Moss and Secretary, Department of Education, Employment and Workplace Relations - [2010] AATA 214

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 214

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/2035

GENERAL ADMINISTRATIVE DIVISION )
ReGlenn MOSS

Applicant

AndSecretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

TribunalMr RP Handley, Deputy President
Date29 March 2010
PlaceSydney
DecisionThe decision under review is affirmed.
...................[sgd]......................
Mr RP Handley
Deputy President

CATCHWORDS

SOCIAL SECURITY – Parenting payment partnered – overpayment – whether applicant received the benefit - special circumstances – waiver or write-off – decision under review affirmed

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RELEVANT ACT

Social Security Act 1991: ss 1223, 1236, 1237A , 1237AAD

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CITATIONS

Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435; [1996] AATA 413

Angelakos v Secretary, Department of Employment (2007) 100 ALD 9; (2007) 44 AAR 436; [2007] FCA 25

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REASONS FOR DECISION

29 March 2010

Mr RP Handley, Deputy President

Glenn Moss has applied to the Tribunal for review of a decision of the Social Security Appeals Tribunal (the SSAT) to affirm a decision to raise and recover an overpayment of parenting payment (partnered) of $6,846.28 for the period 24 April 2003 to 10 March 2004.
The issues before the Tribunal are first, whether an overpayment was made and whether Mr Moss received the benefit of the overpayment, and, second, if there is a debt due to the Commonwealth, whether Mr Moss should be required to repay the debt, and, in particular, whether his circumstances warrant write-off or waiver of the debt.

background

Mr Moss and his then wife, Wilhelmina Moss, were married in June 1997 and have one child together, born in 1999. Mrs Moss also has three other children who were adopted by Mr Moss. Mr and Mrs Moss separated in January 2006.
On 3 July 1997, Mrs Moss made a claim for parenting allowance, and an attached Module P Partner Details form was signed by Mr Moss on the same date. On 16 July 1997, Mrs Moss’s claim for parenting allowance was granted.
On 24 December 2001, Centrelink undertook a review of Mrs Moss’s entitlement to parenting payments. Her payments were subsequently cancelled due to the estimated income of her business.
On 15 January 2002, Centrelink phoned Mrs Moss, who informed Centrelink of her annual income, which had been entered incorrectly on Centrelink’s database. At the same time, she requested that her parenting payments be transferred into Mr Moss’s name, as he was then staying at home and taking care of the children. Centrelink agreed to this request and documented the decision on Mr and Mrs Moss’s computer records. Centrelink also sent a letter to Mr Moss advising him that he would be paid parenting payments from 4 January 2002 and informing him of his obligation to notify Centrelink if his circumstances changed. Thereafter in the period 2002/2004, Centrelink records show that it wrote to Mr Moss on a number of occasions and that Mr Moss both telephoned Centrelink and also attended Centrelink offices on a number of occasions. Mr Moss denies that he received letters from Centrelink or attended Centrelink offices during this period. He states he was not aware that parenting payments were being made to him until February 2008.
On 4 March 2004, Centrelink wrote to Mr Moss requesting information about his wife’s employment which had been revealed in a data matching exercise with the Australian Taxation Office (ATO). On 9 March 2004, Centrelink sent a questionnaire to Metropolitan Fuel Distributors who were listed by Mrs Moss as her employer in a tax file number declaration form. On 10 March 2004, Centrelink records show Mr Moss contacted Centrelink about his wife’s earnings and, as a result, his parenting payment was suspended. On 11 and 12 March 2004, Centrelink records show that Mr Moss attended the Baulkham Hills Customer Service Centre – on 11 March 2004 to question the suspension of his parenting payments and on 12 March 2004 for a further interview about this.
On 14 April 2004, Centrelink sent a further questionnaire to Metropolitan Fuel Distributors. This was returned duly completed on 16 April 2004 informing Centrelink that Mrs Moss had been employed since 22 April 2003 and worked 50 hours per week. On 22 April 2004, Centrelink decided that Mr Moss had received an overpayment of parenting payments in the period 24 April 2003 to 10 March 2004 and raised a debt against him of $6,846.28. On the same date, Centrelink wrote to Mr Moss advising that he had been overpaid parenting payments as a result of Mrs Moss’s earnings not being taken into account. Centrelink records show that there followed correspondence between the parties in relation to commencement of recovery of the debt by Centrelink garnisheeing Mr Moss’s wages.
Mr Moss states that he had no contact with Centrelink at that time and knew nothing of Centrelink raising a debt against him until February 2008 when he was contacted by a debt collector in relation to recovery of the debt. On 13 February 2008, when Mr Moss phoned Centrelink to discuss the matter, he would not then commit to a payment arrangement but asked that Centrelink call back to discuss this further. This is no record of this occurring.
On 23 September 2008, when Centrelink phoned Mr Moss about recovery action, Mr Moss denied that he owed money to Centrelink. In a letter received by Centrelink on 13 October 2008, Mr Moss acknowledged receipt of a letter from Centrelink dated 26 September 2008 and advised that he had never received previous correspondence about this matter and was unaware of the parenting payments which had been paid into an account in his former wife’s name.
On 6 November 2008, the original decision-maker affirmed the decision to recover the debt from Mr Moss and, on 11 December 2008, an authorised review officer affirmed this decision. On a further review on 2 April 2009, the SSAT also affirmed the decision and, on 7 May 2009, Mr Moss applied to the Tribunal for a review of the SSAT decision.

Legislative Background

Section 1223(1) of the Social Security Act 1991 (the Act) states that if a social security payment is made and a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit, the amount paid is a debt due to the Commonwealth by the person and is taken to arise when the person obtains the benefit. The Act provides for recovery of debts but also allows for debts to be written off or waived in certain limited circumstances. If a debt is written off this means that recovery action will be postponed either for a stated period or otherwise. Then, for example, if a person’s financial situation improves and the person has a capacity to repay the debt, even if only by way of instalments, recovery of the debt may be resumed. If a debt is waived, this means the debt ceases to exist.
Section 1236 of the Act permits a debt to be written off only if the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown, or if the debtor is not receiving a social security payment and it is not cost effective for the Commonwealth to take action to recover the debt.
Section 1237A permits a debt to be waived if the debt is attributable solely to administrative error by the Commonwealth and the person received the payments that gave rise to the overpayment in good faith. Section 1237AAD permits a debt to be waived if there are special circumstances:
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, 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 first requirement of s 1237AAD is that the debt did not result from the debtor or another person ‘knowingly’ making a false statement or representation or failing or omitting to comply with a provision of the social security legislation. ‘Knowingly’ requires that there be actual knowledge: Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at 443. The second requirement is that there are special circumstances other than financial hardship alone that make it desirable to waive the debt. In Angelakos v Secretary, Department of Employment [2007] FCA 25, at [33], Besanko J, having reviewed the relevant authorities in which the meaning of the words ‘special circumstances’ was discussed, emphasised the need for flexibility in determining what constitutes special circumstances, but said that the test would be overstated if the word ‘exceptional’ is emphasised. He said:
There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.

Mr Moss’s Case

Mr Moss said that in the period 2001 to 2004, he was unemployed and stayed at home looking after his son and looking after the household, but also doing some casual work as a debt collector in the business that he and his wife established, WGM Debt Collections (WGM). This casual work would typically involve an hour to an hour and a half per day and involved him making a few telephone calls and sometimes going to collect a cheque for Metropolitan Fuels to whom WGM was contracted. His wife looked after the business and handled all the money for the business, and if he collected a cheque, it would be made out to Metropolitan Fuels and he would hand this to his wife. His wife was paid for the work he did for WGM’s business. Mr Moss was never paid. If at any time he needed money, he would ask her for money.
Mr Moss, who is a mechanic, said he was not formally employed again until 2004 when he worked casually for about a month for Barry Smith Holden. Then, in January 2005, he commenced employment with SITA Australia Pty Ltd (SITA), for whom he worked until November 2005. From SITA, he moved to Hillsbus Co Pty Ltd for whom he worked from December 2005 to December 2009, when he returned to working for SITA.
Mr Moss said he was not aware that his wife was receiving parenting payments. He was shown a Claim for Parenting Allowance, Partner Details form which was completed in his name on 3 July 1997. Whilst Mr Moss agreed that the form bore his signature, he said his wife must have completed the form since it was in her handwriting. He said she would sometimes ask him to sign forms and he would do so without question – he trusted her completely. Mr Moss said the address on the form, in Baulkham Hills, is the house he wholly owned from 1993 and before their marriage. Neither there, nor at the house to which they moved in 2002 at Cherrybrook, did he ever receive any letters from Centrelink.
Mr Moss was taken to Centrelink’s computer generated copies of five letters sent to him at Baulkham Hills and Cherrybrook between 15 January 2002 (notification that he would be paid parenting payment from 4 January 2002 and of his notification obligations if his circumstances changed) and 12 March 2004. In each case, he denied receiving the letter. He was unable to explain this since, apparently, the letters were correctly addressed. He speculated that perhaps his wife had taken the letters or there was some sort of postal redirection in place. However, he said he received other mail such as birthday cards, licence renewals etc.
Mr Moss was also taken to Centrelink’s computer generated records showing that he had attended the Baulkham Hills Customer Service Centre on four occasions between 19 May 2003 and 27 October 2003, and that on 10 March 2004 he contacted Centrelink by phone to advise of his wife’s earnings. In each case, he denied that it had been him. He said that in March 2004 he had no idea what his wife was earning. He said the questionnaire completed by Metropolitan Fuel Distributors about his wife’s earnings on 16 April 2004 had been completed in her handwriting although it was not her signature on the form. Mr Moss agreed that his wife had probably commenced employment with Metropolitan Fuel Distributors on about 22 April 2003.
Mr Moss was taken to further Centrelink computer-generated records showing that he had attended Centrelink for interview on 11 and 12 March 2004. Again, he denied this was him. He was also taken to a further six letters sent to him between 22 April 2004 and 2 July 2004 which he denied receiving and to a record of a telephone call on 3 May 2004 when he is alleged to have agreed to pay $50 per week towards recovery of the debt. In each case, he said this was not him.
Centrelink records show that three payments were received towards recovery of the debt in 2004, two of which were collected by a debt collector. Mr Moss had no knowledge of these. A further $360 was garnisheed from his wages between 10 August 2005 and 22 December 2005. He had no knowledge of this happening. His wages were always paid into his bank account and, although he received a wage slip each week, he would only ever glance at the number of hours for which he had been paid and at his pay rate, and he did not notice the money being deducted from his wages. He only became aware of the garnishee action when contacted by the debt collector in February 2008.
Mr Moss said that in September 2007, when he did not receive the tax refund he expected from the ATO, he phoned to ask about his refund. He was told that his refund had been garnisheed by a government department but he was not told by which one. At the time, he had a lot on his mind as a result of ongoing Family Court proceedings involving access to his son, and he did not follow it up.
Mr Moss was taken to more Centrelink computer-generated records between March 2005 and April 2008 showing numerous letters sent to him, telephone calls made to or by him, and a fax allegedly sent by him of which he denied any knowledge. He noted that he would not have received the letters sent to him at the Cherrybrook address after January 2006 because it was then that he moved out and separated from Mrs Moss. He said he had not informed Centrelink of this at that time because he was unaware of his having been paid parenting payments and of the debt raised against him. As stated, he did not become aware of this until February 2008 and, even after speaking with the debt collector to whom he gave his current address, Centrelink still appears to have sent a letter to him at the Cherrybrook address (letter dated 24 April 2008).
Mr Moss was also asked about the Centrelink records of 23 May 2003 and of 9 and 23 October 2003 showing that he had attended the Baulkham Hills Customer Service Centre concerning he and his wife having separated, but then on 27 October 2003 to notify Centrelink of their reconciliation. Mr Moss said he and his wife were living in harmony at this time and denied any separation until January 2006. There is also a copy of a letter to Mr Moss dated 12 March 2004 in the Centrelink records responding to a request which he allegedly made requesting the release of his superannuation benefits on hardship grounds. Mr Moss denied that he ever made such a request.
Mr Moss was asked about his bank accounts. He said he and his wife had joint cheque and savings accounts (in the name of WGM Collections) in respect of which he had a keycard. The bank statements produced by Centrelink show that the parenting payments were paid into a different account in his wife’s name to which he denied having access and denied having a linked keycard. He said he was unaware that such payments were being made into her account. When he needed money, he would ask his wife who would tell him which of their accounts to draw money from and, if necessary, she would transfer money into that account by telephone transfer. Mr Moss said he would use the money he withdrew from their joint accounts to buy everyday things such as petrol, bread and milk.
Mr Moss was taken to Mrs Moss’s bank statements (for the account into which the parenting payments were paid) showing payments from this account for motor vehicle insurance, mortgage payments (for a loan to build an extension onto the house), and, occasionally, to fresh fruit and food/home provision retailers, and also showing funds transferred into the WGM Collections account for which he had a keycard and which he used for everyday purchases. Mr Moss said his wife paid all the bills and he was not aware of which account she used for this purpose.
Mr Moss said when he was told of the debt raised against him in February 2008, he phoned Centrelink (on 13 February 2008) to state he was unaware of the debt. He could not explain why there was no further contact until September 2008 but said he had a lot of court matters going on at that time.
Mr Moss denied ever having done anything wrong. He could not understand why he had to repay a debt arising from parenting payments made which he said he had never received. Moreover, why was he being pursued for repayment of the debt when it was his wife who had received the payments? He said more than $6,000 had now been recovered from him by garnishee action. (Ms Mantaring confirmed that the outstanding debt is currently $804.65, the most recent repayment of $15 having been made on 15 February 2010.) Mr Moss said he has gone from wholly owning his home and car to paying rent and living from week to week. He continues to pay child support for his son.
Mr Moss provided a statement from his brother, Bruce Moss, dated 9 March 2010 stating that he has never received any Centrelink mail for Mr Moss. Mr Moss obtained this statement because of a reference in the Centrelink documents to his brother’s address. Ms Mantaring, a Centrelink legal officer, explained that this address may have appeared on Mr Moss’s file by reason of a transfer of an entry from Mrs Moss’s file. She said the address otherwise appears to be of no real significance as far as the current matter is concerned.
Mr Moss also provided a statutory declaration from his (adopted) daughter Angelique Moss dated 16 March 2010. In this statement, Ms Moss states that she was living with Mr and Mrs Moss in 2002/2003 and at no time saw any disruption of the family unit or her parents sleeping separately in the Cherrybrook house. She said her father, Mr Moss, left all financial matters to her mother, Mrs Moss.
Ms Moss also gave oral evidence by phone at the hearing. She said that in 2002/2003, it was a normal household and she recalls her parents going into their bedroom together. She never felt there was a problem with her parents’ relationship at that time. Her mother, who was a credit manager, used to manage all the finances. They moved in with Mr Moss in November 1995 when she was about 10 and, by early the next year, her mother had taken over the family finances. If her father needed money, he would ask Mrs Moss what account he should use. Her father did not even know how to use a computer at the time. She said if he was not around, her mother would sometimes sign documents for him. Her father was too trusting – he was easily manipulated and her mother was a person who would do this.
Ms Moss said she lived in the same household until December 2005 when she moved out. About two or three weeks later, Mr Moss left. She said that about 12 months earlier, her mother’s second cousin, Charles, with whom her mother had been childhood friends in South Africa, migrated to Australia from Canada and began visiting them regularly. (Mr Moss said that Charles was living with them from June 2005.) Ms Moss said this is when the “trouble” started between her parents. Her mother would sometimes get very upset with everyone in the household and Ms Moss realised it coincided with Charles’ visits. (Mr Moss said Charles is now the half owner of the business he formerly owned with Mrs Moss.)

Ms Moss said when her parents worked from home, the children would sometimes collect the mail from the post box when they came home from school. They would put the mail on a table in the house where everyone had access to it. Like all children, she would look through the mail to see if there was anything for her, and she could not remember seeing any Centrelink mail addressed to Mr Moss.

The Respondent’s Case

Ms Palmer, for the Respondent, said the evidence establishes that the Centrelink letters were sent to the correct address and it is implausible to suggest that someone took all Mr Moss’s Centrelink mail over such an extended period. Similarly, Centrelink’s contemporaneous evidence of Mr Moss’s telephone contact with Centrelink and of his attending Centrelink offices is the best available evidence, and it is implausible to suggest that someone would impersonate Mr Moss on so many occasions. It is also implausible for Mr Moss to claim that he had no knowledge of the garnishee action taken in respect of wages until he was contacted by a debt collector in February 2008, especially in view of the fact that he acknowledged having “glanced” at his wage slips to check he was being paid at the right rate for the correct number of hours.
Ms Palmer submitted that the evidence clearly establishes that Mr Moss was aware that he was being paid parenting payments and she contended that there was no corroborating evidence to support Mr Moss’s denial of this: his evidence lacks credibility and should not be accepted.
Ms Palmer contended that because of his wife’s earnings, Mr Moss received an overpayment of parenting payments. Mr Moss received the benefit of those payments. The evidence of the Commonwealth Bank shows that Mr Moss was issued with a keycard for the account in his wife’s name into which the parenting payments were made. He also received the benefit of those payments in so far as money from his wife’s account was transferred into their joint account from which Mr Moss said he drew money using a keycard for everyday purchases such as milk, bread and petrol. Moreover, payments were made directly from his wife’s account for motor vehicle insurance, mortgage payments and some purchases from a fresh fruit retailer and Woolworths.
Ms Palmer submitted that there is no case for writing off the debt (s 1236) since Mr Moss has a capacity to repay this, as has been demonstrated by the gradual recovery of the debt by instalments. Mr Moss has been employed in recent years and is currently employed, and paying the debt by instalments is not causing him financial hardship. There is also no case for waiver since there is no evidence of an administrative error made by Centrelink (s 1237A), it having sent him numerous letters, addressed correctly, informing him that he was in receipt of parenting payments and notifying him of his obligation to inform Centrelink of any change in circumstances. Moreover, Ms Palmer submitted, Mr Moss ‘knowingly’ failed to comply with his obligation to notify Centrelink of his wife’s employment thereby negating the power to waive if special circumstances could be established (s 1237AAD). Ms Palmer therefore submitted that the SSAT’s decision should be affirmed.

Discussion

As stated above, the issues before the Tribunal are first, whether an overpayment was made and whether the applicant received the benefit of the overpayment (s 1223(1)), and, second, if there is a debt due to the Commonwealth, whether the applicant should be required to repay the debt and, in particular, whether Mr Moss’s circumstances warrant write-off (s 1236) or waiver of the debt (s 1237A and s 1237AAD).
The contradictions between Mr Moss’s oral evidence and the documentary evidence provided by Centrelink is troubling. While Mr Moss presented his oral evidence openly and without hesitation and consistently denied any knowledge of ever having received parenting payments, the weight of evidence is in my view against his account. However, while in the light of the Centrelink evidence Mr Moss’s evidence could not unreasonably be described as implausible, he was unshaken in what he said and some parts of his evidence are supported by that given by his daughter Angelique. Ultimately, in the absence of further evidence, I have decided not to make definitive findings about certain matters where what occurred is, in my mind, open to doubt. Nevertheless, this does not prevent me from making a decision about this matter.
First, Mr Moss accepts that he signed the Claim for Parenting Allowance Partner Details form. He said the form appears to have been completed by his wife – it is in her handwriting – and he acknowledged that because he trusted his wife absolutely at that time and she looked after their finances (which was confirmed by Angelique), he would sign documents when she asked him to do so without necessarily being aware of what the documents were. I accept that Mr Moss may not have been aware of what he was signing. Nevertheless, it is reasonable to presume that where a person signs a document they should be aware of its contents. Indeed, there is a statement on the Partner Details form by which the person signing the form declares the information given on the form to be correct. In my view, it could be presumed from Mr Moss’s signature on the form that he was aware that his wife was making a claim for a parenting allowance. A statement that the form is “part of your partner’s claim for payment” appears at the top of the first page of the form.
When Centrelink, acting at the request of Mrs Moss on 15 January 2002, transferred the parenting payments into Mr Moss’s name with effect from 4 January 2002, they wrote to Mr Moss at the address nominated on the Partner Details form to inform him of this. This letter dated 15 January 2002 also informed Mr Moss of his obligation to inform Centrelink of changes in circumstances affecting his payment. Over the next few years, there followed numerous other Centrelink letters (referred to above in relation to Mr Moss’s evidence) concerning the parenting payments, which were correctly addressed to Mr Moss at his Baulkham Hills and later at his Cherrybrook address. Mr Moss denied ever receiving these letters. Given the Centrelink record of these letters, it is difficult to believe that so many letters did not reach their destination.
I note Angelique’s evidence that she and the other children used to sometimes collect the mail from the post box on their way into the house after school. She said the mail would be left on a table in the house for whomsoever it was addressed to. It therefore seems implausible to suggest that someone would have removed all Centrelink letters addressed to Mr Moss without him being aware of this. Angelique did say, however, that she did not remember seeing any Centrelink letters addressed to Mr Moss when she went through the letters to see if there was anything for her. Mr Moss also suggested that perhaps mail was redirected to a post office box. However, given that he said he received other mail such as birthday cards and licence renewals in the normal way, this also seems implausible.
Mr Moss denied any telephone contact with Centrelink about the parenting payments or ever attending Centrelink offices to discuss these payments or the debt that was raised. The Centrelink record of Mr Moss attending at the counter on four occasions between 19 May 2003 and 27 October 2003 and on 11 and 12 March 2004 is compelling and I find it implausible that someone would have impersonated Mr Moss on so many occasions over this period.
Finally, Mr Moss’s explanation for not being aware of the garnishee on his wages is not very plausible. If he even “glanced” at his wage slips, as he acknowledged doing, I find it difficult to believe he would not have noticed additional deductions being made from his wages when, as in the period 16 September 2005 to 22 December 2005, these amounted to $80 or $100. Mr Moss said he was aware of his tax refunds being garnisheed from the ATO on 11 September 2007 and 14 August 2008. In the latter case, he knew by that time of the debt arising from the overpayment of parenting payments. In the former case, when he enquired of the ATO who had garnisheed his refund, he was told that it was a government department. He said he did not follow this up at that time because he had a lot on his mind as a result of the ongoing Family Court proceedings involving access to his son.
Despite the implausibility of some of Mr Moss’s explanations for what occurred, I note that his claim of not having separated from his wife in the period May to October 2003 as recorded by Centrelink on the basis allegedly of information supplied by Mr Moss, is corroborated by the evidence of Angelique who was then living in the family home and said she was not aware of any problem with her parents’ relationship at that time. I therefore accept Mr Moss’s evidence about this although I am unable to discern why a person might give false information to Centrelink about such a matter.
Turning more specifically to the first issue before the Tribunal, there is no question that because of Mrs Moss’s earnings with Metropolitan Fuel Distributors during the period 24 April 2003 to 10 March 2004, Mr Moss was paid parenting payment to which he was not entitled. That overpayment will, however, only be a debt recoverable from Mr Moss if he obtained the benefit of the payment (s 1223(1)). In Mr Moss’s case, the parenting payments were paid into an account in his wife’s name to which he claims he had no access. Centrelink claims, on the basis of information provided by the Commonwealth Bank, that Mr Moss had been issued with a keycard with which he could access this account. Mr Moss denies this. In my view, it is not necessary for me to make a finding about this particular matter because it is clear that Mr Moss did benefit from the payments.
The benefit Mr Moss received was in the form of funds transfers from his wife’s account into the joint account in the name of WGM Collections from which Mr Moss acknowledged that, using a keycard, he drew funds for everyday purchases such as bread, milk and petrol. However, he also benefited because his wife paid for items such as motor vehicle insurance, mortgage repayments, and occasionally for fresh fruit and supermarket purchases from her account. It is reasonable to assume that such payments were generally for the support of the family as a whole and that Mr Moss benefited from this.
Thus, in my view, the amount of the overpayments were a debt due to the Commonwealth and Mr Moss, as the person to whom the payments were made and who benefited from the payments, is responsible for that debt.
The second issue is whether Mr Moss should be required to repay the debt. As explained above, s 1236 of the Act only permits a debt to be written off in certain limited circumstances. In this instance, Mr Moss has been and is employed and has a capacity, albeit a limited one, to repay the debt. He has already repaid over $6,000 of the debt and, as at the date of the hearing, only $804.65 was still owing. The remaining question, therefore, is whether the debt should be waived. In my view, the debt was not attributable solely to an administrative error of the Commonwealth. Centrelink’s records indicate that it acted properly in relation to this matter. Thus, there is no power to waive the debt under s 1237A of the Act.
The other possibility is waiver under s 1237AAD. In my view, this power is also not available. I am not satisfied that Mr Moss complied with his obligations under the Act in that he apparently signed the Partner Details form without acquainting himself with the nature and purpose of the form and because, on the balance of probabilities, he failed to comply with his obligations under the Act to notify Centrelink of a change of circumstances affecting the parenting payment paid to him. I find that he should have been aware of this obligation by reason of the correspondence addressed to him by Centrelink, which included information about the obligation.
Even if I am wrong in so finding, in my view Mr Moss’s circumstances are not so special in the sense of being unusual or uncommon as required by the Act to permit waiver of the whole or part of the debt under s 1237AAD.
While I acknowledge that Mr Moss considers himself the wronged party and believes it was his wife who benefited from the parenting payments because the payments were made into her account, the application of the law requires that he be held responsible for the repayment of the debt for the reasons stated above.
The decision under review is therefore affirmed.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

Signed: ............[sgd].............................................................
Associate

Date of Hearing:  17 March 2010
Date of Decision:  29 March 2010
Applicant representative:                   Self-represented
Respondent representative:              Megan Palmer, Sparke Helmore