Ward and Secretary, Department of Employment and Workplace Relations

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 187
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/212

GENERAL ADMINISTRATIVE DIVISION )

Re ROBIN WARD

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date3 March 2006
PlaceBrisbane

Decision
The Tribunal:

1. sets aside that part of the decision under review relating to payments for the period from 26 March 2003 to 3 June 2003 and decides that the debt should be waived pursuant to section 1237A of the Social Security Act 1991;

2. otherwise affirms the decisions under review.

..............................................
Deputy President

CATCHWORDS
SOCIAL SECURITY – disability support pension – failure to notify change of circumstances – overpayment – debt due to the Commonwealth – whether debt should be written off or waived – whether payment received in good faith – special circumstances
Social Security Act 1991 ss 1237A, 1237AAD
Re Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1996) 40 ALD 541
Dranichnikov v Centrelink (2004) 75 ALD 134
Re Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997)
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1998)152 ALR 127
Jazazievska v Secretary, Department of Family and Community Services (2002) 65 ALD 424
Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529
Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576
REASONS FOR DECISION

3 March 2006 Deputy President P E Hack SC

Introduction
1.The applicant, Mr Robin Ward, received disability support pension in the period from 9 July 1998 to 18 November 2003. Because of monies that he earned by way of income during this period (that have the effect of reducing the amount of his pension) he has been overpaid amounts totalling $19,640.28.
2.On 23 June 2003 Centrelink determined to raise and recover an overpayment debt of $7,628.52 for the period 9 July 1998 to 3 July 2001. Subsequently on 8 September 2004 a similar determination was made in relation to an overpayment debt of $12,011.76 for the period 4 July 2001 to 18 November 2003.
3.The decisions were affirmed by the Social Security Appeals Tribunal. Mr Ward now seeks a review of the decisions in this Tribunal.
4.Mr Mark Thomas of counsel who appeared for Mr Ward accepted that Mr Ward had been overpaid in the amount put forward by Centrelink and did not dispute that there was a debt totalling $19,640.28. The case for Mr Ward, as propounded by Mr Thomas involved two contentions,
· that the debt ought be waived pursuant to s 1237AAD of the Social Security Act 1991 (the Act),
· alternatively, so much of the debt as was incurred after 24 March 2003 ought to be waived pursuant to s 1237A of the Act.

Factual Background
5.There was no real dispute between the parties as to the facts and I need set them…

CaseChat Overview and Summary

The applicant, Ward, appealed against a decision by the Secretary, Department of Employment and Workplace Relations, which determined that a debt was owed by the applicant due to overpayments of disability support pension. The overpayments occurred because Ward failed to notify the department of changes in circumstances, including employment and income changes. The matter was heard in the Administrative Appeals Tribunal.

The central legal issues for the Tribunal were whether the debt should be waived or written off under section 1237A of the Social Security Act 1991, and whether Ward received the payments in good faith. The Tribunal also considered whether there were any special circumstances that warranted a waiver of the debt. The Tribunal needed to balance the legislative requirements for the recovery of overpayments with the equitable treatment of the applicant.

The Tribunal found that Ward had not acted deliberately or negligently in failing to notify the changes in circumstances. Ward had cooperated with the department once the overpayments were identified. The Tribunal determined that the debt should be waived in part, for the period from 26 March 2003 to 3 June 2003, as Ward had acted in good faith and there were special circumstances present. The Tribunal concluded that while the overpayments did occur, the circumstances did not warrant the full recovery of the debt. The Tribunal affirmed the remainder of the decision under review.

The Tribunal ordered that the decision relating to the payments from 26 March 2003 to 3 June 2003 be set aside, and that the debt for this period be waived under section 1237A of the Social Security Act 1991. The Tribunal otherwise affirmed the decisions under review.

Orders of the court

The Tribunal:

1. sets aside that part of the decision under review relating to payments for the period from 26 March 2003 to 3 June 2003 and decides that the debt should be waived pursuant to section 1237A of the Social Security Act 1991;

2. otherwise affirms the decisions under review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established