Narayan and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1702

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1702

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/47

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LEANNE NARAYAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date29 August 2007

PlaceCanberra

Decision The decision under review is set aside and in substitution thereof the Tribunal decides that Mrs Narayan has a debt to the Commonwealth of $3,976.85 and that special circumstances exist whereby it is appropriate to waive the part of the debt that is presently outstanding at this date.

.................signed.............................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - overpayment debt - administrative error – waiver of debt- cognitive deficit - special circumstances - decision set aside

Social Security Act 1991 ss 94, 1064, 1223, 1237A, 1237AAD

Social Security (Administration) Act 1999 s 100

Administrative Appeals Tribunal Act 1975 s37

Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190

Narayan v GIO CTP Insurance Ltd (1992) NSWSC, BC9504319

Re Beadle and Director General of Social Security (1984) 1 AAR 362

Beadle v Director-General of Social Security (1985) 7 ALD 670

Groth v Secretary, Department of Social Security (1995) 37 ALD 797

REASONS FOR DECISION

29 August 2007 Mr S. Webb, Member         

1.      In 1991 Leanne Narayan was injured in a motor vehicle accident and suffered physical, psychological and organic brain injuries. As a result she has difficulty reading, processing and remembering information.  In 2004 she claimed and was granted a disability support pension (‘DSP’).  Centrelink omitted to take into account information she provided concerning her husband’s earnings in employment. Ms Narayan informed Centrelink of the error and her pension rate was adjusted.  However, the amount of earned income Mrs Narayan declared was not the total amount of her husband’s gross fortnightly earnings.  She was overpaid an amount of pension.  A debt was raised against her and recovery action commenced.  Mrs Narayan sought to have the debt waived on review without success and has placed the matter before the Tribunal for review.

2. It was agreed that by operation of s.100 of the Social Security (Administration) Act 1999 (the ‘SSA Act’), Mrs Narayan was overpaid disability support pension in the amount of $3,976.85 from 18 March 2005 to 25 May 2006. That amount is a debt to the Commonwealth pursuant to s.1223 of the Social Security Act 1991 (the ‘SS Act’).

3. The only issue agitated before me was whether there are grounds to waive recovery of all or part of Mrs Narayan’s debt. I note in passing that there are no grounds on which the debt can be written off (s.1236 of the SS Act). Considering the issue of waiver, two matters must be determined.

(a)Are there grounds to waive the debt on the basis that it was solely attributable to Commonwealth error (s.1237A of the SS Act)?

(b)Are there special circumstances whereby it is appropriate to waive the debt (s.1237AAD of the SS Act)?

Are there grounds to waive the debt on the basis that it was solely attributable to Commonwealth error?

4.      Mrs Narayan asserts that the debt arose because Centrelink did not properly inform her of the requirement to provide her husband’s gross fortnightly income when claiming DSP.  Had this occurred, she says, the debt would never have arisen.  In 1991 Mrs Narayan suffered extensive physical and organic brain injuries in a motor vehicle accident.  As a result she has difficulties concentrating, processing complex information and with her short term memory.  These disabilities mean that she has considerable difficulty reading and retaining information.  Mrs Narayan gave evidence that she had difficulty reading and understanding the written information provided by Centrelink in relation to DSP, particularly the information relating to the claim form and on the reverse of the notices she received.

5.      In Mrs Narayan’s submission, she provided two of her husband’s payslips attached to the disability support pension claim form she lodged on 8 December 2004 and provided information in the form that she believed to be correct.  These were not properly taken into account by Centrelink and as a result she was overpaid. 

6. I note in passing that neither the claim form nor the two payslips lodged by Mrs Narayan were included in the documents lodged by the respondent Secretary pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the ‘AAT Act’). These important documents were obtained at my direction during the hearing.

7.      Mrs Narayan says that when she received notice of payment following the grant of pension on 17 March 2005,[1] she noticed that Centrelink had not taken into account any of her husband’s earnings.  She telephoned Centrelink to correct the error and asserts that the Centrelink officer did not specify or ask for her husband’s gross fortnightly earnings.  In her submission, she provided information that she believed to be correct and proceeded on the basis that she had corrected Centrelink’s error.  On 27 July 2005, she informed Centrelink of a change in the amount of her husband’s earnings.  She asserts that she was not asked to provide her husband’s gross fortnightly earnings and proceeded on the basis that the information she provided was correct.  Mrs Narayan gave evidence that it was not until 25 May 2006, when she again informed Centrelink of a change in her husband’s fortnightly earnings, that she was informed that she was required to provide his gross fortnightly earnings. 

[1] T5 folio 24.

8.      In Mrs Narayan’s submission, the overpayments would not have occurred if Centrelink had properly taken into account the two payslips she attached to her claim form and informed her that she should provide her husband’s gross fortnightly earnings.  Thus, she asserts that the overpayment debt is solely attributable to Centrelink’s errors and should be waived.

9.      As will appear, I do not agree.

10. The SS Act provides that if an overpayment debt was received in good faith six weeks or more after the payment or notification, the debt must be waived if it is solely attributable to Commonwealth error (s.1237A). Solely imparts exclusivity. For a debt to be solely attributable to Commonwealth error, such error must be the only cause that objectively can be ascribed to the debt (Selway J in Sekhon v Secretary, Department of Family and Community Services [2003][2]).

[2] FCAFC 190, at [35].

11.     I am reasonably satisfied that Mrs Narayan’s overpayment debt is not solely attributable to Commonwealth error, even though such error contributed to cause the overpayment.

12.     Mrs Narayan’s submission that she was not properly or clearly informed about the requirement to declare her husband’s gross fortnightly earnings is only partly made out.  The claim form section concerning income requires inclusion of the “amount earned per fortnight before tax and other deductions.”[3]  It may be true that Mrs Narayan did not clearly understand what was required in that section of the form, but if that was the case then the onus was on her to request clarification or to seek assistance.  Whether she did cannot be ascertained with any certainty on the evidence before me.  However, Centrelink should have taken into account Mrs Narayan’s cognitive impairments when dealing with her.  The Respondent Secretary apparently agrees.[4]  Having the benefit of observing Mrs Narayan during the hearing it appears to me that her cognitive impairments are not immediately apparent (see Dunsford J’s observations on this point in Narayan v GIO CTP Insurance Ltd (1992)[5]) and may easily be missed or overlooked.

[3] Exhibit R2, Income and Assets Section, Part A.

[4] Respondent’s Statement of Facts and Contentions, 27 July 2007, at [20].

[5] NSWSC, BC9504319, at p 10.

13.     Attached to the DSP claim form Mrs Narayan lodged on 8 December 2004 were two of her husband’s ACT Public Service payslips dated 2 December 2004 and 18 November 2004[6].  These documents reveal that Mr Narayan earned $2,158.97 and $2,408.21 gross in those respective fortnights.  Mrs Narayan stated that the amount her husband earned per fortnight before tax and other deductions was $1,222.04.[7]  On Mrs Narayan’s evidence, she later understood (in May 2006) that she had incorrectly declared the net amount of her husband’s fortnightly earnings at that time.  However, I am reasonably satisfied that is not correct.  Careful consideration of the payslips reveals that the amount of $1,222.04 is the gross amount of Mr Narayan’s regular base salary, excluding overtime and shift penalties.  Thus, I am reasonably satisfied that the amount Mrs Narayan declared on the claim form was the gross amount of her husband’s regular fortnightly salary, excluding overtime and shift penalties.  She did not declare the total amount of his gross earnings at that time.  I so find.

[6] Exhibit R2

[7] Exhibit R2, Income and Assets Section, Part A, p2.

14. A person’s rate of DSP is to be worked out using the rate calculator at s.1064 of the SS Act. Income is to be taken into account using the ‘Ordinary Income Module E’, for the purpose of which the ‘ordinary income’ of members of a couple is to be taken into account. The term ‘ordinary income’ is given meaning at s.1072 and s.8, and includes personal earnings, being gross ordinary income from all sources for the period. Thus it can be seen that Mr Narayan’s earned income in employment for the purpose of calculating the correct rate of his wife’s DSP is the total gross amount he was paid each fortnight including shift penalties and overtime.

15.     Plainly enough the information Mrs Narayan provided in her DSP claim form concerning Mr Narayan’s fortnightly earnings was incorrect.  I accept that Mrs Narayan did her best to provide correct information on the basis of her understanding at the time.  She attached two payslips containing all the relevant information and relied on Centrelink to properly assess her claim and calculate the correct rate of pension.  In the usual course one would expect the discrepancy between the information she provided in the claim form and the information set out in the payslips to have been identified when her income declaration was verified during the claim assessment process.  However, that did not occur.  Centrelink did not have regard to Mr Narayan’s fortnightly earnings in any amount when calculating the rate of Mrs Narayan’s pension.  That was plainly an error.  DSP was granted and paid on or about 17 March 2005.  Mrs Narayan was sent a notice setting out the rate of DSP and the amount of combined income that was taken into account: an amount of $104.16.[8] 

[8]  T5 folio 24.

16.     Thus, in the period from 8 December 2004 to 17 March 2005, Mrs Narayan was overpaid DSP.  It is not contested that the overpayment during this period was solely attributable to Commonwealth error and Mrs Narayan received the overpayments and acted in good faith.  The resulting debt was waived, correctly in my view.  However, that does not conclude the matter.

17.     Correcting Centrelink’s error in the notice dated 17 March 2005,[9] in relation to her husband’s income, on 24 March 2005, Mrs Narayan again informed Centrelink of her husband’s fortnightly earnings. These were recorded by the Centrelink officer as “needs to be approx $1300 p/f gross”.[10]  Centrelink sent Mrs Narayan another notice (dated 24 March 2005) which set out the following information:

[9]  T5 folio 24.

[10] T36 folio 160.

“INFORMATION USED FOR CALCULATING YOUR REGULAR PAYMENT

Combined Annual Income  $104.16

Combined Regular Fortnightly Earnings       $1,222.04”[11]

[11] T6 folio 27.

Information set out on the reverse of the notice included:

“WHAT YOU MUST TELL US

…

Income

(income means your gross income before payment of any tax, or if self employed, your net profits after allowable deductions)

…

If your combined income, not including financial investments or maintenance, increases;

…”[12]

[12] T6 folio 27.

18.     As can be seen, the stated amount of ‘combined regular fortnightly earnings’ in the notice ($1,222.04) is the same amount that Mrs Narayan declared in her claim form, and that amount corresponded to the amount of Mr Narayan’s regular fortnightly gross salary, excluding overtime and shift penalties, shown on the payslips Mrs Narayan lodged with her claim.  Mr Narayan’s employer, the Canberra Hospital, declared that Mr Narayan’s “gross payment” on 24 March 2005 was $1,670.29.[13]  There is no corresponding payslip and the components of Mr Narayan’s earned income on 24 March 2005 are not in evidence.  However, considering the payslips in evidence, it can reasonably be inferred that his earnings included a base salary amount and additional amounts for overtime and shift penalties.  It is clear enough on the evidence that Mrs Narayan did not inform Centrelink that her husband’s regular fortnightly earned income was $1,222.04 when she telephoned on 24 March 2005 to address the error.  The earnings amount she provided at that time was an approximation - “needs to be approx $1300 p/f gross”[14].  From that it can be inferred that Centrelink obtained the amount of $1,222.04 from her claim form without reference to the attached payslips and did not verify the amount of declared fortnightly earnings against those primary documents.  The claim form requires a claimant to attach “2 most recent payslips from each employer”[15].  It can reasonably be inferred that such attachments are for the purpose of verifying fortnightly earnings to ensure the correct rate of pension is paid.  I am reasonably satisfied that no such verification occurred in this case.  That was an error.

[13] T14 folio 66.

[14] T36 folio 160.

[15] Exhibit R2, Income and Assets Section, Part A, p2.

19.     On 6 and 20 July 2005, Mrs Narayan telephoned Centrelink and advised of an increase in her husband’s income.[16]  A notice sent to her on 27 July 2005 shows ‘combined regular fortnightly earnings’ in the amount of $1,281.00.[17]  No payslip or details of Mr Narayan’s earnings on or about 26 July 2005 is in evidence.  The Canberra Hospital stated that Mr Narayan’s “gross payment” on 28 July 2005 was $2858.81.[18]  It can be inferred that Mr Narayan’s gross payment at that time included amounts of overtime and/or shift penalties additional to his fortnightly salary, and that Mrs Narayan failed or omitted to inform Centrelink about those amounts.

[16] T36 folios 159 and 160 refer.

[17] T7 folio 30.

[18] T17 folio 73; T14 folio 68.

20.     A further notice was sent to Mrs Narayan on 2 March 2006, stating that her ‘combined regular fortnightly earnings’ were $1,281.00.[19]  The Canberra Hospital stated that Mr Narayan’s “gross payment” on 8 March 2006 was $1,875.96.[20]  Once again, it can be inferred that Mr Narayan’s gross payment at that time included amounts of overtime and/or shift penalties additional to his fortnightly salary, and that Mrs Narayan failed or omitted to inform Centrelink about those amounts.

[19] T8 folio 32.

[20] T14 folio 68.

21.     On 17 and 25 May 2006, Mrs Narayan telephoned Centrelink and advised of an increase in her husband’s earned income.[21]  Her evidence, which was not seriously challenged, was that she spoke with a Centrelink officer and discovered in the course of that conversation that the amount of her husband’s earnings had been incorrectly declared.  A notice was send to Mrs Narayan on 25 May 2006 stating that the amount of her ‘combined regular fortnightly earnings’ was $2,230.76.[22]  The Canberra Hospital stated that Mr Narayan’s “gross payment” on 31 May 2006 was $2,225.47.[23]

[21] T36 folios 154 and 155 refer.

[22] T9 folio 35.

[23] T14 folio 68.

22.     On these facts it cannot be said that Mrs Narayan’s debt is solely attributable to Centrelink’s administrative errors.  The fact is she declared amounts that she thought were correct in good faith, and in so doing declared some but not all of her husband’s earnings in employment.  Her incorrect declarations of earned income on 24 March 2005 and 20 July 2005 contributed to cause the overpayments that gave rise to her debt.  I so find.

23. It follows that the overpayments from 18 March 2005 to 25 May 2006 are not solely attributable to Commonwealth error and the debt thus arising cannot be waived, in whole or in part, pursuant to s.1237A of the SS Act.

Are there special circumstances whereby it is appropriate to waive the debt?

24.     Mrs Narayan says that, in the light of her physical and cognitive impairments, Centrelink’s failure to properly inform her that gross income information was required and Centrelink’s failure to properly have regard to and take into account the payslip information she provided with her claim form in December 2004 constitute special circumstances whereby recovery of the debt would be unfair, unjust and unreasonable. 

25.     I understand that the Respondent Secretary accepts that special circumstances exist in relation to part of the debt, to the extent found by the Social Security Appeals Tribunal.  That Tribunal decided that “the part [of the debt] incurred between 18 March 2005 and 26 July 2005 is to be waived in the special circumstances of the case.”[24]

[24] T2 folio 5.

26.     As will appear I am satisfied that it is appropriate to waive recovery of part of Mrs Narayan’s debt in the special circumstances of her case.

27. Recovery of a debt, in whole or in part, may be waived if there are special circumstances that make it appropriate to do so (s.1237AAD of the SS Act). The term ‘special circumstances’ is not given definition or special meaning under applicable social security legislation, but has been oft considered in cases before this Tribunal and the Federal Court. Circumstances may be ‘special’ if there is something unusual, uncommon or exceptional about the particular case that renders it apart from the normal course (Re Beadle and Director General of Social Security (1984);[25] Beadle v Director-General of Social Security (1985)[26]), or if something unfair, unintended or unjust has occurred (Groth v Secretary, Department of Social Security (1995)[27]).

[25] 1 AAR 362.

[26] 7 ALD 670, at 675.

[27] 37 ALD 797, at 545.

28.     Mrs Narayan gave evidence concerning her disabilities and ongoing physical, psychological and cognitive symptoms.  She told me that her husband and two children are in good health.  They live as a family in a home purchased with compensation monies paid in settlement of her claim following the motor vehicle accident.  Her husband is in full time stable employment and she receives Family Tax Benefit.  She explained that, even so, the family struggles to make ends meet week to week, especially since her debt is being recovered at a rate equivalent to her DSP.  I accept that may be so.  However, the struggle to make ends meet on a weekly basis is not unusual or in any way uncommon.  These are not special circumstances that set Ms Narayan’s case apart from the usual run of cases involving people with disabilities in receipt of a pension.

29.     Even though Mrs Narayan presented her case on the basis that she had incorrectly provided net earnings information, I am satisfied that her recollection or her analysis of the information she provided is incorrect.  It is not possible to know what was in her mind at the time she provided the information, or how she interpreted the information on her husband’s pay slips.  Mrs Narayan suffers from an organic brain injury with resultant cognitive deficits in the areas of memory and concentration.[28]  These deficits may well have diminished her capacity to understand precisely which information she was required to report from her husband’s pay slip.  It is plain to me having had the benefit of taking oral evidence from her that her recollection of the events in question and what was in her mind at that time cannot be relied upon.  That she believes she provided only net income amounts appears to relate to what she has been told when the income discrepancy was identified in May 2006 or during subsequent debt recovery and review processes.  Her belief is not supported by the evidence. 

[28] Exhibit R2, Dunsford J, p5,10.

30.     In Mrs Narayan’s submission, if the income declaration requirements attaching to DSP had been clearly explained to her, she would have provided the correct information. There is no objective evidence before me on this point.  I note the Centrelink records at T36 concerning contacts, meetings or communications between Centrelink and Mrs Narayan do not shed light on this point.  As I have said, Mrs Narayan’s cognitive difficulties should have been taken into account by Centrelink when dealing with her. 

31.     Furthermore, Centrelink did not properly assess and verify Mrs Narayan’s claim in December 2004 and failed to give proper regard to the original payslips she lodged with her claim.  As a result, the discrepancy between the earned income amount she declared in the claim form and the amounts recorded in the attached payslips were not discovered at the time.  Mrs Narayan is cognitively impaired and is entitled to rely on Centrelink to properly assess her claim and calculate the rate of her pension on the basis of the information and the payslips she provided.  In the usual course Mrs Narayan must bear some responsibility to carefully check that the information on which her pension was calculated was correct and to consult Centrelink if there was doubt in her mind or any uncertainty about the amount of her husband’s earnings that must be declared.  I accept that she proceeded on the basis that she had provided all relevant and necessary information to enable her claim to be properly assessed on the basis of her husband’s income and relied on the outcome of that assessment being correct. 

32.     I also accept, and no evidence was adduced to the contrary, that in the period from 17 March 2005 to 24 May 2006 she was not provided with information sufficient to raise any doubt or uncertainty in her mind that the earned income amounts she declared were incorrect.  Contrary to the Respondent Secretary’s submission, I am reasonably satisfied that the notices she received during the period in question did not provide sufficient information to explicate the income declaration requirements.

33.     In the Secretary’s submission, Mrs Narayan should have read the information concerning her combined income in the claim form she lodged and on the reverse of the notices she received.  The Secretary says that if she had done so, then she would have understood the requirement to provide her husband’s gross earnings rather than his net earnings.  That submission is without merit.  Careful consideration of the evidence reveals that Mrs Narayan declared her husband’s gross fortnightly salary and omitted to declare any earnings relating to overtime or shift penalties.  The issue is not whether she declared her husband’s gross fortnightly earnings; it is whether she declared the totality of his gross earnings.  Plainly enough she did not.  However, the information in the notices to which I have referred does not explicitly state the requirement to declare the totality of gross fortnightly earnings, but sets out information using terms that are unclear and that may lead to confusion, especially if the recipient suffers cognitive impairment.

34.     The information set out in the notices[29] Mrs Narayan received is ambiguous and is not sufficient to allow her to identify any error in the amounts of income she declared.  The terms ‘combined annual income’ and ‘combined regular fortnightly earnings’ that appear in the notices are not defined and may convey meanings that are not consistent with the requirements of the Act concerning the declaration of income by pension claimants.  The word ‘regular’ qualifies the meaning of ‘fortnightly earnings’, impliedly to exclude earnings that are not ‘regular’.  A person could reasonably interpret the term to exclude fortnightly earnings that are not ‘regular’ earnings.  Considering the meaning of ‘regular’ in common usage as set out in the Oxford English Dictionary and the Macquarie Dictionary, if overtime and shift penalties are not fixed and are variable from week to week, then conceivably, in the absence of other information, a person could reasonably conclude that such irregular earnings may be excluded from ‘combined regular fortnightly earnings’.  Consideration of the information provided on the reverse of the notice does not clarify the matter.   While ‘income’ is said to mean ‘gross income’, the meaning of the ‘combined regular fortnightly earnings’ is not set out and no guidance is given concerning the totality of earned income that must be declared.  For a person suffering cognitive disabilities, such as Mrs Narayan, the ambiguity of the information in the notice may lead to confusion and may lead to misconceptions of what is required in relation to the declaration of income. 

[29] T5,T6, T7 and T8.

35.     On receipt of a notice from Centrelink setting out the amount of ‘combined regular fortnightly earnings’ that had been taken into account, it would be reasonable to expect Mrs Narayan to check that the amount was correct by reference to her husband’s payslips.  I am reasonably satisfied that the amounts on the notice correlated to the amount of her husband’s gross fortnightly salary, excluding overtime and shift penalties and she did not identify this as an error.  It was open to her to conclude that overtime and shift penalties were not within the meaning of ‘combined regular fortnightly income’ on the basis that those payments were variable week to week.  In the circumstances it was open for Mrs Narayan to conclude that the information she provided about her husband’s earnings was correct.  I am satisfied that even if she did read all the information on the notices she received, and it is not clear that she did, her error would not have been apparent. Information about gross fortnightly earnings excluding shift penalties and overtime that, on one interpretation, is consistent with the term ‘combined regular fortnightly earnings’. 

36.     Essentially, the effect of Mrs Narayan’s cognitive deficit on her ability to understand the requirements attaching to her disability support pension in relation to declaring earned income compounded Centrelink’s initial errors.  The information in the notices she received was insufficiently clear to alert her to the error, and was deficient in that regard.  The Secretary accepted that Mrs Narayan’s cognitive difficulties should have been taken into account in her dealings with Centrelink.  I agree.

37.     Nevertheless, in the Secretary’s submission, the special circumstances ceased to exist on 27 July 2005 when Mrs Narayan incorrectly reported an increase in her husband’s earnings at that time.  I do not agree.  It appears to me that Centrelink’s initial errors continued to have effect.  The notices Mrs Narayan received were ambiguous and did not clearly state the requirements to declare all gross fortnightly earnings.  The notices did not set out information that would permit her to identify her error. Thus, even thought the overpayment is not solely attributable to administrative error by the Commonwealth, Commonwealth error was a significant causal factor that led to the overpayment at least until July 2005.  Thereafter, the deficiencies in the notices contributed to continuation of the error until May 2006. 

38.     I accept Mrs Narayan’s submission that if the requirement to declare earned income had been clearly explained to her she would have been able to understand and comply.  Her record of attempting to meet her obligation to report changes in her husband’s earned income supports that submission.

39.     In the circumstances I am satisfied that it would be unfair and unjust to recover the entire amount from Mrs Narayan. I am satisfied that these circumstances are ‘special circumstances’ and so find. 

40.     However, Mrs Narayan must bear some responsibility for not properly checking whether the earned income amount she stated on her claim form was correct.  Had she done so, the effect of Centrelink’s errors would have been reduced.  Thus, I am satisfied that it is not appropriate in all the circumstances to waive the entire debt.  I note that the debt is being recovered from Mrs Narayan’s DSP payments at the rate of $50 per fortnight and an amount has been repaid.  I am mindful that the waiver provisions must not be exercised lightly and that there is a legitimate expectation that public monies expended in error on pension overpayments will be recovered from recipients unless there are special circumstances that render it inappropriate to do so.  I am satisfied that this is such a case.  Thus, considering all of the circumstances and taking into account Mrs Narayan’s error, I find that it is appropriate to waive the Commonwealth’s right to recover only that part of Mrs Narayan’s debt that is presently outstanding.

41.     It follows therefore that the decision under review is set aside and in substitution thereof the Tribunal decides that Mrs Narayan has a debt to the Commonwealth of $3,976.85 and that special circumstances exist whereby it is appropriate to waive the part of the debt that is presently outstanding.

42. Finally I note with concern that Mrs Narayan’s DSP claim form and the attached payslips were not included in the s.37 documents. It was necessary to direct that these relevant documents were to be delivered to the Tribunal during the hearing, even though it appears that the documents were readily available and in possession of the Respondent. It is difficult to conceive of a legitimate reason to exclude such documents on the grounds of relevance pursuant to subs 37(1) of the AAT Act. While care must be taken to ensure that relevant documents are filed pursuant to subs 37(1), in order to comply with the subsection it is essential that all such relevant documents must be filed.  Unfortunately that did not occur in this case.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed: ………Jane Gribble………………………………….
  Associate

Date of Hearing  13 August 2007
Date of Decision  29 August 2007
Representative for the Applicant   Self
Solicitor for the Respondent        Ms Jillian Furner