Nicassio and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 802

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 802

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2007/05767

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MICHELE (MICHAEL) NICASSIO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr Roderick McRae, Member

Date9 September 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Roderick McRae

Member

SOCIAL SECURITY ‑ disability support pension ‑ income test – ordinary income – marriage-like relationship – partner’s income – offset of business loss against other personal income – overpayment ‑ notification of change of circumstances – whether special circumstances exist – waiver ‑ debt recovery

Administrative Appeals Tribunal Act 1975 s 43(1)

Social Security Act 1991 ss 8, 117, 1072, 1075, 1223(1), 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 ss 68(2), 100(2)

Angelakos v Secretary, Department of Employment & Workplace Relations [2007] FCA 25

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Dranichnikov v Centrelink [2003] FCAFC 133

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Salmon and Secretary, Department of Employment and Workplace Relations [2007] AATA 1386

Secretary, Department of Social Security v Garvey (1989) 22 FCR 132

Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126

Watson v Secretary, Department of Family and Community Services (2003) 128 FCR 564

REASONS FOR DECISION

9 September 2008 Dr Roderick McRae, Member       

1.       Mr Michael Nicassio (the Applicant) receives disability support pension (DSP) under the Social Security Act 1991 (the Act) from Centrelink.  Centrelink acts as the service delivery agency for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent).

2.       On 17 August 2006 Centrelink determined that Mr Nicassio had failed to properly declare his wife’s employment income and that he had therefore been overpaid $7,604.64 in DSP from 6 February 2004 to 16 August 2006.  Centrelink decided to raise and recover a debt of $7,604.64 from the Applicant.  An internal review of this decision on 16 January 2007 by an Authorised Review Officer (ARO) determined that the amount of the debt needed to be recalculated as further information had come to light.  On 26 July 2007 the original decision maker determined that the overpayment was between 17 March 2004 and 15 August 2006 and the debt was $10,465.02.  On 30 July 2007 the ARO affirmed the decision to raise and recover the debt of $10,465.02.  The Applicant sought review of the decision by the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed this decision on 24 October 2007.  The Applicant now seeks a review of the SSAT decision by the Tribunal. 

3.       The issues for the Tribunal are whether the Applicant owes a debt to the Commonwealth; and if so, whether there are grounds for it to be waived.  In part, the former issue turns on the question of whether a loss in the Applicant’s wife’s business can offset the Applicant’s wife’s income from other sources.  The Tribunal’s decision is that the Applicant owes a debt of $10,465.02 to the Commonwealth, and there are no grounds for it to be waived.  

4. The Applicant was self-represented. The Respondent was represented by Mr F. Bakhtiar, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents).  The Applicant’s wife was not available to provide evidence. 

BACKGROUND

5.       The Applicant is a 45-year old married man, who lives with his wife and children.  He has been receiving DSP since 6 February 2004.  There is no suggestion of intellectual or psychiatric impairment.  The Applicant’s wife is an employee of Eltham High School, the beneficiary of a family trust (Cammarota family trust) and operates a business (Melbourne City Jukeboxes).  The business has run at a substantial trading loss for some years and has significant viability issues. 

6.       Centrelink sent a letter dated 17 August 2006 to the Applicant, advising him that you must report your and you partner’s earnings for the whole Centrelink Reporting Period.  It stated You must tell us within 14 days ... if ... changes in circumstances [happen].  Income ... if your combined income ... increases; if you or your partner start any form of ... business...  The letter also stated If you get a debt, you’ll have to pay it back.  You have an obligation to provide Centrelink with all the information that is relevant to your payment.  Giving false or misleading information is a criminal offence.

LEGISLATION AND RELEVANT GUIDELINES

7.       Income, income amount and ordinary income are defined in the Act as:

8(1)     “income,” in relation to a person, means:

(a)an income amount earned, derived or received by the person for the person’s own use or benefit; ...

Note 1: See also sections 1074 and 1075 (business income) ...

“income amount” means:

(a)       valuable consideration; or

(b)       personal earnings; or

(c)       moneys; or

(d)       profits;

“ordinary income” means income that is not maintenance income or an exempt lump sum.

…

Note 3: For provisions affecting the amount of a person’s ordinary income see sections 1072 ... (ordinary income concept), sections ... 1075 (business income)...

117     A person’s disability support pension rate is worked out:

(a)if the person is not permanently blind ... using Pension Rate Calculator A at the end of section 1064 (see Part 3.2);

…

1064(1) The rate of:

...

(b)disability support pension or disability wage supplement of a person who has turned 21; and

...

is, ... to be calculated in accordance with the Rate Calculator at the end of this section.

Note 1: Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation.

1072    General meaning of ordinary income

A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.

Note 1: For ordinary income see subsection 8(1).

Note 2: For other provisions affecting the amount of a person’s ordinary income see sections ... 1075 (business income ...

1075    Permissible reductions of business income

(1)       Subject to subsection (2), if a person carries on a business, the person’s ordinary income from the business is to be reduced by:

(a)losses and outgoings that relate to the business and are allowable deductions for the purposes of section 8-1 of the Income Tax Assessment Act 1997; and

(b)amounts that relate to the business and can be deducted in respect of plant (within the meaning of the Income Tax Assessment Act 1997) under Division 40 of that Act; and

(c)amounts that relate to the business and are allowable deductions under section 290-60 of the Income Tax Assessment Act 1997.

8.       The Guide to Social Security Law (the Guide) at 4.7.1.30 states:

Assessment of business losses

If a business runs at a loss, a nil amount is included in the income (section 8(1)-‘income’) test.  Only the income support recipient’s share of the net result from a partnership is assessed.

·Business losses from the current year, OR from the previous years, are generally NOT allowed as deductions from other profits or income derived from unrelated sources ...

Explanation: Although the ATO allows losses to be deducted from other income, this is not the case for income testing of pensions or allowances.

9.       The provisions of the Act relating to debt waiver and write-off state:

1223(1) Subject to this section, if:

(a)       a social security payment is made; and

(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

…

1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(1A)        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.

1236(1B)        For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

(a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

...

1236(1C)        For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

(a)       deductions from the debtor’s social security payment; or

...

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

…

1237A(1)        Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

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).

1237A(1A) Subsection (1) only applies if:

(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

…

1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)making a false statement or 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.

10. Section 68(2) of the Social Security (Administration) Act 1999 (the Administration Act) states:

The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

(a)       inform the Department if:

(i)        a specified event or change of circumstances occurs; or

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

(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;

(c)give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.

11. Section 100(2) of the Administration Act provides:

100(2)  If:

(a)a person who is receiving a social security payment is given a notice under subsection 68(2); and

(b)the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and

(c)the event or change of circumstances occurs; and

(d)the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and

(e)because of the event or change of circumstances, the person's working credit balance or student income bank balance is reduced to nil in an instalment period of the person that is the same as, or later than, the instalment period in which the event or change of circumstances occurs; and

(f)either because of the reduction of the balance to nil or because of the balance having already been reduced to nil–the rate of the person's social security payment is to be reduced;

the social security payment becomes payable to the person at the reduced rate on:

(g)if the rate reduction is attributable to the reduction of the balance to nil–the day on which the balance was so reduced; and

(h)if the rate reduction is attributable to the balance having already been reduced to nil–the first day on which the opening balance was nil.

APPLICANT’S EVIDENCE

12.     The Applicant stated that his wife’s income, used to calculate his DSP rate, should be determined by incorporating the business losses sustained by Melbourne City Jukeboxes against her earnings from her employment and trust distributions.  This would mean there would be no debt.  The Applicant did not dispute any of his wife’s payroll records.  He had no issue with the employment amounts received by his wife being considered as her income.  The Applicant did not dispute any of his wife’s trust distributions.  He had no issue with the trust distributions received by his wife being considered as her income.  He had declared a fortnightly income for his wife of $1288, which he had calculated by averaging out annual amounts from the two income sources against which he had set off the business losses.  He did not notify Centrelink each time his wife’s income varied.  He had advised Centrelink about the trust when he had applied for DSP. 

WITNESS’S EVIDENCE

13.     Mr Heng-Bee Ch’ng, a data matching review officer at Centrelink, undertakes reviews of selected cases.  He checks the customer file and sees if the case needs investigation, particularly if the discrepancy is significant.  He worked on the Applicant’s file some two years ago, and it was a case where the income declared to Centrelink did not match income declared to the A[ustralian] T[axation] O[ffice].  He verified the income the Applicant’s wife received from Eltham High School.  He coded the correct income for the Applicant’s wife, which indicated a DSP overpayment for the Applicant of over $7000.  It was because the Applicant’s wife’s income had not been properly declared.  There had been an undeclared income of some $500 per fortnight ($1288 declared when the correct income should have been $1711), which resulted in some $7,000 undeclared income from Eltham High School to the Applicant’s wife.  When Centrelink advised the Applicant of this, he disputed the amount, claiming his wife’s business ran at a loss; and that there had been variations in his wife’s fortnightly income from Eltham High School.  Mr Ch’ng stated [the Applicant’s wife’s] income did vary sometimes by a few hundred dollars and that the Applicant had not told Centrelink about trust income.  Details of the trust income were obtained from the Australian Taxation Office on 31 July 2006.  This knowledge triggered reference to a complex case assessment officer. 

14.     Under cross-examination Mr Ch’ng agreed that he had received whatever he had asked for from the Applicant.  He had not quoted sections of the Act or the Centrelink Guidelines to the Applicant.  He had based his review on all sources of the Applicant’s wife’s income.  He took all sources of income into consideration.  The net business income had been negative, so it was not taken into account, as it was not part of the Centrelink income assessment.  Its effect was nil.  An income loss related to a business cannot offset other sources of income.  He had become aware of the trust deed after 9 November 2006 and had referred the case to the complex assessment office. 

15.     Ms Diane Douch has been a Centrelink ARO since 1991.  She affirmed the overpayment of over $10,000.  This was based on the determination that the income from Eltham High School had been under-declared, and the trust income had not been declared.  The income coding was correct.  She was reviewing the same decision of debt on undeclared income when she made the ultimate debt calculation.  She was unaware of any part of the Act which provided that an ARO cannot review two decisions.  She provided her decision to Mr Ch’ng after she had reviewed his decision. 

16.     Under cross-examination Ms Douch stated she had used under-declared income from Eltham High School and trust distributions.  The business income had been a loss, and a business loss cannot be offset against earnings. 

APPLICANT’S SUBMISSIONS

17.     The Applicant submitted his wife’s business losses should be able to reduce her ordinary income.  As he had not breached the Social Security Act, there was no requirement to repay [any debt]. 

18.     The Applicant submitted that he did not believe he had received any DSP overpayment. 

19.     The Applicant submitted the ARO was not independent, as she had previously looked at his file. 

20.     The Applicant further submitted that the matter should be remitted to the Respondent for debt waiver. 

RESPONDENT’S SUBMISSIONS

21.     The Respondent submitted that Centrelink had correctly reassessed the Applicant’s DSP entitlement, allowing for his wife’s ordinary income as determined by the Act during the relevant period.  The debt was due to the Applicant under-declaring his wife’s income from 17 March 2004 to 15 August 2006, and the fact his wife’s status as a trust beneficiary was not provided to Centrelink.  There were three years of trust distributions which were relevant to the DSP payment rate.  The Applicant’s wife’s business losses were correctly included as nil income for determination of the Applicant’s DSP entitlement.  The Respondent submitted that there is an obligation on a DSP recipient to inform Centrelink as soon as a change in circumstances occurs. 

22.     On the issue of a waiver of the debt, the Respondent submitted that the Applicant’s circumstances could not be considered to be special circumstances as provided for in the Act.  The Respondent submitted the Applicant has adequate capacity to repay the debt so it is inappropriate to write it off. 

CONSIDERATIONS

23.     The Guide is currently produced by the Respondent for the Department of Education, Employment and Workplace Relations (DEEWR) and the Respondent.  Content is provided by the Respondent and DEEWR, as it relates to the legislation they administer.  The Guide aims to assist in understanding Social Security legislation and its application.  The Guide clarifies or reflects changes in legislative interpretation and/or policy application, and informs decision makers within the departments.  The Guide is available to members of the public, including from the same internet site as the Act. 

24. Section 43(1) of the Administrative Appeals Tribunal Act 1975 provides that:

for the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. 

In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Bowen CJ and Deane J stated at [590] that:

…ordinarily... an administrative officer charged with the exercise of discretionary powers will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. 

Later they stated:

…

It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal.  That is a matter for the Tribunal itself to determine in the context of the particular case ... in the interests of good government ... the desirability of consistency in the treatment of citizens under the law and ... the ideal of justice in the individual case. 

25. The purpose of social security payments is to ensure that people in lower income brackets receive some financial support. An entitlement is assessed by taking into account the recipient’s gross income. Section 1072 of the Act defines the general meaning of ordinary income for the purposes of the Act.  Ordinary income, in relation to a married couple, contemplates the income coming into the household. 

26. Section 1075 considers the issue of income derived from a business, and is entitled Permissible Reductions of Business Income.  It lists the exclusive business deductions that may be used.  Business deductions permitted under the Income Tax Assessment Acts that relate to the business may be used to reduce the income of that business.  The section is silent on the point of business deductions which result in a loss for taxation purposes being able to offset income from other sources for the purposes of income calculation according to the Act.  The section is assisted by reference to the Guide, particularly 4.7.1.30, referring to the assessment of business losses.  It is possible to envisage that every beneficiary of a pension ultimately provided by the taxpayer might establish a business that operates at a loss to offset any and even all other sources of income.  It is difficult to see how this situation might assist the purpose of social security payments. 

27. The Full Federal Court in Secretary, Department of Social Security v Garvey (1989) 22 FCR 132 at 136 declined to accept that ‘the negative yield’ of one source of income [could] be set off against the yield from other sources. The ‘negative yield’ implies a lack of a source of income, or, in other words, a nil income. Finn J in Watson v Secretary, Department of Family and Community Services (2003) 128 FCR 564 stated at 568 [t]hose [business] expenses, though, cannot be deducted from income from any other source ... at [18]. The Tribunal in Re Salmon v Secretary, Department of Employment and Workplace Relations [2007] AATA 1386 stated at [11] that [s 1075 of the Act] makes it clear business expenses can be offset against business income, but not personal or other income.  As a person’s business losses may not be used as an offset against the person’s income under the Act, it is both logical and reasonable that this is the appropriate manner to contemplate business losses of a partner of a recipient of a pension provided for by the Act. 

28.     The implication of the Centrelink correspondence sent to the Applicant by Centrelink was that if anything occurred that related to the Applicant’s or the Applicant’s wife’s income, it was imperative to contact Centrelink and declare the change in circumstances.  There is no provision for undertaking a rough averaging of income according to a unique interpretation of how the law ought to apply. 

29. Section 1236 of the Act provides for the circumstances under which the Secretary may write off a debt. At least one of the specific prerequisites provided for in s 1236(1A) of the Act must exist. None of those prerequisite conditions in s 1236(1A) exists in this case. Given the Applicant’s wife’s income stream, his entire financial position is not materially less than the current rate of DSP. Thus s 1236 does not apply.

30. Section 1237A(1) of the Act provides that the Secretary must waive debt recovery where the debt is solely attributable to an administrative error by the Commonwealth. The Applicant was paid $420.10 for the fortnight ending 8 August 2006. On 28 September 2006 a Centrelink officer decided to recover a DSP debt for the period between 26 July 2006 and 22 August 2006. The debt was not raised within a period of six weeks from the first payment that caused the debt, so s 1237A(1) may apply.

31.     There is no evidence of sole Centrelink administrative error.  Selway J in Sekhon v Secretary of the Department of Family and Community Services (2003) 132 FCR 126 stated at [35]:

The words ‘a debt attributed solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error … (emphasis added)

32. The evidence indicates the Applicant has under-declared his wife’s employment income and trust distributions. Section 1237A(1) of the Act therefore does not apply. The Tribunal notes that consideration of the payments having been received in good faith is consequently not necessary. 

33.     Section 1237AAA of the Act which provides for waiver of a small debt does not apply through operation of s 1237AAA(2).  The debt is greater than $50.00 and can be recovered by deductions from DSP. 

34. With respect to the conjunctive debt waiver provisions of s 1237AAD of the Act, the evidence is consistent that the Applicant knowingly failed to comply with a provision of the Act (s 1237AAD(a)), in that the Applicant regularly under-declared his wife’s income.  There is an obligation to declare changes of income to Centrelink within 14 days of those changes occurring. 

35. Section 1237AAD(b) of the Act provides for the waiver of a debt if there are special circumstances … that make it desirable to waive [the debt].  The Tribunal stated in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 at [12] …an expression such as ‘special circumstances’ is by its very nature incapable of precise of exhaustive definition.  The circumstances would need to be unusual, uncommon or exceptional.  The Tribunal highlighted the context in which [the circumstances] occur.  However, the Full Federal Court considered Beadle and did not subsequently affirm the words unusual, uncommon or exceptional. 

36.     Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 considered at 545:

…special circumstances would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. … It would … follow that if … something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. 

Besanko J in Angelakos v Secretary, Department of Employment & Workplace Relations [2007] FCA 25 at [33] stated that:

… the test will be overstated if the word ‘exceptional’ is emphasised… less risk of overstatement if the words ‘unusual’ or ‘uncommon are emphasised…there must be something that distinguishes the case from the ordinary or usual case…close attention must be given to the …context. 

Hill J in Dranichnikov v Centrelink [2003] FCAFC 133 at [66] stated that …To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. 

37.     It is plausible that every Applicant would consider their circumstances to fall within the boundary of being special.  However, that is not the measure the Tribunal needs to apply. 

FINDINGS

38.     The matter before the Tribunal does not involve a profound exercise of discretion by a departmental officer, but it remains reasonable for a departmental officer to consider and be informed by regularly circulated materials pertaining to application of legislation, such as the Guide. 

39.     The Applicant received DSP between 17 March 2004 and 15 August 2006.  The Applicant is in a marriage relationship.  The rate of DSP is determined by use of the Rate Calculator at s 1064 of the Act.  The income test in Module E provides for inclusion of the Applicant’s partner’s income. 

40.     The Applicant received correspondence from Centrelink requiring him to report income changes for either himself or his wife within 14 days. 

41.     The Applicant’s wife was employed between 17 March 2004 and 15 August 2006.  This income should be included as ordinary income for determination of the Applicant’s rate of DSP.  The Applicant had not declared his wife’s employment income accurately, as required by the Act. 

42.     The Applicant’s wife was a beneficiary of trust distributions between 17 March 2004 and 15 August 2006.  This income should be included as ordinary income for determination of the Applicant’s rate of DSP.  The Applicant had not declared his wife’s trust distribution income accurately as required by the Act. 

43.     The Applicant’s wife was running a business which regularly operated at a loss during the relevant time.  The business losses cannot be used to reduce other sources of income for the Applicant’s wife.  It is correct to consider the business income to be nil for the purposes of the Act in determining the Applicant’s wife’s income, which is a step in determining the Applicant’s entitlement to DSP rate. 

44.     The Applicant was paid DSP of $10,465.02 between 17 March 2004 and 15 August 2006.  The Applicant was entitled to be paid DSP of nil, as a consequence of his wife’s properly determined income during the relevant time. 

45.     The Applicant received a letter dated 17 August 2006 from Centrelink.  This letter was an Information Notice as prescribed by s 68 of the Administration Act. The letter advised him of the requirement to notify Centrelink within 14 days of specified events, which included if any of the following happens to you/ your partner … income from employment changes (the amount goes up or down).  This letter was addressed to the Applicant, and written in the second person. 

46.     The Applicant’s wife’s income varied, and Centrelink was not notified of such variation within the required 14 days.  The Applicant has received DSP in excess of his entitlement.  In accordance with s 1223 of the Act, this results in an overpayment to which the Applicant is not entitled, and is thus a debt owed to the Commonwealth. 

47.     The Applicant failed to comply with the notification requirement of changes in his wife’s income.  Specifically he relied on a rough averaging calculation according to his own understanding of the law.  This omission caused the development of the debt to the Commonwealth.  Consequently, it is not possible to conclude that special circumstances are present such that they override his requirement to notify Centrelink of alterations in his wife’s income. 

CONCLUSION

48.     The Tribunal is satisfied that the Applicant owes a recoverable debt of $10,465.02 to the Commonwealth. 

49.     The Applicant did not properly report his wife’s income to Centrelink.  The Applicant was in a position to know he had to report the changes in his wife’s earnings within 14 days.  The Applicant did not report the changes which occurred within the required 14 days. 

50.     There is no evidence to support the presence of special circumstances for the Applicant. 

51.     The Tribunal concludes that the Applicant did not satisfy the requirements necessary to allow for writing off or waiver of the debt. 

DECISION

52.     Accordingly, the decision of the Respondent to recover the Applicant’s overpayment of DSP was the correct decision.  The Tribunal affirms the decision under review. 

I certify that the fifty‑two [52] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Roderick McRae, Member

(sgd):      Olympia Sarrinikolaou

Clerk

Date of Hearing:  13 June 2008

Date of Decision:  9 September 2008

Advocate for the Applicant:                Self‑represented

Advocate for the Respondent:            Mr F. Bakhtiar, Centrelink Legal Services Branch