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

[2021] AATA 2359

Semmler and Secretary, Department of Social Services (Social services second review) [2021] AATA 2359 (16 July 2021)

Division:GENERAL DIVISION

File Number:2020/4067          

Re:Kenneth Semmler  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Member P Ranson

Date:16 July 2021

Place:Brisbane

The decision under review, being the debt of $8,440.68 as recalculated by the agency on 19 October 2020 pursuant to section 182(2) of the Administration Act, is affirmed.

........................[SGD]…....................

Member P Ranson

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – overpayment – income reporting – whether there is a debt – whether debt should be recovered – whether debt should be written off debt or waived – whether there are special circumstances – reviewable decision is affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secretary, Department of Social Services and Hales (1998) 82 FCR 154

Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746

SECONDARY MATERIALS

Guide to Social Security Law - Version 1.245 - Released 1 June 2018 (Cth)

Guide to Social Security Law - Version 1.283 - Released 1 July 2021 (Cth) (current)

REASONS FOR DECISION

Member P Ranson

16 July 2021

Table of Contents

Decision

Catchwords

Legislation

Cases

Secondary Materials

REASONS FOR DECISION

APPLICATION FOR REVIEW

PROCEDURAL BACKGROUND

FACTS, ISSUES AND CONTENTIONS

DEPARTMENT’S EVIDENCE

What did the Department do?

How was the debt of $8,440.68 calculated?

MR SEMMLER’S EVIDENCE

What is Mr Semmler’s position in relation to the debt?

DEPARTMENT’S RIGHT TO RECOVER

Write off

Administrative error waiver

Special circumstances waiver

The medical report

CONCLUSION

DECISION

APPLICATION FOR REVIEW

1. The Australian government provides a range of social security benefits to its citizens and other eligible residents. The delivery of those payments and services, especially social security payments, is provided by Services Australia through Centrelink.

2. Mr Kenneth Semmler (Mr Semmler) has been a recipient of a Disability Support Pension (DSP) since June 2010 as he suffers from undiagnosed Asperger’s syndrome, now referred to as autism spectrum disorder (ASD). During that time Mr Semmler was working casually as a security guard to help support himself. He knew there were rules about disclosing his income to Centrelink, which he says he complied with, and he did his best to properly disclose his income. As a result of overpayment of benefits, Mr Semmler had a debt due to the Commonwealth of just over $8,000, reduced now to around $3,000 because of repayments taken from his ongoing benefits.

3. During the period from September 2013 to June 2016, numerous notices were sent to Mr Semmler reminding him of his reporting obligations, which he believed at the time he complied with. However, some inaccuracies and misunderstanding of the rules may have crept into the information he reported. In September 2017, the Department of Social Services (the Department), through Services Australia (formerly the Department of Human Services), became aware of new information about Mr Semmler’s income. That information came from the Australian Taxation Office (ATO), which indicated to Centrelink there were discrepancies between his reported income and his actual income. Centrelink asked Mr Semmler for copies of his payslips for the period so they could check his entitlements.

4. The Department recalculated Mr Semmler’s entitlement to a Disability Support Pension by using his actual payslips where they were available and otherwise using the ATO information. That process created a debt of just over $8,000. Centrelink has since been provided with complete payroll records from Mr Semmler’s employer and were able to make an exact calculation of his entitlements and from that, the amount of the overpayments. As a result, the final amount of the debt was $8,440.68. The matter came before this Tribunal in 2019 which affirmed the decision to raise and recover an amount of $8,112.16, being the amount as calculated at that time.

5. As discussed below, once the issues were fully explained to Mr Semmler, he realised the debt in its final form had been correctly calculated and is a debt due to the Commonwealth. There are provisions for waiver of such debts if there are special circumstances, which Mr Semmler hoped to rely on given his health issues. He provided a detailed report of his medical history however it was not enough to warrant a waiver for special circumstances.

6. For the reasons below, the previous decision of this Tribunal, see [‎13‎], as amended by Centrelink since the time of that decision, should be affirmed, that is, the Tribunal finds the amount of the overpayments to Mr Semmler are $8,440.68. That means Mr Semmler has a debt due to the Commonwealth of that amount and it is recoverable.

PROCEDURAL BACKGROUND

1. The parties in this case are:

Applicant	Kenneth Semmler (Mr Semmler)
Respondent	Secretary, Department of Social Services (the Department)

1. The hearing in this application occurred on 11 May 2021 (the Hearing). Ms Gillian Gehrke (Ms Gehrke), represented the Department. Mr Semmler and Ms Gehrke appeared in person.

2. Mr Semmler approached the Administrative Appeals Tribunal (AAT) the day before the Hearing and requested it be vacated to a later date to enable him to obtain his medical records in support of his claim for a waiver of the debt under special circumstances. The Hearing went ahead as planned and the matter was discussed at the outset. It was agreed Mr Semmler would be allowed time after the Hearing to obtain the records and Ms Gehrke would be allowed time to respond to their contents.

10. Pursuant to section 182(2) of the Social Security (Administration) Act 1999 (Cth), the Department varied the decision after Mr Semmler made his application for an AAT second review. That being the case, the AAT is taken on AAT first review to have varied or substituted the decision under review in the way the Department did and the application is taken to be an application for AAT second review of the decision as varied or substituted. That is, the amount of the debt for the purpose of this decision is $8,440.68. This was advised to Mr Semmler on 19 October 2020 and reiterated at the Hearing.[1]

[1] Exhibit 4, Letter dated 19 October 2020 to the Applicant from Centrelink, page 1.  

FACTS, ISSUES AND CONTENTIONS

11.  At various times, Mr Semmler was in receipt of DSP from the Department. The period which is relevant to this decision is 24 September 2013 to 27 June 2016 (the Relevant Period) and the overpayment of DSP was $8,440.68, upgraded from $8,112.16[2] as considered in the Social Services and Child Support Division of the AAT (AAT1), see [‎10].

[2] Ibid,

12.  During and after the Relevant Period, Mr Semmler was employed on a casual basis as a security guard by Brisbane Executive Security Teams Pty Ltd (Best Security).[3]

[3] Exhibit 2, T Documents, ST1, pages 3 – 17, Employment information from BEST Security Pty Ltd.

13.  On 16 October 2019 the AAT1 affirmed the decision of the Department to raise and recover a debt due from Mr Semmler for overpaid DSP of $8,112.16.

14.  On 30 June 2019, Mr Semmler lodged an application for review of the AAT1 decision with the General Division of this Tribunal. In the application for review, Mr Semmler states the reason why he believes the decision is wrong: ‘Centrelink misled me in reporting earnings from Best Security and are at fault for creating the debt.’[4]

[4] Exhibit 1, T Documents, T1, page 2, Application for Review dated 30 June 2020.

15.  The Department provided a Statement of Facts & Contentions, including the issues identified by the Department, dated 21 January 2021 (SFIC), which sets out in detail the law relevant to this case with which the Tribunal concurs. As a copy of the SFIC was provided to Mr Semmler prior to the Hearing, which he acknowledged, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in Social Security Act 1991 (Cth) (the Act) and Social Security (Administration) Act 1999 (Cth) (the Administration Act). The SFIC also refers to the Social Security Guide (the Guide)[5] which contains the relevant policy. The Department relies on Re Drake[6] in stating policy in the Guide should be applied in the absence of cogent reasons not to do so.

[5] Guide to Social Security Law - Version 1.283 - Released 1 July 2021.

[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

16.  Mr Semmler and the Department identified the issues to be decided in this case:

a)    Whether Mr Semmler was overpaid DSP during the Relevant Period; and if so

b)    whether the overpayment constitutes a debt to the Commonwealth; and

c)    whether all or part of the debt may be written-off or waived.

17.  The following documents were admitted into evidence:

Exhibit 1	Section 37 T-Documents paged 1 to 579.
Exhibit 2	Supplementary T-Documents paged 1 to 41.
Exhibit 3	Respondent’s Statement of Facts & Contentions dated 21 January 2021 pages 1 to 10.
Exhibit 4	Letter dated 19 October 2020 to the Applicant from Centrelink, of 2 pages.
Exhibit 5	Patient Health Summary of 55 pages for Mr Semmler from Mt Gravatt Medical Centre with covering letter dated 8 June 2021 from Dr Gordon McGrath of Hypermarket Medical Centre.
Exhibit 6	Respondent’s submissions of 8 pages dated 16 June 2021 in reply to Exhibit 5.

18.  The Tribunal has considered all the written evidence supplied to it and the oral evidence of the Applicant and Ms Gehrke at the Hearing. Not all the evidence is referred to at length in this decision. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case.

19.  The historical facts around the payment of DSP to Mr Semmler, and the origin of the debt currently in dispute, are set out in detail in [4] to [22] of the SFIC.[7] On 7 June 2013[8], the Department first issued Mr Semmler with an information notice requiring him to report his income. Numerous other such notices were issued to Mr Semmler during the Relevant Period.

[7] Exhibit 3, Respondent’s SFIC, pages 1 – 3.

[8] Exhibit 1, T Documents, T22, Letter to Applicant from Services Australia dated 7 June 2013, page 452

20.  The Department acknowledges Mr Semmler regularly reported his earnings from employment. DSP was paid to him based on his reported earnings. In AAT1 at [7], the Member notes:[9]

‘Mr Semmler told the Tribunal that the figures he provided to Centrelink each fortnight were based on his more recent payslips (if these were available) and also included any income that he was likely to have earned in subsequent days. Mr Semmler acknowledged that the figures were often “a guess” on his part and that he may well have been declaring his net income, rather than gross amounts.’

[9] Exhibit 1, T Documents, T2, Decision dated 16 October 2019 of AAT1, page 4.

21.  On 13 September 2017 the ATO advised the Department about Mr Semmler’s income from employment, which indicated Mr Semmler had earned more than he had reported. This discrepancy was advised to Mr Semmler by letter on 4 October 2017, which was followed up by letters on 19 October 2017, 14 November 2017, and 5 March 2018.[10]

[10] Ibid, T4 – T7, pages 53 – 65.

22.  Mr Semmler initially provided the Department with a payroll history report from Best Security for the period 1 July 2014 to 30 June 2016, which does not cover the Relevant Period. The period from 24 September 2013 to 30 June 2014 was missing. He later provided payslips for the period 16 to 22 September 2013, which partially covered the missing period. Using the payroll summaries, payslips and the ATO information the Department recalculated his entitlement to DSP. This process resulted in a debt of $8,248.08, later reduced on review to $8,112.16, due by Mr Semmler to the Commonwealth.

23.  Mr Semmler was dissatisfied with the recalculation and requested a review of the debt and its recovery by AAT1, which affirmed the decision. On 30 June 2019, Mr Semmler applied for a review of AAT1 decision with the General Division of the AAT.

24.  The Department subsequently requested employment details direct from Best Security and received payroll records for Mr Semmler from 20 September 2013 to 31 December 2018. The entitlement of Mr Semmler to DSP during the Relevant Period was then recalculated based on those records and the debt was recalculated to $8,440.68.

25.  The SFIC notes at [22] the debt to the Commonwealth is currently being repaid at $132.70 per fortnight from Mr Semmler’s DSP. The balance at 21 January 2021 was $4,053.18 and Ms Gehrke advised at the Hearing the repayments had since continued. The Tribunal estimates the debt would likely now be around $3,000.

26. DSP is calculated in accordance with section 1064 of the Act and is subject to an income test. The ordinary income of the recipient is ‘an income amount that is earned, derived or received by the person’[11] unless it is maintenance income or otherwise exempt. Ordinary income above a certain threshold reduces the rate of DSP by 50 cents in the dollar. The changes in the income threshold during the Relevant Period are set out in a publication called ‘A guide to Australian Government payments’[12], which is updated from time to time.

[11] Guide to Social Security Law - Version 1.283 - Released 1 July 2021, 1.1.I.40.

[12] A guide to Australian Government Payments – Version C0029.1803 – released 20 March 2018.

27.  If a social security payment is made, such as DSP, and the person who receives it was not entitled for any reason to obtain some or all of that benefit, the amount of that payment or overpayment is a debt due to the Commonwealth by that person.[13]

DEPARTMENT’S EVIDENCE

[13] Section 1223(1) of the Act.

What did the Department do?

28.  Mr Semmler had been in receipt of social security benefits since 2010 although this decision is only concerned with the Relevant Period. As is its normal practice, the Department issued various information notices to Mr Semmler advising him he was required to report his earnings.[14] The Department acknowledges Mr Semmler did report his earnings and his benefits were paid to him based on that information.

[14] Exhibit 1, T Documents, T22, pages 452 to 579.

29.  Responding to income information provided by the ATO the Department wrote to Mr Semmler advising of the income information provided by the ATO asking him to check his records and comment accordingly. This letter was followed up with several reminders, which Mr Semmler responded to with payroll information from Best Security covering some but not all the Relevant Period. He later provided some payslips which covered a short period in 2013. The result of this is set out in [‎22].

30.  As we know, Mr Semmler objected to the debt calculation, which was reviewed and confirmed both internally in the Department and by the AAT1 decision. After Mr Semmler applied for a review of AAT1, the Department requested complete records from Best Security, and recalculated the debt to $8,440.68 without relying on the ATO information.

How was the debt of $8,440.68 calculated?

31.  The SFIC provides details of how benefits are calculated for DSP. The process by which entitlement to DSP benefits is determined is set out in detail in the SFIC in [27] to [34] and so will not be reproduced in detail in this decision.[15]

[15] Exhibit 3, Respondent’s SFIC, page 4.

32.  In summary, for DSP purposes, a person’s ordinary income is income that is earned, derived, or received (emphasis added) by the person and determined on a fortnightly basis. There is a sliding scale by which the amount of ordinary income reduces the amount of DSP payable, and that scale is indexed in line with CPI.[16]

[16] Australian Bureau of Statistics, Consumer Price Index, (6401.0, 27 April 2021).

33.  In the SFIC, the Respondent provided examples at [19] of how they applied the above principles in determining Mr Semmler’s ordinary income and benefit entitlements for each fortnight. Six examples are given which the Tribunal took Mr Semmler to during the Hearing and which the Tribunal has since re-examined and found to be accurate.

34.  When applied across the Relevant Period, the recalculation of the benefit entitlements of Mr Semmler results in an overpayment of $8,440.68.

35.  Where a person is in receipt of a social security benefit and they are not entitled to that benefit either in whole or in part the amount of the benefit to which they were not entitled becomes a debt due to the Commonwealth.[17]

[17] Subsection 1223(1) of the Act.

MR SEMMLER’S EVIDENCE

36.  As Mr Semmler did not provide any written evidence, other than his medical records which are discussed later, he relies on his oral evidence at the Hearing.

What is Mr Semmler’s position in relation to the debt?

37.  As mentioned above at [‎14], Mr Semmler has maintained throughout he has done nothing wrong and has declared his income to the Department to the best of his ability and at the appropriate time, albeit in his evidence at AAT1 he said he may have reported net pay rather than gross pay or may have sometimes guessed his earnings.

38.  At the Hearing, Mr Semmler was asked to explain the statement in his application he was misled by Centrelink. His response was:

‘Basically it was my understanding that I reported every two weeks for what I was earning at the time at my employer. I would report every fortnight as to knowing how many hours I would do, depending on what shifts I had at the time, and quite a number of times I said on the phone to the call centre “Are you quite certain that you wanted a fortnight’s worth of earnings, or whatever, because I don’t want to be in a situation where I’m stuck in a hole and I can’t get out it.” I was not informed by them whatsoever that they wanted that and everything - - -’[18]

[18] Transcript of Proceedings, Re Semmler and Secretary, Department of Social Services, (Administrative Appeals Tribunal, 2020/4067, Member P Ranson, 11 May 2021) page 5, lines 40 to 47.

39.  The Tribunal went on to explain to Mr Semmler it is not the role of the Centrelink employee taking the call or taking the information at the counter to check with him the information is correct and as required. That is his responsibility and Centrelink can only deal with the information provided to it. After an exchange the Tribunal believes Mr Semmler understood that.

40.  He also asserts he did not always receive a payslip from Best Security or if he did it may have been some time after the pay period. Mr Semmler said of this in the following exchange at the Hearing:

‘MR SEMMLER: Basically that the reason why I would imagine that happened on a continuous basis [misreporting of actual earnings] is there were times where I actually asked the employer several times about payslips for each shift I did.

MEMBER: Right.

MR SEMMLER: There were times where they would tell me directly on the phone call that there was no such record of it, or it was misplaced, and I don’t know what happened to them. So, that’s probably another reason why.

MEMBER: So, you weren’t getting a printed copy of your payslip each fortnight?

MR SEMMLER: No, I wasn’t.

MEMBER: Was that a continuous problem or an intermittent problem?

MR SEMMLER: I believe it was a continuous thing. There were like several months where that would happen, and I asked for it to be sent to me and it never - I never received it.

MEMBER: So, in those fortnights when you didn’t get a payslip, … how did you go about reporting your earnings, what did you do?

MR SEMMLER: Because of that hiccup, I more or less had to make, as we put it, a wild guess (emphasis added), as to what I normally get because there was nothing for me to go by and it made it very awkward to work out how many hours I did and what I’d be getting because there was no actual thing sent to me in the mail.’[19]

[19] Transcript of Proceedings, Re Semmler and Secretary, Department of Social Services, (Administrative Appeals Tribunal, 2020/4067, Member P Ranson, 11 May 2021) page 8, line 45 to page 9, line 25.

41.  The Tribunal accepts this tardiness on the part of Best Security would have hampered Mr Semmler’s ability to accurately report his earnings. Nonetheless it was always his responsibility to accurately report his gross earnings.

42.  There was an extended exchange between the Tribunal and Mr Semmler endeavouring to determine if Mr Semmler disagreed with the payroll records provided by Best Security and if so, did he have any evidence to support his position. By a process of elimination, Mr Semmler agreed the hours shown on the payroll records were likely to be accurate and the rate he was paid may have been higher than he was expecting. Nonetheless the net pay calculated was paid to him, as evidenced on his bank statements, so even if the pay rate was too high it was applied to determine his gross pay for each fortnight.

43.  Mr Semmler also suggested he had many times visited Centrelink with a friend and tried to update his earnings for prior periods based on payslips recently to hand. He was unable to produce any evidence to support this assertion.

44.  Eventually Mr Semmler agreed the debt had been correctly calculated in the following exchange at the Hearing:

‘MEMBER: … I’m struggling to see an error in the calculation of the $8,440.68. That’s why I’ve just asked you, do you still have a concern about that calculation?

MR SEMMLER: Not at the moment. When it first began I did, but now that has been readjusted, I can sort of see what has happened.

MEMBER: All right. So, if we keep going on the basis, then, that the starting point of the debt is agreed at $8,440.68. And I understand from reading further in the Statement of Facts, Issues & Contentions that you’ve paid about half of that [the debt] anyway, in fact more than, I think probably even by now, Ms Gehrke. The debt would be about $3,000, I think?

MS GEHRKE: I don’t have up to date figures as at today, but I understand that repayments have been continuing since our submissions were filed.

MEMBER: Yes, okay. So, the amount you actually owe now of the $8,440 is about $3,000, and Centrelink can give you the correct amount if you want to know that. So then - so what I’m to review is whether you have a debt to Centrelink - or to the Commonwealth, is the term - and if so, is it recoverable? And so, if we can agree on the $8,440.68 is the correct amount of the starting point of the debt, then we can leave that to one side now and move on to whether the debt is recoverable.

MR SEMMLER: Yes, we can.’[20]

[20] Transcript of Proceedings, Re Semmler and Secretary, Department of Social Services, (Administrative Appeals Tribunal, 2020/4067, Member P Ranson, 11 May 2021) page 14, lines 5 to 30.

45.  Based on the above exchange, the Tribunal is satisfied Mr Semmler now understands the calculation of the debt and agrees it is accurate. Accordingly, the Tribunal finds Mr Semmler has been overpaid DSP by $8,440.68 which is a debt of due to the Commonwealth, see [‎35].

DEPARTMENT’S RIGHT TO RECOVER

46.  The Department’s right to recover a debt may be either written-off or waived in certain circumstances, such as where the debt is due solely to the Department’s administrative error or due to the applicant’s special circumstances. Otherwise, the debt is recoverable as Justice French said in Secretary, Department of Social Services and Hales (1998) 82 FCR 154 at 155:

‘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 lead to the overpayment and the circumstances of the persons concerned.’

Write off

47. Section 1236 of the Act provides for the possibility of delaying the recovery of the debt for a period. This is referred to as write-off. If a debt is irrecoverable at law, or the debtor has no capacity to repay the debt, or the debtor’s whereabouts are unknown despite reasonable efforts to locate the debtor, or it is not cost-effective for the Commonwealth to take action to recover the debt, the Department may decide to write-off the debt for a stated period.

48.  Whilst Mr Semmler’s financial circumstances are meagre, he has not demonstrated he has no capacity to repay the debt. The debt is currently being repaid by deduction from his ongoing DSP payments. The SFIC notes at [22] Mr Semmler is currently receiving DSP payment of $1,075.85 per fortnight from which $132.70 is withheld by way of debt reduction. Further, his whereabouts are known and repayment by way of deduction from his current benefits makes it cost-effective for the Commonwealth to recover the debt.

49.  Mr Semmler explained at the Hearing he had lost his licence to be a security guard and had no means of accumulating the funds to regain it because of the deductions from his DSP. He lives with his mother and pays her board of $300 per week, which leaves little of his DSP. Notwithstanding his meagre financial circumstances, they do not amount to severe financial hardship as would make the debt unrecoverable.

50.  The Tribunal finds there is no case for the debt to be written-off.

Administrative error waiver

51. Pursuant to section 1237A of the Act, the Department must waive its right to recover the proportion of a debt that is attributable solely (emphasis added) to an administrative error by the Commonwealth if the debtor received the funds in good faith and the debt is not raised within a period of six weeks from the first payment that caused the debt.

52.  The word ‘solely’ is defined as ‘only, merely, exclusively; also (contextually), entirely’.[21] The plain reading of section 1237A of the Act is the error on the part of the Department must be the only cause of the debt and no other factor is involved. Whilst the original calculation of the debt was an error on the part of the Department, the amount of the debt now subject to this decision is not. It was caused by the under-reporting of income by Mr Semmler, albeit inadvertently.

[21] Oxford English Dictionary (online as at 12 July 2021) ‘Solely’ (def 2).

53.  Whilst he was in receipt of DSP, Mr Semmler was reporting his income albeit incorrectly at times. There is no evidence the benefits were not received in good faith.

54.  In Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746 (10 August 2018) at [78] the AAT observed:

“It is at least arguable that, had the Applicant fully complied with the reporting requirements imposed on him, the debt for which he now finds himself liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given his failure to comply with the reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth.”

55.  The above quote reveals the heart of the problem for Mr Semmler. He was sent many notices to comply with his reporting requirements. He was reporting his income as he understood it should be; nonetheless his reporting was inaccurate. He admitted as much in the AAT1 hearing and in this Hearing. Even if the debt arose partly due to administrative error on the part of the Department it also arose due to errors by Mr Semmler is reporting his income.

56.  The Tribunal finds there is no ability for the Department to waive the debt because of administrative error.

Special circumstances waiver

57. Pursuant to section 1237AAD of the Act, the Department may waive the right to recover all or part of a debt which does not arise by the debtor making of a false statement or representation, and there are special circumstances, other than financial hardship, that make it desirable to waive the debt.

58.  The term ‘special circumstances’ is not defined in the legislation, however, the courts[22] have sought to define the expression as being unusual, uncommon or exceptional circumstances, but not unique, in the case at hand.

[22] For example, in Re Beadle and Director-General of Social Security (1984) 6 ALD 1.

59.  As stated previously, the Department and the Tribunal agree Mr Semmler was reporting his income on a regular basis.

The medical report

60.  As mentioned at the outset and at the Hearing, Mr Semmler wanted to obtain a copy of his medical records from his previous doctor and submit them as evidence to support his case for waiver due to special circumstances. He was allowed time to do that and he did eventually obtain the records from Mt Gravatt Medical Centre and submit them to the Tribunal. Those records were passed on to the Respondent and Ms Gehrke made a submission about them in response. They consist of 55 pages of medical information described as ‘Patient Health Summary’ (the Medical Records).

61.  The Medical Records were to be accompanied by a letter of explanation by Mr Semmler’s current doctor. There was a covering letter however it said no more than: ‘This is to Certify that Mr Kenneth Semmler’s medical records from Mt Gravatt attached.’ There was no explanation of the records nor an opinion as to his health issues impacting his ability to correctly report his income to Centrelink.

62.  The Tribunal is not medically qualified to form an opinion as to Mr Semmler’s health much less whether he had issues, such as ASD, which may have contributed to his misreporting his income to Centrelink. Mr Semmler did not provide any commentary on the Medical Records nor did his current doctor. That leaves the Tribunal to rely on the Department’s response to them as summarised in the comments below.

63. In her response to the Medical Records, Ms Gehrke says at [12]:

‘In summary, the Applicant’s medical record shows that the Applicant was investigated for Asperger’s syndrome and depression in 2007. He has also been prescribed Valium since 2013, in the context of symptoms including early morning wakening, depressed mood, low self esteem, irrational fear, compulsive behaviour and panic attacks. Relevantly, there is no evidence before the Tribunal of a formal diagnosis of Autism Spectrum Disorder or a mental health condition.’

64.  Later at [17] Ms Gehrke says:

‘There is no evidence that the Applicant was so impaired by his medical conditions during the debt period as to prevent a finding that he knowingly failed to correctly report his income to the Agency.’

65.  There is no evidence before the Tribunal to suggest Mr Semmler’s circumstances are unusual, uncommon, or exceptional. Whilst he is on DSP now, he has in the past earned income from employment as a security guard. Indeed, it is his employment income that has caused the overpayment of his benefits. Once he accumulates the funds needed to regain his security guard’s licence he may once again be able to seek employment. There is nothing before the Tribunal to suggest he cannot obtain employment again, and even if he is in financial difficulties, that does constitute special circumstances.

66.  The Tribunal finds the circumstances of Mr Semmler including his financial circumstances, both now and in the Relevant Period, do not amount to special circumstances for the purpose of debt waiver.

CONCLUSION

67.  The issues in this case are set out in paragraph [‎16]. In summary, the issues are whether Mr Semmler was overpaid DSP from 24 September 2013 to 27 June 2016, if so, does that overpayment constitute a debt due to the Commonwealth and whether the recovery of any of the debt should be written off or waived.

68.  Mr Semmler acknowledges he was overpaid DSP in the amount of $8,440.68, based on the detailed calculations made by the Department from payroll records provided by Best Security. As such, the debt must be repaid to the Commonwealth.

69.  The Tribunal acknowledges Mr Semmler has health issues however they do not amount to special circumstances in which the Department should either write-off or waive the debt.

DECISION

70. The decision under review, being the debt of $8,440.68 as recalculated by the agency on 19 October 2020 pursuant to section 182(2) of the Administration Act, is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

…………………[SGD]………………………..

Associate

Dated: 16 July 2021

Date of Hearing: 11 May 2021
Applicant:	In Person
Solicitor for the Respondent:	Services Australia