Tubic and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 13

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 13

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W2006/4

GENERAL ADMINISTRATIVE DIVISION		)
Re		RHONDA TUBIC

Applicant

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

Respondent

DECISION

Tribunal Ms L R Tovey, Member

Date11 January 2007

PlacePerth

Decision The decision of the Social Security Appeals Tribunal dated 6 December 2005 is affirmed.

..............[Sgd. L Tovey]..................

Member

CATCHWORDS

FAMILY ASSISTANCE – family tax benefit – overpayment – waiver of recovery of debt – special circumstances

A New Tax System (Family Assistance) Act 1999 (Cth) ss. 3, 58, Schedule 1 clauses 3, 13.

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 3, 71, 94, 97, 101

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

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

Brown v Secretary, Department of Family and Community Services [1999] AATA 113

Castle v Secretary, Department of Employment, Training and Youth Affairs [1999] AATA 176

Dranichnikov v Centrelink (2003) 75 ALD 134; [2003] FCAFC 133

Re Fuller and Secretary, Department of Family and Community Services (2004) 83 ALD 152; [2004] AATA 615

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Kertland v Secretary, Department of Family and Community Services (1999) 95 FCR 64

Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281

Re Reardon and Secretary, Department of Family and Community Services [2002] AATA 33

Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

Secretary, Department of Family and Community Services v Allan (2001) 116 FCR 1

Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348

REASONS FOR DECISION

11 January 2007 Ms LR Tovey, Member

1.      This is an application for review instituted by Mrs Rhonda Tubic ("the Applicant") in respect of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 6 December 2005.  The decision related to an overpayment of Family Tax Benefits ("FTB") for the 2004/2005 financial year. 

BACKGROUND

2.      On 21 June 2005 the delegate of the Respondent received a claim for FTB for the 2004/2005 financial year, which had been signed by the Applicant and her husband on 20 June 2005 ("the Claim Form").  In that form the Applicant indicated that she was married and identified one dependant child, who was 19 at that time. The Claim Form contains estimates of the income of the Applicant, her husband and their dependant child for the 2004/2005 financial year. 

3.      Part of the Claim Form required the Applicant to elect whether to receive FTB payments fortnightly or as a lump sum payment after the end of the financial year.  The Claim Form was initially completed to elect an annual payment, but has been altered to request fortnightly payments.  The manner in which that alteration to the Claim Form came about is considered in greater detail below.

4.      By letter to the Applicant dated 22 June 2005 the Respondent's delegate advised the Applicant of the assessment of her FTB.  That letter indicated that the Applicant would be paid $99.84 in FTB for the 2003/2004 financial year and $887.04 in FBT for the period 1 July 2004 to 17 June 2005, being a total of $986.88.  It also indicated that a regular payment of $59.36 would be made from 19 July 2005.  The amount of those payments had been calculated by the Respondent based on the estimates of income provided in the Claim Form for the 2004/2005 financial year.

5.      The Applicant had previously lodged a claim for FTB for the 2003/2004 financial year, initially electing to receive fortnightly payments.  Some payments of FTB, the full details of which are not apparent on the material before me, were made for the 2003/2004 financial year.  The amount of $99.84 noted above was a reconciliation of the Applicant's FTB entitlement for the 2003/2004 financial year.  The balance of the payment referred to in the letter of 22 June 2005 related to the 2004/2005 financial year.

6.      On 10 August 2005 the Respondent's delegate reconciled the Applicant's FTB payments for the 2004/2005 financial year, and determined that the Applicant's family income was greater than had been estimated in the Claim Form.  The result was that the Applicant had been overpaid $919.80 in FTB for the 2004/2005 financial year.

7.      By letter dated 19 August 2005 the Respondent's delegate advised the Applicant of the overpayment.  The letter indicated that, after $712.00 in "ATO repayments", a balance of $207.80 remained payable.  The amount of that outstanding balance has subsequently been repaid.

8.      On 20 October 2005 an Authorised Review Officer of the Respondent affirmed the decision to raise and recover the debt.  The Applicant then sought a review of the decision by the SSAT which, on 6 December 2005, affirmed the decision.  The Applicant now seeks a review of the decision by this Tribunal.

LEGISLATION

9.      Provision for FTB is made by the A New Tax System (Family Assistance) Act 1999 (Cth) ("the Act") and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ("the Administration Act").

10. It is not in dispute that the Applicant was entitled to receive FTB for the 2004/2005 financial year. Under s. 58(1) of the Act, the rate of FTB is calculated in accordance with the rate calculator in Schedule 1 to the Act. One of the factors which influences the rate of FTB to which a person is entitled is the adjusted taxable income of the person and their spouse.

11.     Under s. 7 of the Administration Act, a person may make a claim for FTB either by instalment or in respect of a past period.  Sections 13, 16 and 17 of the Administration Act provide for the Secretary to determine that claim when it is made in the form required by s. 7(2) of the Administration Act.  Section 20 of the Administration Act allows the Respondent to determine the person's eligibility for, and the applicable rate of, FTB based on an estimate of the person's adjusted taxable income made by the person.  Section 105 of the Administration Act provides for the Respondent to review those decisions when satisfied that there is sufficient reason to do so.

12. Section 71(2) of the Administration Act provides that:

"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."

13.      Section 87 of the Administration Act provides for the whole or part of a tax refund due to a person to be applied to the debt.  I understand that the reference to "ATO repayments" in the Respondent's letter of 19 August 2005 is to recovery by this means.

14. The applicable waiver provisions are those found in Part 4 Division 4 of the Administration Act. Section 97 of the Administration Act, in that Division, provides:

"(1)     The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.

(2)       The Secretary must waive the administrative error proportion of a debt if:

(a)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and

(b)the person would suffer severe financial hardship if it were not waived.

(3)       The Secretary must waive the administrative error proportion of a debt if:

(a)the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and

(b)the debt is raised after the end of:

(i)the debtor’s next income year after the one in which the eligibility period or event occurs; or

(ii)the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;

whichever ends last; and

(c)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.

(4)For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt."

15. Section 101 of the Administration Act, also in that Division, provides:

"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."

ISSUES

16. As noted above, it was common ground before me that the amount of $919.80 did represent an overpayment of FTB to the Applicant for the 2004/2005 financial year. That would result in the Applicant owing a debt of that amount to the Commonwealth pursuant to s. 71(2) of the Administration Act.

17. It was also common ground before me that the Applicant would not suffer severe financial hardship if the debt were not waived, so that the debt cannot be waived under s. 97(1) and (2) of the Administration Act. It is also clear that, at the time when the Respondent's delegate raised the debt, s. 97(3) of the Administration Act was not applicable and that none of the criteria for writing off a debt under s. 95 of the Administration Act are satisfied.

18. Further, the Respondent has conceded that the debt did not result wholly or partly from the Applicant or another person making a false statement or a false representation, or failing or omitting to comply with a provision of the family assistance law. On the basis of the Respondent's concession, and on the evidence before me, I am satisfied that the requirements of s. 101(a) and (c) of the Administration Act are satisfied.

19. In that context the only issue for me to determine is whether there are special circumstances (other than financial hardship alone) that make it desirable to waive the whole or part of the debt and, if so, whether I should exercise my discretion to waive the debt under s. 101 of the Administration Act.

CONSIDERATION OF THE ISSUES

Applicable Principles

20. Section 101(b) of the Administration Act requires that I be satisfied that there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt.

21. The term "special circumstances" is not defined by the Administration Act, and the approach of the Tribunal and the Federal Court in a large number of cases has been to regard the matters to which the Tribunal may have regard when considering whether special circumstances exist as unconfined. Although it dealt with a somewhat different provision to s. 101 of the Administration Act, the following passage from the decision of this Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 is often cited in this kind of context:

"An expression such as 'special circumstances' is by its 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 context which allows one to say that the circumstances of one case are markedly different from the usual run of cases.  That is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be regarded as special".

22.     The decision of the Tribunal in Beadle was affirmed by the Full Court of the Federal Court on appeal: (1985) 7 ALD 670. While the Court recognised that it was not possible to lay down precise rules as to what constituted special circumstances, the expression "unusual, uncommon or exceptional" was not, as Hill J noted in Dranichnikov v Centrelink (2003) 75 ALD 134; [2003] FCAFC 133 at [65], actually affirmed by the Full Court.

23.     In Secretary, Department of Family and Community Services v Allan (2001) 116 FCR 1 at [17] Heerey J said, in the context of the statutory predecessor to s. 1184K of the Social Security Act1991 (Cth):

"It is not sensible to lay down precise limits or precise rules about what may constitute special circumstances: Beadle v Director-General of Social Security 7 ALD 670 at 673; 60 ALR 225 at 228. Ill health financial circumstances and the unfairness of a strict application of the Act are some matters which may in an individual case, constitute special circumstances Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281 at 284, 288; see also Kertland v Secretary, Department of Family and Community Services (1999) 95 FCR 64 at 71."

24.     Similarly, in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 Kiefel J said, in a passage she again adopted in Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348 at [19]:

"The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle's case (at ALR 229 ; ALD 674), and for present purposes 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."

25.     In Re Fuller and Secretary, Department of Family and Community Services (2004) 83 ALD 152; [2004] AATA 615 at [27] Downes J expressed the view that both hardship and unfairness can form the basis of exercising the discretion, in the context of s. 1184K of the Social Security Act.

26.     The above comments reflect the approach that was taken in Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 in the context of s. 1237AAD of the Social Security Act, which is in materially the same terms as s. 101 of the Administration Act.

27. The only limitation apparent from s. 101(b) of the Administration Act is that the special circumstances are not constituted by financial hardship alone. That, of course, does not make financial hardship irrelevant if there are other factors which suggest that there are special circumstances.

28.     In some cases special circumstances can arise in whole or part from the manner in which the Applicant or the Applicant's delegates administer the relevant legislation.  This was the case in Re Reardon and Secretary, Department of Family and Community Services [2002] AATA 33. In that case the Tribunal had regard, in the context of s. 1237AAD of the Social Security Act, to the administrative error which caused the debt to arise when determining that there were special circumstances that made it desirable to waive half the debt.

29.     The decisions of the Tribunal in Brown v Secretary, Department of Family and Community Services [1999] AATA 113 and Castle v Secretary, Department of Employment, Training and Youth Affairs [1999] AATA 176, referred to in the submissions of the Applicant, also recognise that administrative error by the Commonwealth's officers can be taken into account in determining whether there are special circumstances that make it desirable to waive a debt. However, in both of those cases, and in Reardon, the relevant administrative error was only one of a combination of factors which led the Tribunal to consider that there were special circumstances that made it desirable to waive the relevant debt.  In contrast to those cases, in the present case the Applicant has expressly confined her reliance to the administrative errors of the Respondent's delegates as giving rise to special circumstances which make it desirable to waive the debt.

30. I do not exclude the possibility that there might be cases where administrative error, taken alone, will give rise to special circumstances which make it desirable to waive a debt under s. 101 of the Administration Act. However, waiver under s. 101 of the Administration Act will not necessarily be appropriate in all circumstances in which administrative error causes or contributes to a debt being incurred. There must be something in the administrative error that gives rise to what may be properly regarded as special circumstances. In that regard it should be noted that the experience of the Tribunal has been that administrative error by the Respondent's delegates is, unfortunately, far from unusual. More importantly, where special circumstances arise from administrative error of the Commonwealth, there must be something about the administrative error that makes it desirable to waive the debt. Often that will involve some unfairness or hardship to the person who received the payment if repayment were to be required.

The Applicant's Case

31. As noted above, the Applicant does not contend that her personal or other circumstances, or financial hardship which would result from recovery of the debt, give rise to any special circumstances which would engage s. 101(b) of the Administration Act. Rather, the Applicant points to an alleged failure by the Respondent's delegates to properly administer the relevant legislation and contends that this failure caused the debt to be incurred. The manner in which the debt was incurred was said to constitute special circumstances which make it desirable to waive the whole of the debt.

32.     The Applicant's case focuses to a large extent on the manner in which she came to receive payments for the 2004/2005 financial year prior to the conclusion of that financial year.  It is appropriate to begin by addressing that issue.

Modifications to the Claim Form

33.     The Applicant's husband was the person who primarily dealt with the claim on behalf of the Applicant.  He gave evidence before me that he and his wife had incurred overpayments of FTB prior to the 2004/2005 financial year and, when he submitted the claim form for that year, wanted to ensure that the assessment would be done after his and his wife's tax returns had been lodged.  He said that he therefore elected in the Claim Form to receive a lump sum payment, and completed the form placing crosses at the appropriate points in answer to questions 24-26, which asked the Applicant to elect to receive payments either by instalments or as a lump sum after the end of the financial year.

34.     The evidence of the Applicant's husband was that the reason for lodging the Claim Form at this time was to ensure that his wife received her FTB for the 2003/2004 financial year.  His evidence was that he had been informed by Centrelink when he rang them that there was a one year window for making a claim for that year.  He therefore wanted to lodge the form prior to the end of the 2004/2005 financial year, and thought that it would constitute a retrospective claim for the balance of the 2003/2004 FBT entitlement of the Applicant.  Whether or not this is a correct statement of the legal position, it was the Applicant's understanding of the position following his telephone conversations with Centrelink and explains his motivation for lodging the Claim Form.

35.     The Applicant's husband said that he personally delivered the Claim Form to Centrelink's office at Victoria Avenue in Perth and gave the form to Lisa Arnot, an officer of Centrelink.  The Applicant's husband said that he explained to Ms Arnot the problems he had in the past regarding overpayments and the fact that the Applicant didn’t want an overpayment so the form was completed "as a lump sum payment".

36.     The Applicant's husband also gave evidence that he indicated to Ms Arnot that the Applicant had received letters from Centrelink talking about a "$600 one-off family payment" and he wasn't sure whether the Applicant was entitled to that payment.  A letter from the Family Assistance office to the Applicant dated 2 September 2004, referring to the $600 per child FTB Part A supplement, was produced before me.

37.     The evidence of the Applicant's husband was that Ms Arnot asked him a number of questions about whether he and the Applicant owned their own home and in relation to the income of their dependant child.  The Applicant's husband said that the time spent with Ms Arnot was 5 minutes or less, and that the Claim Form was taken by Ms Arnot at that time.

38.     The Applicant's husband firmly denied making the alterations to the answers to questions 24-26 on the Claim Form, or asking for those alterations to be made.  He noted that the changes were not initialled and said that, had he made the changes, he would have initialled the changes.  The Applicant gave evidence that he was a contract manager and contract developer by profession and understood that changes made to a legal form needed to be signed or initialled.

39.     The Applicant's evidence was that her husband gave her the Claim Form, which he had completed, prior to the lodgement of that form with Centrelink.  She read the Claim Form and, being satisfied that it was correct, signed it.  She gave evidence to the effect that the changes to the answers to questions 24-26 on the Claim Form had not been made when she signed the form.  She said that had two answers to a question been filled out, with one crossed out, she would have asked her husband why that had been done.

40.     Ms Arnot also gave evidence before me.  Understandably, she does not recall receiving the Claim Form from the Applicant's husband.  However, she gave evidence of her general practice when receiving forms of that kind.  She said that her usual practice was to check that the questions on the form have all been answered and to answer any queries the customer may have.  Her evidence was that:

"I never change forms on behalf of customers.  If after discussing issues/options with them they wish to change an answer/option, I ask them to change it and then initial the change.  It may be that I was busy that day and forgot to ask Mr Tubic to initial the changes, but I would have no reason to change them on his behalf once he had left".

41.     Carol Daly, another Centrelink Officer from the team which processed the Claim Form, also gave evidence before me.  She said:

"I don't remember processing Mrs Tubic's claim for Family Tax Benefit, as I deal with hundreds of forms per year and do not remember this particular one.

The usual procedure for dealing with unsigned alterations on claim forms is to either send out a copy of the relevant page(s) and ask for the changes to be initialled, or to ring the customer for clarification and record a note on their file.  I have never and would never alter a customer's form myself."

However, Ms Daly's evidence was that she may have thought that the alterations of the kind made to the answers to questions 24 to 26 on the Claim Form sufficiently indicated the Applicant's intentions, so that no further clarification was required.

42.     I find that the alterations to the answers to questions 24-26 on the Claim Form were made by an officer of Centrelink after the Applicant's husband lodged the Claim Form with Centrelink.  That alteration was made to the Claim Form without the authority of either the Applicant or her husband.  I find that the Claim Form as lodged by the Applicant's husband on behalf of the Applicant was, and was intended by them to be, a claim for a lump sum payment for the 2004/2005 financial year to be assessed after the end of that financial year.

43.     I make that finding for a number of reasons.

44.     Firstly, the alteration to the question has been made in a different pen from that used to complete the balance of the form, and uses a tick to answer the questions.  The Applicant's husband had used crosses to answer questions when completing the form.

45.     Secondly, the Applicant's husband was categorical in saying that he did not make the alterations.  Further, for him to have done so would have been inconsistent with his purpose in lodging the form, which was to ensure his wife received her full entitlement for the 2003/2004 financial year, while avoiding an overpayment in the 2004/2005 year by making a claim for a lump sum payment to be assessed after the end of that financial year.  Given that purpose, it is unlikely that the Applicant's husband would have made the alterations.

46.     Thirdly, the evidence of the Applicant's husband is supported by the evidence of the Applicant, which I accept, that the changes had not been made when she signed the Claim Form.

47.     Fourthly, if the changes had been made by the Applicant or her husband at or prior to the time when the Claim Form was lodged, it is likely that the changes would have been initialled.  That would have been the usual practice of both the Applicant and Ms Arnot.  The fact that the changes were not initialled counts against their having been made at or prior to the time the Claim Form was lodged.

48.     Finally, the evidence of the Applicant and her husband that the alterations had not been made at or prior to the time the form was lodged is not directly contradicted by the evidence of any witness called by the Respondent.  None of the relevant Centrelink officers have any recollection of receiving or processing the form.  Given the passage of time, and the number of applications with which each officer deals, that is entirely understandable.  However, the result is that the evidence of Ms Arnot and Ms Daley largely consists of speculation as to what they think would or might have happened.  I do note that, in any event, Ms Arnot accepted in her evidence that it was possible the changes could have been done after she had seen the Claim Form.

49.     The material before me does not enable me to reach any conclusion as to the identity of the Centrelink officer who made the alterations, or the circumstances in which those alterations were made.  Nor do I consider that the answers to those questions would significantly affect my consideration of the issue of whether to waive the whole or part of the debt.  For that purpose it is sufficient to note that the Applicant applied for her FBT entitlement for the 2004/2005 financial year to be assessed after the end of that financial year.  Had the application been dealt with in that manner, there would have been no overpayment.  In my view, the application was not dealt with in that manner because a change was made to the answers to questions 24-26 on the Claim Form by a Centrelink officer acting without the authority of either the Applicant or her husband.  That was a significant departure from the manner in which the Claim Form should have been dealt with, in accordance with the relevant legislation and the Respondent's administrative procedures.

50.     In the hearing before me there was considerable debate as to whether certain procedures had the status of a "must do" for the purposes of documents describing Centerlink work practices.  I do not find it necessary to resolve that debate, as I have found that the alteration of the Claim Form without the authority of the Applicant was a significant departure from proper procedures.

Advice to the Applicant Following the Assessment

51.     As I have noted above, the Claim Form was submitted to Centrelink on 21 June 2005, and the assessment of the amount of the Applicant's FBT entitlement was made on 22 June 2005.  A letter advising of the details of the assessment was sent to the Applicant on that day.

52.     I find that that letter does clearly indicate that the amount of $968.88, which was to be paid to the Applicant, included an amount in respect of FTB for the 2004/2005 financial year, as well as an amount in respect of the 2003/2004 financial year.  I note that the letter does refer only to the 2003/2004 financial year in its headings, but the text under those headings makes it clear that a lump sum payment of $887.04 was being made for the period 1 July 2004 to 17 June 2005 and in respect of the 2004/2005 financial year.  That text also clearly indicates that a regular payment of $59.36 would be made from payday 19 July 2005 for the 2004/2005 financial year.  I have been provided with a copy of the letter in the format in which it was sent to the Applicant, and it sets out the details of the payments in a readily comprehensible form.  Therefore, I find that a reasonable person, particularly a person in the position of the Applicant's husband, on reading that letter ought to have appreciated that the payment of FTB was being made for the 2004/2005 financial year.

53.     The evidence of the Applicant was that, having received the letter from Centrelink, she told her husband that the payment looked high and she wanted him to check it out so that they wouldn’t get an overpayment like they had in the past.  She said that she left it to her husband to check with Centrelink to make sure that payment was correct.  She could not recall subsequently discussing the results of these inquiries with her husband.

54.     The evidence of the Applicant's husband was that he found the letter to be confusing and thought that it couldn't encompass the 2004/2005 financial year because that was to be a lump sum payment.  As a result, he called the Centrelink call centre and spoke to a lady called Irene.  He said Irene assured him that the payment was for the 2003/2004 financial year and did include a $600 one off family payment.  He said that he told Irene that they had lodged the Claim Form based on retrospective payments for 2003/2004 and a lump sum payment for 2004/2005.  He said he gave Irene a lot of information, and the call lasted for some 26 minutes.  He said that he accepted the payment based on Irene's advice and was not aware of any problem until the Applicant's income tax assessment came back from the Australian Taxation Office and approximately $700 had been taken out to repay the debt.

55.     The call centre officer of Centrelink with whom the Applicant's husband spoke, Ms Irene Martin, also gave evidence before me.  She accepts that she spoke to the Applicant's husband on 1 July 2005 but says that she does not remember talking to him "because it is some time ago and a I talk to a lot of customers each day".  Centrelink has not retained any record of the detail of that conversation.  The evidence of Ms Martin therefore consisted of supposition as to what she would and would not have told the Applicant's husband based on the documents which she now had.

56.     On the above evidence I make the following findings.  I find that the Applicant did not have any subjective belief as to the period to which the payment advised by Centrelink's letter of 22 June 2005 related, as she left it to husband to check the correctness of the payment.  I find that the Applicant's husband telephoned Centrelink's call centre on 1 July 2005 and left a conversation with Ms Martin with the subjective understanding that the payments referred to in Centrelink's letter of 22 June 2005 all related to the 2003/2004 financial year.  In the absence of any contrary evidence or Centrelink record of the conversation, I accept the evidence of the Applicant's husband that Ms Martin misinformed him as to the period to which the payment related.  However, I find that the terms of the letter of 22 June 2005 did clearly state that some of the payments identified in that letter related to the 2004/2005 financial year.

Conclusion as to Special Circumstances.

57. Taking all of the circumstances of the present case into account, I am unable to find special circumstances which make it desirable to waive the whole or any part of the debt under s. 101 of the Administration Act.

58.     For the reasons indicated above, I accept that the overpayment would not have arisen if the application has been treated, as it should have been, as a claim for a lump sum payment for the 2004/2005 financial year.  To that extent, the debt is a consequence of administrative error by the Commonwealth.  I also accept that, on 1 July 2005, the Applicant's husband was misinformed as to the period to which the payments identified in Centrelink's letter of 22 June 2005 related.

59.     However, the terms of the letter of 22 June 2005 did, in my view, clearly indicate that the payments to be made to the Applicant related to the 2004/2005 financial year.  Having received and read that letter, the Applicant ought to have appreciated that there was a risk that she would need to repay some or all of that amount.  The Applicant was, in any event, in a position to repay the debt without significant financial hardship.  I do not regard the administrative errors by the Respondent's delegates as making it unfair to require the Applicant to repay a sum that she received, but to which she was not entitled.  While there were a number of administrative errors made I do not regard those errors as productive of either unfairness, hardship or any unusual or unintended consequence if repayment is to be required.  In all of the circumstances, I do not regard the administrative errors to be as such to themselves constitute special circumstances that make it desirable to waive the debt.

60. It follows that I do not consider that the debt, or any part of the debt, ought to be waived under s. 101 of the Administration Act.

DECISION

61.     For the above reasons, the decision of the SSAT dated 6 December 2005 is affirmed.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member

Signed:         ............[Sgd. Y Maker].............
  Associate

Date of Hearing  9 August 2006
Date of Decision  11 January 2007
Representative for the Applicant              Mr A Tubic

Representative for the Respondent         Ms M Conlon

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