Kelley and Secretary to the Department of Family and Community Services

[2002] AATA 845

DECISION AND REASONS FOR DECISION [2002] AATA 845

ADMINISTRATIVE APPEALS TRIBUNAL        Nº 2001/1360
GENERAL ADMINISTRATIVE DIVISION
  Re:         Lynda Jane Kelley
  Applicant
  And:       Secretary to the Department of Family
  and Community Services
  Respondent

DECISION

Tribunal:       Mr P.J. Lindsay, Senior Member
Date:             25 September 2002
Place:            Sydney

Decision:The decision under review is varied and therefore the amount of the debt to be recovered is $4,691.80.

[SGD] Senior Member
CATCHWORDS Social Security – disability support pension – partner's fluctuating wages - overpayment of pension – whether debt due to Commonwealth - whether debt may be written off – whether special circumstances exist and debt may be waived – decision varied.
Social Security Act 1991–ss. 8, 117, 132, 1064, 1224, 1236, 1237A, 1237AAD
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
Hazim v Secretary Department of Family and Community Services (2002) 34 AAR 458
Jazazievska v Secretary Department of Family and Community Services (2000) 65 ALD 424
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Security v Hales (1998) 153 ALR 259
Re Director General of Social Services v Hales (1983) 47 ALR 281
Secretary Department of Family and Community Services v Rolley (2000) 175 ALR 4

REASONS FOR DECISION

1. The applicant, Mrs Lynda Kelley, has applied for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 6 August 2001.  The SSAT varied a decision that had been made by a Centrelink authorised review officer on behalf of the Secretary to the Department of Family and Community Services, the respondent.  The SSAT reduced the amount of Mrs Kelley's debt that had resulted from an overpayment of disability support pension.

2. At the hearing Mrs Kelley was assisted by her husband Mr Dana Kelley, who also gave evidence. The respondent was represented by Ms C Collis, a Centrelink advocate. The Tribunal had before it documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and a number of exhibits tendered at the hearing.
   BACKGROUND

3. Mrs Kelley claimed the disability support pension on 18 May 1995.

4. On 18 November 1998, Centrelink notified Mrs Kelley (T23) that during the period 13 July 1995 to 15 October 1998 (referred to later as 'the debt period') she had been overpaid disability support pension in the amount of $4,961.40.  The debt arose because her husband's income exceeded the amount taken into account by Centrelink when assessing her rate of disability support pension.  The advice of debt (T23) stated:

   The reason for your debt
   Your spouse earned $26,889.74 for 1995/96, $26,803 for 1996/97, $33,554.86 for 1995/96 [sic], $26,803 for 1996/97 [sic], $33,554.86 for 1997/98.  Centrelink was assessing $23,528.44 for the whole time.  As this increase in your spouse's income was not taken into account in the assessment of your pension, you have received money to which you are not entitled.  This money is a recoverable overpayment.

The advice of debt went on to state that the amount of the debt, $4,961.80, was payable by 10 December 1998.

1. Mrs Kelley applied for the matter to be internally reviewed.  An authorised review officer on 22 June 2000 directed that the matter be re-examined in light of additional information provided by Mrs Kelley and that withholdings cease pending the outcome.  Subsequently, Centrelink recalculated the amount for the overpayment on a fortnightly basis and on 16 October 2000 notified Mrs Kelley that her debt was $6,666.20 (T68). On 23 March 2001, an authorised review officer affirmed the decision regarding Mrs Kelley's liability for the debt and that the amount due was $6,666.20.   Mrs Kelley appealed to the SSAT, which varied the amount of the debt by reducing it to $5,191.80.  Mrs Kelley has applied to the Tribunal for a review of the SSAT's decision.
   EVIDENCE

2. Mrs Kelley was born on 8 December 1962.   Mrs Kelley and her husband have two sons, aged 10 and 12.

3. In July 1987 Mrs Kelley injured her back and neck in an accident at work.  She received workers' compensation for six months but could not return to her former job because of back pain.  There was legal action to recover damages for her injuries sustained in the accident, and she told the Tribunal she received $10,000 for loss of earnings and $25,000 for pain and suffering and loss of use of her back and neck.  Mrs Kelley said she still has a lot of pain in her back and in her left arm.  Prior to recently commencing as a child care casual at the Northern Lakes Family Centre, Mrs Kelley had not worked since the accident.  Currently, she works at the family centre for only a few hours a week and receives about $75 a fortnight.

4. Mrs Kelley completed a disability support claim form on 16 May 1995 (T3). She noted on the form that she also received Family Allowance and Additional Family Payment.  In answer to Ms Collis, she said she filled in the Partner Details section of the form (T4), which her husband then signed.  There appears at the top of the Partner Details form: "The information asked for on this form is needed to decide whether the department can pay you or your partner a pension/benefit/allowance.  This form forms part of your claim for payment."  Against Question 11 in that section, her husband's job was given as cellarman/barman at the Munmorah United Bowling Club and his "gross amount earned per week" as $452.47, and that this was his "normal wage".  When asked by Ms Collis why she put down the amount of $452.47, Mrs Kelley said that she provided her husband's gross salary taken from his pay slip.  She did not include allowances.  She did not think that she was required to include allowances and anyway the form did not refer to allowances.  Mrs Kelley said her husband's pay slips separately refer to his "gross wage" and "allowances".   Attached to Exhibit A1 were copies of Mr Kelley's pay slips for a number of weeks prior to the time of Mrs Kelley's application for the disability support pension.  They covered the weeks 9 March to 15 March; 16 March to 22 March; 23 March to 29 March; and 30 March to 5 April 1995.  The pay slips separately identified: "Gross Wage"; "Allowances"; "Loading"; "Deductions"; "Tax" and "Nett".  Each pay slip recorded that Mr Kelley received an allowance.   Mrs Kelley agreed with Ms Collis that her husband's wage fluctuated from week to week sometimes due to the different shifts that he worked.  In answer to Ms Collis' question about notifying Centrelink of changes in her husband's income, Mrs Kelley said that she thought she had to inform Centrelink only if his gross wage changed.  She did not think she had to tell Centrelink about his allowances because they were not part of his gross wage.

5. On 6 July 1995 Centrelink wrote to Mrs Kelley (T5) informing her that she would receive a disability support pension of $113.40 a fortnight and that arrears of $341.20 had been paid into her account.  On the back of the letter was information about the disability support pension.  It was there noted that her total yearly income, including her husband's, was $23,528.  Also on the back of the letter, under the heading "WHAT YOU MUST TELL US" appeared the following:

   Under sections 132 and 133 of the Social Security Act 1991 you must tell us within 14 days (28 days if residing outside Australia) if any of these things happen, or may happen. You can tell us by writing to us, by phoning or you can come and talk to us at any of our offices.
   Income
   if your combined income, not including maintenance, becomes more than $452.46 per week;
   …

Mrs Kelley's evidence at the hearing was that she was not sure whether she received the letter and she could not remember reading the front or back of it.   Cross-examined about why she told the SSAT that she received the letter but did not read the back of it, Mrs Kelley said that when she gave her evidence at the SSAT she assumed she had received the letter but now she did not remember if she received it.

1. The Munmorah United Bowling Club produced a schedule setting out Mr Kelley's weekly earnings, being gross wage and allowances (T63).  Throughout the period in question when Centrelink claims an overpayment of disability support pension was made, 13 July 1995 to 15 October 1998, there was considerable fluctuation in his weekly earnings.  Mr Kelley received earnings of $503.42 for the week ended 19 July 1995.  During the ensuing twelve months, and ignoring non-weekly pay periods, time off and holiday periods, only infrequently did Mr Kelly receive the same amount of weekly earnings.  He received $478.78 in the weeks ending 15 November and 22 November 1995, and $483.32 in the weeks ending 3 April, 17 April, 8 May, 15 May, 22 May and 19 June 1996.  In other weeks, he was paid weekly amounts ranging from $373.42 to $996.53.  This pattern of earning widely fluctuating amounts was repeated in the following years to 15 October 1998.

2. Mrs Kelley said that, for Family Allowance and Childcare Assistance purposes, she sent Centrelink her husband's group certificates for the years that her sons were at pre-school, which were the 1993, 1994 and 1995 financial years. Centrelink have no record of receiving the group certificates or any other notification of annual earnings.  Further, the authorised review officer said "Both Family Allowance and childcare assistance assessments were automatic as you were in receipt of the pension" (T70 fol.192).  The Tribunal notes that the SSAT said that it was unable to locate any such notifications on Centrelink's computer records and that those records indicated that Mrs Kelley's Family Allowance and Childcare Assistance payments were made automatically without regard to an income test during the debt period.  In her letter to Centrelink dated 14 May 1999, Mrs Kelley noted that when she first received the disability support pension she and her husband were asked to provide their tax file numbers to facilitate Centrelink's access to tax information (T26).  Mrs Kelley's statutory declaration of 31 May 1999 (T28) states that :

   12.  In 1995 we were told to hand in our Tax File Numbers by the officers at DSS Wyong (which we did) and they had said that they would Access the Tax Office every year to see how much my spouse was earning and how much payment I would bet [sic] on my Disability Pension.
   13. Whenever DSS/Centrelink have sent forms for Income assessment, I have always replied which [sic] a copy of the Group certificate of my Spouse attached.

3. Mrs Kelley said that she informed Centrelink when her husband received pay rises, for instance when he went from a casual to a full-time employee and when he started working a Sunday shift in lieu of another shift at a lower pay rate.  She referred to such a call made during 1996 or 1997.  She could definitely remember ringing Centrelink about the increase received for his working Sundays because she did not like it.  However, neither Mr Kelley nor his wife disputed his evidence to the SSAT that he did not receive any longer term pay increases during the debt period.  Ms Collis referred Mrs Kelley to a discussion she had with a Centrelink officer on 14 June 2000 (T51).  In that conversation, Mrs Kelley said "she did not have to regularly notify of her husband's income" because there was a computer link between the Australian Taxation Office and Centrelink allowing for information about her husband's income to be exchanged between the agencies.  Asked why she would phone Centrelink with information about wage increases if Centrelink would automatically be provided with this information, Mrs Kelley said she would ring if her husband's wage increases occurred well before the end of the financial year.  She said this would give Centrelink advance notice.  Mrs Kelley agreed that she thought her disability support pension would be reduced if her husband's income increased.  She did not check to see if that happened because she said she never read her bank statements.  In cross-examination Mr Kelley said that he realised that his wife's disability support pension would fall if his income went up, but he did not notice because he did not read their joint bank statements.

4. Mrs Kelley completed an undated Financial Information form for Centrelink (T65) and, given the ages of her children referred to therein, it would have been completed at some time during 2000.  It contained a statement that Mrs Kelley could pay the debt by instalments of $20.00 a fortnight.  In evidence before the SSAT, Mr and Mrs Kelley said that their outgoings were at least $650 to $700 a week and their income, including Mrs Kelley's Centrelink benefits, was some $735 weekly.  Since then, Mrs Kelley has obtained some casual child care work.

5. Mrs Kelley said that she has not deliberately done the wrong thing.  Mr Kelley said they were honest and being made out to be criminals upsets them.  He argued that Centrelink were incompetent in that they sent his wife a letter in November 1998 demanding payment of the debt some years after the debt began to accrue.  Mrs Kelley had not received much correspondence from Centrelink before then.  Centrelink failed to provide her with sufficient information about her obligations.  Answers to her telephone enquiries were often deficient. 

6. Ms Collis submitted that Mrs Kelley did not make any phone calls to Centrelink about increases in her husband's income.  She noted that Centrelink's Customer Record Access Monitor Request (Exhibit R1) did not record any calls from her during the relevant period.  Ms Collis submitted that Mr Kelley's evidence that he did not receive any longer term wage increases during the debt period suggested that Mrs Kelley did not phone Centrelink with such notification.  She pointed to the inconsistency between Mrs Kelley's belief about the Australian Taxation Office sharing group certificate information with Centrelink and Mrs Kelley's evidence that she sent in group certificates and that she phoned Centrelink if there were wage increases well before the end of the year.  Ms Collis noted the authorised review officer's statement that group certificates or other tax statements, said to have been provided in relation to Mrs Kelley's childcare assistance or family allowance and as referred to by the Welfare Rights Centre in their letter of 21 December 2000 (T69), were not located.  The authorised review officer observed that "Both Family Allowance and childcare assistance assessments were automatic" as Mrs Kelley was in receipt of the pension (T70, fol.192).
   consideration and findings

7. On the basis of the material in the T documents, the documents tendered at the hearing, and the evidence of Mr and Mrs Kelley, I make the following findings of fact:

• Neither Mrs Kelley nor Mr Kelley intentionally made a false statement to Centrelink at the time she claimed the disability support pension by failing to include the amount of allowance received by her husband.  The Partner Details form asked about her husband's "gross amount earned per week" and whether such amount was his "normal wage".  I accept that Mrs Kelley reproduced the information contained in her husband's pay slip which differentiated his "gross wage" from his "allowances" and that she did not consider it necessary to include the allowance as part of the "normal wage".  The words used in the form may have contributed to her misunderstanding.  However, the amount that Mrs Kelley nominated as the gross amount earned per week, $452.47 per week, was not her husband's gross wage including allowances for the week prior to 16 May 1995.  The employer's records (T63) show the right amount to be $534.81.  I find that Mrs Kelley, by submitting the Partner Details, which disclosed an incorrect gross amount in support of her claim for the pension, unintentionally made a false statement.

• Mrs Kelley received Centrelink's letter dated 6 July 1995 which asked her to tell them if her combined income exceeded $452.46 a week.  I found Mrs Kelley's evidence confused and at times inconsistent, which may be as a result of the length of time that has elapsed since the events or her reconstruction of the events.  However, it seems more likely than not, having regard to the evidence she gave to the SSAT and to her somewhat contradictory evidence at the Tribunal, that she received the letter and I so find.

• Mrs Kelley did not make telephone calls or give other notification such as group certificates during the debt period to inform Centrelink of changes in her husband's earnings.  In making this finding, I consider it relevant that Centrelink does not have a record of any such calls or group certificates.  The SSAT's decision referred to its own enquiries (T2 fol.12): "The tribunal examined Centrelink's computer records itself, in particular the Receipt Number and Document List screens. … The tribunal was unable to locate any information that appeared to contradict Centrelink's assertion that Mrs Kelley failed to notify of increases in her husband's income."  Further, the need to make the calls or give other notification is inconsistent with Mrs Kelley's statutory declaration made on 31 May 1999, save in relation to group certificates which I find she did not furnish, and her telephone discussion with a Centrelink officer on 14 June 2000.  In making this finding I again note that Mrs Kelley, although not deliberately deceiving, has given evidence that has been confused and inconsistent, and is therefore unreliable.

• I reject her evidence that, although agreeing that an increase in her husband's income would result in her pension being reduced, she was not aware of changes being made to her pension payments since she did not read her bank statements.  Mr Kelley's evidence was that his wife attended to the household's finances, which at relevant times were not at all comfortable, and I cannot accept that Mrs Kelley would be unaware of changes to her income.

• I am satisfied that, due to increases in Mr Kelley's earnings including his allowances, Mrs Kelley's combined income exceeded $452.46 per week on the majority of weeks in the debt period.   Paragraph (b) of the definition of "income" in s.8(1) of the Act, "a periodical payment by way of gift or allowance", makes it plain that an allowance received from an employer is income.  I find therefore that Mrs Kelley did not comply with the request in the letter dated 6 July 1995 that she notify Centrelink within fourteen days if her combined income exceeded $452.46 per week.  I find that the provision of Mr and Mrs Kelley's tax file numbers did not constitute compliance with that letter.

1. In view of these findings, I am satisfied that the information about Mrs Kelley's husband's normal wage contained in the Partner Details form being incorrect, amounts to a false statement for the purposes of s.1224(1) of the Act:  McAuliffe v Secretary Department of Social Security (1992) 28 ALD 609. Section 1224(1) of the Act provides:

   If:

   (a)an amount has been paid to a recipient by way of social security payment; and

   (b)the amount was paid because the recipient or another person:

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

   (ii)failed or omitted to comply with a provision of this Act or the 1947 Act;

   the amount so paid is a debt due by the recipient to the Commonwealth.

Viewed from a practical perspective, this false statement is of such a nature to contribute to the decision to grant the payment of pension and the amount of the pension: McAuliffe's case (at 619).  I am satisfied that Mrs Kelley did not inform Centrelink of increases in her husband's wages received throughout the debt period.  She thus did not comply with the letter of 6 July 1995, a notice under s.132(1) of the Act, which provides that:

The Secretary may give a person to whom disability support pension is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or

(b) the person becomes aware that a specified event or change of circumstances is likely to occur.  

I am satisfied that, as the disability support pension is subject to an income test, and as Mrs Kelley omitted to comply with the notice under s.132(1) of the Act, she has been paid amounts that otherwise would not have been paid.  The judgment of Gray J in Hazim v Secretary, Department of Family and Community Services (2002) 34 AAR 458 (at 470) in relation to s.1224 is apposite: "… if the absence of the information that should have been provided, but was not as a result of the failure or omission, contributed to the favourable determination, the causal relationship will exist … amounts paid to the recipient as a result of the determination of the claim will be paid 'because' of the false statement or representation or the failure or omission".  The favourable determination would have been the decision to pay Mrs Kelley the disability support pension of the particular amount and not to suspend or revoke that determination.  I will address the question of the amount of the debt later in these reasons.

1. Given that a debt is raised by operation of s.1224 on the facts, I must consider whether the circumstances justify a decision not to recover the debt.  Section 1236(1A) of the Act provides:

   The Secretary may decide to write off a debt under subsection (1) 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.

There is no evidence concerning paragraph (a) and paragraphs (c) and (d) are obviously not relevant.  On the basis of the Financial Information (T65) and the evidence given at the hearing I am satisfied that, although Mrs Kelley is not free from financial worry, she has the capacity to pay the debt by instalments.  Accordingly, it is not appropriate to write off the debt.

1. Section 1237A(1) of the Act provides for the mandatory waiver of the debt where the debt is due to administrative error; it reads:

   Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

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

Should Centrelink have recalculated Mrs Kelley's entitlement to disability support pension during the debt period?   If the question were answered affirmatively, it would be necessary to consider if Centrelink's failure constituted "administrative error".   However, I have found that Mrs Kelley did not notify Centrelink of increases in her combined income at anytime during the debt period and that she did not give Centrelink her husband's group certificates.  Accordingly, no proportion of the overpaid pension is attributable solely to inaction on Centrelink's part as Centrelink were not informed of changes in Mrs Kelley's combined income.   Even if the first limb of s.1237A(1) were satisfied, there remains the requirement that Mrs Kelley must have received the overpayment in good faith.  Cooper J in Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424 said at 436: "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."Mrs Kelley's evidence was that she was aware that her pension would reduce once she informed Centrelink of an increase in her husband's wage.  Therefore her receipt of the pension, without reduction, could not have been in good faith, had the overpayment alone been attributable to Centrelink's error in not following up on the information that Mrs Kelley says she provided.   I have rejected her evidence that she did not look at her bank statements to check whether she was receiving the right amount from Centrelink.  I find that she did not receive the overpaid pension in good faith.

1. In special circumstances the debt may be waived: s.1237AAD of the Act.  The section reads:

   The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
   (a) the debt did not result wholly or partly from the debtor or another person knowingly:

   (i) making a false statement or a false representation; or
   (ii) failing or omitting to comply with a provision of this Act 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.
   Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

Given the finding that Mrs Kelley did not knowingly make a false statement at the time of her lodging the claim containing the incorrect wages figure, it is necessary to consider whether special circumstances (other than financial hardship alone) exist making it desirable to waive the debt.   The following passage from a decision of the Tribunal comprising Toohey J, and Mr. I.A. Wilkins and Dr. J.G. Billings (Members) has been cited with approval in many subsequent cases:

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. (Re Beadle and Director General of Social Security (1984) 6 ALD 1 at 3)

It is clear from s.1237AAD(b) that the decision-maker must not be restricted to a consideration of financial hardship alone in determining whether special circumstances exist.

1. Mrs Kelley submitted a medical report (Exhibit A1) that noted that Dr Kennett treated her during 1995 for left shoulder capsulitis, depression and weight loss.  In evidence Mrs Kelley said she still suffers pain through her back and neck and in her left arm.  Mr Kelley said that his wife's pain is such that she is unable to do a number of household chores, such as hanging out for drying large items such as sheets and doing the vacuuming.  He also referred to recent difficulties with her back when lifting babies at the childcare centre and the need for medical treatment.  Mr and Mrs Kelley gave evidence about the costs incurred in supporting their elder son Dean's representative soccer commitments, which involve driving long distances, overnight accommodation, substantial petrol consumption, the need recently to upgrade their car to cope with the long journeys and the soccer equipment and soccer registration fees.  In addition, Dean suffers from a continuing bed wetting problem which it is hoped he will grow out of, but which necessitates expenses for replacing bedding and sleepwear.  Mr Kelley also gave evidence about his son's recent death at age 19, on his first day of work.  There is a need for Mr Kelley to visit his son's grave, some six hours drive from their home and, quite apart from the terrible effect the death has had on this family, there are additional expenses the family incurs in relation to it.   Indeed Mr Kelley felt that his financial circumstances hampered his ability to pay his respects properly and more frequently visit his son's grave, and to obtain the psychological counselling that he wants.  In uncontradicted evidence before the SSAT Mr Kelley said, on the advice of a counsellor, he spent $500 on hiring a car and accommodation to visit the grave to say goodbye to his son.  The death has also had an effect on Mr and Mrs Kelley's own sons.  

2. Having regard to the evidence before the SSAT and at the hearing, I find that Mrs Kelley has the financial capacity to pay any debt found to be due to Centrelink by instalments of $20 a fortnight.   I find the sudden death of Mr Kelley's son to be 'special circumstances' but do not consider that the other circumstances are of such a character that would justify finding them "unusual, uncommon or exceptional".  It is clear that the Tribunal may decline to exercise the discretion under s.1236(1) to write off a debt, but still find it is appropriate to exercise the discretion in s.1237AAD and waive the debt in whole or in part if special circumstances exist: Secretary, Department of Social Security v Hales (1998) 153 ALR 259. Mrs Kelley's financial circumstances are very modest and, given the ages of her children, it will be some years before the family's financial position strengthens. I consider it relevant that the Act is social welfare legislation and compassionate considerations may be taken into account in deciding whether it is more appropriate to waive rather than write off the debt wholly or partly: Re Director General of Social Services v Hales (1983) 47 ALR 281. On compassionate grounds I find that the debt, to the extent of the $500 incurred in relation to the death of Mr Kelley's son, should be waived.

3. That leaves the final issue: the amount of the debt.  Initially, Centrelink in November 1998 raised a debt of $4,961.40 (T25).  In May 2000 the amount of the debt, calculated on a yearly basis, was confirmed.  Centrelink subsequently recalculated the debt on a fortnightly basis and arrived at the figure of $6,666.20 (T45).  The authorised review officer agreed with that calculation.  The SSAT decided that the correct approach was to calculate the debt on a yearly basis which yielded the amount of $4,961.40.  However, the SSAT noted that this amount did not include an overpayment of $131.20 for the period 18 May 1995 to 28 June 1995.  As Mrs Kelley's rate of payment was not corrected until the payday following 29 October 1998, the SSAT included an overpayment of $99.20 for the payday on 29 October 1998.  The SSAT therefore found that a total of $5,191.80 had been overpaid to Mrs Kelley during the period 18 May 1995 to 29 October 1998.  In this respect I note that eligibility for the disability support pension, the rate of pension and obligations imposed upon recipients of the pension are dealt with in Part 2.3 of the Act (the Part has been relevantly amended, but not in relation to the period in question).  Under s.117 of the Act, the rate of disability support pension payable in Mrs Kelley's circumstances is calculated using Pension Rate Calculator A at the end of s.1064 of the Act.  Point 1064-A1 of the Act states that "The rate of pension is an annual rate (fortnightly amounts are provided for information only)."  Step 8 of the method statement in Module A of Pension Rate Calculator A requires a person's maximum payment rate of pension to be reduced by the person's income reduction.  Module E to the Pension Rate Calculator A contains the ordinary income test that is to be applied in working out the person's income reduction.  Step 1 in Module E states "Work out the amount of the person's ordinary income on a yearly basis."  Point 1064-E2 states that, where the person is a member of a couple, " … add the couple's ordinary incomes (on a yearly basis) and divide by 2 to work out the amount of the person's ordinary income for the purposes of this Module."

4. I agree with the SSAT's reasons for calculating the overpayment on a yearly and not a fortnightly basis: "The [SSAT] does not consider that determining an annual rate of Mr Kelley's income each fortnight is a 'fair method'.  It effectively negates any advantage that Mrs Kelley might properly obtain by having one off annual payments made to her husband (such as annual leave) correctly averaged over an annual period" and different rates of shift entitlement could also be offered as an example.  That approach accords with the Full Federal Court's dictum that  " … it is appropriate in calculating ordinary income on a yearly basis to consider the character of the payments which have been received.": Secretary, Department of Family andCommunity Services v Rolley (2000) 175 ALR 4 at 13. I find no basis for faulting the SSAT's calculations. Having regard to the waiver of the debt to the extent of $500, the amount outstanding is $4,691.80.

5. The decision of the SSAT is varied and therefore the amount of the debt to be recovered is $4,691.80.

   Mr P.J. Lindsay, Senior Member

   I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of 

   Signed:         .....................................................................................
     Associate

   Date of Hearing  6 May 2002
   Date of Decision  25 September 2002

   Advocate for the Respondent Ms C Collis