Page and Secretary, Department of Social Services (Social services second review) - [2024] AATA 962

Page and Secretary, Department of Social Services (Social services second review) [2024] AATA 962 (3 April 2024)
Division:GENERAL DIVISION
File Number(s): 2022/9689
Re:Janelle Page
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:3 April 2024
Place:Sydney

The decision under review is set aside and substituted with a decision that the applicant has a debt to the Commonwealth in the amount of $5,362.18; and the debt is to be fully recovered as there are no grounds for it to be written off or waived.
......................[SGD]..................................................
Senior Member A Poljak
Catchwords
SOCIAL SECURITY – Parenting payment single – Overpayment – Did not report employment – Did not report fortnightly income – Should recovery of debt be written off or waived – Debt not attributable solely to error made by Centrelink – Special circumstances not found – Recalculation of Debt – Decision under review set aside and substituted.
Legislation
Social Security (Administration) Act 1999
Social Security Act 1991
Cases
Beadle and the Director-General of Social Security (1984) 6 ALD 1
Harris v Director-General of Social Security [1985] HCA 1; (1985) 7 ALD 277
Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
Skinner and Secretary, Department of Social Services [2015] AATA 569
REASONS FOR DECISION
Senior Member A Poljak
3 April 2024

Janelle Page, the applicant, commenced receiving Parenting Payment (Single) (PPS) on 20 March 1998 and received it until 13 October 2014. Between 4 January 1999 and 17 July 2001, the applicant received numerous letters from Services Australia (Agency) advising her that she was required to report any changes to her employment or increases to her income within 14 days.
From 5 November 1999 until at least 27 December 2001, the applicant worked at the Western Suburbs Australian Football Club (employer).
On 8 August 2001, the Agency wrote to the applicant and advised her that it had received information from the Australian Tax Office (ATO) which indicated that she had recently signed an Employment Declaration Form. The letter asked the applicant to contact the Agency to confirm her employment details.
On 25 September 2001 and 28 December 2001, the Agency issued the employer notices under sections 192 and 196 of the Social Security (Administration) Act 1999 (Administration Act) requiring it to provide details relating to the applicant’s employment.
The employer responded to both notices and as a result, on 12 December 2001, the Agency found that the applicant’s earnings were higher than what she reported, which resulted in her being paid PPS in excess of her entitlement and decided to raise and recover a PPS debt of $5,316.93 for the period of 27 October 1999 to 9 October 2001 (debt period).
On 28 December 2001, the applicant was invited to contact the Agency if she wished to participate in an interview with the Agency in relation to the debt. She did not respond to that invitation.
On 7 March 2002, summonses were issued to the applicant requiring her to attend the Downing Centre Local Court and asking her to answer allegations that she contravened section 1347 of the Social Security Act 1991 (Act) and section 215 of the Administration Act. The applicant plead guilty to both offences and on 24 September 2002 was convicted and sentenced to 120 hours of community service; and ordered to pay reparation in the sum of $4,169.72 pursuant to section 21B of the Crimes Act 1914.
A memorandum detailing the Result of Proceedings record that the applicant was represented in the proceedings by a solicitor.
The applicant’s debt has been fully repaid, with the last payment occurring on 16 April 2004.
On 22 July 2020, the applicant requested an appeal of her PPS debt and on 18 March 2022, an Authorised Review Officer (ARO) from the Agency affirmed the decision made by the Agency on 12 December 2001.
On 19 October 2022, the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) decided to affirm the decision made by the ARO dated 18 March 2022. This is the decision under review in these proceedings.
Issues
The issues to be determined in these proceedings are:
(a)whether the applicant was paid PPS in excess of her entitlement during the debt period; and if so
(i)the amount(s) by which she was overpaid; and
(ii)whether the overpaid amount(s) were a debt to the Commonwealth; and if so
(iii)whether the debt (or any part of the debt) should be written off or waived.
Consideration
The applicant contends that the records relied upon to calculate her income during the debt period were not accurate. She said that she had attempted to track down her boss to provide evidence but was unsuccessful. The applicant said that during the period of about November 1999 to December 2000, she worked in the Bistro, which was separate to the employer. She stated that she only worked 4 hour shifts and earnt approximately $50.00 a week. From about June 2001, she started working in the Club. The applicant said she had always declared her income to the Agency and thought she had done the right thing. She questioned the accuracy of the information provided to the Agency from her employer at the time as her date of birth was incorrect on some of the forms provided. The applicant contends that her employer told the Australian Tax Office and Centrelink vastly different amounts to what she actually earned. As for her conviction, the applicant contends that she entered a plea of guilty because she assumed that she had done the wrong thing, merely because she was charged and in Court. It was her recollection that during the final hearing in her matter, her solicitor was not present.
As already stated, the applicant’s employer provided information to the Agency in response to notices issued to it under sections 192 and 196 of the Administration Act. That information included pay information for the applicant during the period of 5 November 1999 to 27 December 2001. This information is contemporaneous. Despite the incorrect date of birth being provided by the employer in some of the forms provided, the request for information from the Agency, which was responded to, contained the applicant’s correct date of birth.
There is no reason to find that the declared income provided by the applicant’s employer for the debt period is recorded incorrectly. It was requested and provided it was information provided directly by the applicant’s employer under compulsion and contemporaneously. The employer was advised that there were penalties for failing to provide information or for deliberately giving false or misleading information. It is the most accurate record compared to the applicant’s recollection of income she received from over 20 years ago. This is also so given the applicant’s plea of guilty and conviction to related offences.
When the declared income is compared to the amounts of income reported by the applicant’s employer, it is apparent that the applicant failed to declare her income accurately during the debt period. The applicant declared no income during the period of November 1999 to February 2000 despite her employer reporting that it had paid her hundreds of dollars in each of those months. Similarly, during the period of 15 March 2000 to 24 October 2000, the applicant reported earning either $102.00 or $81.69 per fortnight. However, her employer reported that the applicant’s monthly gross income for that period was significantly higher, for example, in August, September and October 2000, the applicant’s gross monthly income was over $1000.
As a result of the applicant failing to accurately report her income, her rate of PPS was calculated based on incorrect information during the debt period and she received PPS in excess of her entitlement resulting in a debt to the Commonwealth in the amount of $5,362.18.
This is a recalculated debt amount, which I accept is correct. The recalculation results in an increase of $45.26 over the original debt amount. The slight variation in the debt raised is appropriate in the circumstances of this matter.
For the period of November 1999 to May 2001, the pay information provided by the applicant’s employer details the applicant’s gross payments and allowances on a monthly basis. For the period of 6 June 2001 to 25 September 2001, the employer provided the applicant’s gross payments and allowances on a weekly basis. For the remainder of the debt period between 26 September 2001 to 27 December 2001, the employer provided the applicant’s net pay on a weekly basis. Taking an average of the applicant’s monthly earnings, as was done here in the recalculation, it is appropriate in the circumstances of this case to work out the applicant’s ordinary income on a yearly basis in circumstances where, as in Harris v Director-General of Social Security [1985] HCA 1; (1985) 7 ALD 277, the evidence demonstrates that the applicant worked on a casual basis with income that varied from time to time.
Can the Debt Be Waived or Written Off?
Section 1236 of the Act sets out circumstances in which a debt may be written off. The applicant has already repaid the original debt in its entirety. The proposed recalculation of the applicant’s debt will result in only an additional $45.26 that will need to be recovered from the applicant. On the available evidence, payment of the additional amount owed would not result in financial hardship.
Subsection 1237A(1) of the Act provides:
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.
For the debt to be waived under section 1237A of the Act, it must be found that the debt was caused solely by administrative error; see Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 at [35]. There is no evidence of sole administrative error leading to the existence of the debts in this case. The evidence indicates the debts arose as a result of the applicant failing to accurately report her income during the relevant period and not due to an error by the Commonwealth. Accordingly, the debt should not be waived pursuant to section 1237A of the Act.
The applicant did not receive the PPS payments in “good faith” within the meaning of subsection 1237A(1) of the Act. The applicant knew that she was not entitled to the rate of PPS she was receiving during the debt periods. She pleaded guilty to offences of “knowingly” obtaining a social security payment to which she was not entitled.
Section 1237AAD of the Act provides:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Each of the three limbs of the section must be satisfied before the debt may be waived.
The onus is on the applicant to meet her obligations as defined in Centrelink correspondence; Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72. Ignorance of the law is no excuse. The applicant knowingly failed to comply with notices issued to her under subsection 68(2) of the Administration Act by failing to accurately report her income. I do not accept that the applicant only entered a plea of guilty to the related offences because she thought she “must have done something incorrectly”. The applicant was legally represented in those proceedings and yet the charges were not disputed.
27.That brings me to consider whether there are special circumstances other than financial hardship alone which make it desirable to waive the debt. Special circumstances are not defined in the Act however the Tribunal is provided some guidance by several Federal Court and Administrative Appeals Tribunal cases. In the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 at [3]:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances of that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special (emphasis added).
I am not satisfied that there are any special circumstances in this case which are sufficient to warrant exercising the discretion to waive all part of the debt under section 1237AAD of the Act. It is in the public interest that the applicant’s debt is repaid. In Skinner and Secretary, Department of Social Services [2015] AATA 569 the Tribunal said at [48]:
It is important to recognise the need to ensure the integrity of the social security system and the public interest. This means that those recipients who have received monies to which they are not entitled, are generally expected to repay those monies unless the repayment is in the specific circumstances unjust, unreasonable or inappropriate.
The applicant has not provided any evidence or advanced a sound reason as to why the debt should not be repaid.
DECISION
The decision under review is set aside and substituted with a decision that the applicant has a debt to the Commonwealth in the amount of $5,362.18; and the debt is to be fully recovered as there are no grounds for it to be written off or waived.

31. I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate
Dated: 3 April 2024

Date of hearing: 13 February 2024

Applicant: Self-represented

Counsel for the Respondent:

Solicitor for the Respondent:

Mr M Sherman, Selborne Wentworth Chambers

Dr M Sheedy, Sparke Helmore Lawyers