Tomlin; Secretary, Department of Social Services and (Social services second review)
[2017] AATA 1810
•20 October 2017
Tomlin; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1810 (20 October 2017)
Division:GENERAL DIVISION
File Number:2017/0745
Re:Secretary, Department of Social Services
APPLICANT
Merinda TomlinAnd
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:20 October 2017
Place:Sydney
The decision under review is set aside and in substitution, the Tribunal decides:
·Merinda Tomlin has a debt to the Commonwealth in the amount of $37,454.02 due to overpayment of parenting payment (partnered) for the period 24 May 2011 to 21 September 2015;
·the debt for the period 8 December 2011 to 21 September 2015 is waived pursuant to section 1237A of the Social Security Act 1991; and
·the remainder of the debt for the period 24 May 2011 to 7 December 2011 is recoverable by the Commonwealth.
..............................[sgd]..........................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – overpayment – whether the Respondent has a debt – whether there are grounds for writing off or waiving all or part of the debt – whether debt should be waived by reason of sole administrative error – whether debt should be waived by reason of special circumstances – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 8, 1068B, 1223, 1236, 1237A, 1237AAD
CASES
Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451
Groth v Secretary Department of Social Security
Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76
SECONDARY MATERIALS
Guide to Social Security Law (2017, Cth)
REASONS FOR DECISION
Dr L Bygrave, Member
20 October 2017
INTRODUCTION
The respondent, Ms Merinda Tomlin, was granted parenting payment at the partnered rate from 24 May 2011. She was paid at the maximum rate of payment.
On 22 September 2015, Ms Tomlin contacted Centrelink to advise that her partner had commenced new employment. Centrelink subsequently determined that the income of Ms Tomlin’s partner had not been taken into account in calculating her rate of parenting payment and a debt of $42,782.24 was raised against her.
Ms Tomlin requested an internal review and on 8 June 2016, an authorised review officer of Centrelink decided Ms Tomlin was overpaid $37,454.02 parenting payment (partnered) between 24 May 2011 and 21 September 2015, but the portion of the debt from the period 4 April 2013 to 21 September 2015 should be waived on the basis that it was solely attributable to administrative error.
On 30 August 2016, Ms Tomlin applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal for a review of Centrelink’s decision.
On 1 January 2017, the SSCSD determined the amount of debt was correct, but the debt accrued for the period of 18 September 2012 to 21 September 2015 should be waived as it was solely attributable to administrative error.
The Secretary of the Department of Social Services (Centrelink) applied to the General Division of the Administrative Appeals Tribunal on 9 February 2017 for a review of the SSCSD decision.
The matter was heard in Sydney on 20 September 2017. Ms Tomlin attended the hearing in person and had legal representation. Both Ms Tomlin and her mother, Ms Nerida Ceaser, provided oral evidence to the Tribunal.
ISSUES
The determinative issues before the Tribunal are whether:
(a)Ms Tomlin has a debt for the overpayment of parenting payment (partnered) in the amount of $37,454.02 for the period from 24 May 2011 to 21 September 2015; and
(b)there are any grounds for writing off or waiving all or part of the debt.
EVIDENCE
Ms Tomlin and her partner have three children born in April 2011, April 2013 and July 2015.[1]
[1] Exhibit R5, para 9.
On 24 May 2011, Ms Tomlin attended a Centrelink office with her mother and her eldest child to complete forms to enable her to transfer from youth allowance to payments she is entitled to receive as a parent.[2]
[2] Exhibit R5, para 10.
At the Tribunal hearing, Ms Tomlin said she understood from her attendance at Centrelink on 24 May 2011 that she would receive the family tax benefit and parenting payment (partnered). She confirmed a Centrelink staff member informed her on 24 May 2011 that the amount of her partner’s income would affect her payments and she was notified about her obligation to inform and update Centrelink about her partner’s income. Ms Tomlin said she was particularly concerned because her partner’s income varied significantly from week to week due to his employment as a casual delivery driver with a pizza chain.
A Centrelink file note dated 24 May 2011 stated Ms Tomlin told Centrelink her partner was working and earning approximately $800 per fortnight.[3] This same file note confirmed the ‘estimate details [were] revised for FTB [family tax benefit] to include PP [parenting partner] rate of payment’.
[3] Exhibit T19, p 499.
Ms Tomlin subsequently received a letter from Centrelink dated 24 May 2011, which included the following statements:
Your partner’s annual income = $0.00
…
WHAT YOU HAVE TO TELL US ABOUT You must tell us within 14 days about events of changes in circumstances that may affect your payment...
You must tell us if: … your total personal income goes over $62.00 a fortnight your partner’s total personal income goes over $808.00 a fortnight…[4]
[4] Exhibit T18, pp 366-367.
At the Tribunal hearing, Ms Tomlin accepted she received this letter as well as further letters from Centrelink containing the same information on 30 May 2011 and 11 October 2011.[5] She acknowledged her partner’s annual income was not $0.00 and agreed his income was sometimes over $808.00 per fortnight. For example, her partner’s payroll advice for 25 April 2011 to 1 May 2011 recorded gross pay of $605.67 and his payroll advice for 2 May 2011 to 8 May 2011 recorded gross pay of $443.86.[6]
[5] Exhibit T18, pp 369, 389.
[6] Exhibit T11, p 113.
The Centrelink files also show Ms Tomlin received regular letters from Centrelink that included information about her parenting payments (partner) and family tax benefit. For example, she received an ‘Income Statement’ from Centrelink dated 22 September 2011. This statement recorded her previous and future entitlements and payment types including parenting payment (partnered), family tax benefit parts A and B, rent assistance and baby bonus, and detailed her asset types.[7] The statement did not contain any information about her partner’s income and did not include a statement that Ms Tomlin was required to provide information to Centrelink about her partner’s income.
[7] Exhibit T18, pp 387-388.
Centrelink sent Ms Tomlin a letter, ‘Your Centrelink Payment’ dated 8 December 2011, which enclosed documents titled ‘Your Centrelink Statement for Parenting Payment’ and ‘What you have to tell Centrelink’.[8] Relevantly, these documents included the following information:
[8] Exhibit T18, pp 399-402.
Your Centrelink Payment [9]
[9] Exhibit T18, pp 397-398.
Enclosed in this letter:
1. Your Centrelink Statement
This gives you information about your payments, income and other details. You need to let us know if any of these details change to ensure you are receiving your correct entitlement.
2. What you have to tell Centrelink
This lists the changes you must tell us about. You do not need to contact us if you have no changes.
…
Data Matching
Information provided by you to Centrelink may be used for data matching with other government agencies to detect and prevent incorrect payments and fraud.
…
Your Centrelink Statement for Parenting Payment [10]
[10] Exhibit T18, pp 399-400.
…
Issue date: 08 December 2011
Please check the information on this statement carefully. If the details on this statement are correct there is no need for you to contact Centrelink. If your circumstances have changed please contact us within 14 days. This request is an information notice given under social security law…
…
RATE OF PAYMENT – Your future rate of payment may change depending on the amount of your earnings, other income or assets. We have not shown family assistance payments. Note that all the information in this statement is from records we hold as at the issue date of the statement.
…
EARNINGS INFORMATION – You need to tell us your earnings before tax and other deductions such as salary sacrifice. The amount must be for work performed in the Centrelink fortnight prior to notification and only the amount earned in the Centrelink fortnight, this may be different from your salary pay fortnight.
…
AUTOMATIC UPDATES – Centrelink regularly updates some of your income and asset details automatically based on information provided by various sources…
…
OTHER DETAILS
Family Tax Benefit details
Date last updated 1 Jul 2011
Amount advised (combined taxable income) $34,419 pa
For financial year 2011/2012
…
What you have to tell Centrelink [11]
This request is an information notice given under social security law. This means you must give Centrelink all the information Centrelink needs to assess your payment… The information you give us may be checked under centre links data matching programs.
You must tell Centrelink within 14 days… if any of the things listed below happen or are likely to happen to you and/or your partner. If any of these changes happen, the amount of payment you get may change. If you are paid too much because you don’t tell Centrelink about any of these changes when you have to do, Centrelink may make you pay it back…
…
You must tell us if you and/or your partner:
Employment
…
have any change to your income from employment (the amount you earn goes up or down)…
[emphasis in original]
[11] Exhibit T18, p 401.
Notably, nowhere in these Centrelink statements dated 8 December 2011 is there any information about the fortnightly income of Ms Tomlin’s partner for the relevant reporting period (2 September 2011 to 8 December 2011).
The notes set out by the Centrelink authorised review officer on 8 June 2016 outline that Ms Tomlin advised Centrelink about her partner’s income for family tax benefit purposes on the following dates: 13 April 2011, 1 July 2011, 1 July 2012, 18 September 2012, 4 April 2013, 1 July 2013, 1 July 2014 and 1 July 2015.[12]
[12] Exhibit T16, p 306.
On 4 April 2013, Ms Tomlin lodged an online family tax benefit and baby bonus claim in which she estimated her partner’s income for the period from 25 April 2013 to 25 October 2015 to be $19,000 and his income for the 2012/2013 financial year to be $39,000.[13] In a claim for baby bonus and family tax benefit completed on 28 April 2013, Ms Tomlin estimated her partner’s income for the relevant six month period to be $19,500 and her income from government benefits to be $15,000.[14]
[13] Exhibit T4, pp 80-81.
[14] Exhibit T4, p 93.
On 4 March 2014, Centrelink wrote to Ms Tomlin advising her about a new income free area for her parenting payment (partnered) and stating her ‘reporting arrangements have not changed’.[15]
[15] Exhibit T18, p 453.
Centrelink also wrote to Ms Tomlin on 28 April 2015 and 19 June 2015 requesting she update her family income estimate for the 2015/2016 financial year.[16] These letters set out that her income estimate was $16,946, her partner’s income estimate was $40,693, and noted ‘[i]f these estimates are accurate, you do not need to do anything’.
[16] Exhibit T18, pp 475-482.
On 1 September 2015, Centrelink sent Ms Tomlin a letter, ‘Your Centrelink Statement for Parenting Payment’.[17] This statement recorded the amount advised (combined taxable income) on 1 July 2015 for the 2015/2016 financial year for the family tax benefit estimate purposes was $57,639.
[17] Exhibit T18, pp 491-493.
Ms Tomlin contacted Centrelink by telephone on 22 September 2015 to advise her partner had commenced work with a new employer. She was then informed by a Centrelink staff member she had been overpaid parenting payment (partnered) since 24 May 2011 and subsequently had a debt because her partner’s income was not earnings coded for parenting payment (partnered).[18]
[18] Exhibit T20, p 516.
On 12 May 2016, at the request of a Centrelink authorised review officer, Ms Tomlin provided Centrelink with her partner’s payslips and PAYG certificates from 25 April 2011 to 14 September 2015.[19] On the basis of this information, Centrelink calculated that for the period of 24 May 2011 to 21 September 2015, Ms Tomlin was overpaid parenting payment (partnered) in the amount of $37,454.02.[20]
[19] Exhibit T11, pp 111-241.
[20] Exhibit T12, p 242.
RELEVANT LEGISLATION AND CONSIDERATION
The rate of parenting payment (partnered) is set out in section 1068B of the Social Security Act 1991 (the Act). Subsection 1068B(1) of the Act provides that if a person is a member of a couple, they are paid at the benefit parenting payment (partnered) rate. Subsection 1068B(2) provides that the benefit parenting payment (partnered) rate is worked out in accordance with the rate calculator in the section.
Module D of the rate calculator in section 1068B of the Act sets out the income test, which is used to determine a person’s rate of payment. Relevantly, section 1068B (Modules D22-D24) of the Act allow for partner income free area, partner income excess, and partner income reduction. ‘Income’ is defined in subsection 8(1) of the Act as an amount ‘earned, derived or received’ by a person for their ‘own use or benefit’.
Does Ms Tomlin have a debt for the period from 24 May 2011 to 21 September 2015?
On 12 May 2016, a Centrelink authorised review officer received the payslips and PAYG certificates of Ms Tomlin’s partner and requested a calculation of the amount of parenting payment (partnered) Ms Tomlin was paid and the amount she was entitled to for the period of 24 May 2011 to 21 September 2015.
I have had regard to the Centrelink debt calculations and am satisfied that Ms Tomlin was overpaid the amount of $37,454.02 for parenting payment (partnered) from 24 May 2011 to 21 September 2015.[21] Ms Tomlin does not dispute this debt calculation.[22]
[21] Exhibit T12.
[22] Respondent’s Statement of Facts and Contentions dated 18 September 2017, paras 22.1 and 22.2.
Subsection 1223(1) of the Act provides:
Debts arising from lack of qualification, overpayment etc.
(1)Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain the benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Based on the evidence before the Tribunal, I am satisfied that Ms Tomlin has a debt in the amount of $37,454.02 because she was overpaid parenting payment (partnered) for the period between 24 May 2011 and 21 September 2015.
Are there any grounds for writing off or waiving all or part of the debt?
Should the debt be written off?
Section 1236 of the Act provides, in part:
Secretary may write off debt
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(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)it is not cost effective for the Commonwealth to take action to recover the debt.
There is no evidence before the Tribunal to suggest that any of the conditions set out in subsection 1236(1A) are met. I am not satisfied that the debt should be written off.
Should the debt be waived by reason of ‘administrative error’?
Pursuant to section 1237A of the Act, a debt arising from error may be waived:
Waiver of debt arising from error
Administrative error
(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. [emphasis added]
In Secretary, Department of Family and Community Services v Sekhon,[23] Wilcox J stated:
However, it seems to me, the Tribunal failed to consider the significance of the inclusion, in s 1237A(1), of the word “solely”. For the subsection to have effect, the “proportion” of the debt – in this case, it is common ground, that would be the whole of it – must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes. [emphasis added] [24]
[23] [2003] FCA 76.
[24] Above, at [41].
Ms Tomlin’s legal representative submitted to the Tribunal that any debt Ms Tomlin accrued due to the overpayment of parenting payment (partnered) from 4 April 2013 to 21 September 2015 should be waived on the basis of administrative error.[25] The rationale for this submission is that, on 4 April 2013, Ms Tomlin advised Centrelink in her claim for family tax benefit and baby bonus that her partner’s income for 25 April 2013 to 25 October 2013 was $19,000 and his estimated income for 2012/2013 financial year was $39,000. Ms Tomlin thereafter advised Centrelink of estimates of her partner’s income on 1 July 2013, 1 July 2014 and 1 July 2015. Further, Ms Tomlin’s legal representative submitted at the Tribunal hearing Centrelink did not inform Ms Tomlin that her provision of details about her partner’s income to Centrelink for family tax benefit purposes would not also be applied to her parenting payments (partnered).
[25] Respondent’s Statement of Facts and Contentions dated 18 September 2017, paras 22.7 and 72.2.
The Secretary contended that Ms Tomlin was obliged to understand the different reporting requirements of the parenting payment (partnered) and the family tax benefit, and particularly she should have known about her requirement to inform Centrelink of her partner’s fortnightly income.[26] The Secretary conceded Ms Tomlin did not knowingly make a false statement or fail to comply with her obligations during the relevant period from 24 May 2011 to 21 September 2015.
[26] Secretary’s Statement of Facts and Contentions dated 28 July 2017, paras 21-56.
Both parties relied on previous Tribunal decisions to support their contentions. With respect, however, it is the unique facts of Ms Tomlin’s matter that need to be considered by the Tribunal in making this decision.
The Tribunal accepts that Centrelink uses different income tests to calculate the family tax benefit and the parenting payment (partnered) rate. The calculation of parenting payment (partnered) is set out in section 1068B of the Act, while the effect of adjusted taxable income on the payment of family tax benefit is outlined in Schedule 3 of A New Tax System (Family Assistance) Act 1999. In brief, parenting payments (partnered) are calculated on a fortnightly income test and family tax benefit is paid on an estimate of combined taxable income for the next financial year.
I also have regard to previous Tribunal decisions, which note that ‘Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment’.[27]
[27] Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115 [9]; Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451 [21].
The question before the Tribunal is whether and if so, for what period, Centrelink is solely responsible for any administrative error.
Based on the evidence, the Tribunal finds:
·Between 24 May 2011 and 21 September 2015, Centrelink did not notify Ms Tomlin in writing that she had different reporting obligations in relation to her partner’s income for the payment of family tax benefit and parenting payment (partnered).
·Centrelink wrote letters to Ms Tomlin on 24 May 2011, 30 May 2011 and 11 October 2011. Each of these letters contained an incorrect amount for her partner’s annual income and informed Ms Tomlin that she was obliged to advise Centrelink if her partner’s total personal income was over $808.00 a fortnight. Ms Tomlin did not fulfil this obligation and this was her error.
·Centrelink did not provide any letters to Ms Tomlin after 11 October 2011 that showed incorrect information about the fortnightly income earnings of her partner.
·The Centrelink documents contained in ‘Your Centrelink Payment’ dated 8 December 2011 included details of Ms Tomlin’s parenting payments (partnered) and outlined the amount advised (combined taxable income) on 1 July 2011 was $34,419 for the purpose of family tax benefit estimate.[28] (The Tribunal notes this is different to the amount set out in the Centrelink authorised review officer’s notes that were relied on in the SSCSD decision).[29] These documents also contain details about ‘earnings information’, ‘data matching’ and ‘automatic updates’, which indicate that information about income and assets provided to one government agency may be provided to Centrelink, and vice versa.
·Ms Tomlin complied with all reporting requirements set out in Centrelink documents sent to her from 8 December 2011 to 21 September 2015.
[28] Exhibit T18, p 400.
[29] See Exhibits T2, p 6 and T16, p 306.
After a forensic assessment of the Centrelink documents dated 8 December 2011 and summarised in paragraph 16, the Tribunal is not satisfied that Ms Tomlin – or any other person of reasonable mind – would be able to understand there are different reporting requirements for the income of a person’s partner for family tax benefit and parenting payment (partnered). Notably, there is no information in these documents that provides incorrect information about the fortnightly or annual income of Ms Tomlin’s partner that she was obliged to correct. Rather, these documents included information both about amounts of parenting payments (partnered) Ms Tomlin had received and the amount of combined taxable income for the purposes of family tax benefit estimate advised on 1 July 2011. By conflating information about the payment types of parenting payments (partnered) and family tax benefit, the information provided in the documents from Centrelink dated 8 December 2011 was not only confusing, but misleading. This was solely the administrative responsibility and error of Centrelink. Further, Centrelink did not provide Ms Tomlin with any written correspondence or statements from 8 December 2011 to 21 September 2015 that could have informed her – or any other person of reasonable mind – that Centrelink did not have the correct information required about her partner’s income to pay the correct amount of parenting payment (partnered).
Ms Tomlin erred in not responding to Centrelink’s letters dated 24 May 2011, 30 May 2011 and 11 October 2011. Consequently, the Tribunal is satisfied that, from 24 May 2011 to 7 December 2011, the overpayment of parenting payment (partnered) to Ms Tomlin was not attributable to sole administrative error by Centrelink. Although Centrelink made administrative errors during this period, such as incorrectly recording the income for Ms Tomlin’s partner, there is no evidence Centrelink was solely responsible for administrative errors until 8 December 2011.
For these reasons, I am satisfied that from 8 December 2011 to 21 September 2015, any overpayment of parenting payment (partnered) to Ms Tomlin is attributable solely to an administrative error made by Centrelink and should be waived in accordance with section 1237A of the Act.
Should the debt be waived by reason of ‘special circumstances’?
Section 1237AAD of the Act provides:
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 this Act, the Administration Act or the 1947 Act; 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.
In Groth v Secretary Department of Social Security,[30] the Federal Court said:
12The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss… it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied... [emphasis added]
[30] [1995] FCA 1708.
At the Tribunal hearing, Ms Tomin’s legal representative submitted that special circumstances should apply to this matter due to Ms Tomlin’s current personal, medical and financial situation, and administrative errors made by Centrelink. Ms Tomlin’s legal representative also requested the Tribunal consider the circumstances of her age; she was 18 years old in 2011 and is currently 24 years old.
In her written statement dated 20 September 2017, Ms Tomlin said the debt raised by Centrelink for the overpayment of parenting (partnered) payments has caused her ‘considerable stress and anxiety’.[32] Her mother, Ms Ceaser, told the Tribunal the process has adversely affected Ms Tomlin’s parenting due to her increased anxiety and the stress has led to the separation of Ms Tomlin’s marriage; Ms Tomlin’s partner left the family home in February 2017.
[32] Exhibit R5, para 23.
Ms Tomlin’s general practitioner, Dr Leon Goldstein provided letters dated 29 May 2017 and 30 May 2017. [33] Dr Goldstein confirmed he has treated Ms Tomlin for 21 years and noted that Ms Tomlin never previously presented with mental health issues but has recently exhibited symptoms of anxiety, depression and panic attacks. In May 2017, he referred her to a psychologist for counselling. A letter from Jane Breen (psychologist) provided to the Tribunal on 18 September 2017 confirmed Ms Tomlin has current symptoms of anxiety and depression, including excessive worry, due to the Centrelink debt.[34] Ms Breen also noted Ms Tomlin has a ‘number of protective factors including a strong extended family support network’.
[33] Exhibits R2 and R3.
[34] Exhibit R7.
Ms Tomlin also highlighted her financial stress at the Tribunal hearing. In a written statement dated 17 June 2017, she noted her fixed costs of rent, electricity and water, car and petrol, phone and internet, and costs associated with schooling, clothes and swimming lessons for her children. She also told the Tribunal she has debts to family members, who have loaned her money.
While I understand Ms Tomlin feels her current financial situation is stressful, I also note that she lives in a house that is next door to and owned (with a mortgage) by her parents. She pays her parents rent of $275 per week which contributes towards the mortgage. Ms Tomlin has not received child support payments from her partner since their separation in February 2017 but advised the Tribunal she is about to initiate a process to receive child support. She noted her partner has provided her money for particular items, such as swimming lessons and school excursions, when she has asked him. Centrelink is currently recovering the outstanding debt at an amount of $15 per fortnight, an amount that Ms Tomlin acknowledged she was able to pay.
Relying on section 6.7.3.40 of the Guide to Social Security Law (the Guide), Ms Tomlin’s legal representative noted that ‘taken in context, an administrative error may sometimes combine with other circumstances to create a situation that is, overall, special’.
As set out in my reasons at paragraphs 33 to 44 above, I am satisfied Centrelink is solely responsible for administrative errors made in relation to the overpayment of Ms Tomlin’s parenting payments (partnered) from 8 December 2011 to 21 September 2015.
The evidence is also clear that Centrelink has made administrative errors in relation to the reporting of the income of Ms Tomlin’s partner since 24 May 2011. This is because she verbally advised Centrelink that his income was about $800 per fortnight on 24 May 2011 but the letters sent to Ms Tomlin from Centrelink dated 24 May 2011, 30 May 2011 and 11 October 2011 showed her partner’s annual income as $0.00. However, these letters also clearly set out that Ms Tomlin must inform Centrelink if her partner’s income goes over $808.00 a fortnight – and she did not do this.
I note the following comment in the Guide at 6.7.3.40:
The integrity of the social security system relies on recovery of overpayments. In general, if a person has had the use and advantage of the money paid incorrectly to them and has the means to repay it without excessive hardship (e.g. through withholdings), they should do so. In such a case, special circumstances of waiver would be appropriate only if the person’s particular circumstances made it unjust for the general rule to apply. Their circumstances would need to distinguish their situation from that of the many other people who do have to repay their debts. [emphasis added]
I accept that Ms Tomlin has found the process of being informed she was overpaid parenting payment (partnered) and has a Centrelink debt to be extremely distressing and it has had a devastating impact on her marriage. Unfortunately, however, there is nothing which takes her situation out of the ‘usual or ordinary case’ and no occurrence that is ‘unfair, unintended or unjust’ that would support her experiencing ‘special circumstances’.
I am not satisfied that Ms Tomlin’s debt for the period of 24 May 2011 to 8 December 2011 should be waived due to special circumstances.
DECISION
The decision under review is set aside and in substitution, the Tribunal decides:
·Merinda Tomlin has a debt to the Commonwealth in the amount of $37,454.02 due to overpayment of parenting payment (partnered) for the period 24 May 2011 to 21 September 2015;
·the debt for the period 8 December 2011 to 21 September 2015 is waived pursuant to section 1237A of the Social Security Act 1991; and
·the remainder of the debt for the period 24 May 2011 to 7 December 2011 is recoverable by the Commonwealth.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
................................[sgd]........................................
Associate
Dated: 20 October 2017
Date of hearing: 20 September 2017 Solicitors for the Applicant: Mr D Shaw and Ms C Odgers, Welfare Rights Centre Solicitors for the Respondent: Dr S Thompson, Department of Human Services
[31] Above, at [12].
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