Tawdrous and Anor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 53

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No N2006/892 No N2006/893 No  2007/377

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAFWAY TAWDROUS  WAFAA GENDY

Applicants

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Prof T Sourdin, Member

Date17 January 2008

PlaceSydney

Decision

The Tribunal:

1.   Sets aside the decision of the Social Security Appeals Tribunal      dated 3 July 2006 and in substitution therefor decides that:

     (a)      the amounts of $3,047.71, $5,625.27, $8,747.14 and                  $2,189.58 in child care benefit overpaid in the 2001/2002,                  2002/2003, 2003/2004 and 2004/2005 financial years                  respectively are debts due to the Commonwealth;
     (b)      the outstanding amount of the debt be written off for a period                  of two years;

2.   Sets aside the decision of the Social Security Appeals Tribunal      dated 13 February 2007 and in substitution therefor decides:

     (a)      the amounts of $5,347.25, $4,482.20, $4.340.76 and                  $2,240.26 in family tax benefits overpaid in the 2001/2002,                  2002/2003, 2003/2004 and 2004/2005 financial years                  respectively are debts due to the Commonwealth;
     (b)      the outstanding amount of the debt be written off for a period                  of two years.

......................SGD........................

Prof T Sourdin
  Member  

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No N2006/892 No N2006/893 No     2007/377

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAFWAT TAWDROUS  WAFAA GENDY

Applicants

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

ORDER TO AMEND WRITTEN DECISION

TribunalProf T Sourdin, Member

Date23 January 2008

PlaceSydney

WHEREAS:

1.    The Tribunal released a written decision in this matter, which was dated 17 January 2008.

2.    It has come to the Tribunal’s attention that there was a typographical error in relation to the cover page and paragraph 1 (page 2) re: spelling of first applicant’s Christian name.

3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

THE TRIBUNAL THEREFORE ORDERS that the first applicant’s Christian name that appears on the cover page and paragraph 1 (page 2) of the decision should read as follows:  

●   Safwat not Safway

...…………sgd……………

Prof T Sourdin
  Member  

CATCHWORDS

Family Tax Benefit - Child Care Benefit - raise and recovery of a debt - waiver of debt or write off - special circumstances – taxable incomes – overpayments - decision under review is affirmed.

Administrative Appeals Tribunal Act 1975, section 35

A New Tax System (Family Assistance) (Administration) Act 1999 sections 20, 71, 95, 97, 101

Social Security Act 1991 section 1068

Social Security (Administration) Act 1999 subsection 37, 107

Secretary, Department of Education, Employment, Training And Youth Affairs v Prince (1997) 50 ALD 186

Re Wendt and Secretary, Department of Social Security (1998) 53 ALD 153

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

Re Beadle v Director-General of Social Security (1985) 60 ALR 225

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

Austin and Another v Secretary, Department of Family and Community Services (1999) 57 ALD 330

Re Angel and Secretary, Department of Family and Community Services [2001] AATA 292

Re Beadle and Director‑General of Social Security (1985) 7 ALD 670

REASONS FOR DECISION

17 January 2008 Prof T Sourdin, Member    

1.      Ms Wafaa Gendy (Ms Gendy) has been the recipient of child care benefit and family tax benefit (FTB). Her husband, Mr Safway Tawdrous (Mr Tawdrous), appears to take care of the family financial affairs and runs a small business that employs his wife – Ms Gendy.  Ms Gendy and Mr Tawdrous had taxation returns prepared by an accountant for the following tax years; 2001/2002, 2002/2003, 2003/2004 and 2004/2005. The information in these tax returns was used by Centrelink to calculate the amount of child care benefits and FTB that were then paid to Ms Gendy. The Australian Tax Office (ATO) audited the tax returns lodged by Ms Gendy and Mr Tawdrous for just one year of their tax returns and then issued an amended assessment for Ms Gendy and Mr Tawdrous’ taxable income for all of the four tax years.

2.      As a result of the amended assessment by the ATO, Centrelink affirmed that:

(a) Ms Gendy had received more child care benefit, in respect of her two daughters, than her correct entitlement throughout 1 July 2001 to 30 June 2005. On 16 March 2006 a Centrelink Authorised Review Officer (ARO) affirmed that Ms Gendy had been overpaid child care benefit for the following years; $3,047.71 for the 2001/2002 tax year; $5,625.27 for the 2002/2003 tax year; $8,747.14 for the 2003/2004 tax year and $2,189.58 for the 2004/2005 tax year. The child care benefit was not paid direct to Ms Gendy but paid direct to the child care provider.

(b) Ms Gendy had received more FTB in respect of her two daughters than she was entitled to receive from 1 July 2001 to 30 June 2005. On 15 December 2006 a Centrelink ARO affirmed that Ms Gendy had received overpayments for the following years; $5,347.25 for the 2001/2002 tax year; $4,482.20 for the 2002/2003 tax year; $4,340.76 for the 2003/2004 tax year and $2,240.26 for the 2004/2005 tax year.

3.      Therefore, Centrelink decided to recover the sum of $36,020.17 from Ms Gendy ($19,609.70 in respect of child care benefits and $16,410.47 in respect of FTB). At the hearing on 17 August 2007, the Respondent indicated that part of the debt had been paid. The balances of the debts owing are as follows: child care benefit $17,701.53 and FTB $7,330.89.

4.      The reasons for the miscalculation in the original tax records related to the accountant who had originally prepared the taxation material that was submitted to the ATO. Mr Tawdrous said that the accountant had declared losses in respect of a property that was not owned by Mr Tawdrous or Ms Gendy and that he only became aware of this error when he instructed a new accountant. Although Mr Tawdrous disputed the assessments made by the ATO relating to the taxation returns, he did not have the funds to commence action against the ATO.

5.      The matters were heard over the course of a number of hearing days: on 22 November 2006, 30 November 2006, 12 December 2006 and 17 August 2007.

6.      The number of hearing days became necessary when Mr Tawdrous asked the Tribunal to consider not just the child care benefits debt but to also consider the debt raised in respect of the FTB.

7.      The child care benefit matter (N 2006/893) was commenced at the Tribunal on 22 November 2006 following a decision of the Social Security Appeals Tribunal (SSAT) on 3 July 2006 which affirmed the ARO decision. The FTB matter (2007/377) was commenced at the Tribunal on 16 February 2007 following a decision of the SSAT on 13 February 2007 which affirmed the decisions made by Centrelink.

8.      On each of the hearing dates Mr Tawdrous represented his wife, Ms Gendy.  An issue that surfaced at each of the hearings related to Mr Tawdrous’ lack of willingness to disclose financial records or information relating to his business. Mr Tawdrous was concerned that if such information was disclosed to Centrelink, his business, which had dealings with Centrelink, would be disadvantaged. This matter is discussed further below.

9.      The sole issue in each matter (that I was required to determine) was whether the debts should be waived (extinguished) or written off (deferred until a later time). Mr Tawdrous agreed that the debt calculations were correct, but essentially said that special circumstances existed which meant that waiver of the debt was desirable.

The issues – Waiver or Write OFF?

10. Overpayments are debts pursuant to section 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999. As relevant, section 71(2) states:

71  Debts arising in respect of family assistance other than child care benefit and family tax benefit advance

…

Overpayment

(2)       If:

(a)an amount (the received amount) has been paid to a person by way of assistance; and

(b)the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;

the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.

11.     Mr Tawdrous expressed anger and disappointment at the situation in which he and Ms Gendy find themselves in. Essentially, he said that they were in an impossible financial situation with mounting debts and a debt that was due to the Government that was the result of their previous accountants’ failure to properly prepare their tax returns. He indicated that they were hard working people who did not rely on Government benefits, but were working hard to make ends meet. The family had numerous medical issues, but was determined to earn money and contribute to society. He also said that the family would not have had the children in child care, but rather would have made a decision to care for the children at home, had they understood that no child care payment would have been paid to the provider.

12. In this matter, I consider, and it was not argued to the contrary, that the debts were properly raised. There are many different ways that the Commonwealth can deal with debts. It may seek to have them paid in full. It may waive the debt (that is, not pursue the debt). Essentially, the applicants are seeking a waiver in their application. However, in dealing with this application, I am also mindful that pursuant to section 95(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 debts can be written off.  The issue of write off is discussed below.

13. I am also mindful that pursuant to section 97 of the A New Tax System (Family Assistance) (Administration) Act 1999, debts must be waived if the overpayment occurred solely due to administrative error of the Commonwealth. However, here there is no evidence in the case before me that the debt arose from an administrative error of the Commonwealth.

14.     In the context of waiver, and in considering the circumstances of this matter, I have considered the circumstances under which Ms Gendy informed Centrelink about her income.  I have accepted that Ms Gendy relied upon her accountant’s advice at the time. However, that advice was incorrect and was the direct cause of the overpayments. 

15. I note that pursuant to section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999, debts may be waived in whole, or in part, if special circumstances apply.

16. Section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 Act states:

101  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 family assistance law; 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.

17.     The term special circumstances is not defined in the A New Tax System (Family Assistance) (Administration) Act 1999. However, the phrase has been the subject of consideration in courts and at the Tribunal many times before. A leading case is Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where Toohey J stated:

An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend on the context in which they occur.  For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases.  This is not to say that the circumstances must be unique but they have a particular quality of unusualness that permits them to be described as special.

18.     This approach was approved by the Full Federal Court on appeal in Re Beadle and Director‑General of Social Security (1985) 7 ALD 670. The Court did note, however, that they would place less emphasis on the dictionary definition of “special”.

19.     In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, where there was an overpayment of parenting payment, where administrative error (but not sole administrative error), had occurred, Besanko J held that:

… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word exceptional is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if he words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case….

20.     I considered Ms Gendy’s situation, in relation to whether special circumstances applied in her case, in order to consider the discretion to waive the debt in part or in full. However, I am mindful that special circumstances cannot be financial circumstances alone. Indeed, in Ms Gendy’s case, her partner is in business, and whilst the evidence was that his earnings are not on the increase, I did not have before me specific evidence of hardship in terms of business income or expenditure which I could find would constitute special circumstances.  I did have some evidence of other circumstances in Ms Gendy’s life which could be considered special circumstances.

21.     The evidence that I received about special circumstances was difficult to unravel. I make this comment in recognition of the difficulty that applicants can have before the Tribunal when they are not legally represented. It is clear from the material presented by Mr Tawdrous to the Tribunal that his command of the written English language is not good. He made great efforts at the Tribunal to explain his circumstances. An exchange relating to this matter is set out below:

Tribunal - Now what you’ve said to me is that another factor that is important is that you’ve got three children, nine, seven and two, and that they’ve got needs and that they have economic needs, that’s what you’re pointing me to.  Can you tell me any other factors that you think are important in terms of your special circumstances?‑‑‑

Mr Tawdrous - about my wife, my wife.  I’m talking about my wife, for example.  My wife she reaching today, about, she born in 1964, 1 January 1964 [sic].  That means she’s about 43, about 43 years old.  And work at home, she do [sic] in the business.  She have more than enough to continue in the business about psychologists, psychology which is everything you do in it, she’s in it straightaway.  She’s getting nerves from anything to dealing with the business.  Many times I try to encouraging her even to come in here today.  She doesn’t want to see anybody, talking about anybody, about our circumstances and about our situation here today, even to [sic].  From the way, Centrelink driving us and the economy are driving us too from stress in our situation.  She see a doctor many times, she’s seen the doctor which is GP many times.  About her blood pressure, about her psychology and sight, you know what I mean, she got no time to .....  any more, even when time the time is, she just get the children, she push them from her own way.  She cannot stand too much problem already about our self.  From the headache we have from our financial situation and from the medical situation too.  She can’t stand even the situation about Centrelink as well, your Honour, and when I sit down and talk to her about Centrelink, she start to cry and emotionally, she feel very badly, emotionally.  And she said already, had enough, which is my back, my back already have problem enough with my back and now suddenly its coming up, my heart, my voice, my heart and my voice, my back problem is still – with physiotherapy at the moment even too, which the hospital has been rejected, more than eight times with the visit and we have to get back again to private physiotherapy and costing too much for us, we cannot afford it.  That mean, we are better off we sell ..... , we are better off if we sell everything to cover the debt we have cover, if we cover, I don’t think so, I don’t think it will be erased.  We sit in the dole, to be termination, the first member, termination, to be out of the work and ourself [sic] to be better off.  This way we will have child care benefit, 100 per cent for every child, or maybe more, and we have this way, like benefit from everything, benefit from the Medicare, benefit from ‑ ‑ ‑ 

Tribunal - Okay, Mr Tawdrous, I think you’ve, you’ve just outlined some more factors that you’ve been talking about and one of them relates to, if you like, your wife’s health and your own health.  I made an order beforehand in relation to filing of any additional information about your medical condition.  If you wish to take the opportunity to send in something to the tribunal about your wife’s condition, that opportunity is open to you.  Now the same dates would apply, that is, you’d have to send it in by 30 August and the respondent would have an opportunity to reply, if it seeks to?‑‑‑

Mr Tawdrous - Sure, your Honour.

Trinunal - Okay.  Now are there any other things that – you then went on to talk about, I think, the stress that she felt with that and then, you know, what your options were for the future.  Are there any other matters that you think are important that you need to put to me, that I should know about your circumstances?‑‑‑

Mr Tawdrous - Yes, your Honour.  We cannot hear from our own family beginning, we come from both family.  I been in Australia since 1984, April 1984, myself.  I get married from my wife 1997, my wife.  We build ourself from scratch.  To build our, you know, we didn’t need any money from Centrelink to build ourself.  Since 1984 and until before I get married, I never have one cent in my life from Centrelink before I get married.  The only money we get it, we get after married, for our children and we try as much as we can to holding ourself for not taking any money from Centrelink to solving our problem as business since. 

Tribunal - I think you’ve spoken before, for a while, at a previous hearing you talked about how you’ve been working and running your own businesses with all of the stresses that that involves and you talked about how sometimes you’ve wondered whether it was worth it and you also talked about how you were a hard worker and about what was going on.  I understand that that’s an important matter for you to talk about and you have raised it before in terms of, I think, your credibility in other matters that you’re pointing the tribunal to, but I really need to just bring you back to whether or not you say there’s anything else that I ought to consider.  And when I look at the special circumstances, I need to look at sort of hardship or unfairness and about your particular circumstances compared to other people within the Australian community, and you’ve talked about three things so far:  one is the financial circumstances; the other is the sort of, the medical, the health circumstances and the young family that you have; and I think the third one that you’re talking about is that you’ve made yourself here and that you’re not dependant, you’ve never been dependant on social security benefits other than those for the children?‑‑‑Sorry, your Honour ‑ ‑ ‑ 

Sorry, the question is, is there anything else?‑‑‑

Mr Tawdrous - Like for example, if we can afford, for example, everything, I’d have lawyer, standing with me but you asked me before, your Honour, I say to all that I went to get some legal advice if someone can help in this matter.  They say they charging $5000 if they want to come in here and to hold this taken, the first or second hearing.  How can we, your Honour, with everything raise up, wages raise up for the staff member, interest in future no guarantee even the future, like, for example the Prime Minister today, John Howard, always talking about the future, how to the country to be raised up and you know from inflation.  Even in the news this morning, Seven News, Channel 7.

The Tribunal - I understand that you’re worried about inflation, impact on wages but you’re also very concerned about the interest rates in to the future too?—

Mr Tawdrous - ‑I need expenses too like if you go shopping, your Honour, the vegetables, for example, look everything how it went up already, you automatically, you notice it automatically, your Honour, everything went up, your Honour.

All right?‑‑‑And I’m talking about the money we take it from 2001, 2001 maybe the family can afford it, now we come to 2007, your Honour, 2007 – as interest rate we were talking about, your Honour, interest rate is about five per cent and we can afford it.  So now it is 8-something, 8.3, 8.5, something like this, interest rate and with skipping more ways in the future ‑ ‑ ‑ 

I understand that what you’re saying that, you know, had the errors occurred at that time, then you may have been in a position to repay them, if it had been picked up in 2001 but I think you’ve accepted that it wasn’t the fault of the department, it was todo with this accountant and various other matters that we’ve discussed on a previous occasion, is that right?‑‑‑Yes, your Honour.

Confidentiality and non disclosure

22.     One of the difficulties that arose in relation to this matter concerned the financial affairs of Mr Tawdrous and Ms Gendy. This is an important factor for the Tribunal to consider when making a decision about whether there are special circumstances that would mean that a waiver of debt is appropriate.

23. In this matter, Mr Tawdrous refused to reveal information about his business earnings to the Tribunal. This is of importance in terms of assessing the overall financial situation of Mr Tawdrous and his family. Mr Tawdrous said that he feared reprisals from the Department. Mr Tawdrous indicated that he would reveal this information to the Tribunal but not to the Department. In this context, the making of undertakings by Departmental representatives was discussed as was the making of a confidentially order under section 35 of the Administrative Appeals Tribunal Act 1975 (“the Act”).

24. The Act provides under section 35 that:

Hearings to be held in public except in special circumstances

And subsection 35(2) states:

Private hearing etc.

(2)Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(a)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

25. The option of a section 35 order was raised with Mr Tawdrous. The Department had previously indicated, in writing, that it would not use information that it obtained “improperly”. However, Mr Tawdrous did not accept this assurance. At the hearing on 17 August 2007 he said “they will target me because they will know the business name and that is what I am talking about... they will target me and I believe 100 per cent”.

26. In view of this reluctance to disclose information to the Tribunal, the Tribunal was unable to receive much evidence about the financial situation of the family business. Whilst the Tribunal did receive information about the personal financial situation of Mr Tawdrous and Mrs Gendy, the general information provided indicated that the business was not operating at a level where they could always draw a salary. However, the financial records relating to the business were not disclosed to the Tribunal (despite the option presented by section 35 of the Act).

27.     It seems to me that the evidence disclosed that:

(a) The family is in a precarious financial situation. The family purchased three properties (one of which is rented by the business) and the family does not live in any of these properties, but lives in another property which they rent. All properties are mortgaged for more than their current value and although one of the properties was recently sold, this did not alleviate the financial problems as a loss was made on the sale. Effectively, when one considers the two remaining properties, the debt level of the family greatly exceeds the value of the current assets (excluding any business valuation). The mortgage payments exceed the family income and I accept the evidence that was given that the properties cannot be sold in the current market other than by incurring significant additional financial losses.

(b) The family has a number of medical issues. Mr Tawdrous has heart, back and throat issues. Ms Gendy has issues with her nerves, kidneys, hypertension as well as other health problems. One of the children is a chronic asthmatic.

(c) The family are not otherwise on social security benefits. Indeed the evidence was that despite their difficult health and other circumstances they were continuing to work and provide for their family although this was becoming increasingly difficult.

28.     The primary question is - could such circumstances be described as special? This question must also be answered in context, that is, particularly given that the debts arose as a result of an error by Ms Gendy’s accountant. On balance, I find that Ms Gendy’s situation is not as in Re Ivovic and Director-General of Social Services (1981) 3 ALN N95 where it was held that the situation of the applicant was unusual, and that it would be unjust or unreasonable to require the debts to be repaid.

29.     I do not accept that relying on incorrect advice from the accountant should be accepted as a special circumstance in this case, and when considering Ms Gendy’s situation globally, I could not be satisfied that “special circumstances” applied in her case to waive the debts either in part or in full.

30. However, given the extensive evidence relating to the family’s position in respect of financial issues, I do consider that the debts should be written off for a period of no less than two years. In terms of writing off the debts, subsection 95(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 provides that debts can be written off. The “test” for writing off debts is a different test to that of waiver. For a waiver to take place there must be “special circumstances.” As noted above, here I am not satisfied that there are special circumstances. Under A New Tax System (Family Assistance) (Administration) Act 1999 debts can be written off where they might not be “waived”. Section 95 of the A New Tax System (Family Assistance) (Administration) Act 1999 states:

95  Secretary may write off debt

(1)The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.

Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.

(2)       The Secretary may decide to write off a debt under subsection (1) 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)it is not cost effective for the Commonwealth to take action to recover the debt.

…

(4)For the purposes of paragraph (2)(b), if a debt is recoverable by means of:

(a)       deductions under section 84; or

(aa)deductions under section 1231 of the Social Security Act 1991; or

(b)       setting off under section 84A arrears of family assistance; or

(c)       application of an income tax refund under section 87; or

(d)       setting off under section 87A against enrolment advances; or

(e)setting off under section 87B against payments in respect of fee reduction;

the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

…

31.     The requirements for write off reflect the different intention of the legislators and in my view are appropriately applied to Ms Gendy and Mr Tawdrous. The evidence presented to me and the SSAT disclosed that the family was suffering severe financial hardship. This hardship arises in part because of the high debt level of Ms Gendy’s and Mr Tawdrous and their inability to sell properties without further loss. Although the evidence before me was incomplete, in that I did not have business records, the personal financial records indicated that the family was suffering severe hardship and that this additional debt was considerable and would be appropriate to write off.

DECISION

32.     The Tribunal:

1.        Sets aside the decision of the Social Security Appeals Tribunal        dated 3 July 2006 and in substitution therefor decides that:

(a)the amounts of $3,047.71, $5,625.27, $8,747.14 and $2,189.58 in child care benefit overpaid in the 2001/2002, 2002/2003, 2003/2004 and 2004/2005 financial years respectively are debts due to the Commonwealth;

(b)the outstanding amount of the debt be written off for a period of two years;

2.Sets aside the decision of the Social Security Appeals Tribunal dated 13 February 2007 and in substitution therefor decides:

(a)the amounts of $5,347.25, $4,482.20, $4.340.76 and $2,240.26 in family tax benefits overpaid in the 2001/2002, 2002/2003, 2003/2004 and 2004/2005 financial years respectively are debts due to the Commonwealth;

(b)the outstanding amount of the debt be written off for a period of two years.

I certify that the preceding 32 paragraphs are a true copy of the reasons for the decision herein of Professor T Sourdin,  Member

Signed:.........[sgd]..........................................................

Associate: Felicia Daniele

Dates of Hearing:   22 November 2006, 30 November 2006, 12   December 2006 and 17 August 2007                  
Date of Decision:  17 January 2008  
Solicitor for the Applicant:          Self-Represented
Solicitor for the Respondent:     J. Maclean, Legal Services Branch, Centrelink