Nujin and Secretary, Department of Family and Community Services - [2002] AATA 1168

DECISION AND REASONS FOR DECISION [2002] AATA 1168

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/551

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CASSANDRA NUJIN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date15 November 2002
PlaceBrisbane

Decision The Tribunal:- (a) affirms that part of the decision under review to raise and recover an overpayment of disability support pension for the period 8 August 1997 to 8 January 1998; (b) sets aside that part of the decision which determines the overpayment to be in the amount of $3,885.20; and (c) remits the matter to the respondent for re-calculation of the amount of the applicant's debt to be recovered in accordance with the Tribunal's reasons for decision.

................. (Sgd)..................
IR Way
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – overpayment – whether debt properly raised – whether debt arose solely from administrative error – whether payments received in good faith – whether debt can be waived – whether applicant knowingly failed to comply with a provision of the Act

Social Security Act 1991

Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 26 AAR 385
Re Jonauskas and Secretary, Department of Family & Community Services [2001] AATA 72
Jazazievska v Secretary, Department of Family & Community Services [2000] FCA 1484
Re Falconer and Secretary, Department of Social Security (1996) 41 ALD 187

Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435

REASONS FOR DECISION

15 November 2002 Mr IR Way, Member

This is an application by Cassandra Babette Nujin for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 4 June 2002, which affirmed a decision made by Centrelink on 26 February 2001, as varied by an Authorised Review Officer on 8 January 2002, to raise and recover an overpayment of disability support pension in the amount of $3,885.20 for the period 8 August 1997 to 8 January 1998.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T97). Ms T Shea, Advocacy and Administrative Law Team, Brisbane represented the respondent. The applicant was self-represented and gave oral evidence.
Background Facts
There was no dispute about the background facts in this matter and in the light of this, and on the material before it, the Tribunal finds as follows:

The applicant was in receipt of disability support pension during the period 7 August 1997 to 8 January 1998 (T95/465-466).
On 8 August 1997 the applicant commenced work full-time for W Wall and Sons (T62/377-387). The applicant worked between 38 and 48 hours a week in a five day working week (T62/383). She finished this employment on 16 October 1997 (T62/378).
On 4 March 1997 the respondent wrote to the applicant (T18/60-62). The front page of the letter stated, amongst other things: "Please read the back of this letter. It tells you about your social security rights and what you have to tell us". On the reverse (T18/61), the letter required notification within 14 days if, amongst other things, the applicant commenced or recommenced work or married or started to live with someone as if they were married. The applicant claimed that she did not receive this letter. However, she did state in her letter to the Tribunal dated 24 June 2002 that she was aware of this requirement "from previous times" (T1/2).
The applicant has previously had an overpayment raised against her (on 16 March 1996) for not advising within 14 days that she was working. Subsequently, the applicant acknowledged in a statement dated 29 February 1996 that she was aware of this notification requirement (T5/31). Letters containing the same requirement of notification were sent to the applicant dated 8 April 1996 (T10/44-46), 9 July 1996 (T11/47-49) and 4 March 1997 (T18/60-62).
On 10 September 1997, more than 14 days after she commenced work, the applicant contacted the respondent by telephone and advised that she was working for W Wall and Sons and would advise of her earnings at a later date (T19/63). Such further advice was not received.
On 8 January 1998 the applicant's entitlement to disability support pension was cancelled (T95/465). The applicant re-applied for disability support pension on 20 April 1998 (T21/71) and was granted this pension from 23 April 1998 until 19 October 1998.
Originally, a debt was raised against the applicant for overpayment of disability pension on the basis that she had not notified the respondent of her marriage of 12 December 1997. This was advised to her in a letter dated 26 February 2001 (T78/426-427).
However, on review by the Authorised Review Officer, and on the basis that the applicant did not advise the respondent within 14 days of commencement that she was working, a debt for overpayment of $1,766.00 was raised for the period 21 August 1997 (14 days after 8 August 1997) to 16 October 1997 (completion date of this employment). The applicant was so advised in a letter dated 14 August 2001 (T96/479) and in a letter dated 28 March 2001 (T96/482).
The applicant sought review on 6 November 2001 (T87/448). On review, this amount was increased to $3,885.20 covering the period 8 August 1997 to 8 January 1998 and notified to the applicant in a letter dated 8 January 2002 (T94/460-464). The amount of debt previously calculated with reference to the question of whether the applicant had not notified of her marriage within 14 days of its celebration on 12 December 1997 has now been included in this amount because the period of overpayment covered the period of the applicant's marriage (T94/464).

Issues

The issues in this matter are:

whether the applicant has been overpaid disability support pension; and
if so, whether a debt should be raised to recover any such amount, and if so, whether the debt should be written off or waived in whole or in part.

Legislative Framework

The Social Security Act 1991, at the relevant time, provides as follows:
"94(1) A person is qualified for disability support pension if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
…
94(2)    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
…
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years;
…
94(5)    In this section:
'work' means work:
(a)       that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
…
132(1) The Secretary may give a person to whom disability support pension is being paid a notice that requires the person to inform the Department if:
(a)       a specified event or change of circumstances occurs; or
(b)the person becomes aware that a specified event or change of circumstances is likely to occur.
132(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
132(3) Subject to subsection (3A), a notice under subsection (1):
(a)       must be in writing; and
(b)       may be given personally or by post; and
(c)       must specify how the person is to give the information to the Department; and
(d)must specify the period within which the person is to give the information to the Department; and
(e)must specify that the notice is a recipient notification notice given under this Act.
132(3A) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph (3)(c) or (e).
132(4) Subject to subsections (4A) and (4B), the period specified under paragraph (3)(d) must end at least 14 days after:
(a)       the day on which the event or change of circumstances occurs; or
(b)the day on which the person becomes aware that the event or change of circumstances is likely to occur.
……
138     If:
(a)a person who is receiving disability support pension is given a notice under section 132; and
(b)the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the notification period); and
(c)       the event or change in circumstances occurs; and
(d)the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e)       because of the occurrence of the event or the change in circumstances:
(i)the person ceases to be qualified for the pension; or
(ii)the pension ceases to be payable to the person;
the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
……
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
(aa)the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
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.
…
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 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."
The Tribunal notes that sections 132 and 138 have been repealed, however they were current and in force at the time the debt the subject of these proceedings arose.
Applicant's Evidence and Submissions
In applying to this Tribunal for review the applicant stated:
"The reasons I believe the decision is incorrect are as follows.

I did commence work with W Wall & Co on 8 August 1997 and worked between various hours a week until 16 October 1997.
Centrelink may have advised me of certain events were likely to happen, namely to start work or recommence work, which I did not receive because I relocated several times to different areas. However I do know, from previous times and circumstances to notify Centrelink within 14 days of these changes.
I realised I was no longer eligible for disability support pension from 8 August when I commenced work for W Wall & Sons and as I made a notation in my diary I did contact Social Security which was known.
Centrelink have sent me various amounts for various occasions of increased and decreased amounts of monies of debts which they have changed several times. I feel this is unfair as Centrelink can change their decision, whenever the occasion arises.
I have received letters from Centrelink stating amounts owing as follows: $344.25, $1,766.00, $706.40, and $4,661.45 (copies are enclosed)
I disagree with the section an overpayment of disability support pension in the amount of $3,885.20 for the period 8 August 1997 to 8 January 1998. I do have a signed document I notified Centrelink of my marriage to Walter Nujin.
I feel there may have been an administrative error by Centrelink which had contributed to this overpayment. I went through similar disputes with Centrelink informing me there weren't any records of my notification of my marriage within 14 days, in relation to this circumstance, I personally visited Redcliffe Centrelink branch, where I originally notified Centrelink of my change of status. I then visited two other Centrelink branches, asking the same questions, one branch stated there wasn't any such record on their files, and the second branch noted there was but an entirely different date.
Having gone through these events several times, I find defending myself in the same position once again, as I had seperated myself from receiving any monies from Centrelink approximately 4 years ago, having continued steady casual employment.
I feel as we all do to make choices and I chose to have a go on getting work that I enjoy which I have, and to get off disability support pension, and make a difference, and during this time, I fell this matter with Centrelink has been going on for too long and has been very stressful to me and my family and to my work causing me to loose [sic] concentration, as at times I would try to remember questions Centrelink asked me, as at that time I had no cause to remember anything, because I had notified them of all changes to my status.
I feel I am being prosecuted by a mistake or an oversight by one of Centrelink's employees, by not entering relevant information on their computer system, or making a notation, at the time I notified to Centrelink of my employment with W Wall & Sons.
It has been a known fact through radio talk shows and television of how Centrelink has made errors in the department, owing thousands of dollars.
I hope this will be able to help me to support this case, as for four years I have been trying to prove my innocense [sic]."

In her oral evidence the applicant told the Tribunal that she was currently working as a casual employee with St Luke's Nursing Service, working 25/30 hours per week. She said she was no longer receiving any social security benefits having decided in 1997 to improve her existing skills and to get back to work. She said she was concerned at that time that she had been under psychiatric treatment and wanted to be sure she had the mental capacity to hold down a job.
On 8 August 1997 she commenced work with W Wall and Sons (crushing contractors in Capella) as a weigh-bridge operator having left her parents' home in Scarborough (where she had been living) in July 1997. It was her evidence that she informed Social Security at Mackay on 13 August 1997 that she had started work and referred the Tribunal to the copy of her diary (T96/489). The Tribunal notes that the applicant's diary also shows that she rang Social Security on 10 September 1997. However, Ms Nujin could not recall what this later call was about.
On 17 October 1997 she finished work with W Wall and Sons because the company had a lull in contract work and she had trouble with her car such that she could not afford to keep it. She said that without a car any work offered by W Wall and Sons at various locations was not a feasible option. She then traded in her car and bought a second-hand car when she moved to Proserpine where she worked for approximately one week as a housekeeper at Laguna Quays Resort working three hours per day for three to four days per week.
The applicant told the Tribunal she finished work at Laguna Quays on 29 October 1997, was out of work and went back to Scarborough early in November at which time she said she rang Social Security to get back on disability support pension.
After encountering some difficulties in counselling about her relationship with her ex-fiancee she eventually married him on 12 December 1997. She said she informed Centrelink at Redcliffe of her marriage on 22 or 23 December 1997. Shortly after this she left her husband because of marital problems. It was her evidence that she and her husband now live at the same address in a jointly owned house where they have separate quarters. She said that her financial circumstances were poor. She said that it was approximately a three-quarter hour journey for her to get to work at St Luke's and that St Luke's provided her with a car.
With respect to the disability support pension payments the applicant received during the period in question, the Tribunal notes that all of these payments were deposited into a Commonwealth Bank account in the name of Miss C B Cole (the applicant's maiden name) at Scarborough and that this account had been operating for a number of years prior to 1997 (T61/362-376). The Tribunal also notes that this account has been actively used throughout the period in question with disability support payments comprising the majority of funds deposited (approximately $304.50 per fortnight), these funds being fully drawn against for various expenses on a regular basis. The applicant said she did not receive bank statements for this account whilst she was in the Emerald/Mackay area.
The Tribunal notes that the SSAT recorded the following evidence:

"When she was working at Laguna Quays her wages were paid directly into her bank account by the employer. On one occasion she withdrew $50.00 from her bank account and the receipt showed that there was a lot more money in the account than there should have been.
She thought that Centrelink must have given her a backpayment because this had happened on a previous occasion after she had finished work.
She did not contact Centrelink to ask whether they had made a backpayment to her back account.
She was not concerned about the amount of money in her bank account because her father also used to send money directly to that account."

In cross-examination Mrs Nujin said she expected her disability support pension to cease when she informed Social Security about commencing work at W Wall and Sons. She said that she was paid cash by W Wall and Sons and when she left the company she lived on handouts and funds she had left over after leaving the company. When questioned about her diary she said that she did make some entries retrospectively. The Tribunal notes that her diary records that on 13 August 1997 she informed Social Security of starting work on 8 July 1997 and that in her evidence before the SSAT she admitted that 8 July 1997 should have been 8 August 1997.

When asked to summarise why she thought the decision under review was wrong, she said that she had let Centrelink know, within the required period of 14 days, that she was going back to work and that thereafter as far as she was concerned she was not receiving disability support pension and there was no reason to think otherwise. The fact that disability support pension payments were being deposited into her account with the Commonwealth Bank was not known to her as she was paid in cash by W Wall and Sons and generally met her expenses with cash.
It was her submission that the problems she was facing were as a result of an error by Centrelink. She said she had done the right thing, notifying them of going to work and notifying them of getting married and she had been concentrating on getting back to work.
Respondent's Submissions
Ms Shea, for the respondent, submitted that the applicant had received social security payments to which she was not entitled during the period she worked for W Wall and Sons, and subsequently, to when her entitlement to disability support pension was cancelled on 8 January 1998. As such, it was contended this overpayment was a debt due to the Commonwealth.
It was submitted that the applicant failed to notify the respondent, within the prescribed period of 14 days, of her commencing work with W Wall and Sons and as such her disability support pension should be automatically terminated. Furthermore, it was contended that the applicant was no longer qualified for disability support pension at the time she commenced work at W Wall and Sons because she did not have a continuing inability to work.
In summary it was submitted for the respondent that the facts of this matter show that the applicant was capable of work and did not have a continuing inability to work and therefore the applicant, not being qualified for disability support pension at the relevant time, was automatically disqualified from payment of disability support pension pursuant to section 138, as at the start of her employment with W Wall and Sons.
Furthermore, it was submitted that write-off of the debt pursuant to sections 1236(1A) and 1236(1B) of the Act is not applicable on the evidence.
With respect to waiver, the respondent submitted that from 8 August to 9 September 1997 there was no administrative error in paying the applicant disability support pension because she had not notified Centrelink about commencing work until 10 September and, therefore, section 1237A could not apply.
With respect to the period 10 September to 8 January the respondent conceded that overpayment "could be seen to arise because of sole administrative error". However, it was the respondent's submission that in any event the applicant did not receive the payment of disability support pension in good faith and, as such, section 1237A could not apply.
In so submitting, the respondent also noted that the applicant admitted she knew she would not be entitled to disability support pension if she were married and, as such, did not receive payments of disability support pension in good faith during the relevant period when she was married.
With respect to the application of section 1237AAD, the respondent submitted that a "knowing" failure took place on the part of the applicant and that in any event there are no special circumstances in existence and therefore waiving of all or part of the debt was not appropriate.
Consideration
As has been already indicated, there is no dispute between the parties that the applicant has received disability support pension during the period 7 August 1997 to 8 January 1998.
The first question to be addressed is whether the applicant was qualified to receive these payments of disability support pension. It is common ground that the applicant worked full-time for more than 30 hours per week from 8 August and ceased this employment on 16 October 1997. There is no dispute that the applicant was aware of the need to advise Centrelink, within 14 days of commencing work, that she had commenced work. The applicant says that she did this on 13 August, some five days after commencing work, and produced a diary record to this effect. The respondent has no record of any such notification, the first notification of the applicant commencing work being recorded by the respondent on 10 September 1997. The applicant's diary records that she rang Social Security on 10 September but when taken to this entry and asked to explain what the call was about she could not do so.
With respect to the diary entry on 13 August the Tribunal notes that this entry refers to the applicant commencing work on 8 July, a month before she actually did. Furthermore, the Tribunal notes the applicant, when questioned about making diary entries, admitted that she made some entries retrospectively. After careful consideration of the issue of notification, the Tribunal is satisfied that the respondent's records should be accepted and therefore the Tribunal finds that the applicant first notified the respondent of commencing work with W Wall and Sons on 10 September 1997, some 33 days after she started work.
Therefore, the Tribunal is satisfied, pursuant to section 138 and section 94 of the Act that the applicant's pension should be automatically terminated from 8 August 1997 as she was no longer qualified for the pension, commencing full-time work on 8 August 1997 and therefore did not have a continuing inability to work, as defined in the Act.
Given that the applicant continued to receive disability support pension until it was cancelled on 8 January 1998, the Tribunal finds that the disability support pension payments she received between 8 August and 8 January 1998 were payments for which she was not qualified and, as such, are a debt due to the Commonwealth by the applicant pursuant to section 1223(1) of the Act. In view of this finding the Tribunal is of the view that any issues with respect to the applicant's marriage, and her notification of this, are not relevant.
The next question to be addressed is whether this debt should be written off. In order to do so, the criteria of section 1236 need to be satisfied. In this matter there is no evidence or submission from either party that the applicant cannot repay the debt, nor do any of the other criteria in section 1236 apply. The Tribunal is satisfied, on the evidence before it, that write-off of the debt is not applicable.
Turning then to consideration of waiver of the debt pursuant to section 1237A(1) of the Act. Section 1237A(1) requires, firstly, that the debt be attributable solely to an administrative error and, secondly, that the debtor receives the payments in good faith. Central to consideration of the applicant's case is the question of whether she received the payments in good faith.
In Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 26 AAR 385, Finn J with respect to the meaning of the expression "good faith" said (at 387-388):
"The section asks that a quite specific question be addressed: was the payment received in good faith? It is quite unconcerned, for example, with whether, after 22 December, Mr Prince acted in good faith towards DEETYA. Its sole concern is with whether a particular state of affairs exists at the time a payment (or payments) is received."

He went on:

"For my own part, I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received – that is, is not entitled to use the moneys received as his or her own – that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.
Given the conventional liability of a mistaken payee of money from consolidated revenue to repay that money irrespective of his or her belief as to an entitlement to it (that is, the 'rule' in Auckland Harbour Board v The King [1924] AC 318), the concession made to the mistaken payee by s 289 of the SYA Act does seem in all probability to be directed to a payee who receives the money (to put the matter positively) in the good faith belief that he or she is entitled to receive it. In other words the frame of the section is to exclude from the right to a waiver, a person who knows or has reason to know that he or she is not entitled to receive the payment. It would be surprising to find that the Parliament intended otherwise."

In Re Jonauskas and Secretary, Department of Family and Community Services [2001] AATA 72 at page 14, Deputy President Forgie stated that:
"There is no difference of consequence between the provisions of that paragraph (s 289(2)(b) of the Student and Youth Assistance Act 1973) [in Prince] and those of s 1237A(1)."
Deputy President Forgie referred to the case of Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484, in which Cooper J observed at paragraph 40:
"Prima facie, s 1237A(1) is concerned with actual personal receipt by the debtor of the payment or payments which give rise to the debt. The issue of good faith is, for the purpose of the section, to be determined when the debtor commences to exercise control over the payment by retaining it. It is at this time that the recipient must act with the requisite good faith. A lack of good faith does not mean that the recipient of the payment must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive and retain the payment when he or she receives the payment and decides to exercise control over it by retaining it."

Cooper J continued:

"A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists. Although said in a different context, the observations of Lord Blackburn in Jones v Gordon (1877) 2 App Cas 616 at 629 are apposite. His Lordship said:
'…If he was (if I may use the phrase) honestly blundering and careless, and so took a bill of exchange or a bank-note when he ought not to have taken it, still he would be entitled to recover. But if the facts and circumstances are such that the jury, or whoever has to try the question, came to the conclusion that he was not honestly blundering and careless, but that he must have had a suspicion that there was something wrong, and that he refrained from asking questions, not because he was an honest blunderer or a stupid man, but because he thought in his own secret mind – I suspect there is something wrong, and if I ask questions and make farther inquiry, it will no longer be my suspecting it, but my knowing it, and then I shall not be able to recover – I think that is dishonesty. I think, my Lords, that that is established, not only by good sense and reason, but by the authority of the cases themselves.'

A recipient of a payment to which he or she is not entitled, cannot avoid the requirement of good faith in s 1237A(1) by the mere circumstance that the person arranges for direct payment to an account of that person with a financial institution and in consequence is unaware of the fact of the payment at the time of its actual receipt.
For the purposes of s 1237A(1), the debtor can be in no better position than he or she would have been had the payment been made directly to the debtor at the time it was in fact made to a third party. It was in this sense that Finn J stated that Mr Prince could never assert an entitlement to the Austudy payments, notwithstanding that he was ignorant of their receipt by the bank. This was because if direct payment had been made to him after he terminated his entitlement, he could not have held an honest belief that he was entitled to receive and retain the payment."

In Re Falconer and Secretary, Department of Social Security (1996) 41 ALD 187, Senior Member Beddoe stated (at 188):
"Did the applicant receive the payment of $384 in good faith? In PT Garuda Indonesia Ltd v Grellman (1992) 107 ALR 199 at 211-212 the Full Federal Court discussed the meaning of the phrase 'in good faith' in the context of the Bankruptcy legislation. Taking guidance from the dicta set out by the Full Court I take the view that 'received in good faith' in the context of section 1237A(1) of the Act refers to receipt of the payment by the debtor in circumstances without notice of any irregularity which is contrary to the Act. At the time the amount was credited to the applicant's bank account he had no knowledge of the payment. He did know he was not entitled to such a payment. Is that knowledge sufficient to say the payment was not therefore received in good faith?
I think the answer must be that because the applicant knew he was not entitled to the payment it cannot be said that he received the payment without noticing an irregularity. As the evidence shows, when the applicant became aware of the nature of the deposit in his bank account he took steps to pay the amount back to the respondent. The fact that the respondent fell into further error by frustrating the applicant's two separate attempts to repay the overpayment does not, in my view, change the essential character of the payment as received by the applicant. It was, and remained an amount paid contrary to the Act and which the applicant knew had been paid to him contrary to the Act."
In its consideration of this matter, the Tribunal, with respect, follows the approaches set out above.
The applicant has contended that she did not check her Commonwealth Bank account into which the disability support pension payments were made during the period in question. The Tribunal has difficulty in accepting this contention given that throughout the period she was actively using this account to meet expenses to the point where her fortnightly pension payments of approximately $304.50 were all being spent. The Tribunal notes the applicant's contention that on one occasion when she drew money from the account and realised that there was a lot more money in the account than there should have been, she thought that Centrelink must have given her a back-payment.
Even if the Tribunal were to accept this contention, the Tribunal is satisfied that the applicant's active and regular use of the considerable funds being put into the account through her disability support pension payments indicates that despite knowing that she was not entitled to receive disability support pension payments she did know that payments were being made.
For these reasons, the Tribunal, following the authorities set out above, is satisfied that the applicant did not receive the payments that gave rise to the debt in good faith. As such, there can be no grounds to waive the applicant's debt pursuant to section 1237A(1) of the Act, and the Tribunal so finds.
Finally, consideration needs to be given as to whether the applicant's debt can be waived in whole or in part pursuant to section 1237AAD of the Act.
For waiver to apply under the provisions of this section, the Tribunal firstly must be satisfied that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation; or failing or omitting to comply with a provision of the Act.
In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, Deputy President Forgie stated (at 445):
"(48) There is nothing in s 1237AAD which suggests that the word 'knowingly' should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission."
In this matter the Tribunal accepts the respondent's submission that the applicant has admitted that she knew of the requirement to advise Centrelink within 14 days about commencing work and that, therefore, following the reasons in Re Callaghan, a knowing failure took place on the part of the applicant in that she knowingly failed or omitted to notify the respondent of the commencement of her employment with W Wall and Sons within 14 days pursuant to section 132 of the Act.
The Tribunal therefore finds, without having to consider whether there are special circumstances in this matter, that the applicant's debt to the Commonwealth cannot be waived pursuant to section 1237AAD of the Act.
The Tribunal notes and accepts that there may be a minor adjustment to the quantum of the applicant's debt to the Commonwealth as the respondent is recalculating the debt to take account of the fact that the cessation of payment of disability support pension should occur with regard to the pay period in which the day after the applicant began work for W Wall and Sons falls.
The Tribunal:–

(a)affirms that part of the decision under review to raise and recover an overpayment of disability support pension for the period 8 August 1997 to 8 January 1998;
(b)sets aside that part of the decision which determines the overpayment to be in the amount of $3,885.20; and
(c)remits the matter to the respondent for re-calculation of the amount of the applicant's debt to be recovered in accordance with the Tribunal's reasons for decision.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed:         Denise Burton
  Administrative Assistant
Date of Hearing  15 October 2002
Date of Decision  15 November 2002
The Applicant Appeared in Person
Solicitor for the Respondent    Ms T Shea, Departmental Advocate