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

This matter concerned an appeal by the Secretary of the Department of Social Services against a decision regarding the recovery of overpaid age pension to the Respondents, Mr and Mrs Timmins. The core of the dispute revolved around whether the Respondents had been overpaid their age pension and, if so, whether the resulting debts should be recovered in whole or in part. The decision was made by J Sosso SM.

The legal issues before the court were twofold: first, whether the Respondents had received an overpayment of their age pension; and second, if an overpayment had occurred, whether the debts arising from this overpayment ought to be waived or recovered. The court was required to consider the provisions of the *Social Security Act 1991* (Cth) concerning the recovery and waiver of debts, particularly in circumstances involving administrative error and the good faith receipt of payments.

The court found that it was not contested that the Respondents had been paid an age pension at a rate exceeding their entitlements, thus creating a debt to the Commonwealth under s 1223 of the Act. The critical consideration then became the recovery of this debt. The court examined s 1237A of the Act, which mandates the waiver of so much of a debt as is attributable solely to an administrative error made by the Commonwealth, provided the debtor received the payment in good faith. The court noted that the overpayments arose from administrative errors made by the Department in recording the Respondents' superannuation balances. Given that the Respondents had received these payments in good faith, the court determined that the conditions for waiver under s 1237A were met. Consequently, the decision under review, which affirmed the waiver of the debts, was upheld.