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

This matter concerned an appeal by the Applicant against a decision to cancel his Disability Support Pension (DSP) and to recover an overpayment of DSP. The dispute arose because the Applicant's spouse received a lump sum compensation payment which was deposited into a joint bank account, causing the combined assets to exceed the allowable limit for the DSP. The Applicant contended that Centrelink had been adequately notified of his wife's compensation payment on multiple occasions and that the delay in investing the funds into a superannuation fund was due to the need for specialist financial advice, during which time the funds were intended for his wife's future care. The Applicant argued that his DSP should have been suspended rather than cancelled, and that he was entitled to the pension once the funds were appropriately invested.

The Administrative Appeals Tribunal was required to determine whether an overpayment of DSP had occurred, whether the Applicant's DSP was correctly cancelled, and whether the Applicant should be required to repay the full amount of the overpayment. Specifically, the Tribunal had to consider whether special circumstances existed that would justify waiving the debt, or a portion thereof, under section 1237AAD of the relevant Act, and whether the debt was attributable solely to an administrative error by Centrelink. The Tribunal also considered the Applicant's submission that his DSP should have been suspended under section 80 of the Social Security (Administration) Act 1999 (Cth) rather than cancelled.

The Tribunal found that an overpayment of DSP had occurred during the period in question. While acknowledging that the Applicant's DSP was correctly cancelled under section 94 of the Act, the Tribunal determined that special circumstances justified waiving a portion of the debt. The Tribunal accepted that the Applicant's wife's compensation payment was intended for investment in a superannuation fund for her future care, and that the two-month delay in establishing this fund was due to the necessity of obtaining specialist financial advice. Consequently, the Tribunal concluded that the Applicant should only be required to repay the debt accrued during the period the compensation payment was held in the joint bank account, from 20 September 2017 to 30 November 2017. The remaining debt from 30 November 2017 until the end of the Debt Period was to be waived under section 1237AAD of the Act.