Re Secretary, Department of Family and Community Services and Jonauskas
[2001] AATA 72
•6 February 2001
Beaumont and Secretary, Department of Social Services (Social services second review) [2016] AATA 41 (1 February 2016)
Division
GENERAL DIVISION
File Number
2015/1011
Re
Stephen Beaumont
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 1 February 2016 Place Perth The decision under review is affirmed.
.....[Sgd]...................................................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – Debt Recovery and Waiver – failure to notify of Income – disability support pension – overpayment due to undeclared income – debt of disability support pension occurred – knowingly – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 33(1)(c) – s 34J
Social Security Act 1991 (Cth) – s 98 – s1064 - s 1223 – s 1236 - s 1237A – s 1237AAD
CASES
Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72
REASONS FOR DECISION
Senior Member A C Cotter
1 February 2016
INTRODUCTION
Mr Stephen Beaumont has been in receipt of Disability Support Pension (“DSP”) at various times since May 2002. His most recent grant date of DSP was in March 2009.
On 22 October 2013, Centrelink advised Mr Beaumont that there was a discrepancy between its records and those of the Australian Taxation Office in respect of his income for the 2011/2012 financial year.[1]
[1] Exhibit 1, T Documents, T 36, page 131, letter Centrelink to Mr Beaumont dated 22 October 2013
Centrelink made inquiries of Industrial People Pty Ltd (“Industrial People”), the labour hire company for which Mr Beaumont worked. It provided Centrelink with a copy of Mr Beaumont’s employee payroll report for the period 10 January 2010 to 17 February 2014.[2]
[2] Exhibit 1, T Documents, T 39, pages 143-144.
Subsequently, Centrelink determined that for the period 18 June 2010 to 29 December 2011 Mr Beaumont had been overpaid DSP due to him not declaring income; that the overpayment was a debt that was recoverable under the Social Security Act 1991 (Cth) (“Act”); that it was not appropriate to waive the debt; and that a 10% recovery fee should not be imposed.[3]
[3] Exhibit 1, T Documents, T 52, page 332.
On 1 August 2014, Centrelink informed Mr Beaumont that the correct amount of his earnings from Industrial People was not taken into account in the DSP payments made to him, and that Centrelink was required to recover the overpayment of $7,504.50.[4] That amount comprised a debt of $2,129.93 for the period 18 June 2010 to 23 September 2010 and $5,374.52 for the period 13 September 2011 to 29 December 2011.[5]
[4] Exhibit 1, T Documents, T 40, page 145, letter Centrelink to Mr Beaumont dated 1 August 2014.
[5] Exhibit 1, T Documents, T 35, page 128.
Centrelink’s decision was affirmed after a review by an Authorised Review Officer.[6] A later review by the then Social Security Appeals Tribunal (“SSAT”) affirmed that decision, it being satisfied that the debt had been properly calculated and could not be waived or written off.[7]
[6] Exhibit 1, T Documents, T 43, pages 151-155.
[7] Exhibit 1, T Documents, T 2, pages 3-9, SSAT’s Decision and Reasons for Decision, 9 February 2015.
Mr Beaumont has applied to this Tribunal, seeking a review of the SSAT’s decision.
ISSUES FOR THE TRIBUNAL
The issues that fall for my determination are as follows:
(a)whether Mr Beaumont was overpaid DSP;
(b)if so, whether the overpayment is a debt owed to the Commonwealth; and
(c)if so, whether recovery of all or part of the debt should be waived or written off.
I will deal with these issues below.
CONSIDERATION
Was Mr Beaumont overpaid DSP?
Section 98 of the Act provides that DSP is not payable to a person if their DSP rate would be nil. A person’s DSP rate is determined using Pension Rate Calculator A at the end of s 1064 of the Act, which sets out a formula for calculating a person’s pension. DSP is subject to an income test, which is applied by reducing the rate of pension payable to a person by 50 cents for every dollar of income earned by them over the applicable cut-out amount.[8]
[8] See ss 1064-E1 to s 1064-E11 of the Act.
The Secretary produced detailed calculations of the amount of overpayment.[9] Mr Beaumont did not seek to challenge the calculations or put them in issue. Nor did he challenge the details of income provided by Industrial People. In those circumstances, I have no reason to doubt or question the accuracy of the Secretary’s calculations.
[9] Exhibit 1, T Documents, T 44, pages 156-160.
In the absence of any contrary evidence, I am therefore satisfied that there was an overpayment of DSP and that it has been correctly calculated.
Is the overpayment a debt owed to the Commonwealth?
Section 1223 of the Act provides that if a social security payment is made and the person who obtains the benefit of it was not entitled to obtain it, the amount of the payment is a debt due to the Commonwealth.
Again, Mr Beaumont did not seek to challenge or question that a debt was owed by him. In that regard, I note that before the SSAT he confirmed that he was not contesting the existence of the debt.[10]
[10] Exhibit 1, T Documents, T 2, page 4, SSAT’s Decision and Reasons for Decision, 9 February 2015, paragraph [11].
In those circumstances, I am satisfied that the amount of the overpayment, $7,504.50, is a debt due to the Commonwealth.
Should the debt be waived or written off?
The Act contains several provisions which deal with the Secretary’s ability to waive or write off a debt owed to the Commonwealth. Section 1237A deals with the waiver of debt arising from error, while s 1237AAD allows for waiver in special circumstances. Write off of debt is dealt with by s 1236. I deal with each of those provisions below.
Waiver of debt arising from error
Section 1237A(1) relevantly 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.
Mr Beaumont’s contentions appear to be threefold.
First, he contends that when he returned to Perth five years ago, following the death of his stepmother, he obtained work with Industrial People. He told Centrelink at the time that he had obtained that work, and asked it to be careful about contacting that company as it could put his job at risk (since he had told Industrial People he was on unemployment benefits, not a disability pension). I understand Mr Beaumont to contend that the request amounted to a notification of change of his circumstances, namely that he had resumed working. He suggests that Centrelink overlooked that notification in error and should have actioned it by suspending his payments at appropriate times. In my opinion, the request was insufficient for the purposes of discharging his disclosure obligations under the Act. The “notification”, such as it was, was far too general and did not address the particular circumstances that Centrelink would have been interested in, namely the number of hours worked each week and the amount of income Mr Beaumont derived from that work. Mr Beaumont clearly understood his obligations, as from time to time he notified Centrelink of his intention to start work and of his income. He was well aware of Centrelink’s suspension policy; he was specifically reminded of his obligations on different occasions when he telephoned Centrelink[11], and reported at least some of his income during the debt periods.[12]
[11] See, for example, Centrelink note 18 August 2011, Exhibit 2, Supplementary T Documents, ST 1, page 339.
[12] See, for example, Exhibit 1, T Documents, T 51, page 303 and T 52, pages 333-334.
That leads to the second of Mr Beaumont’s contentions, that Centrelink acted contrary to his express wishes by contacting Industrial People directly. His concern was that he had told Industrial People that he was on unemployment benefits rather than DSP, and that had the company known the truth, it would not have hired him because of potential workers’ compensation implications. It was acknowledged on behalf of the Secretary that Mr Beaumont had told Centrelink that it was not to contact Industrial People directly, and that it did so, contrary to that request. Nevertheless, I have doubts as to whether that is the sort of “administrative error” about which s 1237A speaks. There was no statutory requirement or other obligation on Centrelink to abide by Mr Beaumont’s wishes. Nor was there any moral obligation to assist him in maintaining his deliberate dishonesty to Industrial People. In any event, the contact with Industrial People came in February 2014, after the relevant notifications ought to have been given to Centrelink and after the overpayments which gave rise to the debts were made. Any perceived “error” by the Commonwealth was in no way causative of the debt. It could not be said that the debt was attributable solely to that alleged “error”.
Finally, and most importantly, Mr Beaumont attributes error to his designated Centrelink officer, in failing to suspend his payment after he told her he was “going up north” to work. Mr Beaumont told the SSAT that he suffers from an acquired brain injury which affects both his ability to remain employed and his dealings with Centrelink; he becomes uncontrollably angry, which usually results in him losing his job. As a result, Centrelink has, for a number of years, prevented him from attending its offices. He was required to deal only with a nominated Centrelink officer by phone. Mr Beaumont contends that the debt arose because he told his nominated Centrelink officer that he was going up north to work and that he would be earning twice as much as she was. Based on that notification, he said that she should have suspended his DSP, but failed to do so. He said that on the same day, he had applied for a $100.00 advance to get to the airport but she refused that request. Mr Beaumont said that he spoke to her in a rude manner and probably swore at her. He claims she deliberately did not suspend his payment in retaliation for his behaviour. He contends that the debt arose because of her failure to suspend the DSP.[13] In his Statement of Facts, Issues and Contentions, Mr Beaumont put the date of the alleged phone call as either 6 or 7 September 2011.[14]
[13] Exhibit 1, T Documents, T 2, page 5, SSAT’s Decision and Reasons for Decision, 9 February 2015, paragraphs [17] and [18].
[14] Exhibit 4, Mr Beaumont’s Statement of Facts, Issues and Contentions, undated, page 3.
Centrelink had no record of that discussion having taken place, either on the dates nominated, or at all.
Prior to the hearing, Mr Beaumont requested that a summons be issued to the Centrelink officer concerned (“Centrelink witness”). I acceded to that request. However, at the hearing, Mr Beaumont alleged that the Centrelink witness’ evidence had been “tainted” by reason of inappropriate contact which the Secretary’s lawyers, the Australian Government Solicitor (“AGS”), had with her. That contact, Mr Beaumont contended, was both illegal and immoral and had effectively destroyed his case, which was unfair and unjust. He therefore declined to call the Centrelink witness.
Mr David Carroll, the AGS lawyer who appeared at the hearing, denied that any contact with the Centrelink witness was inappropriate, illegal or immoral. He explained that when he received the sealed summons on 11 August 2015, he referred it to the Department of Human Services for which the Centrelink witness works. On 21 September, a few days before the hearing, he contacted the Centrelink witness who confirmed that she had received the summons and had reviewed the Centrelink file. He said that he explained briefly to the Centrelink witness the background of the matter but she did not recall having had the phone call in question with Mr Beaumont. To assist her, Mr Carroll arranged for her to be given a copy of the T Documents. He next spoke to her on the morning of the hearing to check her availability to give evidence by telephone. Notwithstanding Mr Carroll’s explanation, Mr Beaumont insisted that the evidence was now tainted. He said that he no longer proposed to call the Centrelink witness, and that his case was detrimentally affected as a result.
Given the seriousness of the allegations and the central relevance of the alleged telephone discussion, I indicated that the Tribunal intended to call the Centrelink witness itself under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). Mr Beaumont objected to that course, and refused to participate in the examination of the witness. In view of that impasse and as the Centrelink witness was going on scheduled leave the following week, I adjourned the matter to a date to be fixed.
The hearing was scheduled to resume on 21 October, with the parties attending by telephone. A few days prior to the scheduled resumption, the Tribunal received a letter from the AGS, requesting on behalf of the Secretary that it hear the remainder of the proceeding on the papers without taking further evidence from the Centrelink witness. It was contended that the proposed course was appropriate, “taking into account the desirability of preventing any threatening behaviour by the applicant towards the (Centrelink) witness at the resumed hearing”.[15]
[15] AGS letter to District Registrar of the Tribunal (Perth) dated 15 October 2015.
At the resumed hearing, I heard from both Mr Carroll and Mr Beaumont on how the matter was to proceed. After consideration, I concluded that it was not appropriate to proceed on the papers, as Mr Beaumont did not consent to that course. In any event, I was not satisfied that the matter could be determined without the parties having the opportunity to participate further.[16] Having regard to the concerns expressed on behalf of the Secretary, I directed that the Centrelink witness’ evidence be obtained by affidavit and lodged with the Tribunal (with a copy to Mr Beaumont) by a specified date. I set a timetable for Mr Beaumont to lodge such documentary or affidavit evidence (if any) that he proposed to lead, or alternatively, to indicate that he did not intend to call further evidence. Directions were also made with respect to written submissions.
[16] See s 34J of the AAT Act.
The Centrelink witness’ affidavit was lodged with the Tribunal on 2 November 2015.[17] Her evidence can be summarised as follows:
[17] Pursuant to my directions, the original affidavit, affirmed 2 November 2015, and a redacted version were lodged with the Tribunal. Directions prohibiting the publication or other disclosure of information tending to reveal the Centrelink witness’ identity were made under s 35(3) of the AAT Act. Therefore, reference here to the affidavit will be to the redacted version lodged on 2 November 2015.
(a)She held a position with the Department of Human Services;[18]
(b)The Department’s internal procedure is that conversations with customers should be recorded on their record when the information will affect their entitlement and/or future eligibility. Decisions made from the information provided should also be recorded;[19]
(c)When a customer is on a Restricted Servicing Arrangement, it is an internal procedure of the Department that a record is made of every conversation with the customer;[20]
(d)It is her practice to comply with the Department’s internal procedure described above. She would usually make a record of any conversation she had with a customer immediately after the telephone call ended;[21]
(e)She was allocated the role of Mr Beaumont’s primary contact following the implementation of a Restricted Servicing Arrangement from 10 August 2010. She ceased being his primary contact on 26 May 2013. The last documented contact she had with him was by telephone on 22 April 2013. The arrangement meant that Mr Beaumont could not enter a Service Centre or phone the Call Centre to undertake his business. He had her direct telephone number and a backup person to call if he wished to undertake any Centrelink business;[22]
(f)As regards the contact made with her prior to the hearing, she said that she received a phone call from a member of the Department’s Litigation Team on 10 September 2015, advising that she had been summoned to give evidence at the hearing. She received later that day a confirmatory email from the same person, together with a copy of the summons. On 15 September 2015, she received an email from Mr Carroll of AGS, confirming he would contact her on the following Monday, 21 September. During that subsequent phone call, Mr Carroll told her that the matter before the Tribunal related to a debt; that she would be dialled in to the hearing and asked questions about her recollection of any conversation to suspend Mr Beaumont’s payment at his request; that she would also be asked if it was her practice to document conversations; and that AGS would send her a copy of the documents filed with the Tribunal. Later that day, Mr Carroll emailed her a copy of the T Documents, which she did not read. She had no recollection of any further conversation with Mr Carroll;[23]
(g)In preparation for the hearing, she reviewed the Restricted Servicing Arrangements for Mr Beaumont to ascertain the dates that she was his one main contact. She also checked through the records held by the Department in relation to Mr Beaumont and printed all the records of conversation on his record for the period she was his one main contact, to refresh her knowledge of the dates and content of the conversations that had taken place between her and Mr Beaumont;[24]
(h)On 27 October, she received an email from another officer of AGS, attaching a five page statement from Mr Beaumont and a copy of the SSAT’s decision, which she reviewed for the purposes of making her affidavit;[25]
(i)Referring to Mr Beaumont’s statement, she had no recollection of any phone call made by him on 6 or 7 September 2011. On the day she received the statement, she also reviewed the Department’s records in relation to Mr Beaumont. That review led her to believe that the Department did not have any documented record of a conversation between her and Mr Beaumont on either 6 or 7 September 2011;[26]
(j)Referring to Mr Beaumont’s account summarised in paragraph 18 of the SSAT’s decision, she had no recollection of Mr Beaumont telling her that he was going up north to work, or that he would be earning twice as much as her. Having reviewed the Department’s records, she could not locate any record documenting that he said that to her.[27]
[18] Paragraph 1 of the affidavit.
[19] Ibid, paragraph 2.
[20] Ibid.
[21] Ibid, paragraph 3.
[22] Ibid, paragraphs 4 -7.
[23] Ibid, paragraphs 14-17.
[24] Ibid, paragraph 18.
[25] Ibid, paragraph 8. I believe the reference to Mr Beaumont’s statement is to Exhibit 4, being Mr Beaumont’s Statement of Facts, Issues and Contentions.
[26] Ibid, paragraph 9.
[27] Ibid, paragraph 11.
Mr Beaumont did not lodge any affidavit or other material in response to the Centrelink witness’ affidavit. Apart from his own version of events, drawn from his Statement of Facts, Issues and Contentions and his account to the SSAT, no other evidence was led by him as to the relevant conversation he alleges took place. Nor did he lodge any written submissions as to why the Centrelink witness’ affidavit should be discounted, or why his version of events should be preferred. His only relevant submission was that which he made on the first day of hearing, that the Centrelink witness’ evidence had been tainted, although he failed to explain in what respects his case had been detrimentally affected as a consequence. At the resumed hearing on 21 October, he submitted that the process that I directed was “unfair”. However, he did not elaborate.
Having considered what Mr Carroll told me of his pre-hearing contact with the Centrelink witness and having read the witness’ own description of her contact with AGS and the Department’s in-house lawyers, I believe that Mr Beaumont’s allegation of “tainted” evidence is without foundation. There is no evidence of any impropriety on the part of the AGS, or the Department’s Litigation Team, in dealing with the Centrelink witness. In any event, the Centrelink witness gave uncontradicted evidence that she did not read the T Documents, her preparation for the initial hearing having consisted of a review of Departmental records so that she could refresh her memory.
The question therefore is whether I am satisfied that Mr Beaumont had the alleged conversation with the Centrelink witness on or about 6 or 7 September 2011. Having regard to all the circumstances, I am not satisfied that the conversation contended for by Mr Beaumont occurred as alleged. I say that for two reasons.
First, it is significant that there is a complete absence of any record of the conversation in the Departmental records. The Centrelink witness had no independent recollection of the conversation, which is understandable, given that it is alleged to have occurred over four years earlier, and that she would undoubtedly have dealt with many customers since that time. However, given the Centrelink witness’ seniority and lengthy experience, and the Department’s internal procedures for recording any conversations that would affect the customer’s entitlements and/or future eligibility, it seems implausible that such a conversation would have taken place without a record having been made by the officer. That is particularly so in light of Mr Beaumont’s previous dealings with Centrelink and the fact that he was subject to a Restricted Servicing Arrangement; it inconceivable that if a conversation occurred, no record was made.
I also have serious doubts as to Mr Beaumont’s general credibility as a witness. From the evidence, and from his conduct at the hearing, it is clear that he has the propensity to mislead or make unsubstantiated claims in order to manipulate circumstances to his advantage. As mentioned earlier, he deliberately misled Industrial People as to the nature of the payment he was receiving from the Department. He told the SSAT that he sometimes under declares his income to Centrelink if he has bills to pay, and advises the correct figure later.[28] Similarly, at the hearing, he sought to make serious allegations about the tainting of evidence, which proved baseless. Having regard to those matters, I am not satisfied that Mr Beaumont is a credible witness.
[28] Exhibit 1, T Documents, T 2, page 6, SSAT’s Decision and Reasons for Decision, 9 February 2015, paragraph [21].
For those reasons, I am not satisfied that the conversation asserted by Mr Beaumont on 6 or 7 September 2011 occurred as alleged, or at all.
I therefore do not consider that there was an administrative error of the Commonwealth which could attract the application of s 1237A of the Act.
In any event, even if (contrary to my conclusion) there were an administrative error by the Commonwealth, I do not consider that the debt was “attributable solely” to that error, as required by the section. The Department’s records reveal that on 12 October 2011, Mr Beaumont requested an advance payment of DSP.[29] On the same date, Centrelink wrote to him, confirming that he would be receiving an immediate payment of $1,074.90 on 14 October and a regular DSP payment of $ 735.50 on 24 October.[30] The records indicate that by the dates he received those monies, he had already received three regular DSP payments since 6 or 7 September, on 12 and 26 September and 10 October.[31] Mr Beaumont failed to alert Centrelink of his having received those payments despite the fact that, as he understood the position, his DSP payments had been suspended since 6 or 7 September. Therefore, any portion of the debt could not be said to have been caused solely by alleged administrative error; the debt was also attributable to Mr Beaumont’s failure to notify Centrelink that he had, in his view, incorrectly received DSP payments. For that reason also, s 1237A has no application in the present case.
[29] Exhibit 2, Supplementary T Documents, ST 1, page 338.
[30] Exhibit 1, T Documents, T 31, pages 114-116, Centrelink letter to Mr Beaumont dated 12 October 2011.
[31] Exhibit 1, T Documents, T 33, page 122.
It follows from what I have said that there was no basis for the Secretary to waive the debt under s 1237A.
Waiver due to special circumstances
Section 1237AAD of the Act reads as follows:
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.
This and similar provisions have been the subject of much consideration by the courts and the Tribunal over the years. It is unnecessary, for present purposes, to discuss those decisions in detail. However, there are a couple of observations which I should make.
First, the term “knowingly” in the opening words of paragraph (a) is not defined. However, the deliberate use of that word requires that there be some element of intent in making the representations or in the failure to comply with the Act. As Deputy President Forgie observed in Re Callaghan and Secretary, Department of Social Security:
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.[32]
[32](1996) 45 ALD 435, [48].
In Re Davy and Secretary, Department of Employment and Workplace Relations, the Deputy President expanded on those observations by concluding that “knowingly” means actually knowing, as opposed to “the other two of the three degrees of knowledge”:
The first of the other two sorts is the sort of knowledge that comes from deliberately refraining to make enquiries because the enquiries will lead to answers that are not desired by the enquirer. The second is constructive knowledge in the sense that the person ought to have known the specific information or had the means of knowledge.[33]
[33](2007) 94 ALD 693, [74] citing Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72.
The term “special circumstances” is likewise not defined in the Act, but has been extensively considered in case law. It has often been said that the expression looks to circumstances that are unusual, uncommon or exceptional, or which “have a particular quality of unusualness that permits them to be described as special”.[34]
[34] Beadle and Director-General of Social Security (1984) 6 ALD 1, 3, [2].
In the present case, it is clear that Mr Beaumont was well aware of his obligations to keep Centrelink informed if he returned to work, and that he understood the suspension procedure and the need to notify Centrelink if DSP payments were to re-commence. It is apparent from the records that he reported some, but not all, of his income during the relevant period. Equally, it appears that at least once before the debt period[35] and twice[36] during it, Centrelink suspended, and then recommenced his DSP at his request. In those circumstances, I am satisfied that Mr Beaumont was well aware of, and understood, his obligations to notify Centrelink of changes in his circumstances and that he therefore knowingly failed to comply with the Act’s provisions. As a result, I do consider that the waiver under s 1237AAD is available, because Mr Beaumont is unable to satisfy paragraph (a).
[35] From 28 April 2010 to 6 May 2010: Exhibit 1, T Documents, T 49, page 244 and T 51, page 310.
[36] From 2 July 2010 to 9 July 2010 and from 10 August 2010 to 16 August 2010: Exhibit 1, T Documents, T 49, page 244, T 51, page 306 and pages 303-304.
Even if I am incorrect in that view, I do not consider that Mr Beaumont’s circumstances were special as to warrant a waiver of the debt under s 1237AAD. While Mr Beaumont suffers from an acquired brain injury, it has not prevented him from contacting and notifying Centrelink of his changed circumstances at different times. His other circumstances, being his loss of work from Industrial People after it became aware of his disability, and his inability to obtain a lump sum advance while his debt is outstanding, both go to the question of financial hardship, which is not, of itself, a special circumstance to justify waiver. In any event, Mr Beaumont told me that the debt would be easy for him to repay.
In summary, I do not think that it is appropriate to waive recovery of the whole or part of the debt under s 1237AAD, both because the debt resulted wholly or in part from Mr Beaumont’s knowing failure to comply with his obligations under the Act, and because his circumstances were not sufficiently unusual or uncommon to make it desirable to do so.
Write off of debt?
Section 1236 of the Act provides that the Secretary may decide to write off a debt if, and only if:
(a)the debt is irrecoverable at law;
(b)the debtor has no capacity to repay the debt;
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate him; or
(d)it is not cost effective for the Commonwealth to recover the debt.
I do not consider any of these grounds are applicable in this case. In particular, I note as regards paragraph (b) that Mr Beaumont told me at the hearing that he was easily able to repay the debt. There is therefore no basis for the Secretary to waive the debt.
CONCLUSION
I am satisfied that Mr Beaumont was overpaid DSP during the relevant periods and that he owes a debt to the Commonwealth of $7,504.50. I do not consider there is any basis or justification to write off or waive that debt.
Accordingly, the decision under review is affirmed.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter ......[Sgd]..................................................................
Administrative Assistant
Dated 1 February 2016
Dates of hearing 25 September 2015 & 21 October 2015 Date final submissions
received from RespondentNo final submissions
were received from the Applicant30 November 2015 Applicant In person Representative for the
RespondentMr D Carroll Solicitors for the Respondent
Australian Government Solicitor
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