Van Miltenburg; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1389

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1389

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/622

GENERAL  ADMINISTRATIVE   DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And JACQUELINE NICOLE VAN MILTENBURG

Respondent

DECISION

Tribunal Regina Perton, Member

Date31 May 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that Ms Van Miltenburg owes a debt to the Commonwealth of $12,904.13. 

(sgd) Regina Perton

Member

SOCIAL SECURITY – parenting payment (single) ‑ overpayment ‑ debt to Commonwealth ‑ waiver – whether sole administrative error - whether special circumstances exist – decision set aside

Social Security Act 1991 ss 8(1), 1237A, 1237AAD

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

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

REASONS FOR DECISION

31 May 2007 Regina Perton, Melbourne

1.      Jacqueline Nicole Van Miltenburg is a single mother of four.  She has been receiving parenting payment (single) (PPS) since April 1998. Centrelink, which delivers services for the Department of Employment and Workplace Relations (the Department), has determined that Ms Van Miltenburg was overpaid PPS and that, as a result,  she owes a debt to the Commonwealth totalling $12,904.13.  The debt arose as the result of overpayment of PPS during three periods between September 1999 and September 2004. 

2.      Like others who rely on a social security benefit for income support, Ms Van Miltenburg is allowed to earn a limited amount of extra income without it affecting her rate of payment.  However, once earnings exceed a specified amount, the rate of PPS is reduced.  Centrelink informs recipients that they are required to advise the agency within 14 days when there are specified changes of circumstances.  These changes include increases or decreases in income.  

3.      For most of the time between April 1998 and September 2004, Ms Van Miltenburg worked at a veterinary clinic for around 25 hours per week, initially on a casual basis and then later as permanent part-time.  She also received maintenance payments during that period.  She worked until two weeks before the birth of her fourth child in July 1998 and then took about a year off.  She informed Centrelink frequently of changes in circumstances, including taking time off when her children were sick. She believes that she informed Centrelink of all relevant changes.  Centrelink disagrees that it was kept informed of all changes on a regular basis within the stipulated timelines. 

4.      Ms Van Miltenburg sought review of the decision by the Social Security Appeals Tribunal (SSAT).  The SSAT decided that the amount of the overpayment was correct but the total debt should be waived due to special circumstances. The Secretary to the Department of Employment and Workplace Relations (the Secretary) now seeks a review of the decision of the SSAT. 

5.      The issues before the Tribunal are whether Ms Van Miltenburg owes a debt to the Commonwealth because of the overpayments; and, if so, whether the debt should be waived because of administrative error or special circumstances.

Is there a Debt to the Commonwealth?

6.      The overpayments arose because the gross amount of ordinary income declared by Ms Van Miltenburg was higher than that recorded by Centrelink in its records.   Ordinary income is defined in s 8(1) of the Social Security Act 1991 (the Act) to exclude maintenance income, but includes income received from work.  The Tribunal is satisfied that the under-reporting of her income was not a deliberate action on the part of Ms Van Miltenburg.  However, regardless of the circumstances that led to the overpayments, the amount overpaid is a debt owed to the Commonwealth pursuant to s 1223(1) of the Act.  The calculations of the amount of the debt by Centrelink are complex.  The formula is based on each fortnight’s actual payments of PPS, income and notional entitlement based on that income.  Ms Van Miltenburg did not dispute the calculations pointing out that she is not in a position to do so.   

7.      It has been calculated that Ms Van Miltenburg was overpaid PPS of $2,429.82 between 12 September 1999 and 26 September 2000; of $9,093.92 between 26 September 2001 and 26 August 2003; and of $1,380.39 between 27 August 2003 and 21 September 2004.  The Tribunal has no reason to doubt that the calculations are correct. The Tribunal finds that Ms Van Miltenburg has a debt to the Commonwealth of $12,904.13. 

Should the Debt be Waived due to Administrative Error? 

8. Section 1237A(1) of the Act provides for waiver of a debt arising solely from administrative error:

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.

Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

9.      Centrelink sent numerous letters to Ms Van Miltenburg in which it cited her annual income and reminded her of the need to keep it informed of changes.  It is unfortunate that the income figures in the letters were expressed in annual amounts rather than fortnightly or weekly figures.  It can be difficult to relate an annual figure to casual or part-time income earned on a weekly basis.  Furthermore, Ms Van Miltenburg gave evidence that she was paid in cash and was not provided with payslips. 

10.     There are numerous Centrelink records showing that Ms Van Miltenburg contacted Centrelink when she stopped working for short or long periods, many of which are described below.

11.     Ms Van Miltenburg commenced receipt of PPS on 2 April 1998.  At that time she was pregnant with her fourth child.  She was working at a veterinary clinic for 25 hours per week.  Following a telephone call from Ms Van Miltenburg on 24 April 1998 to advise of a change of circumstances, Centrelink wrote to Ms Van Miltenburg on 29 April 1998 to inform her that her rate of parenting payment had increased.  In the letter, Centrelink stated that her rate of PPS was based on an annual income of $15,600.00.  She was also informed that she must inform Centrelink within 14 days if her income increased or if she started or recommenced work.  On 22 May 1998, Ms Van Miltenburg informed Centrelink that while her weekly income was usually $300, she had earned $282 for that week only.  She also informed Centrelink of a change of address.  On 27 May 1998, Centrelink wrote to Ms Van Miltenburg informing her of a change in her rate of PPS.  The income on which her PPS payments were now based was recorded as $15,524.38.  She was reminded of the need to inform Centrelink within 14 days if there were changes to her rate of income or if she stopped work.   On 16 June 1998, Ms Van Miltenburg contacted Centrelink to update her earnings at the veterinary clinic as she had not worked for one week.  Centrelink wrote to her on 17 June 1998 to inform her of an increase in the amount of PPS received, which was now based on earnings of $14,620.18 per annum.   On 15 July 1998, Ms Van Miltenburg informed Centrelink that she had stopped working at the veterinary clinic on 10 July 1998 as her child was due on 24 July 1998.   Centrelink noted Ms Van Miltenburg’s income as nil and restored her to the full rate of PPS.  At that time, Ms Van Miltenburg told Centrelink that she did not plan to work again for another 12 months.  Centrelink wrote to Ms Van Miltenburg on 16 July 1998 to confirm an increase in PPS and advised her of the need to update Centrelink if she recommenced work. 

12.     Almost a year later, on 12 July 1999, Ms Van Miltenburg contacted Centrelink to check on the impact of any income she earned on her rate of PPS.  She was informed that she was on the maximum rate of PPS and that she could earn $196 gross per fortnight before there was an impact on the rate of payment of PPS.  On 16 July 1999, Centrelink wrote to Ms Van Miltenburg providing her with an Income and Assets statement at her request.   The income recorded was $3,347.52 per annum, being maintenance payments, which are not counted as income for the purposes of PPS.   

13.     On 30 November 1999, Centrelink wrote to Ms Van Miltenburg informing her of the amount of PPS she was paid.  She was reminded of the requirement to let Centrelink know within 14 days if she recommenced work or if the income shown in the letter was incorrect.  There was no amount cited in the letter as to what income figure was being used by Centrelink.   

14.     On 7 December 1999, Centrelink sent Ms Van Miltenburg an Income and Assets Statement, at her request.  Presumably this followed Ms Van Miltenburg contacting Centrelink but the Tribunal could not locate a record of the telephone call or personal attendance that resulted in the preparation of that statement.  In Centrelink’s statement, Ms Van Miltenburg was advised that her income was recorded as $8,912.12 per annum being maintenance payments.  Ms Van Miltenburg was advised that she was on the maximum rate of PPS.

15.     A Centrelink record dated 10 January 2000 indicated that Ms Van Miltenburg had telephoned Centrelink on 12 November 1999 to advise that she had recommenced work.  The note stated:

…earnings not recorded at that time so have now updated them - $350pw client to fax thru confirmation of wages tomorrow investigation needed re o/p…

16.     Another Centrelink record dated 10 January 2000 states:

…Clt been working & rec full pps.  Clt rang abt a simple inquiry when I noticed rec pps $371.90 and clt talking abt wking since July rec $300 p/wk.  Clt believes she adv office of this wk and wishes to discuss the matter with a senior cso.  Clt very vocal towards me and Centrelink in general.  I adv clt wld incur an o/p.  Pls call clt to discuss after 2:30 pm…

…

Spoke to client re wages and advised investigation re o/p.

17.     Centrelink wrote to Ms Van Miltenburg on 10 January 2000 to inform her of a reduced level of PPS.  She was advised that the rate of income Centrelink was using to calculate the rate of PPS was now $18,200 per annum.  Ms Van Miltenburg was advised of the need to inform Centrelink if her rate of income, excluding maintenance payments, increased to more than the amount specified.  A Centrelink record dated 13 January 2000 indicated that the veterinary clinic had provided a letter to it indicating that Ms Van Miltenburg was paid $358 per week.  A note dated 5 April 2000 indicated that Ms Van Miltenburg advised Centrelink that day that her income was still the same as advised previously. 

18.     On 25 May 2000, Ms Van Miltenburg telephoned Centrelink to advise that she had not worked since 23 May 2000 as her children were sick.  She stated that she thought she would return to work on 29 May 2000 but the Centrelink officer informed her that she should call back to update Centrelink on the day she returned to work.  On 25 May 2000, Centrelink sent a letter informing Ms Van Miltenburg of a higher rate of payment for the next fortnight.  She was reminded of the requirement to notify Centrelink if she recommenced work or if her income increases.  There was nothing in the letter to indicate the income level on which the payment was based.  

19.     On 29 May 2000, Ms Van Miltenburg rang Centrelink saying she would be returning to work that week.   She contacted Centrelink on 5 June 2000 and 13 June 2000 to inform the agency of changes to her income.  On 13 June 2000, Centrelink wrote to Ms Van Miltenburg stating that her PPS payments were based on an annual income of $9,100.00 with the usual advice that she must inform Centrelink if her income from sources other than maintenance or financial investments increases.  Ms Van Miltenburg contacted Centrelink on 6 July 2000 to advise of her income in the week ending 22 June 2000.  The Centrelink record states that she was still not well and that she would be back to normal earnings the following fortnight.  Ms Van Miltenburg contacted Centrelink again on 21 July 2000 regarding her previous fortnight’s earnings.   After the contact, Centrelink wrote to her to inform her of that fortnight’s rate of earnings and that she needed to advise Centrelink if her income, not including maintenance, exceeded $14,622.40 per annum.  On 11 August 2000, Ms Van Miltenburg contacted Centrelink to inform them of her fortnightly earnings.  Centrelink’s letter to her cited an annual income of $13,538.20 with the usual instructions regarding the requirements to notify Centrelink of an increase in income.  Ms Van Miltenburg contacted Centrelink again on 29 August 2000 with advice of her lower earnings that fortnight.  Her next call to Centrelink was on 14 September 2000 to advise of her earnings to 8 September 2000 and to inform Centrelink she would be on holidays for the next fortnight and would not earn anything.  Centrelink wrote to her on 14 September 2000 to advise her of the rate of PPS and the letter included the standard clauses of the requirement to advise of change of circumstances. 

20.     A Centrelink record dated 4 October 2000 concerning Ms Van Miltenburg’s earnings from the veterinary clinic states:

There has been some confusion recently regarding these earnings, in the past Jacqueline has advised her weekly wage and did not know that she could have her eans reassessed if it was less.  Since she found this out she has been ringing with her fortnightly wages but there has been no pattern to how they were recorded.  She has taken two weeks off work and is now returning.  Her regular hours are 25 hours per week, 5 hours per day Monday to Friday, @ $14 per hour $350 per week.  The gross wage on her pay slip includes a uniform allowance which is not included in the assessment.  Jacqueline has returned to work on 3/10/00 and will be working her set wage.  The only reason she will not work is if the children are sick and she will advise us of this.  Eans restated at $350 per week.

21.     On 4 October 2000, Centrelink sent Ms Van Miltenburg a letter with the usual reminders of the requirement to advise it of changes to her income.  Ms Van Miltenburg’s income on which PPS was based was recorded as $18,200.00 per annum.   

22.     On 28 December 2000, Ms Van Miltenburg contacted Centrelink to advise that she normally worked each weekday but was not paid for public holidays.   Her PPS was adjusted for that fortnight and she was paid the advance she had sought.   Centrelink sent her a letter on that day advising her that her payment was based on an annual income of $18,200.07. The letter contained the standard instruction of the requirement to let Centrelink know of any changes of circumstances.  On 29 December 2000, Ms Van Miltenburg contacted Centrelink to advise that her last fortnight’s income may have been lower than usual.  She stated she would telephone again the following week.  On 4 January 2001, Centrelink again wrote to Ms Van Miltenburg to advise her of her rate of payment based on the same income as the previous letter. 

23.     A Centrelink record dated 22 January 2001 notes that Ms Van Miltenburg’s income for the 12 weeks between 8 October 2000 and 31 December 2000 had been verified. This showed variations in gross weekly income which were $300.70, $454.70, $384.70, $538.70, $356.70, $468.70, $244.70, $391.70, $356.70, $384.70, $356.70, $356.70, $216.70 being a total income of $4,812.10 which extrapolated out to $19,248.40 per annum.  Centrelink sent a letter to Ms Van Miltenburg on 22 January 2001 informing her of her rate of PPS based on an income of $19.248.40.

24.     There are records of a number of contacts between Ms Van Miltenburg and Centrelink including Centrelink letters to her in the period between January 2001 and late September 2001.  Centrelink does not claim any overpayment for that period; so there is no need to recount the details of the transactions during that period. 

25.     The next overpayment was between 26 September 2001 and 26 August 2003.  On 24 September 2001 Centrelink wrote to Ms Van Miltenburg referring to a Parenting Allowance review form that she had lodged that day.   Centrelink noted that while she had stated that she had a permanent part-time job with the veterinary clinic, she had not provided any verification of her gross wages. She was asked to either supply payslips or a letter from her employer for the 12 week period ending 19 September 2001.  Ms Van Miltenburg faxed through a letter showing her usual gross income was $356.70 although there were two weeks at a higher rate.  Centrelink calculated that this equated to $4,728.40 less a uniform allowance of $6.70 per week leading to an income of $4,648.00 for the 12 week period. 

26.     On 4 October 2001, Centrelink wrote to Ms Van Miltenburg advising her that her PPS payments were based on an annual income of $20,145.03, with the usual text concerning the requirement to notify the agency of changes of circumstances.  On 13 November 2001 Ms Van Miltenburg contacted Centrelink to advise that she had been ill and on unpaid leave since 5 November 2001.  On 13 November 2001, Centrelink wrote to her to advise her of increased payment of PPS and that the rate was based on an annual income of 60 cents.   Ms Van Miltenburg was reminded that she needed to contact Centrelink within 14 days of any prescribed change of circumstances.

27.     Centrelink records do not show any communication between the agency and Ms Van Miltenburg until almost 13 months later.  A Centrelink record dated 9 December 2002 states that Ms Van Miltenburg called to advise that she had still not returned to work due to illness and was hoping to go back the following week.  There is no record of a call soon thereafter to advise that she had returned to work.

28.     On 22 July 2003 a data‑matching exercise between Centrelink and the Australian Taxation Office (ATO) for the 1999/2000 financial year revealed a difference between their records of Ms Van Miltenburg’s income.  Centrelink’s records showed her income to 30 June 2000 as $7,600.00; but the ATO record for the financial year ending 30 June 2000 indicated a salary of $13,640.00.  Centrelink wrote to Ms Van Miltenburg on 22 July 2003 explaining the differences between the two sets of records and invited her to provide further information.

29.     On 11 August 2003, Ms Van Miltenburg contacted Centrelink to enquire about her entitlements if she stopped work.  A Centrelink officer informed her that she was already receiving maximum entitlements as there had been no reported earnings since November 2001.  Ms Van Miltenburg informed the officer that she had been working at the veterinary clinic since November 2001 for 25 hours per week.  Ms Van Miltenburg also told the officer that she had not received Centrelink’s letter of 22 July 2003 concerning the discrepancies in her income for 1999/2000.  A Centrelink record dated 12 August 2003 describes further communication between the agency and Ms Van Miltenburg concerning the overpayments.  On 15 August 2003 Centrelink wrote to Ms Van Miltenburg advising of the rate of PPS she would be paid that fortnight and informing her that this was based on an annual income of $9,100.00.

30.     On 20 August 2003, Centrelink received a completed questionnaire that it had sent to Ms Van Miltenburg’s employer.  The document indicated that from 23 June 2003 to 15 August 2003, Ms Van Miltenburg had been paid $356.70 per week of which $6.70 was a uniform allowance. The employer was also asked to provide the date and amount of each wage payment from 1 July 1998 to 23 May 2003.  This was provided on 26 August 2003.  Ms Van Miltenburg was paid $260.20 per week for the first three weeks of July 1998 and then took maternity leave until 12 September 1999.  The Secretary provided a computerised printout showing Ms Van Miltenburg’s weekly earnings after she returned to work. While many of the weekly payments were $356.70, there were also a significant number that were higher or lower.   

31.     On 2 October 2003, Centrelink sent Ms Van Miltenburg an Income and Assets Statement and asked her to contact Centrelink within 14 days if the details were incorrect.  Her earnings were recorded as $350.00 per week as at 13 August 2003.   On 14 November 2003, Ms Van Miltenburg was sent an Earnings Verification Update to complete by 28 November 2003. Centrelink received the completed document on 9 December 2003.  It showed that Ms Van Miltenburg’s gross earnings were $4,280.40 as a permanent part-time employee between 22 August 2003 and 14 November 2003. 

32.     On 31 December 2003 Centrelink wrote to Ms Van Miltenburg stating that her PPS was calculated on an annual income of 50 cents.  She was informed of the need to contact Centrelink if her income increased.   There is no precursor record in the T‑documents to indicate why this letter was sent.  The only notation is a handwritten entry on the bottom of the Earnings Verification Update, returned on 9 December 2003, noting action on 31 December 2003 with opay shown as further action. 

33.     Centrelink again requested details of Ms Van Miltenburg’s pay from her employer for the period from 1 November 2001 to 20 August 2003 and these were provided on 14 January 2004.   Centrelink then calculated that Ms Van Miltenburg had been overpaid PPS. 

34.     On 14 January 2004, Centrelink formally advised Ms Van Miltenburg that she owed a debt of $2,593.27 to the Commonwealth for the overpayment of PPS between 12 September 1999 and 26 September 2000.  On 23 January 2004, Centrelink informed Ms Van Miltenburg that she had a debt for $9,355.76 for the period between 26 September 2001 and 26 August 2003.     

35.     On 23 January 2004, the manager of a Centrelink office indicated that he had reviewed his decision concerning the debts imposed and that he stood by his original decision.  On that same day, Centrelink wrote to Ms Van Miltenburg to advise of her rate of pension.  For the first time, her fortnightly income was quoted in the letter.  The fortnightly income was shown as $700 per fortnight.  However, her annual income was shown as 50 cents!

36.     On 28 January 2004, Ms Van Miltenburg wrote to Centrelink concerning the overpayment.   She stated that she had always provided Centrelink with information they sought.   She suggested it is not her responsibility to decide what Centrelink pay her, rather it was their responsibility.  She also stated:  

…

I have been in the same job, at the …vet clinic, for the last 7 years, earning the same money, doing the same hours, 5 days a week.  I have always asked my boss to provide printed pay documentation whenever it has been requested of me from your department...

37.     On 20 February 2004, an authorised review officer of Centrelink (ARO) determined that Ms Van Miltenburg owed a debt to the Commonwealth that should not be waived.  He varied the amount of the overpayment for the period between 26 September 2001 and 26 August 2003 from $9,355.76 to $9,093.92.  He determined that the earlier debt had been correctly calculated.

38.     On 29 April 2004 Centrelink wrote to Ms Van Miltenburg about her payments for the next fortnight.  The letter stated that her regular payment from payday 6 May 2004 would be $261.71 plus a pharmaceutical allowance of $5.80, less $262.10 debt repayment resulting in a payment to her of $5.41. Her regular fortnightly earnings were listed as $700.00 and her annual income was shown as 60 cents. She was informed that her repayment amount may vary if there is a change in your circumstances (e.g. your income changes).  There is no indication in the T‑documents as to why the letter was sent on that date or why it was decided that the deduction should be of such a high order.

39.     On 9 August 2004 Centrelink wrote to Ms Van Miltenburg to advise her of her payments for the next fortnight.   Again, there is no indication as to what prompted that letter to be sent.  There is no deduction for the debt in the amount paid.  Ms Van Miltenburg’s regular fortnightly income is shown as having increased to $713.40.  Her annual income is still shown as 60 cents. 

40.     On 27 September 2004, Ms Van Miltenburg’s employer returned another completed questionnaire which Centrelink had sent him.  He provided a printout of Ms Van Miltenburg’s income from 10 November 2002 to 24 September 2004.   Her gross income including uniform allowance between 10 November 2002 and 29 June 2003 was usually $356.70 and between 2 July 2004 and 24 September 2004 was generally $381.70.  Ms Van Miltenburg’s employer was sent a further questionnaire on 27 September 2004 asking about the amount of paid sick leave taken by Ms Van Miltenburg.  He provided the information on 8 October 2004. 

41.     On 13 October 2004 Centrelink determined that Ms Van Miltenburg owed a further debt for overpayments of $1515.50 between 27 August 2003 and 21 September 2004. 

42.     On 19 January 2005, Ms Van Miltenburg applied to the SSAT for a review of the Centrelink’s decisions in relation to the first two debts.    

43.     On 3 March 2005, Centrelink again wrote to Ms Van Miltenburg’s employer seeking details of the uniform allowance provided to her between 27 August 2003 and 21 September 2004. He responded on 15 March 2004, indicating it remained at $6.70 per week, totalling $368.50 for the period. 

44.     On 16 March 2005, Centrelink wrote to Ms Van Miltenburg to advise her that between 27 August 2003 and 21 September 2004 she had been overpaid $1,380.39 and owed a third debt to the Commonwealth in that amount. Ms Van Miltenburg was advised that the first calculation was incorrect due to the uniform allowance not being included.    On 4 April 2005, an ARO affirmed that decision. 

45.     Ms Van Miltenburg believed that at all times she kept Centrelink informed of her income and when she was and was not working.  She expressed the view that Centrelink officers did not always record the information she provided to them.  In oral evidence, she conceded that she did not always read the small print on the back of Centrelink’s letters or check what the annual income cited meant in terms of her weekly income.  She indicated that she did not usually get payslips from her employer and hence presumed that she was being paid the same each week. 

46.     Given the contents of some of the letters cited above and the lack of an obvious catalyst for the despatch of some of them, the Tribunal accepts Ms Van Miltenburg’s evidence that Centrelink did not always record her contact with them.  On the other hand, Ms Van Miltenburg also contributed to the overpayments by assuming that her pay was always $350.00 or less when she was absent from work due to illness.  Clearly, she was sometimes paid more than that amount and she does not appear to have regularly contacted Centrelink to advise of the higher payments.  This may well have been contributed to by her employer not giving her payslips with her weekly pay and by the payment being in cash.   Furthermore, Ms Van Miltenburg did not pay attention to the income figures cited in the Centrelink letters.  Notwithstanding errors on the part of Centrelink, there were also errors on the part of Ms Van Miltenburg.  Therefore, the Tribunal finds that the debt was not attributable solely to administrative error by the Commonwealth, and the debt cannot be waived on this ground.   

Should the Debt be Waived due to Special Circumstances?

47. Section 1237AAD of the Act provides for waiver of the debt 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 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.

48.     The term special circumstances is not defined in the legislation.  For the Tribunal to exercise its discretion to determine that Ms Van Miltenburg’s  situation constitutes special circumstances, it must be satisfied that there is something to make the case stand out from the usual or the ordinary (Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25. In Ryde v Secretary, Department of Family and Community Services [2005] FCA 866, Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases.  Branson J stated that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.

49.     The SSAT waived the debt on the basis of special circumstances.   The SSAT considered that these circumstances included Ms Van Miltenburg’s financial circumstances at the time of the hearing (related to past and present housing; upkeep and sale of a house she then owned, as well as the purchase of a cheaper property; and the need to borrow from friends and use her credit card for ongoing living expenses).  Other factors  the SSAT thought went towards the existence of special circumstances were:

… continuing difficulties with literacy and lack of self worth related to this; a history of abuse from childhood through three adult relationships; and a number of past and present health problems.

50.     Mr Mark Hester, representing the Secretary, submitted that Ms Van Miltenburg did not meet s 1237AAD(a) of the Act, in that she had actual knowledge that she was making false representations and failed to comply with the notification provisions of the Act. Taking into account Ms Van Miltenburg’s oral evidence and the history of this case, the Tribunal does not accept the Secretary’s submission. The documentary evidence indicates that Ms Van Miltenburg advised Centrelink of some changes in her income. The Tribunal is satisfied that Ms Van Miltenburg genuinely believed that she had complied with her obligations under the Act. The Tribunal finds that Ms Van Miltenburg did not knowingly make false representations or knowingly omit to comply with a provision of the Act. Therefore, she meets s 1237AAD(a) of the Act.

51.     By the time of the Tribunal’s hearing, Ms Van Miltenburg’s financial and housing situation had changed from what it had been during  the SSAT review, 17 months earlier.   Ms Van Miltenburg’s financial situation had altered, although her bad luck with housing purchases had continued.  The proceeds of the sale of the property in which she lived for most of the time during which the debts arose had now come through.  Ms Van Miltenburg had been most unfortunate in her choices of housing and mortgages.  She now lives happily on a rural property with her two younger children and several animals.  She purchased the property quite cheaply.  However, between the time of the SSAT hearing and the Tribunal’s hearing, she experienced more frustration, expense and bad luck involving housing purchases, sales and renovations.  She has had other expenses including house repairs.  Ms Van Miltenburg also described the difficulties she has faced in obtaining suitable employment in the area she has now chosen to move to. 

52.     Ms Van Miltenburg described the abusive relationships she had with her former partners.  Her son, too, had been abused and she had taken legal action on his behalf.  In November 2004, she commenced seeing a specialist counsellor who was helping her with her deep-seated problems.  The professional counsellor provided background about the difficulties Ms Van Miltenburg has faced and continues to encounter due to the abuse. 

53.     Ms Van Miltenburg described her health issues over the years.  These included a diagnosis some years earlier of an early stage of cervical cancer.  She has medical check ups every six months and is fortunately now much better.  She described her unfortunate background, which resulted in her leaving home in her mid-teens.  She indicated that she has also had literacy problems, although she has consciously tried to improve her literacy in recent years. 

54.      The Tribunal accepts that Ms Van Miltenburg has experienced many personal, financial and health problems.  The Tribunal also accepts that she still has some financial difficulties, although not of the order that she had at the time of the SSAT hearing.   The Tribunal has considerable sympathy for the plight of Ms Van Miltenburg. However, the Tribunal is not satisfied that the situation that she finds herself is vastly different from the situation of other social security recipients who have incurred debts due to overpayments.  In the Tribunal’s experience, it is, unfortunately, not unusual for debts to arise in precisely the circumstances in which they did in this case.  Many social security recipients experience health, financial and personal difficulties.  Ms Van Miltenburg remains on a social security benefit and is able to repay the debt in instalments taken out of her fortnightly payments.  The amount to be withheld per fortnight is negotiable. 

55.     The Tribunal is not satisfied that the circumstances in this case constitute special circumstances (other than financial hardship alone). Hence, the Tribunal finds that the waiver provisions of s 1237AAD of the Act should not be invoked.

56.     The Tribunal finds that Ms Van Miltenburg owes a debt to the Commonwealth for the overpayment of PPS.  The debt comprises $2,429.82 for the overpayments between 12 September 1999 and 26 September 2000; $9,093.92 for overpayments between 26 September 2001 and 26 August 2003 and $1,380.39 for overpayments between 27 August 2003 and 21 September 2004.  The Tribunal notes that part of the debt has been repaid.

DECISION

57.     The Tribunal sets aside the decision under review and substitutes a decision that Ms Van Miltenburg owes a debt to the Commonwealth of $12,904.13.  

I certify that the fifty seven [57] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Dianne Eva

Clerk

Date of hearing:  16 November 2006

Date of decision:  31 May 2007
Advocate for the applicant:          Mr M Hester, Centrelink Legal Services
Advocate for the respondent:       Self-represented