"SRQQ" and Department of Family and Community Services - [2000] AATA 643

DECISION AND REASONS FOR DECISION [2000] AATA 643

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1282

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SRQQ
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date2 August 2000
PlaceSydney

Decision The decision under review is affirmed.

……..………………………
Ms S M Bullock
Member
CATCHWORDS
Social Security – Newstart Allowance – Debt – Absence from Australia – waiver – special circumstances

Social Security Act 1991 ss593, 657, 1223, 1224, 1236, 127 A, 127 AAD

Re Regan and Secretary, Department of Social Security (AAT 8377, 16 November 1992)
Re Beadle and Director-General of Social Security (1984) 1 AAR 362
Beadle v Director-General of Social Security (1985) 60 ALR 225
Secretary, Department of Social Security v Hales (1998) 153 ALR 259

REASONS FOR DECISION

Ms S M Bullock

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by the Applicant, SRQQ, of a decision of the Social Security Appeals Tribunal ("SSAT") made on 8 July 1999. The SSAT decided that SRQQ had been overpaid Newstart Allowance in the amount of $166.15 paid to her when she was overseas between 27 June 1998 and 3 July 1998 and this was a debt due to the Commonwealth which should be recovered (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services made on 17 November 1998 (T15) which had in turn affirmed the original decision of a delegate of the Secretary, Department of Family and Community Services ("the Department") made on 12 August 1998 (T9).
A hearing was held before the Tribunal in Sydney on 18 April 2000. SRQQ represented herself and provided oral evidence. At the hearing, SRQQ advised the Tribunal that she was concerned about her identity and the identitiy of her medical practitioners being public and sought an order to restrict the publication of her name and names of medical practitioners providing documentary evidence to the Tribunal. There being no objection from the Respondent, the Tribunal agreed to an order pursuant to subsection 35(2) of the Administrative Appeals Tribunal Act 1975 to restrict the publication of names of the Applicant and also of authors of documentary evidence provided to the Tribunal.
The Respondent, the Department, was represented by Ms M Buckley, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents, T1 – T29) and the following exhibits;
Exhibit Number     Description Date
A1      Medical certificate by a Medical Officer, Royal North Shore Hospital 22 December 1997
A2      Medical certificate from a General Surgeon and a Surgeon of the Colon and Rectum      22 January 1998
A3      Medical certificate from a General Surgeon and a Surgeon of the Colon and Rectum      12 March 1998
A4 (a) Medical certificate from a General Surgeon and Surgeon of the Colon and Rectum         12 May 1998
A4 (b) Medical certificate from a SRQQ's former General Practitioner         22 May 1998
A5      Bundle of medical certificates from SRQQ's General Practitioner     23 December 1998, 20 January 1999, 26 March 1999
A6      Medical certificate from an Orthopaedic Surgeon         20 January 1999
R1      Respondent's Statement of Facts and Contentions   6 January 2000
R2      Statement from Ms M Hinder-Smith, former Centrelink employee     4 April 2000

issues

The issues in this matter are:
·     Whether or not SRQQ was overpaid Newstart Allowance between 27 June 1998 and 3 July 1998 in the amount of $166.15; and if so
·     Whether or not this overpayment is a debt due to the Commonwealth; and if so
·     Whether or not the debt should be recovered in part or as a whole.

legislation

A decision in this matter is to be determined under the provisions of the Social Security Act 1991 ("the Act").
Qualification for Newstart Allowance is determined under section 593 of the Act. It is a general requirement for the payment of Newstart Allowance that a person must be resident in Australia. As relevant, subsection 593(1)(g)(iii) states:
"593(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for newstart allowance in respect of a period if:
…
(g) throughout the period the person:
(i) subject to subsection (2B), is at least 21 years of age and has not reached the pension age; and
(ii) is an Australian resident; and
(iii) subject to subsection (1A), is in Australia" …
In certain circumstances, Newstart Allowance may be payable to a person who is temporarily absent from Australia, and as relevant, subsection 593(1A) states:
"593(1A) For the purposes of subparagraph (1)(g)(iii), if:
…
(a) a person is, under Subdivision BA, not required to satisfy the activity test; and
(b) the person is temporarily absent from Australia; and
(c) the person is absent in order to seek medical treatment of a kind that is not available in Australia;
the person is taken to be in Australia during:
(d) if the period is not more than 3 months – the whole of the period; or
(e) if the period is more than 3 months – the first three months of the period.
…
Section 657 of the Act deals with notices to recipients of Newstart Allowance and as a relevant states:
"657(1) The Secretary may give a person to whom a newstart 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."
Section 1223 of the Act deals with debts arising under the Act and as relevant states:
"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
(b) the amount was not payable to the recipient;
the amount so paid is a debt due to the Commonwealth."

Section 1224 of the Act also deals with debts and specifically those arising out of a recipient's contravention of the Act and as relevant, subsections 1224(1)(a) and (b) of the Act state:
"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 of 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."
Part 5.4 of the Act deals with the non-recovery of debts.
Section 1236 provides that the Secretary may write-off a debt in circumstances and, as relevant, states:
"1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period of 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."

A debt may be waived in part or as a whole also in certain circumstances and as relevant, section 1237A deals with the waiver of a debt attributed to sole administrative error. As relevant, section 1237A states:
"1237A Waiver of debt arising from error
Administrative error
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."
In special circumstances, a part or whole of a debt may be waived pursuant to 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 a false representation; or
(ii) failing or omitting to comply with a provision of the Act or the 1947Act; 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.
·     SRQQ was born on 8 March 1944.
·     SRQQ noted that she had been in receipt of departmental benefits "on and off" since the 1970's and had "disasters" with her health over the years.
·     SRQQ had a very difficult end of year in 1997, having had an appendectomy, and following surgery had been extremely ill, developing a Golden Staphylococcus infection. A medical officer at the Royal North Shore Hospital certified on 22 December 1997 that SRQQ was being treated for "surgical problems/abdominal surgery" and would be unfit for work from 17 December 1997 to 12 January 1998 (Exhibit A1). Further medical certificates from a General Surgeon and Surgeon of the Colon and Rectum dated 22 January 1998 (Exhibit A2), 12 March 1998 (Exhibit A3) and 12 May 1998 (Exhibit A4 (a)) indicated that SRQQ was generally unwell and suffering from illness and very slow progress following abdominal surgery on 19 December 1997. As if this were not enough for SRQQ to contend with, her father died in early in 1998, having been ill for about a year. Obviously SRQQ was extremely distressed as a result of her own health condition, which was then compounded by the loss of her father. SRQQ was so ill that she was required to obtain her doctor's permission to attend her father's funeral and there were certain conditions imposed upon her in terms of the method by which she attended the funeral and the length of time she was allowed to be actually at the funeral.
·     In February 1998, SRQQ was able to take up a teaching position for one term at a private school. The school was very good to SRQQ and she enjoyed her work as a senior person on the school's staff.
·     SRQQ submitted a Newstart Allowance claim form for payment for the period 9 May 1998 to 22 May 1998.
·     SRQQ lodged a medical certificate from her then General Practitioner for the period 22 May 1998 to 22 July 1998 during which time the doctor certified that SRQQ was unfit for work (Exhibit A4(b)). Consequently, SRQQ was exempt from the Newstart Activity Test from 22 May 1998 to 22 July 1998 (T24, T25).
·     On 26 May 1998, SRQQ was sent a Departmental letter which advised her that she had been exempt from the Activity test and indicating that her Newstart Allowance payment for the period 25 May 1998 to 5 June 1998 would be $316.36. Amongst other things, this letter also advised:
"This is a recipient notification under section 657 of the Social Security Act 1991. You must tell us within 7 days about events or changes in circumstances affecting your payment. You can tell us by writing, phoning or coming into any of our offices.
YOU MUST TELL US IF ANY OF THESES THINGS HAPPEN OR IS LIKELY TO HAPPEN
…
you leave or decide to leave Australia (including holidays);…" (T25, p44)
·     On 10 June 1998, SRQQ lodged a further application for Newstart Allowance.
·     On 11 June 1998, SRQQ was paid a Newstart Allowance in the amount of $316.36 net for the period 23 May 1998 to 5 June 1998.
·     On 19 June 1998, SRQQ lodged a further application for payment of Newstart Allowance and subsequently was paid on 22 June 1998, an amount of $316.90 net for the period 6 June 1998 to 19 June 1998.
·     On 26 June 1998, SRQQ left Australia to travel overseas (T8).
·     SRQQ was due to lodge her application for Newstart Allowance on 3 July 1998 but this was not done.
·     On 4 July 1998, SRQQ returned to Australia (T8).
·     On 6 July 1998, SRQQ lodged and application for payment of Newstart Allowance for the period 20 June 1998 to 3 July 1998. This form had been due on 3 July 1998. At question six in this application, SRQQ was advised:
"You must tell us if any of the things below happened in the period:
Did any of these things happen or change?…
Overseas
·     You are intending to go overseas (even for a short period)
·     You have been overseas…"

SRQQ ticked the "No" box indicating that she had not intended to go overseas or had not been overseas (T26, p48).
·     On 7 July 1998, SRQQ was paid $316.90 net in Newstart Allowance for the period 20 June 1998 to 3 July 1998.
· On 8 July 1998, SRQQ was sent a Departmental letter advising her of her obligations under section 657 of the Act to inform the Department of certain events including if she intended to go overseas (T27).
·     SRQQ received a Newstart Allowance payment for the period 4 July 1998 to 17 July 1998 in the amount of $316.90 net.
·     On 12 August 1998, following advice to the Department from the Department of Immigration that SRQQ had been absent from Australia from 26 June 1998 to 4 July 1998, a decision was made that an overpayment debt had occurred in the amount of $166.15 (T9, T10).
·     On 17 August 1998, SRQQ received from Centrelink an "advice of debt" indicating that she owed $166.15 to the Department because she had departed Australia without advising Centrelink and had been paid an allowance to which she was not entitled (T11).
·     SRQQ requested an internal review and this being unsuccessful, a further review by an ARO. On 17 September 1998, the ARO affirmed the decision of the Departmental delegate (T15) and advised SRQQ of the decision (T16).
·     In response to the ARO's decision, on 1 December 1998 SRQQ wrote to the Department challenging the ARO's decision and noting:
"Both my GP and the specialist recommended a holiday. I went to Hong Kong for my holiday because it was a place I had always wanted to visit, and because a good friend of mine was going to be there at that particular time. In my state of health, I felt it would be much better for me to have holiday in company rather than go somewhere else on my own.
At the time I took my holiday I had medical certificates from both my GP and the specialist which more than covered the period I was away. These certificates exempted me from any requirement to either look for work or accept it if offered in the period I was away and for several weeks afterwards. Work opportunities were certainly not at all inhibited by my absence.
I submit these factors for consideration as special circumstances." (T17)
SRQQ also outlined her medical and emotional stress problems which had occurred during the first part of 1998 and requested that they be taken into account.

On 9 June 1999, SRQQ lodged an appeal to the SSAT stating:
…
"Decision believed incorrect as regular Centrelink rules did not apply to me in June /July '98 as I was unfit to work/apply for work and on Doc.'s Cert till end of July at that time when I travelled O/S." (T20)
Following the SSAT's decision of 8 July 1999, affirming the ARO's decision, SRQQ lodged an application for review to the Tribunal on 25 August 1999 stating:
"I dispute the validity of the decision by the Tribunal in asserting that I did not comply with Centrelink regulations by failing to notify Centrelink that I left Australia for 8 days in May/June '98. At that time in 1998 I was exempt from Centrelink compliance as I was under Dr's Certs from 2 DOCS due to re-occurring ill-health, thereby making me exempt from Centrelink regulations. Centrelink Chatswood informed me of this in 1998. I complied with their informed advice. Also I am deeply upset by insinuations of dishonesty on my part by the Tribunal - by incorrect facts in the Tribunal's reply and by the manner in which my hearing was conducted…" (T1, p2).

evidence of srqq

SRQQ described the traumatic time she had in December 1997, having had an appendectomy and then contracting a golden staphylococcus infection. Following soon after this protracted illness was her bereavement as SRQQ's father died in January 1998. SRQQ stated that she was extremely unwell during this time and was being cared for by friends.
It was in the context of her poor health and recent bereavement that SRQQ was offered temporary employment for a term as coordinator of studies at a private school. SRQQ told the Tribunal that she was treated well by the school but by the end of the term thought she really needed a holiday. Her doctors, including her General Practitioner and specialist, recommended that in fact she should not have worked and a break would be of benefit to her. SRQQ had a medical certificate from her GP which certified that she was unfit to work from 22 May 1998 to 22 July 1998. This certificate, as had previous certificates, exempted her from the activity test for Newstart Allowance which she had been receiving since cessation of her teaching duties during first term.
SRQQ told the Tribunal that she had some friends who were going to be in Hong Kong. As she had some savings left over from the sale of her larger house and purchase of her new home, and also from a property settlement as a result of a divorce, she decided to take a short overseas trip to Hong Kong.
SRQQ explained to the Tribunal that sometime in May 1998 at approximately 2.30pm or there abouts, she had attended the Chatswood Centrelink office and had spoken to a female person at the counter. At that time SRQQ had handed in her fortnightly Newstart Allowance claim form. SRQQ told the Tribunal that she spoke to the female officer very briefly and told her that she may go overseas. SRQQ was informed by the person that there would be no difficulties with her travelling overseas and that she was a "special case". SRQQ told the Tribunal that the female officer told her that she "did not have to worry about anything". SRQQ did not record this oral advice but she explained that she had no reason not to believe it. SRQQ indicated that the officer presented as an honest person and to SRQQ the information provided appeared to be "honest, sound advice". SRQQ informed the Tribunal that she did not know whether she had had any contact with this officer before and she did not know her identity. SRQQ told the Tribunal that the conversation with the officer took place not in an interview room, but she thought it was over the counter. Further, SRQQ could not recall whether a formal interview had also been cancelled at that time, there being no need to have an interview to discuss her work situation given that she had been certified unfit for work and thereby being exempted from the Activity test.
The Tribunal noted that from a Customer Record Access Monitor Report ("CRAM"), there was an indication that on 22 May 1998, a Centrelink officer at the Chatswood office, Ms M Hinder Smith, had accessed SRQQ's records and recorded the medical certificate and cancellation of an interview (T28).
SRQQ noted that there was therefore proof, contrary to the findings of the SSAT, that there was definite contact between SRQQ and Centrelink on 22 May 1998 and this fact was acknowledged at the hearing by Ms Buckley on behalf of the Respondent.
SRQQ referred the Tribunal to a letter to Ms Buckley from Mr D Jordan, Teamleader, Chatswood Customer Service Centre, in which Mr Jordan advised that one of the customer service officers believed to have dealt with SRQQ was Ms Hinder Smith. He advised that that officer was one of the most experienced officers at the Chatswood office and she had comprehensive knowledge of the relevant policy and legislation with regard to overseas absences (T29, p54). Mr Jordan wrote:
"I can state with complete confidence that it is extremely unlikely that Michelle [Ms Hinder Smith] would have advised SRQQ that her payments were portable, and I am sure that she would have acted in accordance with the relevant policy and legislation based on any information that SRQQ might have communicated to her during her visit on that particular day."

SRQQ wanted the Tribunal to note in relation to Ms Hinder Smith, that if that was the person that SRQQ had spoken to, Ms Hinder Smith is a human being and could have made a mistake in her advice to SRQQ. SRQQ firmly rejected the implication by Mr Jordan that she was not telling the truth. Further, SRQQ rejected the SSAT's finding that she had only spoken about contact with the Department at the SSAT and not previously. SRQQ noted that she had also spoken to the ARO and Departmental Officers about the Department's advice given to her that it was alright to travel overseas.
In relation to the written statement provided by Ms Hinder Smith made on 4 April 2000, (Exhibit R2), SRQQ told the Tribunal that she could not be certain if it was Ms Hinder Smith who she spoke to in May 1998, and the fact that in her statement Ms Hinder Smith did not recall a conversation with SRQQ, did not necessarily mean that there was no conversation or that the matters discussed were not as SRQQ contended.
SRQQ noted that she would not have pursued this matter to this Tribunal if it had not been for the attitude of various Departmental Officers, particularly in their questioning of her integrity and honesty. SRQQ stated that she was an honest person and that she was right in this matter. Further, SRQQ felt that the treatment of her at the SSAT hearing, particularly by the presiding member, was "disgraceful" and she felt "degraded by the questioning in such a public arena".
In answer to a question from Ms Buckley as to SRQQ's grasp of the English language, SRQQ agreed that she was well versed in English in all its forms and agreed that she had received the Departmental letter of 26 May 1998 advising her of a number of things, including her obligation to inform the Department if she was going overseas. SRQQ agreed that she had read the letter and understood it but explained that she did not believe that the requirements detailed in the letter applied to her, given the advice she had been provided by the Departmental Officer that she was "a special case" and could go overseas without any impediment to her Newstart Allowance. SRQQ believed that she was exempt from the requirements of the letter based on the Departmental advice.
Noting the Application for payment for Newstart Allowance for the period 20 June 1998 to 3 July 1998, lodged on 6 July 1998 by SRQQ, SRQQ confirmed that it was her signature on the form and that she had returned to Australia from Hong Kong on 4 July 1998 and then completed the form. SRQQ further confirmed that at question six of the form (T26, p48), she had answered "No" to a number of circumstances including whether or not she intended to go overseas or had in fact been overseas. Asked whether her answer to this question was correct, SRQQ stated:
"I will not say it is an incorrect answer because of information I was given in May."

Later, SRQQ added that she may "have made a human error" in relation to her answer to question six.

SRQQ reiterated that she took advice from a Departmental Officer at the Chatswood Centrelink office that the overseas travel requirements did not apply to her because she was under a doctor's certificate and in fact the officer had told her she "could go anywhere in the world". Thus, SRQQ considered that the Newstart Allowance application form for the period 20 June 1998 to 3 July 1998 did not apply to her in so far as question six was concerned in relation to overseas travel. SRQQ informed the Tribunal that she has a good memory for conversations because it is part of her training and "part and parcel" of her work. SRQQ stated categorically that she did not make up the advice from the Departmental Officer that she was able to travel overseas without impacting adversely on her Newstart Allowance.
Ms Buckley informed the Tribunal in relation to a question from SRQQ as to whether Ms Hinder Smith existed, that indeed Ms Hinder Smith did exist and had accessed SRQQ's records on 22 May 1998 as evidenced in the CRAM report. While it appears that Ms Hinder Smith dealt with SRQQ, there was no detail as to the substance of the conversation nor confirmation that it included matters purported to have been discussed as contended by SRQQ.
SRQQ informed the Tribunal that she had no way of knowing whether the advice provided to her by the officer was correct or not but assumed, given Ms Hinder Smith's position and authority, that the advice provided to her was correct. Ms Hinder Smith must know something, SRQQ stated, or she would not be in the position she was. SRQQ told the Tribunal that she was entitled to believe what was told to her by Ms Hinder Smith, and her perception of her being knowledgable about such matters was justified in the context of her experience of Ms Hinder Smith.
Ms Buckley noted that the CRAM report indicated that there was a very brief moment when SRQQ's records were accessed and this did not suggest enough time to provide such advice as detailed by SRQQ. SRQQ stated that that was an assumption and that it was quite possible that Ms Hinder Smith had given her advice either before she opened SRQQ's computer records or indeed after she had finished with the records.
Ms Buckley asked SRQQ whether the Departmental Officer had told her not to answer question six on the next Newstart Allowance claim form. SRQQ replied that the officer had not told her to "break the law". SRQQ reiterated that she had answered question six in the negative because she had been told that she was an exemption from the overseas requirement.
Ms Buckely put to SRQQ that she was reckless in her completion of question six and her answer caused her not to comply with the Act by providing a false statement. SRQQ denied being reckless or careless, dishonest or flippant in her answer. All she had done in the manner in which she answered question six was to do so in the context of advice provided to her by the Department. Further, SRQQ noted that she was under a doctor's certificate. SRQQ told the Tribunal that she was not travelling overseas for special medical treatment, although her doctor had recommended a break, but there was no specific requirement for her to travel on the basis of the receipt of medical treatment not otherwise available to her.
Currently, SRQQ is working in the Catholic education system three days per week, travelling from the country to the metropolitan area and staying for three nights in a hotel located close to her work. The contract for this work commenced in February 2000 and will conclude in December 2000. SRQQ earns approximately $837.25 per fortnight gross. She pays $50.00 per night in a hotel for bed and breakfast, and her weekly fares from the country are $26.80 with $3.00 per day required for transport from her hotel to the school. SRQQ stated that her council rates on her home are $500.00 and the water/electricity rates are $130.00 approximately per quarter. SRQQ has a 1987 Daihatsu car but she is unable to drive this at present because of her health problems. SRQQ has Telstra shares worth approximately $1000.00 and other shares to the same value. She has bank accounts which have a balance of $3000.00 in one account, $5000.00 in another.
In relation to SRQQ's health, most recently she has fractured her left foot, which has been very slow to heal. A medical certificate from a surgeon indicates that she was unfit for duty from 20 January 1999 until 15 February 1999 (Exhibit A6) and her General Practitioner also indicated on 20 January 1999 that SRQQ had a fracture which had been healing with very slow progress and had required further splinting and plastering. The difficulty arising from the non-union of the fracture is that SRQQ has been unable to mobilise confidently and that prevents her from driving (Exhibit A5).
SRQQ also has experienced a severe allergic reaction in an attempt to lower her cholesterol (Exhibit A5). She also has experienced depression and has been diagnosed as having ischaemic heart disease. SRQQ listed her medication as:

Cardizam for her heart
Somac for gastric reflux
Pyroxin for her thyroid
Antibiotics for infected sinuses from time to time
Asprin for her heart
Lipobay for cholesterol

SRQQ is not taking any medication for depression at present though she has consulted in the past with a psychiatrist.
SRQQ noted that she has a long standing debt of some $537.00 which is owed to the Department, which she is repaying at a rate of $50.00 per fortnight. This debt occurred during her period of employment in early 1998, arising out of a misunderstanding between her employer and the Department.
submissions
SRQQ opened her submission by thanking Ms Buckley for treating her with respect and with professionalism, unlike her experiences with other Departmental Officers and the SSAT.
SRQQ submitted that she is an honest person and had acted in good faith, acting on the advice provided to her by a Departmental officer. SRQQ submitted that she was entitled to rely on the advice of this officer as that person had knowledge of the operation of Social Security law and policies. SRQQ contended that she would never attempt to defraud the Department and obtain benefits for which she had no entitlement. SRQQ submitted that the issues seemed to centre around her honesty and assured the Tribunal that she was an honest person who conducted her life with honesty, integrity and within the law. SRQQ submitted that she felt that she had been classified as a "non person", like a criminal.
In relation to the advice SRQQ submitted had been provided to her, she stated that she believed she was able to travel overseas without there being an impact on her Newstart Allowance. SRQQ stated that she had no way of proving that she had received this advice but that the Tribunal should note that the Department also had no way of proving that she did not receive such advice. The events central to the issue under review occurred two years ago, SRQQ submitted, and there is little way of finding out now where the errors lay.
SRQQ submitted that she did travel overseas for eight days and did not notify the Department because she did not consider that it was necessary or required of her. In this regard, SRQQ referred to the advice she relied on, provided to her by a Departmental officer that she was a "special case" and had no need to be concerned that her Newstart Allowance would be affected. Further, SRQQ submitted that she was certified by her doctor to be unfit for work and that this added weight to her belief that she could travel overseas without any adverse effect.
In relation to special circumstances, SRQQ submitted that she had not mentioned any special circumstances previously, but considered that there were a number of circumstances which the Tribunal should take into account. In this regard SRQQ submitted that the way she was treated on 8 July 1999 by the SSAT was unprofessional and tainted by personal argument and attack. The implication throughout the hearing was that she was dishonest. SRQQ noted that she was almost thrown out of the room. Because of this, SRQQ was not interested in any attempts to settle the matter before the Tribunal as she did not wish to be "bought off", and as she wanted to bring out the "degrading and disgusting" manner in which she had been treated. In her written submissions to the Department and the Tribunal, SRQQ noted that her poor health should be taken into account as a special circumstance. Further, SRQQ noted that although Ms Buckley for the Department had indicated that the overpayment debt of $166.15 was a small amount, SRQQ indicated that it was not small amount to her. She is a single woman aged 58 years and to her this amount of money was not small. Indeed, it could assist her to pay bills or the registration of her car. As a single woman, SRQQ has to plan for her future financial needs. Her attending the Tribunal had in fact cost her money as she was unable to work. Accordingly, SRQQ considered that the decision of the SSAT should be set aside and the debt waived in view of her special circumstances of health, finances, the Department's administrative error and the poor manner in which she had been treated.
Ms Buckley submitted that the debt of $166.15 owed by SRQQ had arisen out of her travelling overseas between 26 June and 3 July 1998 without informing the Department. Referring to subsection 593 (1)(g)(iii) of the Act, Ms Buckley noted that SRQQ had to be in Australia to receive the Newstart Allowance unless she satisfied the provisions of subsection 593(1A) of the Act, which requires that a recipient requires medical treatment overseas which could not be provided in Australia.
SRQQ had been advised by letter on 26 May 1998 of her obligation to notify the Department of her travelling overseas. As such, as a recipient of income support, she was required to inform the Department of the happening of a prescribed event or a change in circumstances. This letter was notice under subsection 657(1) of the Act.
By answering "No" to question six in the Newstart Allowance application form which was lodged on 6 July 1998 that she had not been overseas, SRQQ had failed to comply with section 657 of the Act.
Ms Buckley submitted that SRQQ could be considered to have a debt raised against her under two sections of the Act, namely subsection 1223 (1) and also subsection 1224 (1) of the Act. In relation to section 1223, SRQQ had been paid Newstart Allowance when she was overseas and accordingly was not entitled to the Newstart Allowance under section 593 of the Act. Further, in relation to a debt under section 1224 of the Act, SRQQ had made a false statement at question six of her Newstart Allowance claim form lodged on 6 July 1998 in that she had answered "No" to her being overseas when in fact she had. Further, SRQQ had failed or omitted to comply with the Act in that she had not notified prior to going overseas that she was in fact travelling overseas.
In support of the connection between SRQQ's failure to meet notification requirements under the Act and this causing SRQQ to receive in excess of her Newstart Allowance entitlement, Ms Buckley referred the Tribunal to Re Regan and Secretary, Department of Social Security (AAT No8377, 6 November 1992) as support for the link between a false statement or representation and the causal relationship between that statement and the overpayment of the relevant benefit.
Given all the facts, Ms Buckley noted that even if SRQQ had been given incorrect advice by the Department, this did not allow SRQQ to disregard her notification requirements under the Act or to falsely state that she had not travelled overseas when in fact she had. Ms Buckley submitted that even if incorrect advice was given, this did not cause the debt but rather SRQQ's failures and omissions under the Act to inform the Department of her overseas travel. There was nothing in the advice, even if it had been given, Ms Buckley submitted, which would have caused SRQQ to disregard her obligations to inform the Department of various circumstances in various letters to her.
Turning to the issue of recovery of the debt, Ms Buckley noted that section 1236 of the Act entitles the Respondent to write-off the debt in a limited range of circumstances. While accepting SRQQ has to manage her financial situation carefully, Ms Buckley submitted that SRQQ is working, has assets and has a capacity to repay the debt. Thus, Ms Buckley submitted that write-off of the debt in accordance of 1236 is not appropriate.
In relation to the debt being waived because of sole administrative error as provided for in section 1237A of the Act, Ms Buckley submitted that even if there had been incorrect advice and this could have been considered to be Departmental error, this could only be considered to be a part of the reason for the debt to have occurred. The primary reason that a debt occurred was that SRQQ did not advise that Department that she was travelling or had travelled overseas. In such circumstances, waiver of the debt under section 1237A of the Act was not possible.
Ms Buckley noted that SRQQ does not contend that she has any difficulty in reading or understanding letters sent to her. SRQQ demonstrated at the hearing her knowledge and understanding of notifying the Department of changes in circumstances which she had done previously by notifying of income she had earned on several occassions. Had the Departmental advice been in the terms contended by SRQQ, this still did not provide SRQQ with the justification to fail to answer questions correctly on Departmental forms. Her answers to those questions, given the advice as asserted by SRQQ, would in fact have been irrelevant and there would have been no need to answer them incorrectly or not to inform the Department.
If the Department accepted that SRQQ did not knowingly fail to comply with a provision of the Act, then special circumstances could be considered. Ms Buckley referred the Tribunal to Re Beadle and Director-General of Social Security (1984) 6ALD1, in which Toohey J noted that special circumstances was difficult to define and that there was not an exhaustive definition. In that decision, the court looked at special circumstances which could be considered as unusual, uncommon or exceptional and also required that the circumstances be considered in the context in which they occurred.
Ms Buckley noted that the special circumstances could not be related to financial hardship alone and submitted that SRQQ's financial situation is not exceptional. While SRQQ has multiple medical problems including most recently problems with her ankle and foot, allergic reactions to medication, high cholesterol, and ischaemic heart disease, these matters do not prevent her from working. In relation to there being a special circumstance arising out of incorrect advice, Ms Buckley did not accept that incorrect advice was given. Even if it was accepted, Ms Buckley contended that the advice was not causative of the overpayment. The overpayment of Newstart Allowance would not have occurred had SRQQ not failed to correctly complete her application form for payment lodged on 6 July 1998.
In such circumstances, Ms Buckley contended that there are no special circumstances in SRQQ's case which could be defined as "unusual, uncommon or exceptional". Ms Buckley concluded that there were no special circumstances which would invoke the operation of section 1237AAD of the Act.
In all these circumstances, Ms Buckley contended that the decision under review was the correct and preferable decision and should be affirmed.
findings
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and by applying the legislation and the case law.
The Tribunal found SRQQ to be cooperative in the provision of her evidence and considered her to be a person of truth.
The facts of this matter are that SRQQ had experienced poor health in late 1997 and personal trauma in early 1998. She had been able to obtain employment in her chosen profession in the first school term of 1998, and then, in the context of her traumas and poor health, had decided to take a holiday overseas in Hong Kong. Prior to travelling overseas, SRQQ had been in receipt of a Newstart Allowance. She had been exempt from the Activity Test because of medical certificates provided to her by her then General Practitioner, stating that she was unfit for work because of illness. A medical certificate in this regard had been provided by her General Practitioner on 22 May 1998, certifying that SRQQ was unfit for work from 22 May 1998 to 22 July 1998 (Exhibit A4 (b)).
The Tribunal finds that SRQQ had gone to the Chatswood office of Centrelink to provide the medical certificate, which resulted in her being exempt once more from the Activity test for the Newstart Allowance. This is supported by Departmental computer records. The Tribunal further finds, although SRQQ has no recollection of this, that her interview in relation to job seeking activities was also cancelled at that time, given her medical certificate. SRQQ has strenuously asserted that at the time of providing her medical certificate and lodging her Newstart application form, she was also advised that in relation to her proposal to travel overseas, there was no impediment to her undertaking such travel. SRQQ maintains that she was advised that she was, because of her health and medical certification, a "special case", which meant that there was no restriction on her travelling overseas so far as her Newstart Allowance was concerned. The Tribunal is in no way able to prove or disprove that such advice was given. At its highest, it is clear that SRQQ attended the Chatswood Centrelink office on 22 May 1998. It is possible that SRQQ received some advice about travel overseas or that there was a discussion about this issue. It may be that advice was given, but the Tribunal again has no way of knowing what the advice was, on what basis it was given and further what SRQQ's interpretation of it might have been in respect of the advice itself. What is clear to the Tribunal is that SRQQ genuinely believes that the advice she was given indicated that she would be able to travel overseas without any impediment to her Newstart Allowance. The Tribunal accepts SRQQ's belief that she was advised that she could travel overseas, while noting that this does not necessarily mean that such advice was given. SRQQ did travel overseas between 26 June 1998 and 4 July 1998. Further, SRQQ did not comply with the requirement contained in the letter received by her closest to her travel overseas of 26 May 1998, that she must tell the Department if she was going to travel overseas. Further, in SRQQ's Newstart Allowance application form lodged on 6 July 1998, she clearly answered question six incorrectly when she indicated that she had not travelled overseas, when in fact not two days earlier she had returned from an overseas trip.

The Tribunal finds that even if SRQQ had been given the advice in the terms that she asserts, nothing in that advice would indicate that SRQQ should not comply with notices provided to her under the Act, and formal advice to her in letters especially that dated 26 May 1998 and in her Newstart application form lodged on 6 July 1998. In the Tribunal's view, despite any advice provided to her, SRQQ was clearly obliged as a Social Security recipient to inform the Department of certain things. SRQQ did not do this. In so finding, the Tribunal does not in any way consider that SRQQ deliberately failed to comply with her obligations under the Act. SRQQ did not inform of her possible overseas travel or later of her actual travel, not because she was trying to gain benefit for herself but because she genuinely believed that she did not have to inform the Department. This belief was, unfortunately for SRQQ, misconceived. As SRQQ told the Tribunal, nothing in the advice provided to her by the Departmental officer suggested that she should break the law. Accordingly, the Tribunal finds that SRQQ received Newstart Allowance for the period 27 June 1998 to 3 July 1998 when she was not entitled to do so. This overpayment in the amount of $166.15 is a debt due to the Commonwealth pursuant to section 1223 of the Act. Further, the Tribunal finds that because SRQQ omitted to comply with her requirements under the Act to notify of her intending travel and indeed made a false statement that she had not travelled when in fact she had, then a debt of $166.15 can also be raised under section 1224 of the Act.
Having determined that an overpayment debt of $166.15 is due to the Commonwealth, the Tribunal turns to consider the recovery of the debt. The Tribunal agrees with the Respondent that there is no possibility of the debt being written-off under section 1236 of the Act. SRQQ has a capacity to repay the debt, her whereabouts is known and there would be nothing gained in postponing the debt.
In relation to waiver of the debt under section 1237A of the Act because of sole administrative error, the Tribunal finds that even if there was incorrect advice given to SRQQ, and it is by no means clear that there was incorrect advice given, this is not the sole reason for the cause of the debt. As discussed above, SRQQ omitted to comply with the requirements of the Act and also inadvertently made a false statement. In such circumstances, there is no sole administrative error in this matter and the debt cannot be waived under section 1237A of the Act.
Turning to the issue of whether the debt can be waived in part or as a whole in the special circumstances of SRQQ's case pursuant to section 1237AAD of the Act, the Tribunal does not think that SRQQ knowingly failed to comply with her requirements under the Act or knowingly made a false statement. Having satisfied the threshold issues of section 1237AAD of the Act, the Tribunal turns to consider the issue of special circumstances.
SRQQ's health is poor as she has multiple health problems. Illness has seemed to characterise much of SRQQ's recent life. While noting the distress such health problems cause SRQQ, she is still able to work and conduct her life.
In relation to SRQQ's financial situation, while noting that as a single woman, SRQQ has pressure to ensure her financial future, she does have assets, investments and is at present, able to work. Accordingly, the Tribunal does not consider that SRQQ's financial situation is unusual or in any way straitened.
The other circumstance which SRQQ contended is special relates to there being administrative error in the form of incorrect advice by the Department. The Tribunal is not in a position, as previously expressed, to find one way or another whether incorrect advice had been given. In any event, even if such incorrect advice had been given, this did not absolve SRQQ from her responsibilities to comply with her requirements under the Act and as such the Tribunal does not consider this circumstance special.
The Tribunal regrets SRQQ's concerns about the Department and others involved in the review process. These circumstances are however not able to be considered by the Tribunal in relation to the manner in which the debt was caused or as a special circumstance.
Accordingly, for the reasons expressed above, the Tribunal does not consider that there are any special circumstances in this case, which could, in the legislative sense, be considered unique or unusual or circumstances in which not to apply section 1237AAD of the Act would be unjust or unfair. The Tribunal notes the decision Secretary, Department of Social Security v Hales (1998) 153 ALR 259 at 260, in which the court concluded that tax payers are entitled to expect that monies provided to Social Security recipients is income support for which the recipient is qualified. When circumstances exist where there is no qualification, the tax payer is entitled to expect that money will be recovered.
In all the circumstances, the Tribunal decides that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review should be affirmed.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock
Signed: .....................................................................................
Associate

Date of Hearing   18 April 2000
Date of Decision  2 August 2000
Representative for the Applicant           Self represented
Representative for the Respondent      Ms M Buckley, Departmental Advocate