Saada and Secretary, Department of Family and Community Services - [2000] AATA 301

DECISION AND REASONS FOR DECISION [2000] AATA 301

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1216

GENERAL ADMINISTRATIVE DIVISION )

Re YOLLA SAADA
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date18 April 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd) S M Bullock
..............................................

Member
CATCHWORDS
SOCIAL SECURITY – parenting allowance – overpayment of debt – recovery of debt – special circumstances.
Social Security Act 1991 – ss 935, 943, 950, 1222A, 1223, 1224, 1236A, 1237, 1237A, 1237AAD.
Social Security Legislation Amendment (Parenting and Other Measures) Act 1997

REASONS FOR DECISION

Ms S M Bullock

This is an application for review by Mrs Yolla Saada, ("the Applicant") of a decision of the Social Security Appeals Tribunal ("SSAT") made on 4 June 1998 (T2) which set aside a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services. The SSAT decided that an overpayment of Parenting Allowance of an indeterminate amount had arisen and that this debt was recoverable. The SSAT remitted the matter to the Department to recalculate the correct quantum of the debt. Therefore the application for review to the SSAT had been partially successful. The ARO decided on 29 April 1998 that Mrs Saada had been overpaid Parenting Allowance in the amount of $2,659.20 between 4 July 1996 and 15 January 1998 and this constituted a debt due to the Commonwealth (T28). The ARO further decided that there were no grounds for the non-recovery of the debt. The ARO's decision affirmed a decision of a delegate of the Department of Family and Community Services made on 24 February 1998 (T18).
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Sydney on 17 November 1999. Mrs Saada attended the hearing and provided oral evidence with the assistance of an Arabic interpreter, Mr R Farrer. Mrs Saada's husband, Mr Fadi Saada, also provided oral evidence to the Tribunal and assisted Mrs Saada with her final submissions to the Tribunal. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Mr J Kenny, departmental advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents", T1-T38) and the following exhibits:
Exhibit No Description Date
A1* R1 R 2 R3 R4 R5 R6 R7 Statement by Mr Saada on Mrs Sadda's behalf in relation to calculation errors for Parenting Allowance Respondent's Statement of Facts and Contentions Departmental computer print-out concerning Mrs Saada's earnings Departmental computer print-out concerning "Income from Employment" Departmental computer print-out concerning Mrs Saada's "Repayment History" Departmental computer print-out, "Payment Summary" for Parenting Allowance Departmental computer print-out "Payment Summary" of Family Payment for Mrs Saada Australian Tax Office Integrated System "Client Identity Profile Individual" for Mrs Saada 23 November 1999 9 July 1999 18 June 1999 17 November 1999 17 November 1999 17 November 1999 17 November 1999 5 February 1999
*At the conclusion of the hearing before the Tribunal, Mr Saada, on Mrs Saada's behalf, stated that he believed he had evidence to confirm his view that there were still calculation errors in relation to the debt owed by Mrs Saada for the overpayment of Parenting Allowance. With no objection from Mr Kenny, the Tribunal allowed Mr Saada time to provide the Tribunal with any further documentary evidence to support Mrs Saada's contention, with the corresponding obligation that Mr Kenny would be provided with an opportunity to provide comment and final submission on any new material which might be received.

ISSUES

The issues in this matter are:
whether or not there is an overpayment of Parenting Allowance and Home Child Care Allowance paid to Mrs Saada; and if so,
whether or not this constitutes a debt under the Social Security Act 1991; and if so,
whether or not the debt is recoverable.

LEGISLATION

Payment of Parenting Allowance, now called Parenting Payment, is covered by section 500 of the Social Security Act 1991 ("the Act"). Parenting Allowance had been introduced on 1 July 1995, replacing the former Home Child Care Allowance. Parenting Allowance was repealed, with effect from 20 March 1998 by the Social Security Legislation Amendment (Parenting and Other Measures) Act 1997. Parenting Allowance provided additional income to low income families and was designed to provide a family in work with at least the same income as it would receive if both parents were out of work and in receipt of social security benefits. Because of this underlying purpose, payment had very strict income tests, which removed entitlements once personal earnings reached relatively low fortnightly figures.
Parenting Allowance was granted under section 935 of the Act which as relevant states:
"Grant of claim
935. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a)the person is qualified for a parenting allowance; and
(b)the allowance is payable."
Section 950 of the Act deals with a social security recipient's obligations to notify the Department of changes of their circumstances and as relevant states:
"Secretary may require notice of the happening of an event or a change in circumstances
950. (1) The Secretary may give a person to whom a parenting allowance 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.
…"
Part 5.2 of the Act deals with, amongst other things, overpayments. Section 1222A of the Act deals with debts due to the Commonwealth and states as relevant:
"1222A Debts due to the Commonwealth
If an amount has been paid by way of social security payment under this Act of the 1947 Act, the amount is a debt due to the Commonwealth if, and only if:
(a)a provision of this Act, the 1947 Act or the Data-matching Program (Assistance and Tax) Act 1990 expressly provided that it was or expressly provides that it is, as the case may be; or
…"
Debts can arise in many ways under the Act but of relevance in this matter are sections 1223 and 1224 of the Act.
Section 1223 of the Act states as relevant:
"1223(1) Subject to subsections (1A) and (1B), if an amount has been paid to a person by way of social security payment on or after 1 October 1997 and:
(a) the recipient was not qualified for the social security payment when it was granted; or
…
the amount so paid is a debt due to the Commonwealth."

Section 1224 of the Act states as relevant:
"1224(1) If:
(a) an amount has been paid to a recipient by way of social security payment ; and
(b) the amount was paid because the recipient or another person:
(i)made a false statement or a false representation; or
(ii)failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth."
If the Tribunal determines that a debt is due to the Commonwealth in this matter then it must consider whether or not the debt should be recovered. Part 5.4 of the Act deals with the non-recovery of debts. Section 1236 deals with whether or not debts should be written off and as relevant states:
"1236 Secretary may write off debt
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) the debtor is not receiving a social security payment under this Act and 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 from a person's youth training allowance, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 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 discharge 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."

Section 1237 deals with the waiver of debts and as relevant states:
"1237(1)On behalf of the Commonwealth, the Secretary may waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD."
Section 1237A deals with sole administrative error and as relevant states:
"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.
1237A(1A) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(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."
Waiver of a part or the whole of a debt in special circumstances is dealt with under the provisions of section 1237AAD of the Act which as relevant states:
"1237AAD 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 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."

BACKGROUND

The following information is provided by way of background and the facts contained herein are not in dispute.

Mrs Yolla Saada was born on 2 March 1960 in Tripoli, Lebanon. She married in Lebanon on 2 April 1986 (T7) and subsequently came to Australia to live in about July 1986, with her husband.
In Lebanon, Mrs Saada studied Lebanese literature at university in Tripoli. She married before formerly graduating and therefore did not complete her formal qualification. Mrs Saada worked as a primary school teacher in Lebanon for four years.
Mrs Saada has two daughters living at home with her husband and herself, aged 12 and seven years.
In Australia, Mrs Saada initially attended an English language course at a TAFE college for approximately six months. In about 1998, Mrs Saada attended technical college for approximately 20 hours per week to advance her clerical skills. Having completed the course, Mrs Saada worked in an office for about six months.
Mrs Saada most recently worked at Bookcraft Printing Pty Ltd ("Bookcraft") as a machine operator at various times between July 1994 and March 1998 (T33). Mr Saada worked during this corresponding period as a foreman, also at Bookcraft.
On 16 January 1995, Mrs Saada received advice from the Department that she would receive a Home Child Care Allowance commencing on 2 February 1995. Her income was assessed by the Department at $0.38 per fortnight and she was advised in this notice to tell the Department if her total personal income increased beyond $10.85 per fortnight (T3). This notice further advised that under section 943 of the Act, Mrs Saada was required to tell the Department within 14 days of any changes in her circumstances. Changes in circumstances included such matters as changes to her total personal income, or whether or not she started or recommenced work.
On 8 July 1995, Mrs Saada was advised that a new Parenting Allowance had replaced the Home Child Care Allowance from 1 July 1995 and she would now be paid $61.00 per fortnight from 6 July 1995. This letter gave notice that under section 950 of the Act, Mrs Saada must tell the Department within 14 days if her total personal income increased beyond $0.38 per fortnight and also any other changes of circumstances including her starting or recommencing employment (T5).
On 5 October 1995, Mrs Saada telephoned the Department to notify of her income and of her commencing employment on 25 September 1995 (Exhibit R2).
On 6 October 1995, the Department notified Mrs Saada that Parenting Allowance would no longer be payable because of her personal income of $390.38 per fortnight (T6).
On 9 October 1995, a re-claim for Parenting Allowance was lodged by Mrs Saada and she explained that she had been working five days, but was now not working (T9). The re-claim was accompanied by statements, written on 18 October 1995, from J Adams, Paymistress of Bookcraft. Ms Adams reported that Mrs Saada had left the company on 6 October 1995 (T11).
Parenting Allowance was regranted from 12 October 1995 as advised in a Departmental letter to Mrs Saada of 27 October 1995 (T12). Mrs Saada was once more advised that under the provisions of section 950 of the Act, she must tell the Department within 14 days if her total personal income increased above $3.46 per fortnight and of any other changes in circumstances as detailed in the letter.
On 30 December 1997, following a data match with the Australian Taxation Office for the 1996/1997 financial year, the Department requested that Mrs Saada provide further details of her 1996/1997 income (T14), particularly as the Department had noted that Mrs Saada had previously declared nil income.
On 24 February 1998, Centrelink calculated that Mrs Saada owed a debt of $2,659.20 for 41 continuous Parenting Allowance pay days from 4 July 1996 to 15 January 1998 (T18). This calculation was based on earnings information provided by Bookcraft in an undated document (T17). The calculation devised by the Department applied average quarterly income to payments of the period stated.
On 9 March 1998, Mrs Saada attended a Centrelink office questioning the overpayment calculation. Centrelink recontacted Bookcraft and following further information obtained from the company, revised the debt calculation to $2,400.90 for 37 pay days covering broken periods from 16 March 1995 to 12 March 1998 (T24). This re-calculation covered only the periods worked by Mrs Saada at Bookcraft.
On 14 April 1998, Mrs Saada again disputed the overpayment calculations and requested a review (T26).

A Departmental officer recorded on this day that Mrs Saada stated through an interpreter that she had been told that she could earn $175.93 per fortnight before it would affect her entitlement to Parenting Allowance (T26).

On 29 April 1998, an ARO affirmed that Mrs Saada owed a debt to the Department arising out of the overpayment of Parenting Allowance and used the earlier calculation of the debt at $2,659.20 (T28).
On 1 May 1998, Mrs Saada appealed to the SSAT stating:
"I did not receive the amounts they are saying I have received." (T29)

On 4 June 1998, the SSAT decided that Mrs Saada did owe a debt to the Commonwealth arising out of an overpayment of Parenting Allowance but it was unable to determine the correct quantum of the debt and accordingly remitted the matter to the Department for a re-calculation of the debt owed by Mrs Saada, based on verification of Mrs Saada's earnings from Bookcraft (T2).
Following the SSAT's decision, Bookcraft provided further pay details for Mrs Saada for various periods from July 1994 to March 1998 (T30). After obtaining this earnings information, Centrelink re-calculated the overpayment debt at $2,355.50 for Parenting Allowance and $74 for Home Child Care Allowance (T34).
On 22 July 1998, Centrelink generated the form properly used to give initial notice of a debt from which nothing had been recovered. In consequence, on this form, the section entitled "Total Amount Payable" showed the full amount of that debt and it is necessary to read the section entitled "The reason for your Debt" to ascertain the outstanding balance after credit was given for amounts already recovered (T35). Although the notice, read as a whole was correct, the alternative form normally used for a partially recovered debt would have been clearer and preferable.
On 31 August 1998, still disputing the debt, Mrs Saada lodged an application for review to the Tribunal (T1).
On 9 July 1999, in the Department's Statement of Facts and Contentions, the Department notified that there was no failure to notify by Mrs Saada about her income in relation to pay days 28 September 1995 and 12 October 1995 as there is evidence that Mrs Saada telephoned the Department on 5 October 1995 to notify of income. Accordingly, the Department determined that the debt should be reduced by $125.60 from $2,335.50 to $2,209.90 and the balance owing correspondingly reduced from $1,917.66 to $1,792.06 (Exhibit R1). Subsection 1284(1) of the Act provides that if an officer varies a decision after an application has been made to the Tribunal for a review of that decision, but before the determination of the application for review, the application is to be treated as if it were an application for a review of the decision as varied. Accordingly, the decision under review by the Tribunal relates to a debt of $2,209.90 of which $1,792.06 remained at the date of hearing.

EVIDENCE OF MRS SAADA

Mrs Saada explained to the Tribunal that she had worked on various occasions for Bookcraft as a machine operator and that her husband also worked with same company as a foreman. Mrs Saada further explained to the Tribunal that she had received advice from a friend that she could earn a little money without this affecting her Parenting Allowance. Mrs Saada stated that she had not checked this information with the Department and acknowledged that it was "risky" to have followed such advice.
When Mrs Saada worked, her wages were directly deposited into her bank account. She was unable to provide specific information about wages, choosing to rely on the evidence of her husband. Mrs Saada stated that she did not have her bank books relating to the period under review.
Mrs Saada told the Tribunal that she had received "Notices of Assessment" from the Department firstly in relation to the Home Child Care Allowance on 16 January 1995, in which she was advised that she would be in receipt of this allowance but must inform the Department if her total personal income exceeded $10.85 per fortnight. Mrs Saada told the Tribunal that she read only the initial part of the letter (T3) which detailed the amount of Home Child Care Allowance she was to receive. Mrs Saada further stated that she had not realised, until recently, that there were further details contained in this letter concerning the amount of income she could earn. Mrs Saada stated that she had not at the time realised the relationship between her income and her departmental benefit entitlement. Letters from the Department were mostly put into the rubbish bin after she had read them, Mrs Saada stated. Mrs Saada further informed the Tribunal that she did not read the backs of any of the departmental letters/ notices sent to her. Accordingly it was likely that Mrs Saada did not read that she must inform the Department of certain things, including if her income increased, but also other changes in circumstances such as starting, recommencing or ceasing employment. In answer to a question as to whether or not Mrs Saada had told the Department that she had been working at Bookcraft in March 1995 and earning over $10.85 per fortnight, Mrs Saada replied that she could not remember what happened on certain dates.

Similarly, on 8 July 1995, Mrs Saada received a further departmental letter stating that her benefit would now be known as the Parenting Allowance and that this would replace the Home Child Care Allowance from 1 July 1995. Mrs Saada was advised that she would paid $61 per fortnight and that she must tell the Department within 14 days if her income changed, including whether or not her total personal income exceeded $0.38 per fortnight (T5). Mrs Saada did not specifically remember receiving this letter but recalled the circumstances. Again, Mrs Saada stated that she had not read all of the letter indicating that her general principle for dealing with such matters was that if the letter looked similar to previous departmental correspondence, then she would not read the letter in its entirety.
Mrs Saada's Parenting Allowance ceased in October 1995 because her personal income of $390.38 was more than the amount allowed (T6). Mrs Saada subsequently reclaimed Parenting Allowance and by letter of 27 October 1995, she was advised that Parenting Allowance would recommence on 12 October 1995 and she would be paid $62.80 per fortnight (T12). This letter further advised Mrs Saada in terms similar to previous letters that she must inform the Department within 14 days of any changes of circumstances including if her total personal income exceeded $3.46 per fortnight or if she changed, started or recommenced employment.
In relation to all of the departmental notices informing Mrs Saada of the Home Child Care Allowance or Parenting Allowance, she acknowledged that she did not read the "fine print" containing advice as to her responsibilities to inform the Department of certain matters such as changes in her circumstances including increase or decrease in total personal income.
Not only did Mrs Saada not fully read the Departmental letters to her, she acknowledged that she did not inform the Department when her income increased, for example when it increased above $3.46 in September 1996. Mrs Saada told the Tribunal that she did not inform the Department because doing so just "complicated things for her". Because Mrs Saada was starting and ceasing work on various occasions, she found it difficult trying to contact the Department about any changes. When discussing this with friends, the advice provided to her was that it was not necessary for her to go back and forth to the Department advising of her changes of income because she was able to earn a small amount of money and Mrs Saada accepted this advice. The difficulty she had about asking questions of the Department or of informing them of certain things was that her English was not good and she could spend hours on the telephone waiting. Mrs Saada stated that the Department only wanted to speak to her when it involved ceasing a departmental payment but if she was wanting to talk about starting or reclaiming a departmental payment, the Department did not want to talk to her.
Mrs Saada informed the Tribunal that she understood why the Department raised an overpayment debt of Parenting Allowance but she thought that the calculations were wrong, referring the Tribunal to her husband for specific details. Generally, Mrs Saada recalled that Bookcraft often made mistakes with her wages either by not paying her entitlements or paying her too much. Sometimes the mistakes were corrected, Mrs Saada stated, but sometimes not, "it depended on their mood". Despite this history, Mrs Saada stated that she never disputed the Group Certificate provided by the company and she was unsure as to whether or not her husband had ever disputed it.
Currently, Mrs Saada is seeking employment and consults various newspapers for this purpose. Mr Saada is employed earning approximately $500 per week net and on most weeks he earns in excess of this amount because of overtime payments.
Mrs Saada's health is not good and she suffers at present with a "gland" problem which the Tribunal clarified to mean hormonal difficulties. Mrs Saada stated that her "nerves" are very bad and she cannot take any more of these proceedings with the Department, especially as they have been ongoing for two years. Mrs Saada has some allergies also. She takes Dostinex (5mg) and has special ointments from her family doctor. Mr Saada is reported to have no health problems and the children, despite sore throats on occasion, are mostly healthy. The children attend public schools.
Recently Mr and Mrs Saada purchased a new home with mortgage repayments of approximately $1,200 per month. The new home loan mortgage is for $160,000. Mr and Mrs Saada built their house on land purchased approximately three or four years ago. There are various expenses still awaiting the family as it furnishes the house and "finishes it off". The previous home sold for approximately $121,000 and $40,000 remained outstanding on that mortgage. Mrs Saada stated that she has approximately $400 in her bank account and her husband has about $1,000.
Apart from the family home and contents and bank savings, the only other asset Mr and Saada have is a family car. Mrs Saada is hoping however to purchase a second car because it is necessary to transport the children to school.
Normally, Mrs Saada would receive approximately $66.20 per fortnight for Parenting Allowance but withholdings of $45 have been made in an effort to repay the debt arising out of overpayment of Parenting Allowance. Mrs Saada stated that the family could cope with $45 per fortnight withholding but would prefer a withholding of $10 given the expenses the family currently faces with their new home.
EVIDENCE OF MR SAADA

Mr Saada was born on 5 October 1961. He came to Australia first in 1977, returning later to Lebanon where he married. Mr and Mrs Saada returned to Australia in mid 1986.
Mr Saada told the Tribunal that he is unhappy with the calculation of the debt as it is incorrect. Referring to the departmental "Excess Payment Calculation Sheet" completed on 24 February 1998 (T18), Mr Saada stated that the Department had recorded Mrs Saada as working on 4 July 1996 to 12 September 1996. Mr Saada stated that Mrs Saada was not working during this period. Mr Kenny noted that Mr Saada was referring to the old calculations and this was not appropriate given that following the SSAT's decision, the debt had been recalculated and detailed at T34. This new calculation did not have the period July 1996 to September 1996 included in it and therefore Mr Saada's claim was groundless. Further, Mr Kenny noted that in the Bookcraft's list of dates of payment, the period July 1996 to September 1996 is also not included in the Bookcraft calculations as provided in 16 July 1998 (T33).
Looking at the period 23 October 1997 to 6 November 1997, Mr Saada again stated that the calculations of debt were incorrect. Mr Kenny indicated that T33 and T34 are based on accurate information from Bookcraft but Mr Saada again asked the question, "How do I know that the latest calculations are better?" The Tribunal attempted to explain to Mr Saada that as a result of the SSAT decision, new calculations were required to be undertaken based on verification of Mrs Saada's earnings from Bookcraft and this had been done. The Tribunal pressed Mr Saada to provide it with specific details and any possible evidence which could support his general contention that the calculations were incorrect and that Bookcraft's earnings information was also incorrect. Mr Saada reiterated that he was not convinced that the information provided by Bookcraft was correct but stated that he had no payslips to support this contention.
Mr Saada stated that he had frequently disputed Mrs Saada's earnings with Bookcraft. The company would miss pays and sometimes would overpay her.
The Tribunal, following discussion between Mrs Saada, Mr Saada and Mr Kenny, agreed to provide Mr Saada with the opportunity of investigating whether he might have any further evidence at home to support his contentions that the calculations from the Department were based on incorrect information from Bookcraft.
By letter of 23 November 1999 (Exhibit A1), Mr Saada noted mistakes which he believed to be present with the figures provided by Bookcraft on 16 July 1998 (T33) and discussed these as follows:
the Department had recorded that Mrs Saada was paid by Bookcraft between 26 September 1996 and 13 March 1997 (T34), however Bookcraft recorded that Mrs Saada's last pay day for this period was 5 March 1997 (T33). Therefore the Department has calculated one pay too many for Mrs Saada for this period; and
the Department has recorded Mrs Saada being paid for one day only on 10 April 1997 (T34). Bookcraft however recorded no pay on 10 April 1997, only a pay on 2 April 1997 (T33). Mr Saada stated that therefore the Department should deduct one pay from their debt calculations; and
the Department recorded at T34 that Mrs Saada was receiving wages between 24 April 1997 to 5 June 1997 whereas Bookcraft details indicate that Mrs Saada was not working on 5 June 1997 and last worked on 25 May 1997. Again, Mr Saada stated that the debt should be reduced by one pay; and
the Department has recorded Mrs Saada working on 3 July 1997 (T34) but there is no record of this on Bookcraft's document (T33). Therefore Mr Saada stated that the debt should be again reduced by one pay; and
the Department recorded Mrs Saada working on 12 March 1998 (T34) but Bookcraft recorded that she was not working during this period. Therefore, Mr Saada stated that there should again be a pay deducted from the debt calculation.
In all, Mr Saada submitted that the debt calculations should be reduced by five pays and accordingly the debt owed by Mrs Saada should be reduced from $2,209.90 to $1,934.40 (Exhibit A1).
In relation to Mr Saada's circumstances he stated that he himself is in good health but his wife suffers from a prolactin imbalance which causes her to age prematurely.
Mr Saada stated that he is employed and works for a printing firm earning on average approximately $900 per fortnight gross. Ninety percent of the time Mr Saada is able to work overtime and accordingly he may earn above $900.
Mr Saada stated that recently the family bought a new home which had been built on land purchased some years previously. Their home loan cost in the order of $161,000 of which he was paying $1,132 in monthly loan repayments. Mr Saada stated that Mrs Saada generally looks after the bank matters and they currently have a joint savings account.
In terms of the repayment of the debt, Mr Saada stated that the family is able to cope financially with withholdings of $45 per fortnight.
SUBMISSIONS
Mr Saada did not make any final submissions at the hearing pending his provision of further evidence to the Tribunal about the miscalculation of the debt. From Exhibit A1, as detailed above, the Tribunal understood Mr Saada's points in relation to the miscalculation. Mr Saada's general contention on Mrs Saada's behalf is that while Mrs Saada may have omitted to tell the Department of certain things and Mr and Mrs Saada understand the basis for the debt arising out of the overpayment of Parenting Allowance, the issue for Mrs Saada is that she does not believe that the calculation of the debt by the Department is correct. This point is particularly pressed as there have been a number of calculations undertaken over time by the Department, all resulting in different amounts of debt payable by Mrs Saada. Mr Saada, on Mrs Saada's behalf, questioned how Mrs Saada could be confident that the latest calculation of $2,209.90 was correct. He and his wife had considerable scepticism based on their previous experience, as to the validity of the most recent calculations made by the Department as a result of the SSAT's decision.
Mr Kenny for the Respondent, referring to his written submission, dealt first with the SSAT's decision requiring re-calculation of the debt on the basis of verified information from the employer, Bookcraft. This process was undertaken and the Respondent relies on the information recorded at T33 as the source of its debt calculations at T34. Referring to spreadsheets attached to Exhibit R1, Mr Kenny noted that the totals of the amounts referred to have been broken down for the 1995/96, 1996/97 and 1997/98 financial years. Mr Kenny contended that the 1995, 1996 and 1996/1997 amounts correspond exactly with the earnings figures which Mrs Saada included in her tax return (Exhibit R7). Accordingly, Mr Kenny submitted that there could be no doubt as to the integrity of the employer-supplied information. Mr Kenny noted however that the 1997/1998 figures could not be compared as it was not necessary to obtain a full year's earnings data from the employer to calculate the overpayment.
That Mrs Saada asserted that the calculations are still wrong is not supported by any of the evidence, Mr Kenny submitted. Having made his submission prior to the receipt of Mr Saada's letter of 29 November 1999 (Exhibit A1), Mr Kenny chose not to make any further submissions in relation to Mr Saada's pressing of the point that there was a miscalculation of the debt.
The primary basis for the debt being raised is Mrs Saada's failure to notify of income changes as required in the various departmental notices (T3, T5 and T12), Mr Kenny contended. However, Mr Kenny noted telephone advice provided by Mrs Saada to the Department on 5 October 1995 notifying of her income. Accordingly, there was no failure by Mrs Saada to notify which could be used for the basis of a debt for pay days 28 September 1995 and 12 October 1995. Accordingly, Mr Kenny conceded that the overpayment debt should be reduced by $125.60 from $2,335.50 to $2,209.90 and the balance owing correspondingly reduced from $1,917.66 to $1,792.06. Referring again to subsection 1284(1) of the Social Security Act 1991, if an officer varies a decision after an application has been made to the Tribunal for review of that decision, but before the determination of the application for review has been made, the application is to be treated as if it were an application for review of the decision as varied. Accordingly, the decision under review by the Tribunal relates to a debt of $2,209.20.
Turning to the issue of the debt, Mr Kenny submitted that there is a debt due to the Commonwealth under section 1224 of the Act arising out of Mrs Saada's failure to advise of income over the amounts stated in the notices (T3, T5 and T12). Mrs Saada did not deny this and attributes her failure to misinformation received from friends in addition to her having not properly read the notices (T2, T22 and oral evidence).
Mr Kenny further submitted that part of the debt arising on or after 1 October 1997 can also be raised under subsection 1223(1) of the Act.
Mr Kenny submitted that the overpayment was not the result of any sole administrative error. Accordingly, it was the Respondent's contention that waiver under the provisions under section 1237A of the Act is not available.
In relation to whether or not Mrs Saada satisfied section 1237AAD of the Act, Mr Kenny contended that the debt arose through Mrs Saada's failure to notify of receipt of income when she was employed and when she was required to do so. Notices had been issued to Mrs Saada pursuant to sections 943 and 950 of the Act. Mrs Saada therefore knowingly failed or omitted to comply with those provisions. Accordingly, Mrs Saada is precluded from waiver in special circumstances as she does not satisfy subsection 1237AAD(a). In any event, Mr Kenny submitted that there are no special circumstances for which the debt should be waived, no circumstances which were unusual, uncommon or exceptional or where it would be unjust to enforce the liability for which the Act normally provides.
Mr Kenny further submitted that there was no basis for write-off under section 1236 of the Act, because the debt is recoverable at law, Mrs Saada has the capacity to repay by withholdings and her whereabouts are known.
In conclusion, Mr Kenny submitted that the decision under review as varied should be affirmed. The debt can be recovered by withholdings at a rate commensurate with Mrs Saada's financial capacity to pay from time to time.

FINDINGS

The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and legislation.
Mr and Mrs Saada were cooperative in the provision of evidence and were genuine in their attempts to provide accurate information to the Tribunal.
The Tribunal acknowledges Mrs Saada's disappointment in the SSAT's decision. The Tribunal tried to explain the intent of the SSAT's decision in that it had determined that a debt was owed to the Commonwealth by Mrs Saada arising out of an overpayment of Parenting Allowance over various periods of time and that this debt should be recovered, but that the SSAT was not satisfied with the calculation of the quantum of the debt and had hence remitted the matter to the Department for a re-calculation.
The Tribunal finds from the evidence that Mrs Saada did not inform the Department of various increases in income beyond income levels detailed in at least three departmental letters/notices to Mrs Saada on 16 January 1995, 8 July 1995 and 27 October 1995. Mrs Saada admitted that she had not read the letters properly and accordingly had not realised her responsibility to inform the Department of changes in circumstances including recommencement of work and income received above the income levels detailed in the departmental notices. Further, Mrs Saada had chosen to rely on advice from friends that she was able to earn a certain amount of income before she was required to notify the Department. As Mrs Saada stated in evidence, this was "risky" and the Tribunal considers that the acceptance of such advice was to Mrs Saada's detriment.
Considering section 1224 of the Act, the Tribunal finds that Mrs Saada was paid an amount of Parenting Allowance to which she was not entitled and she had failed or omitted to comply with provisions of the Act requiring her to inform the Department of certain changes of circumstances including increase of income and change of employment circumstances. Mrs Saada therefore owes a debt to the Commonwealth.
The Tribunal further finds that pursuant to subsection 1223(1) of the Act, there is a further basis for the raising of a debt from 1 October 1997 in that Mrs Saada received departmental benefits when she was not qualified for such benefits.
Having found that Mrs Saada owes a debt to the Commonwealth arising out of the overpayment of Home Child Care Allowance/Parenting Allowance, the Tribunal turns to consider the actual calculation of this debt and the relevant periods.
The Tribunal notes Mr Saada's additional information, supporting his contention that there has been a miscalculation of the debt in the calculation having included five pays which should not have been included. The Tribunal has carefully considered the points made by Mr Saada. The relevant documents are the re-listing of Mrs Saada's earnings by Bookcraft provided on 16 July 1998 after the SSAT's decision, the calculation of the debt by the Department on or about 22 July 1998, and the document at T30 which relates the dates Mrs Saada was paid with the Parenting Allowance pay days. Considering all these documents, in light of Mr Saada's contentions provided on 23 November 1999 (Exhibit A1) and in the absence of any further submissions by Mr Kenny, the Tribunal considers that Mr Saada has misunderstood the dates he considers recorded by the Department as evidence of Mrs Saada's working when in fact he contends she was not. The Tribunal considered the listings on T30 which detail dates Mrs Saada was paid by Bookcraft in light of the corresponding Parenting Allowance pay days and this document must be consulted when calculating Mrs Saada's debt from information supplied by Bookcraft (T33). When looked at in this way, it is clear for example, that Mrs Saada did work on 4 March 1998 and that this corresponded to a Parenting Allowance pay day of 12 March 1998. It is not contended by the Department nor used in its calculations that Mrs Saada worked on 12 March 1998 as Mr Saada had contended, but rather that she had worked on 4 March 1998 and this fell within the 12 March 1998 pay day period. The Tribunal finds that this is the same situation for each of the dates or periods Mr Saada contends Mrs Saada had not worked, yet he believed the Department had recorded that she had and hence increased the debt calculation. Accordingly, the Tribunal considers that the debt calculations made by the Department following the SSAT's decision to remit the calculation to the Department for verification, are correct.

The Tribunal further notes that while Mr and Mrs Saada genuinely believe that the Bookcraft details of Mrs Saada's pay are incorrect based on their experience of Bookcraft's frequent mistakes, there is no evidence before the Tribunal apart from Mr and Mrs Saada's contentions, that objectively supports this. The Tribunal has no bank statements or pay slips upon which it could make any finding on this matter. Further, the Tribunal notes that Mr and Mrs Saada did not dispute the Group Certificate provided by Bookcraft in relation to Mrs Saada's earnings during the period under review.
Accordingly, in relation to the calculation of debt and taking into account the concession made by the Department in relation to Mrs Saada notifying of income on 5 October 1995, the Tribunal considers that the correct debt calculation arising out of Home Child Care Allowance paid on 16 and 30 March 1995 is in the amount of $74.00 and Parenting Allowance paid between 12 September 1996 to 3 March 1997; 10 April 1997 to 5 June 1997; 3 July 1997; 31 July 1997 to 29 January 1998 and 12 March 1998 amounts in total to $2,209.90. The total debt payable by Mrs Saada is $2,283.90.
Having determined that there is a debt due to the Commonwealth owed by Mrs Saada and the quantum of the debt is $2,283.90, the Tribunal turned to consider whether or not there was any basis for non-recovery of the debt under Part 3.14 of the Act.
The Tribunal considers that under the provisions of section 1236 of the Act concerning write-off, Mrs Saada's circumstances do not meet the provisions of section 1236 and accordingly write-off is not available to Mrs Saada.
Under section 1237A of the Act, the Tribunal does not consider that there is any sole administrative error in this matter and accordingly there is no basis for waiver of the debt under section 1237A of the Act.
Section 1237AAD of the Act deals with the waiver of a part or the whole of a debt in special circumstances. Various tribunals and courts have defined special circumstances and in general this covers such matters as uncommon, unusual or unique circumstances and circumstances where it would be unjust not to waive a whole or the part of the debt. Under the provisions of section 1237AAD, before one can consider if special circumstances are met, it must be shown that the debt did not arise 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. The Tribunal has previously found that Mrs Saada did fail to comply with the provisions of the Act in that she did not notify the Department, as was required of her, of her changed circumstances including her increase in income and returning to work. The Tribunal considers this was a mistake, but not a deliberate attempt to deceive or defraud the Department. Further, her acceptance of the advice of friends was imprudent and even reckless, but not deliberate deception. The Tribunal determines however that there are no special circumstances in the legislative sense, present in Mrs Saada's case. While her health is problematic, it is not dire and the other members of the family enjoy normal health. The financial situation of the family, while possibly tight at the moment because of the purchase of a new home, is certainly not straitened or difficult. The family is not in debt, is meeting the withholdings in the repayment of the debt owed to the Commonwealth and is also considering the purchase of a second car. In such circumstances, Mrs Saada does not satisfy the provisions of section 1237AAD of the Act.
In all of these circumstances and for the reasons set out above, the Tribunal affirms the decision under review (as varied), under the provisions of section 43 of the Administrative Appeals Tribunal Act 1975. This means that Mrs Saada owes a debt to the Commonwealth in the amounts of $2,209.90 and $74.00. The debt should be recovered by way of withholdings. The Tribunal notes that withholdings had, at the date of the hearing, been $45 per fortnight and that this was not causing any financial difficulty for the family. Accordingly the Tribunal recommends that such withholdings in the amount of $45 per fortnight continue but that the matter be assessed from time to time in order to ensure that the withholdings are set at a level which is commensurate with Mrs Saada's ability to repay.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock
Signed:         .....................................................................................
  Associate
Date/s of Hearing  17 November 1999
Date of Decision  18 April 2000
Representative for Applicant              Mr Fadi Saada
Representative for the Respondent   Mr John Kenny, Departmental Advocate