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

This matter concerned an appeal by the Secretary, Department of Social Services, against a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal. The applicant, Ms MacLeod, had been overpaid the age pension by $49,896.19. The central dispute was whether this debt, or any part of it, could be written off or waived.

The court was required to determine whether the debt of $49,896.19 was attributable solely to administrative error, and if so, whether special circumstances existed that made it desirable to waive the debt. The court also considered the applicant's obligation to report changes in her financial circumstances and the impact of her failure to do so on the classification of the debt.

The court found that while a portion of the debt, specifically from 4 September 2017 to 3 September 2018, was conceded by the Secretary to be due to sole administrative error, the remaining debt was not. This was because the applicant had failed to declare her husband's increasing income protection payments, despite receiving numerous notices under section 68 of the *Social Security (Administration) Act 1999* (Cth) requiring her to report changes in her circumstances. The applicant also had an obligation under section 66A(2) of the *Administration Act* to report her true financial affairs. The court noted that the applicant ought reasonably to have known that the income stated in the Agency's records was understated and that her failure to report the increase in her husband's payments on nine occasions contributed to the overpayment. Consequently, the debt was not solely attributable to administrative error and could not be waived under section 1237A of the *Social Security Act 1991* (Cth).

The court ordered that the decision of the Social Services and Child Support Division be set aside and substituted. The applicant was found to have been overpaid age pension from 10 April 2011 to 3 September 2018. The overpayment amount in excess of $49,896.19 was to be waived, and the remaining debt of $49,896.19 was to be recovered.