnight.
·The flipside of living in his car is that it gets used more and needs more maintenance and petrol.
·It all balances out and he does not have much left at the end of each fortnight.
·When he was not homeless, he was paying $325.00 a week for furnished accommodation and at that stage, it was borderline whether he could meet his expenses. This is why when Centrelink took a large chunk out of his DSP, he could not pay his rent and lost his accommodation.
·He has all of his linen, clothes and stuff in his car.
·He is proud of the fact that given everything that has happened over the past 2 years, he stayed in the area so he could be there for his daughter.
On cross-examination, the Applicant told the Tribunal:
·When asked if he thought that because he put in his tax returns and declared the amount of income he earnt to the ATO, it would resolve the issue in terms of whether he had been under-reporting to Centrelink at various stages, that he is of the opinion now that it should have, considering everything that was going on in his life at the time.
·When asked if he agreed that in addition to any obligations he had to the ATO, he knew that in respect of his obligations to Centrelink, he was required to advise them of his earnings, that he did to the best of his ability.
·Agreed that a number of times the amounts of income he declared were incorrect because they were estimates.
·He pled guilty to the two charges without having all of the information he has now and was given incorrect legal advice.
·When asked if he agreed that he was incorrectly declaring his income in the period between 2009 and 2013, that “Due to circumstances.”
·When asked if the incorrect declaration of his income has led to the calculation of debts, that he agreed but the debts also included a Robodebt.
·When asked if he was aware that the debt had now been recalculated and is no longer a Robodebt, that does not mean it is okay.
When asked by the Tribunal at the Hearing how long would he seek if the Tribunal was minded to write off his debt for a period of time, the Applicant said that realistically, he would need 6 months or so to get himself working, hopefully 15 hours a week on DSP.
consideration
The law in relation to the payment of NSA (now referred to as Jobseeker payment) and recovery of social security debts owed to the Commonwealth is found in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (Administration Act).
The Tribunal must consider whether a NSA debt exists for the debt period and if so, whether the debt should recovered in part or in full.
Did a debt exist?
How is the rate of NSA calculated?[34]
[34] Note the Tribunal has applied the law as in place at the time the NSA debt was first raised with regards to the calculation of the rate of NSA payable to the Applicant.
Section 643 of the Act provides that a person’s rate of NSA is worked out using the Benefit Rate Calculator B found at the end of section 1068 of the Act. Module G of section 1068 of the Act provides a Method Statement for calculating the effect that a person’s ordinary income has on the maximum payment rate of NSA.
Ordinary income is defined by the Act to mean income that is not maintenance income or an exempt sum.[35] Income in relation to a person is defined to mean an income amount earned, derived or received by the person for the person’s own use or benefit.[36]
[35] Section 8(1) of the Act.
[36] Section 8(1)(a) of the Act.
Further, ordinary income includes employment income that is for remunerative work of the person as an employee in an employer/employee relationship.[37]
[37] Section 8(1A) of the Act.
Part 3.10 of the Act provides general provisions relating to the ordinary income test.
Division 1AA of Part 3.10 of the Act provides employment income attribution rules. Section 1073A of the Act provides that employment income received in respect of a period greater than a fortnight that is taken to have been earned, derived or received by a person may be taken to have been earned, derived or received over such period, not exceeding 52 weeks as the Respondent (or on review the Tribunal) determines.
Section 1073B of the Act provided that:
(1) If:
(a)a person is receiving a social security pension or a social security benefit; and
(b)the person’s rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and
(d)the person earns, derives or receives, or is taken, either by virtue of the operation of section 1073A or any other provision of this Act, to earn, derive or receive, employment income during the whole or a part of a particular instalment period of the person;
the person is taken to earn, derive or receive, on each day in that instalment period, an amount of employment income worked out by dividing the total amount of the employment income referred to in paragraph (d) by the number of days in the period.
(2) If a person has reached pension age and is receiving a social security benefit, subsection (1) does not apply to the person, to the extent that it relates to that benefit.
As a result, once it is satisfied that a person had earned, derived or received an amount of employment income during the whole or a part of a particular instalment period, the person is deemed to have earned, derived or received an amount of employment income on each day in that instalment period, worked out by dividing the total amount of employment income by the number of days in the instalment period.
An instalment period for the Applicant’s purposes is taken to be a social security periodic payment that was to be paid in arrears by instalment relating to such periods (not exceeding 14 days) as the Respondent determined calculated by reference to the daily rate of payment applicable to each day.[38]
[38] Sections 23 of the Act and 43 of the Administration Act.
Division 1AB of Part 3.10 of the Act outlines working credit accrual and depletion rules and their consequences when calculating the rate of NSA payment.
These provisions taken together mean that the Applicant’s gross employment income is assessed under the ordinary income test in Module G of section 1068 of the Act in order to determine his appropriate rate of NSA.
Did a debt arise?
Section 1223(1) of the Act provides that if a person receives a payment that they were not entitled to for any reason, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
The obligation is on the payment recipient to report any changes in their circumstances, which includes their earnings.[39] This is set out in most letters sent by Centrelink to the Applicant pursuant to section 68 of the Administration Act. Section 74 of the Administration Act provides that it is an offence to fail to comply with a notice given under section 68.
[39] Section 66A of the Administration Act.
Section 100 of the Administration Act deals with circumstances where a person, who is receiving a social security payment, is given a notice under section 68(2) of the Administration Act requiring them to report a change in circumstances within a specified time. If the change occurs but the person does not inform Centrelink and the person’s rate of social security payment changes, the social security payment becomes payable to the person at the reduced rate on the day on which the change of circumstances occurred.
While the Tribunal understands that during the debt period, the Applicant may have been in receipt of payslips and that he was going through an extremely difficult period of his life, how an overpayment of a social security benefit occurs is irrelevant in determining whether a debt to the Commonwealth exists pursuant to section 1223(1) of the Act. The Act clearly sets out how the rate of NSA is to be calculated and provides that the person’s income must be taken into consideration.
The Applicant acknowledges that his income was not correctly reported and that he was overpaid. The issue in contention is the quantum of any arising NSA debt.
The Respondent provided the following submissions:[40]
4.30 For the purposes of these proceedings, calculations have been performed of the effect the Applicant’s ordinary income had on his rate of payment during the debt period in accordance with Module G of section 1068 of the Act (see MultiCal at Attachment A).
4.31 The Applicant received employment income from ESM Security Pty Ltd, Glad Retail Cleaning, and Acquired Awareness Traffic Management Pty Ltd during the debt period, which was not correctly taken into account when calculating his rate of newstart allowance. The applicant’s employment income has been verified by ESM Security Pty Ltd, Glad Retail Cleaning, and Acquired Awareness Traffic Management Pty Ltd (T5-T9), and the debt has been recalculated on the basis of this information (Attachment A).
4.32 The Secretary contends that the recalculated debt as outlined in Attachment A has been correctly calculated on the basis of the best available evidence of the Applicant’s employment income. In relation to the Applicant’s employment income from ESM Security Pty Ltd, Glad Retail Cleaning, and Acquired Awareness Traffic Management Pty Ltd, the information available does not permit the Secretary to identify the particular date on which the employment income was earned or derived. The Secretary has therefore taken the approach of recognising the income at the point at which it was first received by the Applicant (by reference to the relevant pay date). This approach to debt calculation was accepted by the Tribunal in Judd and Secretary, Department of Social Services [2022] AATA 727 as being open.
4.33 On 26 June 2009 (start of the debt period), to receive the maximum rate of newstart allowance, the Applicant’s income needed to be no more than $62 per fortnight. Any income between $62 and $250 would have reduced the rate by 50 cents in the dollar, and 60 cents for each dollar above $250 per fortnight. The income test reductions changed through the debt period and are detailed in the Guide to the Australian Government Payments.
4.34 Paragraph 123(3)(b) of the Administration Act states that a determination regarding the rate of a social security payment continues in effect until the payment becomes payable at a lower rate under section 98, 99 or 100.
4.35 The Secretary submits that the Applicant failed to correctly declare his employment income for the purposes of his newstart allowance as required by section 66A and subsection 68(2) of the Administration Act.
4.36 The Applicant was entitled to $21,137.45 in newstart allowance during the debt period however he received $40,372.58. This amounts to an overpayment of $19,235.13.
4.37 The Secretary contends that the debt has been correctly calculated in the amount of $19,235.13 and is a debt due to the Commonwealth.
[40] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, pages 144-145, paragraphs 4.30-4.37.
At the Hearing, the Respondent further submitted that the NSA debt, as it stood at that time, was a debt calculated in accordance with the relevant provisions of the Act and had been done on the basis of comparison of the actual payslips. It is not a matter where there has been data obtained from the ATO in terms of annual returns or declared income and averaging. The debt has been calculated on an instalment period to instalment period basis, having regard to all of the payslips that have been provided. The Respondent told the Tribunal that the debt amount had been varied by the decision made on 16 September 2022 as a fresh set of eyes had gone back over all of the available information and done a recalculation.
The Tribunal notes that while the Applicant does not agree with the NSA debt calculation for the debt period, he did not provide any evidence or make any submissions in relation to the accuracy of the verified earnings provided by his employers or the application of the legislative formula used.
Having reviewed the evidence before it, the Tribunal finds that the Applicant received more than his entitlement to NSA during the debt period. Further, having considered the debt calculation and the supporting evidence provided by the Respondent, the calculation method as set out above and having cross referenced a sample of the calculations, in the absence of evidence to the contrary, the Tribunal accepts the debt calculation submitted by the Respondent.
As such, the Tribunal finds that the Applicant has a NSA debt in relation to the debt period of $19,235.13.
The Tribunal notes that neither party made any submissions in relation to the recovery fee of $1,923.50 that was applied to the Applicant’s NSA debt. For completeness, section 1228B of the Act provides for a 10% penalty to be added to a debt if, among other things, the debt arose because the person failed to provide information about their earnings from personal exertion. On the evidence before the Tribunal, it is satisfied that the NSA debt arose due to the Applicant’s failure to provide information about his earnings and as such, the Tribunal finds that the recovery fee has been correctly applied.
Consequently, the Tribunal finds that the Applicant has a NSA debt in relation to the debt period of $21,158.63 (inclusive of a debt recovery charge of $1,923.50), which constitutes a debt being debt is owed to the Commonwealth.
Is the NSA debt recoverable?
As the Tribunal has found that a NSA debt in relation to the debt period exists, it must determine whether the debt must be repaid.
It is generally expected that debts to the Commonwealth resulting from overpayments are recovered. This proposition was expressed by French J in relation to debt recovery in Secretary, Department of Social Security v Hales [1998] FCA 219 as:
The taxpayer is entitled to expect that in the ordinary course money paid to people that they are not entitled to received will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.
However, there are circumstances where the recovery of debts is either put on hold for a period of time (written off) or is no longer pursued (waived). Relevant to the Applicant’s NSA debt, the Respondent may write off, or waive, his NSA debt if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.
Should the Applicant’s NSA debt be written off pursuant to section 1236 of the Act?
Section 1236 of the Act applies in relation to whether the Applicant’s NSA debt for the debt period should be written off.
Section 1236(1) of the Act provides that subject to section 1236(1A), the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise.
Section 1236(1A) of the Act allows the Respondent to decide to write off a debt if and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
Section 1236(1B) of the Act provides that for the purposes of section 1236(1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
Section 1236(1C) of the Act provides that for the purposes of section 1236(1A)(b), if a debt is recoverable by means of:
(a)deductions from the debtor’s social security payment; or
(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c)setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those
means would result in the debtor being in severe financial hardship.The term severe financial hardship is not defined in the Act, however, has been considered by the Tribunal in a number of cases.
In Re Lumsden and Secretary Department of Social Security [1986] AATA 228, the Tribunal considered that for financial hardship to be established, a person’s entire financial position would need to be materially less than the current rate of pension.
In Re Stubbs and Secretary Department of Families Community Services [2003] AATA 729, the Tribunal remarked at [20] that:
…Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature ….
In L v Department of Social Security [1981] AATA 57, the Tribunal stated at [66]:
In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write off under subsection 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing in mind the financial means and obligations of the individual concerned. Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation ….
The evidence before the Tribunal is that the Applicant is in receipt of fortnightly payments of DSP, pension education supplement and possibly rent assistance and that previously, he has had regular fortnightly withholdings of $20.00 from his DSP. The Applicant has at all times kept in contact with the Respondent. Further, the Tribunal has found that the Applicant’s NSA debt for the debt period exists.
The Applicant gave evidence at the Hearing that he was presently homeless and was living in his vehicle, having lost his rental accommodation in September 2022. The Applicant outlined that he was meeting his expenses, his only asset was his vehicle and that he had debts of approximately $2,000 to $3,000 owed to family and friends.
The Applicant told the Tribunal that he was about to start a MR course and was hoping to get a job to drive a bus for at least 10 hours a week once it was finished. When asked how long he thought he would need to be in a position to start repaying his NSA debt should it be found that one exists, the Applicant told the Tribunal that he realistically needed six months to get himself working and sorted out.
The Tribunal requested that the Respondent provide closing submissions following the Hearing in relation to its views as to whether, given the Applicant’s evidence at Hearing, it considered it was appropriate for the Applicant’s NSA debt, should one be found, to be written off and if so, for what period. In the Respondent’s Closing Submissions dated 14 October 2022, it contended that it is open to the Tribunal on account of the Applicant’s oral evidence at the hearing to write off the debt for a period of six months on the basis that continuing deductions for the Applicant’s social security payment will result in the Applicant being in severe financial hardship.[41]
[41] Respondent’s Closing Submissions, page 3, paragraph 4.10.
The Tribunal notes that the Applicant contended that any NSA debt was not recoverable as he was judgment proof. The Applicant provided a printout from the website of Homeless Law in Practice that deals with the payment of judgment debts under the Judgement Debt Recovery Act 1984 (Vic).[42] The information provided deals with instances where a person has had a court judgment made against them requiring them to make a payment and advises as to when collection of the arising debt can be enforced. This is of no assistance to the Applicant in this present matter.
[42] Exhibit 2, Joint Tribunal Book, A6, Article from Homeless Law in Practice.
In the absence of evidence to the contrary, the Tribunal is satisfied that the Applicant’s NSA debt for the debt period is not irrecoverable at law, that the Applicant’s whereabouts are known and it is cost effective for the Commonwealth to take action to recover the debt.
The Tribunal has no reason to doubt the evidence given by the Applicant at the Hearing and confirmed in the submissions he made after the Hearing, that he was presently homeless. The evidence outlined by the Applicant at the Hearing indicated that while he was meeting his everyday expenses and may have had a small amount of money left over, also outlined that the resources he may need to resecure accommodation and to continue to survive whilst homeless. The Tribunal considers that the evidence before it showed a level of financial suffering of a severe or extreme nature and as a result, the Applicant is experiencing severe financial hardship.
Consequently, based on the evidence before it and the contentions of the Applicant and Respondent, the Tribunal finds that for the purposes of section 1236(1A)(b) and 1236(1C), while the Applicant’s NSA debt for the debt period is recoverable by means of deductions from his social security payments, doing so would result in him being in severe financial hardship.
As such, the Tribunal is satisfied that the Applicant’s NSA debt for the debt period should be written off pursuant to section 1236(1) of the Act for a period of 6 months from the date of this decision.
Should the Applicant’s NSA debt be waived due to sole administrative error pursuant to section 1237A of the Act?
Section 1237A of the Act applies in relation to whether the Applicant’s NSA debt for the debt period should be waived due to a sole administrative error having been made by the Respondent.
Section 1237A of the Act provides that the Respondent 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.
Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph [35] stated:
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.
Relevantly, in Ward and Secretary, Department of Families and Community Services [2000] AATA 212, Deputy President Forgie held at [47]:
This means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor.
The Respondent comprehensively contended that the Applicant’s NSA debt is not attributable solely to an administrative error made by the Respondent in circumstances where the debt arose due to the Applicant’s failure to correctly report his employment income during the debt period. The Respondent contended that the Applicant’s NSA debt in relation to the debt period is not in any part due to administrative error on behalf of the Respondent.[43]
[43] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, pages 148-151, paragraphs 4.55-4.72.
While the Applicant points to a number of administrative errors, he considers that the Respondent made in relation to withholdings made from his payments or the amounts garnished from his compensation payment, he also acknowledges that he did not accurately report his income throughout the debt period. The Applicant contended that his reporting issues arose due to his personal circumstances and having not been furnished with payslips from his employers. The Applicant further contended that he thought by declaring all of his income in his income tax returns and submitting them to the ATO, it would remedy any failure to report his income to the Respondent.
Based on such evidence, the Tribunal does not accept that the Applicant’s NSA debt has arisen due to sole administrative error. The notices sent to the Applicant pursuant to section 68(2) of the Administration Act clearly set out that Applicant must report his income and any changes to his circumstances to the Respondent via Centrelink. The Applicant’s expectation that the lodging of his income tax returns would also in some way mitigate the NSA debts that had arisen appears to have developed after the debts were incurred.
As such, based on the evidence before it, the Tribunal finds that the Applicant’s NSA debt arising during the debt period resulted from his failure to accurately report his income and as such, did not result from an administrative error, let alone a sole administrative error.
Consequently, the Tribunal finds that the Applicant’s NSA debt cannot be waived pursuant to section 1237A of the Act.
Should the Respondent’s NSA debt be waived due to special circumstances pursuant to sections 1237AAD of the Act?
Section 1237AAD of the Act applies in relation to whether the Applicant’s NSA debt for the debt period should be waived due to the presence of special circumstances.
Section 1237AAD of the Act provides that the Respondent may waive the right to recover all or part of a debt if they are 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.
The Act does not provide a definition of “knowingly”, however it has been discussed in numerous Tribunal decisions. In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, it was stated at [48]:
There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
In Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494, the Tribunal stated at [27]:
… It is open for the Tribunal to infer that the applicant has actual knowledge of his obligations under the Act where there are opportunities for that knowledge to be gained and where there are no obstacles to him acquiring that knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act through the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge.
In Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, Deputy President Forgie referred to her decision in Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72 at [74]:
… I concluded that 'knowingly' means actually knowing as opposed to the other two of the three degrees of knowledge. The first of the other two sorts is the sort of knowledge that comes from deliberately refraining to make enquiries because the enquiries will lead to answers that are not desired by the enquirer. The second is constructive knowledge in the sense that the person ought to have known the specific information or had the means of knowledge.
The Respondent contended that the Applicant knowingly made a false statement and failed to comply with his obligations during the debt period by incorrectly declaring his employment income when he was reporting.[44] The Respondent provided that:[45]
4.78 As contended at paragraph 4.68 above, the Applicant plead guilty to two counts of ‘obtains financial advantage from a Commonwealth entity’ during the debt period by virtue of his failure to correctly declare his employment income to the Agency. The Secretary contends that the Applicant’s guilty plea demonstrates the Applicant had actual knowledge that he made false statements and failed to comply with the legislative requirements set out in the various notices issued to him. The Secretary further contends that the Applicant was on notice of his reporting obligations and the incorrect information about his employment income being relied upon by the Agency which he failed to correct, as well as a previous newstart allowance debts which arose for the same reasons thereby indicating the Applicant was well aware of the requirements.
4.79 In Evans and Secretary, Department of Social Services [2013] AATA 944 at [16], the Tribunal found that the Applicant had actual knowledge that the representations made to the Agency throughout the debt period were false by virtue of the fact that the Applicant had been found guilty of defrauding the Commonwealth and causing a loss to the Commonwealth entity. It noted in respect of those offences that the jury were satisfied to the criminal standard that the Applicant had acted dishonestly. The Secretary contends that the Tribunal should reach the same finding in the present matter, by virtue of the fact that the Applicant pled guilty to the offences of ‘obtains financial advantage from a Commonwealth entity’, demonstrating the requisite degree of knowledge.
4.80 The Tribunal has previously found that an Applicant’s mental health condition do not deter it from making a finding that that an Applicant knowingly made false representations to the Agency. In Re Bota and Secretary, Department of Family and Community Services [2003] AATA 246 at [65], the Tribunal considered that the Applicant was employed throughout the relevant period and noted:
although he stated that his work required little thought or initiative, the same could be said of completion of fortnightly continuation forms, and in particular, the question on the form that asks for a ‘yes’ or ‘no’ answer to the question of whether the applicant did any work in a particular period. There is no evidence to suggest that the Applicant’s thought processes were impaired to the extent of being unable to discern whether he had or had not worked or to recognise a question that required a ‘yes’ or ‘no’ answer.
4.81 The Secretary contends that there is no evidence that the applicant was so impaired by his mental health conditions so as to not have ‘actual knowledge’ that he was making a false statement on his fortnightly forms. Consequently, the Secretary that the Tribunal is precluded from waiving the right to recover all or part of the debt under section 1237AAD in circumstances where the Applicant knowingly made a false statement and failed to comply with the legislative requirements under the Act.
[44] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, page 152, paragraph 4.74.
[45] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, pages 152-153, paragraphs 4.78-4.81.
The Applicant’s evidence indicates that he knowingly made a false statement or false representation and failed to provide income information as he stated that he did not report the information accurately as he was not provided with payslips and during the time in question, was dealing with extremely difficult personal circumstances. In situations where such circumstances lead to small discrepancies between the amounts of income reported compared to income earned and received, a person may be considered not to have knowingly made a false statement or false representation. However, in the present instance, the difference between the income earned during the debt period and that reported is some $54,314.56. Further, the Applicant was provided with a large number of notices from the Respondent during the debt period outlining his reporting requirements.
While the Applicant has told the Tribunal that he is seeking to undertake further litigation in relation to the 2016 court proceedings, it does not change the fact that he did plead guilty to the offences with which he was charged and demonstrated that at that time, he acknowledged that he had knowingly received Commonwealth benefits he was not entitled to.
While the Tribunal acknowledges the Applicant’s personal difficulties and the medical evidence before it, it agrees with the Respondent that there is no evidence before it that indicates the Applicant was so impaired by his mental health conditions so as to not have actual knowledge that he was making false statements when undertaking his fortnightly reporting.
Consequently, the Tribunal is satisfied that the Applicant’s NSA debt in relation to the debt period resulted at least partly from the Applicant knowingly making a false statement and failing to comply with the legislative requirements under the Act. As such, in accordance with section 1237AAD(a) of the Act, the Tribunal is unable to waive the right to recover all or part of the Applicant’s NSA debt in relation to the debt period.
For completeness, the Tribunal has also considered whether special circumstances exist (other than financial hardship alone) that make it desirable to waive the Applicant’s NSA debt. The Act does not provide a definition of special circumstances, however the general proposition established by relevant Federal Court decisions make it clear that special means something different from the usual or ordinary.[46]
[46] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545per Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639, at [51]; Boscolo v Secretary, Dept of Social Security[1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084, at [37].
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal held at paragraph 3:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
In Re Ivovic and Director-General of Social Services [1981] AATA 57, the Tribunal stated:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” …., the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … In the exercise of the discretion …., the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the …. Act.
The Applicant has sought that his NSA debt for the debt period be waived due to special circumstances on the grounds of his personal circumstances, inability to repay the debt and health conditions. In particular, the added distress that homelessness and being part of the Robodebt class action have caused him amount to special circumstances.
The Respondent contended that special circumstances are not present. The Respondent submitted that the Applicant has not provided evidence which indicates that his mental health condition is more severe than that of other social security recipients who have incurred debts and noted that in any event, it is not altogether uncommon for social security recipients (particularly those on DSP) to have mental health conditions. Further, the Respondent contended that in the circumstances where the Applicant has had the benefit of the payments but not the entitlement, there is no injustice in requiring him to repay the debt.[47]
[47] Exhibit 2, Joint Tribunal Book, R6, Respondent’s Statement of Facts, Issues and Contentions, pages 20-22, paragraphs 4.82-4.100.
The Tribunal notes that while the Applicant raised concerns in relation to his ability to pay the NSA debt, he does receive the DSP together with other relevant social security benefits. There is nothing before the Tribunal to indicate that there is an apparent or immediate reason that such social security benefits will not continue to be paid. Further, based on the Applicant’s evidence, there is no evidence before the Tribunal that indicates in the medium to long term, he will not be able to repay the NSA debt through withholdings from his DSP or that doing so would cause some out of the ordinary financial hardship. As such, it is not more appropriate to waive the Applicant’s NSA debt than to write it off for a period of time.
While the Tribunal acknowledges the Applicant’s dissatisfaction with the Respondent and how they have managed his NSA debt, that of itself does not constitute a special circumstance. Dissatisfaction with the Respondent and how it administers the social security system is not an uncommon or unusual situation among social security recipients.
The Tribunal does not doubt that the personal circumstances of the Applicant during the debt period were extremely difficult or that the Applicant’s health has deteriorated given the events that have occurred since that period. While the Tribunal sympathises with the Applicant and in no way intends to trivialise his past and present personal and health circumstances, there is no evidence before it that indicates his circumstances, whilst special to him, are unusual, uncommon or exceptional when compared to other social security recipients who have incurred debts or that there is any injustice in requiring him to repay the debt.
As such, based on the evidence before it, the Tribunal is not satisfied that, for the purposes of section 1237AD(b) and (c) of the Act, special circumstances exist that make it desirable to waive the Applicant’s NSA debt in relation to the debt period or that make it more appropriate to waive the debt rather than write it off.
Consequently, the Tribunal finds that the Applicant’s NSA debt in relation to the debt period cannot be waived pursuant to section 1237AAD of the Act.
DECISION
For the reasons set out above, the Tribunal finds that:
(a)the Applicant was paid more than his correct amount of Newstart Allowance for the period 7 August 2009 to 6 June 2013; and
(b)the overpayment results in a debt of $21,158.63 (inclusive of a debt recovery fee of $1,923.50) being owed to the Commonwealth; and
(c)the Applicant’s NSA debt is to be written off pursuant to section 1236 of the Act for a period of 6 months from the date of this decision; and
(d)there is no basis upon which the Applicant’s NSA debt should be waived pursuant to sections 1237A or 1237AAD of the Act;
(e)the Applicant’s NSA debt is recoverable in full.
Consequently, the Tribunal varies the decision under review[48] to the extent that the Applicant’s Newstart Allowance debt is written off for a period of 6 months from the date of this decision. The decision under review is otherwise affirmed.
[48] Being the decision of the SSCSD as varied by the Respondent pursuant to section 182 of the Administration Act on 16 September 2022 to raise and recover a NSA debt of $21,158.23 (inclusive of $1,923.50 recovery fee) for the period of 7 August 2009 to 6 June 2013.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.................................[SGD].......................................
Associate
Dated: 24 November 2022
Date of hearing: 7 October 2022 Applicant: By phone
Solicitors for the Respondent: Mr Ben Dube
Sparke Helmore Lawyers
0
12
0