Jambor and Secretary, Department of Family and Community Services - [2002] AATA 413

DECISION AND REASONS FOR DECISION [2002] AATA 413

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1570

GENERAL ADMINISTRATIVE DIVISION          )
           Re      MISHKA JAMBOR
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal MS N BELL

Date31 May 2002
PlaceSydney

Decision The decision under review is affirmed.

[SGD] MS N BELL
Member
CATCHWORDS
SOCIAL SECURITY- newstart allowance- overpayment- debt- waiver- ineligibility to receive newstart allowance whilst absent from Australia- not in dispute whether a debt owed to Commonwealth- whether debt attributable solely to an administrative error of the Commonwealth- whether the debt should be recovered- whether applicant received in good faith payments that gave rise to debt

REASONS FOR DECISION

MS N BELL

This is an application by Ms Mishka Jambor ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("the SSAT") on 23 July 2001 to affirm the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 21 June 2000 to raise and recover a debt of overpayment of newstart allowance. The Respondent's decision had been reviewed and affirmed by an authorised review officer on 11 December 2000.
A hearing was held before the Tribunal on 21 May 2002 at which the Applicant appeared on her own behalf and gave oral evidence. Her Statement of Facts and Contentions had been prepared on her behalf by Ms Geraldine Read of the Legal Aid Commission of New South Wales. The Respondent was represented by Ms Rachael Quinn. The following documentary evidence was before the Tribunal:
Exhibit          Document    Date
TD1 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 being T1 – T19, pages 1 – 59
A1      Applicant's Statement of Facts and Contentions          28 March 2002
A2      Applicant's Statement        28 March 2002
R1      Respondent's Statement of Facts and Contentions     8 May 2002
R2      Respondent's Bank Statements
R3      Computer Print Out of Applicant's Payments

Background

The Applicant had been in receipt of newstart allowance and, having provided a medical certificate from her general practitioner to the Respondent, was exempted for three months from the requirement to search for employment. It is not in dispute that the Applicant departed Australia for India on 26 April 2000 and returned to Australia on 19 June 2000. The Respondent continued to pay newstart allowance to the Applicant notwithstanding her absence from Australia.
Following a data matching exercise with the Department of Immigration and Ethnic Affairs, the Respondent raised a debt of overpayment of $1,185.60, being the amount of newstart allowance paid to the Applicant while she was overseas. The Respondent has now conceded that the Applicant informed it of her intention to depart Australia and that it erroneously continued to pay newstart allowance to her for the duration of her absence from Australia.
Issues and Legislation
The parties are in agreement that, pursuant to sections 593(1)(g) and 593(1A), as they were at the time of the decision, of the Social Security Act 1991 ("the Act"), the Applicant was not qualified to receive newstart allowance during the period of her absence from Australia. . Section 593(1A)(c) provides for an exemption where a person is absent from Australia in order to seek medical treatment of a kind that is not available in Australia. The Applicant did not assert that she was absent from Australia for that purpose.
Given the Applicant's lack of qualification for newstart allowance during her period of absence from Australia, section 1223(1) of the Act operates to render the newstart allowance paid to the Applicant during the period of her ineligibility, a debt due to the Commonwealth. There is no dispute between the parties as to the existence of this debt.
The issue that remains for the Tribunal to consider in this application is whether that debt should be recovered. This requires consideration of sections 1236(1A), 1237A and 1237AAD of the Act.
In particular, section 1237A of the Act provides for waiver of recovery of a debt that is attributable solely to the administrative error of the Commonwealth if the debtor received the relevant payment in good faith. The Respondent conceded that the debt is solely attributable to its administrative error. It remains to be determined whether the Applicant received the payment in good faith. If the Tribunal concludes that that is not the case, then it must be considered whether, pursuant to section 1237AAD of the Act, there are special circumstances that warrant the waiver of the debt.
Applicant's evidence
The Applicant told the Tribunal that in the time leading up to her departure overseas she was depressed and feeling frustrated, lethargic, angry and had difficulty walking. She said that while she saw her general practitioner about this condition she did not obtain any treatment from her. She was referred to a psychiatrist and attended once but did not go again. She said she took no medication.
The Applicant said she made the decision to go overseas about one month before she departed on 26 April 2000. She said she planned to pursue her "additional career" doing workshops on creative thinking and doing other teaching in schools in India. She knew a number of people in India from previous work she had done there. She said that when working in India she feels much better as she feels she is using her talents and doing some good.
She said she advised Centrelink of her intended departure on a newstart allowance continuation form she lodged before going overseas. She said she had gone overseas before whilst being in receipt of newstart allowance and knew that she must inform Centrelink of her intended departure because it was a major change in her circumstances that must be advised to Centrelink. She said in the past she had sent Centrelink a letter.
The Applicant said that on her return to Australia on 19 June 2000 she was feeling much better but still anxious. She said she was tempted to stay longer in India but knew that she had to submit another medical certificate to Centrelink as the three months covered by her previous medical certificate was about to expire. She said she obtained some work with Amnesty International soon after her return.
The Applicant told the Tribunal she had not accessed her bank account while in India but that her husband had accessed the account while she was away. She said she had arranged for her husband to withdraw money from her account to pay the rent. She said she had budgeted for her trip to India on the basis that she would not be paid newstart allowance whilst absent from Australia.
She said that when she arrived back in Australia her husband told her that there seemed to be extra money in her account. She said she could not remember exactly when he had told her this, but she knew before she made a withdrawal from her account that there was extra money in her account. The Applicant said she was not expecting to be paid while she was away and was very pleased and somewhat surprised to find that she had been paid. She said she was also relieved that she had been paid because she had planned to approach Centrelink with an explanation as to why she should be paid for the period she was away but had not done so because she found the prospect overwhelming.
She said she was of the view that she should be paid because going to India was good for her and helped her to feel better. She said she also considered that, having a three month exemption from the requirement to search for employment, supported by a medical certificate, and doing voluntary work, she should have been paid newstart allowance during the time she was overseas. She said she knew she had not been paid when absent from Australia on previous trips but thought that her situation was different this time and that she may have been on a different kind of payment.
The Applicant said it did not cross her mind to contact Centrelink and clarify the situation when she discovered she had been paid. She said she simply thought that since she had been paid she was entitled to it, could not conceive of Centrelink paying her when she was not eligible and that she must have been on a different kind of payment given her medical certificate. She said she trusted the system and had never been overpaid before but that she realises now that she was naïve.
The Tribunal raised with the Applicant a computer file note dated 20 June 2000 (T8) which noted that the Applicant had come into Centrelink to advise she had gone overseas in April and returned on 19 June 2000 and had advised Centrelink of this before she left. The note also said that the Applicant had spoken to "Chris" at "DIMA" who explained there will be a debt raised against her and that she would appeal it. The note also said the Applicant advised she will contact Chris again in relation to the debt once she receives the "letter".
In respect of this file note the Applicant said that Chris was the first person she contacted when she received the letter from the Respondent dated 21 June 2000 (T9) advising her of the overpayment. She insisted, however, that this contact with Chris was her first contact with Centrelink about the debt, after she received the letter dated 21 June 2000 – perhaps on 22 or 23 June 2000 - and was by phone. She said the contact she had with Centrelink on 20 June 2000 was after she had attended her general practitioner to obtain another medical certificate and took the certificate to the Centrelink office at Leichhardt. She said that on that day she spoke to an officer at the desk and gave the officer the certificate but had no discussion on that day about the debt. She could not remember whether the officer was a man or a woman.
The Applicant, describing her current circumstances, said she is still in receipt of newstart allowance, and still exempt from the requirement to search for employment by virtue of her depression. She said she is now seeing a psychologist. She said she has no debts except for an amount of $160.00 lent to her when she went to India but this is not required to be paid back. She also said that the Respondent is withholding $46.00 from each of her newstart allowance payments towards repayment of the debt owed to it.
In cross examination the Respondent directed the Applicant's attention to document T6, a letter to the Applicant from the Respondent dated 14 June 2000 asking the Applicant to confirm with the Respondent that she had left Australia on 26 April 2000 and advising her that her social security payment may be affected if she leaves Australia. The letter asks the Applicant to contact Chris on a nominated telephone number. The Applicant said that she could not recall whether she had seen the letter before and did not know whether her husband had opened her mail in her absence overseas.
The Applicant also made a written statement dated 28 March 2002, which she lodged with the Tribunal. That statement describes the Applicant's state of mind prior to her departure for India and the events following her return. Most relevantly, the statement says:
"After a seven week stay in India I returned to Sydney on 19th June, in time to lodge my continuation form on the due date. A few days after I returned to Australia I noticed the Centrelink payments. I realised that the money was in my account. I was surprised and overjoyed because I had got into debt with my friends in order to pay the airfare. I received three payments. I thought, yes, I am entitled because I was sick and did not have to look for work. I felt surprise and joy at the same time. At the time I found out about the payment I thought that they were paying me because I was sick. I was only away during the time that I did not have to look for work. I timed it deliberately to come back when I had to go into Centrelink with a new form. When I got the overpayment notice I thought that they had not understood my case and that if I put it all on paper it would become clear to them.
At the time of being exempt from looking for work, from April to June 2000 I believed that I was on another payment, namely Sickness Benefit. If one had a long term medical exemption one was transferred to this Sickness Benefits in the 1980's. That was what happened to me then.
Since then I have not had a medical certificate due to long term illness. That is one of the reasons why I believed that I was entitled to the payment, that I was being paid Sickness Benefit, not Newstart. At the time I got back to Australia I was preoccupied with my mental condition and whether I was ok. That was foremost in my mind, not the Centrelink payment. It was like a secondary matter. It was important and I was happy about the payment but it was not the main thing. I was not thinking thoroughly about the payments. I did not think to question the payment at the time. I had not thought that Centrelink could make a mistake with payment. It had never happened to me before…
"I do not agree with the view of the Social Security Appeals Tribunal that, at the time I received the Centrelink payment, I was surprised and that later on I decided I was entitled to keep it. It was not my "explanation after the event". My feelings of surprise and joy when I saw that I had been paid and my belief that I was entitled to the payment were contemporaneous. When I received the letter saying I had been overpaid I thought that what I had to do was to explain the situation to Centrelink and they would accept that I was entitled to the payment."

Submissions

The Applicant submitted, through the Statement of Facts and Contentions prepared on her behalf, that the overpayment was received by the Applicant in good faith. She referred the Tribunal to the decision of the Federal Court in Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (1997) 50 ALD 186 and the decision of the Tribunal in Re Secretary, Department of Social Security and Neuendorf (AAT 13427, 9 November 1998).
The Applicant submitted that when she received the payments she honestly believed she was entitled to them. She submitted that she distinguished the situation from earlier occasions when she had not been paid while overseas because during those periods she had been obliged to look for work. She submitted that at the time when she received the payment and decided to retain it she had an honest belief that she was entitled to it.
The Applicant also submitted that her health and her voluntary work constitute special circumstances which make it desirable that the debt be waived.
Ms Quinn, for the Respondent, submitted that the Applicant was aware that she was not entitled to newstart allowance payments before she even discovered them in her account and hence the payments cannot be held to have been received in good faith. Ms Quinn also drew the Tribunal's attention to the Applicant's statement of 28 March 2002 in which she stated that "a few days after I returned to Australia I noticed the Centrelink payments". Ms Quinn submitted that even if that is the case there were a number of matters giving rise to a reasonable expectation that the Applicant would query the amounts received including the Applicant's belief, prior to discovering the payments, that she was not entitled to be paid, the letter from the Respondent dated 14 June 2000 that would have been received by her when she arrived home on 19 June and her conversation with a Centrelink officer on 20 June as noted in the file note at T8.
Ms Quinn submitted that the Applicant's reaction of surprise at being paid should be interpreted as a doubt in her mind about her entitlement and that the Applicant's condition of depression had, on her own evidence, improved greatly and would not have impacted on her ability to grasp the implications of having been paid during her absence from Australia.
Ms Quinn referred the Tribunal to the decisions of the Federal Court in Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (supra), Haggerty v Secretary, Department of Education, Training and Youth Affairs (2000) 31 AAR 529 and Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484 on the issue of good faith.
On the issue of whether recovery of the debt should be waived due to the special circumstances of the Applicant, Ms Quinn submitted that, notwithstanding the Applicant's depression and her voluntary work, there is nothing in her circumstances that is "special". She referred the Tribunal to the decisions in Beadle v Director General of Social Security (1984) 6 ALD 1 and (1985) 7 ALD 670, Re Parezanovic and Secretary, Department of Social Security (1993) 75 SSR 10992 and Judd and Secretary, Department of Social Security (1995) 38 ALD 769.
Consideration
Section 1237A of the Act provides:
"Administrative error
1237A.(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.
1237A.(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."

There is no dispute that subsection (1) applies.
In Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (supra) at ALD 189 Finn J said:
"For my own part, I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received - ie is not entitled to use the moneys received as his or her own - that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.
Given the conventional liability of a mistaken payee of money from consolidated revenue to repay that money irrespective of his or her belief as to an entitlement to it (ie the "rule" in Auckland Harbour Board v The King [1924] AC 318), the concession made to the mistaken payee by s 289 of the SYA Act does seem in all probability to be directed to a payee who receives the money (to put the matter positively) in the good faith belief that he or she is entitled to receive it. In other words the frame of the section is to exclude from the right to a waiver, a person who knows or has reason to know that he or she is not entitled to receive the payment. It would be surprising to find that the Parliament intended otherwise."
The state of mind of the Applicant at the time of her receipt of the payments is therefore the Tribunal's main concern. The Tribunal's decision in Re Secretary, Department of Social Security and Neuendorf (supra) applied the decision in Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (supra) by reference to the particular circumstances and considerations of the recipient in that case, that is, subjectively.
Finn J at ALD 189 in Prince also addressed a circumstance shared by the recipient of payments in that case and the Applicant in this case, that is, where the payments are received without the knowledge of the recipient:
"In these circumstances it is appropriate that I express a view on one matter that might otherwise be thought to be a possible cause of complication in making a decision under s 289. It is this. It is clear in the present case that at all relevant times after 22 December 1993 Mr Prince actually knew that he had no entitlement to receive Austudy payments. Is the consequence of this that he could never claim that any of the payments he received from DEETYA as Austudy payments in 1994 were received in good faith even though at the time of receipt of the first three he was unaware that he had received the payment? In other words, can a receipt be otherwise than in good faith when the recipient is unaware that the payment has been received? The short answer to that in my view is "yes". Knowing that, in the relevant period, he had no entitlement to receive an Austudy payment, he was never in a position to be able to assert that any mistaken payment made to him was one to which he had an entitlement. Thus while he may have received a payment of which he was ignorant, he could not, in the sense that I have explained, have received it in good faith."

In Jazazievska v Secretary, Department of Family and Community Services (supra) Cooper J said:
"40. Prima facie, s 1237A(1) is concerned with actual personal receipt by the debtor of the payment or payments which give rise to the debt. The issue of good faith is, for the purpose of the section, to be determined when the debtor commences to exercise control over the payment by retaining it. It is at this time that the recipient must act with the requisite good faith. A lack of good faith does not mean that the recipient of the payment must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive and retain the payment when he or she receives the payment and decides to exercise control over it by retaining it.
41. A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists. Although said in a different context, the observations of Lord Blackburn in Jones v Gordon (1877) 2 App Cas 616 at 629 are apposite. His Lordship said :
"... If he was (if I may use the phrase) honestly blundering and careless, and so took a bill of exchange or a bank-note when he ought not to have taken it, still he would be entitled to recover. But if the facts and circumstances are such that the jury, or whoever has to try the question, came to the conclusion that he was not honestly blundering and careless, but that he must have had a suspicion that there was something wrong, and that he refrained from asking questions, not because he was an honest blunderer or a stupid man, but because he thought in his own secret mind - I suspect there is something wrong, and if I ask questions and make farther inquiry, it will no longer be my suspecting it, but my knowing it, and then I shall not be able to recover - I think that is dishonesty. I think, my Lords, that that is established, not only by good sense and reason, but by the authority of the cases themselves."
42. A recipient of a payment to which he or she is not entitled, cannot avoid the requirement of good faith in s 1237A(1) by the mere circumstance that the person arranges for direct payment to an account of that person with a financial institution and in consequence is unaware of the fact of the payment at the time of its actual receipt.
43. For the purposes of s 1237A(1), the debtor can be in no better position than he or she would have been had the payment been made directly to the debtor at the time it was in fact made to a third party. It was in this sense that Finn J stated that Mr Prince could never assert an entitlement to the Austudy payments, notwithstanding that he was ignorant of their receipt by the bank. This was because if direct payment had been made to him after he terminated his entitlement, he could not have held an honest belief that he was entitled to receive and retain the payment.
44. In the present case, the appellant, if payment had been made directly to her on 29 March 1996, would have been in no different position than she was when she became aware of the passbook entry some time between 29 March 1996 and 4 April 1996. The fact that she had sufficient doubt as to her entitlement to ask her bank about it, and additionally to refrain from asking Centrelink directly, meant that she did not receive and retain the payment of the sum of $2,065.60 in good faith. This follows because she did not then have an honest belief that she was entitled to receive and retain the payment."
Therefore, if, as the Applicant asserts, the payments were made to her without her knowledge, having not accessed her account while in India, it is still possible for her to receive those payments other than in good faith.
In Haggerty v Secretary, Department of Education, Training and Youth Affairs (supra) French J at 534 said:
"16. Consistently with what his Honour said in the Prince case, want of good faith will arise where there is a positive belief that the payment has been made by mistake. It will also arise where there is a suspicion held by the recipient that he or she may not be entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt. The provision does not, however, authorise the imputation of want of good faith in any of the senses above described simply because there are in existence objective facts which would raise a belief or a doubt or a suspicion of non-entitlement in the mind of some imaginary recipient. That proposition is quite consistent with the view that the existence of such facts may support an inference that the recipient disbelieved or doubted or was suspicious about his or her entitlement. "Reason to know" as Finn J used that term in Prince does not necessarily import a criterion of imputed as distinct from actual want of good faith as I have described it."
Therefore, where there is a doubt or suspicion on the part of the Applicant, coupled with some objective basis for that doubt or suspicion, there will be a want of good faith. However, the mere existence of a fact that would raise a doubt or suspicion in an "imaginary recipient" will not necessarily impute a lack of good faith.
The Tribunal finds, on the Applicant's own evidence, that she did not think, when she departed Australia, that she was entitled to receive newstart allowance while she was absent from Australia. She had no expectation that she would be paid and budgeted her trip accordingly. It was also the Applicant's evidence that she formed this view on the basis of her two previous experiences of being absent from Australia and being ineligible for payment at those times.
The Tribunal accepts the Applicant's evidence that she disagreed with this state of affairs and planned to put an argument to the Respondent that she should be paid during her absence overseas. However, she did not do so prior to her departure and her disagreement with the Respondent's attitude to her entitlement to payment does not, in the Tribunal's view, amount to an honest belief that she was "entitled to use the moneys received as (his or) her own" (Secretary, Department of Employment, Education, Training and Youth Affairs v Prince, supra).
The payments were made into the Applicant's account on 9 May, 23 May and 6 June 2000 (Exhibit R2) and were, on the basis of the reasoning in Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (supra) and Jazazievska v Secretary, Department of Family and Community Services (supra) received by her at those times. Given that, on the basis of the reasoning outlined in the preceding paragraph, it cannot be said that the Applicant received the payments with an honest belief that she was entitled to use the payments as her own, it also cannot be said that the Applicant received the payments in good faith.
Having reached that conclusion, it is not strictly necessary for the Tribunal to canvass events following the Applicant's return to Australia. However, there is abundant evidence of the Applicant's knowledge of her lack of entitlement before she first accessed her account on 23 June 2000. This includes:

the Applicant's evidence of her husband having informed her on her return (and before she accessed her account) of extra monies in her account;
the letter from the Respondent dated 14 June 2000 advising her that her social security payment may be affected if she leaves Australia;
the file note detailing the Applicant's discussions with a Centrelink officer on 20 June; and
the Applicant's prior awareness of the Respondent's view of her entitlement to be paid during an absence from Australia.

Notwithstanding the Applicant's assertion that she thought she must have been entitled to be paid because she had been paid, these matters "support an inference that the recipient disbelieved or doubted or was suspicious about (her) entitlement" (Haggerty v Secretary, Department of Education, Training and Youth Affairs, supra). The Tribunal considers that, given the welcome surprise that the payment of newstart allowance was for the Applicant, she "turned a blind eye" (Jazazievska v Secretary, Department of Family and Community Services, supra) to the abundant objective indications that the money had been paid in error.
The Tribunal concludes, therefore, that the Applicant did not receive the overpayment of newstart allowance in good faith. It follows that recovery of the debt cannot be waived under section 1237A of the Act.
Section 1237AAD of the Act provides:
"Waiver in special circumstances
1237AAD. 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 false representation; or
(ii) failing or omitting to comply with a provision of this 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."

There is no evidence of the Applicant having made a false statement or false representation or of the Applicant having failed or omitted to comply with a requirement of the Act. It remains, therefore, to consider whether her circumstances are "special".
The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 is often quoted in relation to the interpretation of "special circumstances". In that decision, the Tribunal said at ALD 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."
The breadth of the discretion in relation to "special circumstances" was also commented on by the Full Federal Court in Riddell v Secretary Department of Social Security (1993) 42 FCR 443 at 450:
"Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other."
The Applicant raised, as special circumstances, her depression and her voluntary work overseas. There is also the existence of administrative error by the Respondent, giving rise to the overpayment and hence the debt. On the Applicant's evidence, she is almost without debt, apart from the debt the subject of this application.
The Tribunal considers that the Applicant's depression, now being treated by attendance on a psychologist, is, unfortunately, not an uncommon or unusual occurrence. Her voluntary work is, it would seem, a matter of preference for her and, while possibly an admirable contribution, not a matter that should attract the exercise of the discretion in section 1237AAD. As to the error of the Respondent, the evidence shows that the Applicant did not rely on any advice or representation by the Respondent and was made aware of the Respondent's error very soon after her return from overseas. In addition, her prior knowledge of her lack of entitlement and her expectation that she would not be paid meant that she had taken no steps in anticipation of or reliance on the payment while she was overseas. Her evidence was that she had budgeted in accordance with a suspension of payment.
For these reasons the Tribunal does not consider the Applicant's circumstances to be "special" and it follows that the debt should not be waived under section 1237AAD of the Act.
Determination
The decision under review is affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed:         S.Swamy           .....................................................................................
  Associate
Date of Hearing                  21 May 2002
Date of Decision  31 May 2002
Representative for the Applicant              Self Represented
Representative for the Respondent        Rachael Quinn