Parkes and Secretary, Department of Social Services (Social services second review)

Parkes and Secretary, Department of Social Services (Social services second review) [2017] AATA 1084 (12 July 2017)
Division:GENERAL DIVISION
File Number: 2016/6844
Re:Ronald Parkes
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr D.J. Morris, Member

Date:12 July 2017
Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution determines that:
(a)The Applicant has a legally recoverable debt arising from the overpayment of his aged pension during the period of 23 August 2013 to 23 June 2016;
(b)In accordance with s 1237AAD of the Act, the right to collect the part of the debt relating to the period of 23 August 2013 to 1 March 2014 is waived; and
(c)the matter is further remitted to the Respondent to recalculate the Applicant’s debt in accordance with this decision.

.....................................[sgd]...................................
D.J. Morris, Member
SOCIAL SERVICES – age pension – change from partnered to single rate – recipient of part superannuation pension of late spouse not taken into account – overpayment – Department advised of Commonwealth Superannuation Scheme pension – Applicant became aware of overpayment – whether debt should be written off, or right to collect debt waived - special circumstances whether write-off or waiver of right to collect debt preferable - partial waiver of right to collect debt - debt remitted for recalculation
Legislation
Social Security Act 1991 ss 55, 1064, 1233, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 ss 68, 123, 196
Cases
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 110 ALD 9
Director-General of Social Services v Hales (1983) 78 FLR 373
Re Reynolds and Secretary, Department of Social Security (1986) 4 AAR 478).
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Ward v Commissioner of Taxation [2016] FCAFC 132
REASONS FOR DECISION
D.J. Morris, Member
12 July 2017

The Applicant, Mr Ronald Parkes, was in receipt of age pension since December 2005. On 3 July 2013 Centrelink (the Department), the Respondent in this matter, issued Mr Parkes with a notice advising that his rate of pension had changed, and advised the annual income used to calculate his rate of payment.
On 3 September 2013 Mr Parkes contacted the Department to advise of the death of his wife. He received a lump sum bereavement payment. On 8 December 2015 the Department wrote to Mr Parkes advising of a change in his rate of pension and that the annual income used to calculate his rate pension payment was $14,474.75.
The Respondent submitted that on 17 December 2015 the Department received information that Mr Parkes became a member of the Commonwealth Superannuation Scheme (CSS) on 22 August 2013, following the death of his wife. He is the eligible spouse of a deceased CSS pensioner and therefore entitled to a percentage of his late wife’s pension. As a consequence the Department sought certain documents from Mr Parkes, which he provided.
On 11 July 2016 the Department issued a notice to Mr Parkes advising that he had a legally recoverable age pension debt of $11,615.68 in respect of the period from 23 August 2013 to 23 June 2016.
Mr Parkes, thought his lawyers, requested a review of this debt decision. A review was undertaken by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision and on 8 September 2016 the ARO affirmed the decision.
The Applicant sought a review by the Social Services and Child Support Division of this Tribunal (AAT1) which on 6 December 2015 affirmed the decision to raise and recover the debt and decided the waiver and write off provisions available in the legislation did not apply or were not appropriate in the circumstances of this case.
Mr Parkes sought a review by the General Division of the Tribunal. The hearing was held by telephone on 3 May 2017. Mr Parkes was represented by his solicitor, Ms Tammy Barker, of Barker & Associates. Ms Ailsa Bramley, a solicitor in the employ of the Department of Human Services, represented the Department. Mr Parkes gave evidence under affirmation and was cross-examined.
The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were taken into evidence. The Respondent also submitted a Secretary’s Statement of Facts, Issues and Contentions, lodged on 18 January 2017 (Exhibit R1).
Ms Barker tendered Submissions of the Applicant, lodged with the Tribunal on 30 March 2017 (Exhibit A1).
THE LAW
The entitlement to age pension is means-tested. The rate of age pension is worked out, under section 55 of the Social Security Act 1991 (the Act), in relation to a person, by the relevant rate calculator in section 1064 of the Act. Module E of section 1064 sets out the effect that a person’s fortnightly ordinary income has on their maximum basic rate of age pension. Section 8(1) of the Act defines “income” to mean income that is not maintenance income or an exempt lump sum, both terms of which are also defined in the Act.
The calculation of the debt was not disputed at the hearing. The Tribunal finds the debt was correctly calculated. Ms Barker for the Applicant based her arguments on the contention that Mr Parkes had at all times been open and honest with the Department, that he has advised the Department of his change in circumstances and that it was human error by Centrelink which has resulted in the debt being raised.
Ms Barker submitted (Exhibit A1) that the Tribunal should write off or waive Mr Parkes’ debts under the provisions in the Act relating to the waiver or writing off of debts in certain circumstances.
Section 1236 of the Act provides as follows:
Secretary may write off debt
(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.
(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.
(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
[there is no subsection (a)]
(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.
(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
(b)deductions under section 84 of the A New Tax System (Family Assistance)(Administration) Act 1999; or
(c)setting off under section 84A of that Act;
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.
There are provisions in the Act which require the Secretary to waive recovery of a debt where the debt is attributable solely to administrative error. These are found in section 1237A of the Act:
Waiver of debt arising from error
Administrative error
(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).
(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
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
There are also provisions in the Act, at section 1237AAD, which give the Secretary a discretion to waive the right to recover all or part of a debt in what are called in the heading to the section “special circumstances”:
Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
It is important to note that what precisely constitute “special circumstances” is not otherwise defined in the Act or the Social Security (Administration) Act 1999. The phrase has been considered judicially and by the Tribunal on previous occasions. In Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 110 ALD 9, Besanko J warned against a requirement that there needs to be exceptional circumstances before there may be said to be special circumstances:
“... I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.”
In addition, the Full Court of the Federal Court has sounded a warning against a decision-maker taking too narrow a view of what may constitute “special circumstances” within the meaning of an Act of Parliament. In Ward v Commissioner of Taxation [2016] FCAFC 132, considering the reference “special circumstances” in a similar context in s 292-465 of the Income Tax Assessment Act 1997, the Court stated:
In our opinion, the Tribunal erred in law by taking too narrow a view of what may constitute “special circumstances” within the meaning of the statute. This may have been caused by unnecessarily considering factors in isolation before focusing on the entirety of the circumstances said by the applicant to be special.
What happened?
Mr Parkes was in receipt of age pension. His late wife, Mrs Parkes, was in receipt of a CSS pension. Mrs Parkes died on 8 August 2013 (Exhibit A1). On 21 August 2013, the Applicant contacted the Department to advise them that she had passed away and the Department wrote to him of the bereavement lump sum payable to him.
On 10 September 2013 Mr Parkes contacted the Department and the calculation of the bereavement payment was explained to him.
Mr Parkes submitted to the Tribunal that he travelled to the Swan Hill office of Centrelink and gave the Department certain documents, including copies of his bank statements, a document from the CSS and Mrs Parkes’ death certificate. He said he was accompanied by his stepson, Mr Chester, on this occasion.
From 24 August 2013 Mr Parkes was paid the single rate of age pension. The Respondent stated that on 17 December 2015 the Department received information about Mr Parkes’ CSS membership, including advice that his membership of CSS commenced on 22 August 2013, an arrears payment was made on 14 November 2013 and from around that time regular gross fortnightly payments had been made to him. The Department contended, in the Secretary’s submissions, that it did not know that Mr Parkes had started to receive a CSS pension, as the eligible spouse of a deceased CSS member.
On 12 April 2016 the Department requested certain documents from the Applicant, which he provided on 20 April 2016. On 11 July 2016 the Department issued a notice to Mr Parkes raising a recoverable debt of $11,615.58 in respect of the period between 23 August 2013, being the day after the date the CSS advised Mr Parkes became a member of that superannuation scheme, and 23 June 2016.
Ms Barker, for Mr Parkes, did not dispute these general facts, but did dispute when the Applicant told the Respondent of his CSS pension entitlement. She submitted that part of the debt should be waived under section 1237 of the Act on the basis that Mr Parkes visited Centrelink and advised of his CSS membership. Ms Barker argued that Centrelink should have recorded that and, as a consequence, the rate of his age pension should have been reduced to take account of his other income from the CSS pension.
Ms Barker submitted as follows:
There is scant evidence before the Tribunal of any administrative error by Centrelink, let alone that the overpayments resulted solely from an administrative error or a series of administrative errors. The only evidence Mr Parkes has is his own that he attended the Centrelink office and the corroborating statements made by his stepson Peter Chester.
Ms Barker argued in the alternative that, if the Tribunal did not find the debts were caused by sole administrative error by the Department, Mr Parkes was living in financially straitened circumstances and “after payment of all his usual expenses, he has nothing left of his pension.”
Ms Barker also submitted that Mr Parkes’ age and the distress he has experienced by this debt being raised should be taken into account. She highlighted that he has at all times provided to Centrelink the documents it has requested and is now at a financial disadvantage through “no fault of his own due to Centrelink not recording the information provided to them.” She submitted that, on this basis, the balance of the debt should be ‘written off.’
Mr Parkes’ evidence
Mr Parkes said he travelled to the Centrelink office at Swan Hill from his home in Kerang in November 2013 but he could not recall the exact date. The Tribunal notes this is a round trip distance of some 120 kilometres. He said he had made an appointment to see a particular officer whom he named as “Simon” and, finding that the officer was not there, he returned home and went back to the Swan Hill office the following week. He did not see the particular officer but saw another. He said he provided details about the death of his wife and how he was now a recipient of a percentage CSS pension as her surviving spouse. He said the officer made photocopies of the documents he brought in for their records and returned the originals to him.
His evidence was that Department officers had initially told him they did not expect the other income would affect his age pension. He later found that the Centrelink officers did not have a record of his visit. He told the Tribunal that on his subsequent visit his stepson did not accompany him; he was driven by a friend who remained outside.
At the hearing, Mr Parkes was asked by counsel for the Respondent whether he expected that his age pension amount would change once the CSS pension commenced. He said that he did expect his age pension would go down but that he does not have a computer and did not receive bank statements other than by post every three months so he did not monitor the payments from Centrelink. He said the only mistake he felt that he had made was not to get a receipt number from Centrelink to record his visit.
The Respondent submitted to the Tribunal that Mr Parkes’ contention that there had been an administrative error was understandable but, under the legislation, the debt must arise solely from administrative error to enliven the mandatory requirement of the Secretary to waive a debt so caused and the benefit must have been received in good faith.
The Respondent said that there was no record of Mr Parkes’ second visit to the Swan Hill Centrelink. Ms Bramley said that Mr Parkes took no action to find out why the rate of his age pension had not been affected by the commencement of his CSS pension, and, contrary to the submissions of the Applicant, there was an onus on the Applicant to follow up why the rate had not been reduced to take the other income into account.
CONSIDERATION
The Tribunal carefully considered the evidence given by Mr Parkes. The Tribunal believes he was a truthful witness and his evidence about visiting Centrelink at Swan Hill was consistent and plausible. The Tribunal notes that the statements by Mr Chester referred to in Exhibit A1 by Ms Barker were not before the Tribunal.
The Tribunal considers that there appears to have been an omission by the Department in not recording either of the November 2013 visits to the Swan Hill Centrelink office and, as it appears copies of the Applicant’s documents were taken, fully taking account of these documents. There was no clear evidence from Mr Parkes, however, about precisely what each of those documents were.
The Respondent provided a letter sent by Centrelink to the CSS dated 8 December 2015 which was a notice issued under section 196 of the Social Security (Administration) Act 1999 requiring information on the Applicant’s CSS membership. At response from the CSS dated 17 December 2015 indicated that Mr Parkes commenced as a member of the Scheme on 22 August 2013. The letter from the CSS indicates that arrears in the amount of $3,463.44 were paid to Mr Parkes on 14 November 2013 and then provides a table of the gross fortnightly amount payable to him from 22 August 2013 of $535.61 and periodic adjustments to that amount so that the gross fortnightly amount paid to him as at 25 December 2015 was $562.23.
The Secretary submitted that the Applicant is currently in receipt of age pension at the rate of $683.25 per fortnight and he receives $14,791.66 per annum as a member of the CSS. The Respondent said that Mr Parkes is currently repaying the debt by withholdings of $20 per fortnight. On the Tribunal’s calculations, the Applicant therefore has an annual income of some $32,036.16. This is substantially more than most persons in receipt of the single age pension, which is a measure that the Tribunal has used, imperfect as it is, to assess a person’s financial circumstances in the general class of social security benefit recipients (see the decision of Deputy President Jennings in Re Reynolds and Secretary, Department of Social Security (1986) 4 AAR 478).
Mr Parkes gave evidence that he also receives a minor dividend from the CBA in the order of $21 per month. He said he is repaying a mortgage on his residence in the order of $636 per month and owes around $60,000. He said that he had expenses for the repayment of funeral fees for his late wife and had incurred significant medical expenses caring for Mrs Parkes during her final illness, running up a credit card debt which he stated was now down to around $10,000. He also said that he was repaying a rates debt of around $2,000 by instalments to his local council. He said that he cared for Mrs Parkes for around eight years after a complication from an operation caused her devastating brain damage, and this caring role meant he had had to give up his business.

Ms Barker made contact with the CSS about Mrs and, then, Mr Parkes’ membership. On 8 December 2016, the CSS responded, and a copy of the response was provided in the T-documents. This information was not available to AAT1. The CSS stated:
“Ms Beryl Parkes was a member of the Commonwealth Superannuation Scheme (CSS) from 9 November 1976 until 2 October 1980. Ms Parkes was retired on invalidity grounds from 3 October 1980. At that time she elected a maximum invalidity pension and a refund of supplementary contributions.
At that time CSS pensions were payable through the Department of Social Security.
…
Each year this office reports pension information for all our pensioners to the Department of Human Services (Centrelink).”
(Emphasis added.)
The document attached a document headed ‘Defined Benefit Income Stream Schedule for Centrelink assessment purposes’ for Mr Parkes which recorded his personal details and his current gross fortnightly amount of payment of $563.26 (as at the date of the letter).
Ms Barker submitted that as the CSS stated it provides yearly advice to Centrelink for all CSS pensioners, therefore the Department should have updated the information relating to Mr Parkes earlier. Ms Barker argued that if this had occurred the overpayment could have been realized and stopped, which would have substantially reduced the Applicant’s debt. The Tribunal asked the Respondent’s representative about this and Ms Bramley said that there was no CRN (customer reference number) apparently provided by the CSS so the data did not appear to have been cross-matched, but the Tribunal takes into account that she did not have instructions in detail on that specific point.
The Tribunal questions the purpose of CSS apparently providing information on “all our pensioners” to Centrelink if this information is not, then, matched to ensure that a social security benefits recipient who is also a CSS pensioner has this income taken into account in terms of calculating the person’s entitlement to a means tested social security payment. However, there was no detail in this letter from CSS about precisely when it advises Centrelink each year and, specifically, when it advised the Department of Mr Parkes’ CSS pension and the amount. The Respondent, as mentioned earlier, contended the first time CSS provided specific advice about Mr Parkes’ entitlements to the Department was on 17 December 2015.
Conclusions
Having considered the provisions of the Act on which the Applicant seeks to rely, the Tribunal concludes as follows.
The provisions of section 1236 of the Act are not applicable in Mr Parkes’ case. The debt is not irrecoverable at law, he has capacity to repay the debt and he is repaying it by means of a withholding from his age pension payment. The other parts of this section are not applicable in this case.
The provisions of section 1237A of the Act are not applicable in this case. While there may have been an administrative error, the overpayment was not attributable solely to administrative error, so the mandatory requirement of the Secretary to waive the debt under this provision is not invoked.
On the evidence before the Tribunal, I cannot find that the repayment of the debt would place Mr Parkes in severe financial hardship. He may well be, as Ms Barker submits, in ‘straitened circumstances’ in the sense of his expenditure being restricted, but he is currently receiving some $32,036 a year in combined income from his CSS and age pensions. The Tribunal notes and is not unsympathetic with the particular additional costs he stated he incurred because of the late Mrs Parkes’ long illness, and that he is repaying his credit card debt, partly incurred by particular medical costs he said, and his mortgage.
In terms of section 1237AAD, and taking into account the approach urged in Ward referred to above, the Tribunal accepts Mr Parkes’ evidence that he told Centrelink he had commenced as the recipient of a CSS pension sometime in November 2013, but it appears that Centrelink did not record this fact. His evidence that he made two trips to Swan Hill for the specific purpose of seeing an officer of Centrelink about this shows his honourable intentions in regard to advising of his change of circumstance.
Balancing that is that Mr Parkes stated in evidence that he expected that his pension would change because of his CSS pension. The Applicant said that he did not receive bank statements online and received them every three months by post. AAT1 records, at [30]:
Mr Parkes said he did not check his bank account and he did not really read the notices from Centrelink, which he received about every three months. He would glance at them and put them away. He assumed that he was receiving the correct amount from Centrelink.
Even accepting Mr Parkes’ evidence about what he told Centrelink, the Tribunal finds that he knew that his age pension had not been reduced to take account of the CSS pension around three months after November 2013 because by around then, on his own evidence, he would have received a quarterly statement from his bank showing direct credits into his bank account from the Department of Human Services. It may be that he did not more frequently check his bank account (not using a computer), but the same cannot be said for him failing to check bank statements posted to him, which he said in evidence he received in paper form..
The Tribunal must also take account of the fact that the CSS has confirmed it does provide information to the Department on persons receiving CSS pensions “annually”, but it is not clear what happens to that information.
In Secretary, Department of Social Security v Hales (1998) 82 FCR 154, French J said:
From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
Having carefully considered the provisions of section 1237AAD, the Tribunal finds that special circumstances do exist in Mr Parkes’ case for the waiving of part of the debt and it would be preferable not to apply the recovery rules rigidly in his case. Mr Parkes at the end of 2013 was stressed by the death of his wife after a long and most unfortunate decline, and he was coping with particular debts relating to her medical care and funeral expenses. Nonetheless, he did advise the Department of Mrs Parkes’ death and of his change in circumstance and I find he did advise the Department of his subsequently becoming a member of the CSS.
However, the Applicant also had an obligation, after receiving (a) correspondence from Centrelink which did not record his CSS income; and (b) his own bank statements, both of which should have alerted him to the fact that his age pension had not been reduced to take account of his other income stream, to then alert the Department to this oversight.
I can understand the Applicant’s frustration that a review was not undertaken until the end of December 2015, around two years later, but the fact remains that he did have the benefit of age pension overpayments to which he was not entitled and the taxpayer would generally expect recovery of the overpayment to occur. I do not accept the arguments of his counsel that Mr Parkes’ age should be taken into account, because attaining a certain age is a precondition for entitlement to age pension.
I agree with the conclusion of AAT1 that the Applicant honestly thought he had providing all the relevant information to Centrelink and that he had not knowingly omitted to comply with a provision of the Act.
The Tribunal decides that the preferable exercise of the discretion contained in section 1237AAD(b) and (c) of the Act in this matter is that the right to recover the part of the debt incurred before 1 March 2014 should be waived. In Mr Parkes’ case, it could not be said that during this particular period he knowingly failed to comply with provisions of social security law that gave rise to the debt, and for the reasons outlined above the Tribunal is satisfied that there are special circumstances relating to this period which make it desirable to waive the right to collect that part of the debt.
This date is based on the time that I find Mr Parkes was, or ought to have been, clearly aware that his age pension payment had not reduced in accordance with the income test in section 1064 of the Act.
I therefore conclude that, in these circumstances, later age pension overpayments made after this date cannot be found to have been received in good faith and cannot be waived or written off. I have taken into account in waiving this limited part of the debt the special circumstances in this case that the CSS has provided written advice that it did at some time in 2014 (and not, for the first time in December 2015, as contended by the Respondent) advise Centrelink that Mr Parkes, together with others, was a member of that Scheme. The precise date of that 2014 advice is not known and a later date for commencement of the recoverable debt period in these circumstances is not appropriate, especially with the relatively modest withholding amount of $20 per fortnight now in place.
In relation to s 1237AAD(c) of the Act, the parties did not make submissions in relation to the specific question of whether, in the event that special circumstances were found it would be preferable to write off the debt or waive the Commonwealth’s right to collect the debt. In considering this, I have had regard to the factors set out by the Full Court of the Federal Court of Australia in Director-General of Social Services v Hales (1983) 78 FLR 373 (McGregor, Lockhart and Sheppard JJ), considering a similar situation under the social security law in force at the time. Those relevant in this case are:
(a)The fact that the applicant has received public moneys to which he or she was not entitled;
(b)The way in which the overpayment arose, whether as a result of innocent mistake or fraud;
(c)The prospect of recovery;
(d)Whether recovery should be delayed if there is a prospect that the circumstances of the person who received the overpayment may improve;
(e)Compassionate considerations and the fact that the Act is social welfare legislation and any financial hardship which may result from an action for recovery.
For the specific period in question, and only for this period, I have found that the overpayment arose as a result of innocent mistake. There is a prospect of recovery in this case, however I am not satisfied that the prospect of recovery would improve if the repayment of debt was delayed by writing it off. I am further satisfied that compassionate considerations in relation to the period identified above weigh in favour of waiving the Commonwealth’s right to collect the debt.
DECISION
The Tribunal sets aside the reviewable decision and in substitution determines that:
(a)The Applicant has a legally recoverable debt arising from the overpayment of his aged pension during the period of 23 August 2013 to 23 June 2016;
(b)In accordance with s 1237AAD of the Act, the right to collect the part of the debt relating to the period of 23 August 2013 to 1 March 2014 is waived; and
(c)the matter is further remitted to the Respondent to recalculate the Applicant’s debt in accordance with this decision.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of D.J. Morris, Member

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Associate
Dated: 12 July 2017

Date of hearing: 3 May 2017

Applicant: By telephone

Advocate for the Respondent: Ailsa Bramley

Solicitors for the Respondent: Department of Human Services,
Freedom of Information & Litigation Branch

[2017] AATA 1084

12 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Appeal

Date of hearing:	3 May 2017
Applicant:	By telephone
Advocate for the Respondent:	Ailsa Bramley
Solicitors for the Respondent:	Department of Human Services, Freedom of Information & Litigation Branch