White and Secretary, Department of Family and Community Services
[2002] AATA 462
•14 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 462
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/188
GENERAL ADMINISTRATIVE DIVISION )
Re STEPHEN MAURICE WHITE
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Date14 June 2002
PlacePerth
Decision The Tribunal affirms the decision under review.
….........(sgd S D Hotop).........................
Deputy President
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance ("NSA") – applicant in receipt of NSA from February 1999 – applicant commenced work as real estate salesperson on commission-only basis in March 2000 – applicant continued with such work until July 2000 – applicant received one payment of commission during work period – whether applicant qualified for NSA during work period – whether applicant unemployed during work period – whether overpayment of NSA to applicant – whether debt owed by applicant to Commonwealth – whether debt must or should be waived – whether administrative error by Commonwealth – whether special circumstances – whether debt may or should be written off
Social Security Act 1991 ss 593(1), 1223(1), 1236, 1237A(1), 1237AAD
Re Brown and Secretary, Department of Social Security (1991) 25 ALD 757
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Re Secretary, Department of Social Security and Smitherman (1991) 22 ALD 336
Secretary, Department of Employment, Workplace Relations and Small Business v The Staff Development and Training Centre Pty Ltd (2001) 32 AAR 531
REASONS FOR DECISION
14 June 2002 Associate Professor S D Hotop, Deputy President
Stephen Maurice White ("the applicant") has applied for a review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 23 April 2001 whereby the SSAT affirmed a decision of an Authorised Review Officer ("ARO") within Centrelink that the applicant had been overpaid Newstart Allowance ("NSA") in the amount of $3,163.10 in the period from 8 March 2000 to 18 July 2000 and that the full amount of that overpayment of NSA is a debt due by the applicant to the Commonwealth and should be recovered from him.
At the hearing the applicant appeared in person without representation, and the Secretary to the Department of Family and Community Services ("the respondent") was represented by Mr A Jones, a Centrelink advocate. The Tribunal had before it the documents ("T documents", T1-T33, pp1-82) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits:
· extracts from departmental social security policy manual with respect to "How will commissions be treated?" and "Commission-only real estate people" – tendered by the applicant (A1);
· booklet entitled "Job Network Code of Conduct" published by the Commonwealth Government (February 2000) (A2);
· pamphlet entitled "Free Staff & Free Money" published by Communicare (A3);
· Centrelink forms relating to the applicant entitled "Statement of Customer Circumstances", "Claim for Job Network Assistance while Looking for Work", and "Preparing for Work Agreement" (A4);
· Centrelink "Application for payment of Newstart Allowance" form, for the period from 1 March 2000 to 23 May 2000, signed by the applicant and dated 23 May 2000 – tendered by the respondent (R1);
· Centrelink "Application for payment of Newstart Allowance" form, for the period from 24 May 2000 to 4 July 2000, signed by the applicant and dated 4 July 2000 – tendered by the respondent (R2);
· Centrelink "Application for payment of Newstart Allowance" form, for the period from 5 July 2000 to 18 July 2000, signed by the applicant and dated 18 July 2000 – tendered by the respondent (R3);
· Newstart Activity Agreement between the applicant and Communicare, dated 8 September 1999 (R4);
· IES forms entitled "Jobseeker Job Details" and "Jobseeker Jobs History" relating to the applicant, dated 14 June 2000 (R5);
· extract from letter from Centrelink to the applicant, dated 15 June 2000, containing notice of requirement to inform Centrelink within 14 days about events or changes in circumstances (R6).
The applicant gave oral evidence. There were no other witnesses.
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the T documents and exhibits, are as follows.
The applicant claimed NSA in February 1999 and was in receipt of NSA from 3 February 1999.
In March 2000 the applicant was in receipt of NSA and was a participant in an 'intensive assistance" job-seeking program provided by Communicare, a Job Network member.
On 23 May 2000 the applicant lodged with Centrelink a form of "Application for payment of Newstart Allowance" in respect of the period from 1 March 2000 to 23 May 2000. In answer to each of the questions "Did you start permanent full-time work in the period?" and "Did you do any part-time, casual or temporary work in the period?", a tick appears in the "No" box. The form bears the applicant's signature and is dated "25/05/2000". (Exhibit R1)
On 4 July 2000 the applicant lodged with Centrelink a form of "Application for payment of Newstart Allowance" in respect of the period from 24 May 2000 to 4 July 2000. In answer to the question "Did you do any work in the period?", a tick appears in both the "Yes" box and the "No" box. Immediately above the "No" box the words "NOT PAID" have been printed by hand. The applicant also indicated in the form that:
· the work was part-time;
· he had not yet earned any money;
· the employer was "Roy Weston Belmont";
· he had worked a total of 20 hours in the period.
The form bears the applicant's signature and is dated "4/7/2000". (Exhibit R2)
On 18 July 2000 the applicant lodged with Centrelink a form of "Application for payment of Newstart Allowance" in respect of the period from 5 July 2000 to 18 July 2000. In answer to the question "Did you do any work in the period?", a tick appears in the "Yes" box. In answer to the question "…was this work permanent full-time?", a tick appears in both the "Yes" box and the "No" box and the following handwritten note has been added:
"I'm doing real estate but as yet have not sold or listed anything and as yet have received no payments."
In answer to the question "Is this work likely to last for more than 12 weeks?", a tick appears in both the "Yes" box and the "No" box. The applicant also indicated in the form that:
· he had not yet earned any money;
· his employer was "Roy Weston Belmont";
· he had started permanent full-time work in "Feb-March";
· he had not received "any other money from any other source" in the period.
The form bears the applicant's signature and is dated "18/07/2000". (Exhibit R3)
On 12 December 2000 a completed Centrelink questionnaire regarding the applicant's employment was lodged with Centrelink by Mr T Rush of Roy Weston Belmont. The responses recorded in that questionnaire form were as follows:
· the applicant was employed full-time;
· the name of the applicant's employer was Roy Weston Belmont;
· the applicant's employment commenced on 8 March 2000 and ceased on 18 July 2000;
· the applicant was employed "5-6 days per week";
· a "gross payment" of $2752-40 was made to the applicant on 6 July 2000. (T16)
According to Centrelink's records a total amount of $3,163.10 was paid to the applicant by way of NSA for the period from 8 March 2000 to 18 July 2000. (T18)
On 13 December 2000 an officer of Centrelink determined that:
· the applicant was not qualified for NSA for the period from 8 March 2000 to 18 July 2000;
· the amount of $3,163.10 paid to the applicant by way of NSA for that period was a debt due by the applicant to the Commonwealth and should be recovered from him. (T21)
On 22 February 2001 an ARO affirmed the abovementioned determination (T31) and the applicant was notified of the ARO's decision by letter of the same date (T32).
On 23 April 2001 the SSAT affirmed the abovementioned decision of the ARO. (T2)
On 17 May 2001 the applicant lodged with this Tribunal an application for review of the abovementioned decision of the SSAT. (T1)
The Applicant's EvidenceThe applicant told the Tribunal that he undertook a course conducted by the Real Estate Institute of Western Australia from 7 February 2000 to 7 March 2000 and, upon completion of that course, he commenced working for Roy Weston Belmont on 8 March 2000. He said that he was not paid a salary or wages but instead was to be paid on a commission basis according to the real estate sales he made. He said that he would work from 3.00pm until 11.00pm each day, part of which he would spend in the office of Roy Weston Belmont and part of which he would spend outside the office "door knocking" for the purpose of obtaining listings of properties for sale.
The applicant said that he discussed his real estate work arrangement with Rod Jones, his case manager at Communicare, who advised him that the question whether his NSA payments would be affected by his commission-only work arrangement was a "grey area" and that he should "check it out" with Centrelink. He said that he then telephoned Centrelink and inquired about the effect of undertaking commission-only real estate work on his qualification for NSA. He said that the Centrelink officer with whom he spoke on the telephone agreed to send to him information regarding that matter. He said that he subsequently received by mail from Centrelink a 2-page document containing relevant information. The contents of that document, which was tendered in evidence by the applicant (Exhibit A1), are as follows:
"HOW WILL COMMISSIONS BE TREATED?
Commissions, other than those earned as part of an ongoing business activity, will be assessed under the 52 week rule. The nature of this type of employment is similar to an employer/employee relationship as opposed to a 'self-employed' person.
For example, if a person received a lump sum from the selling of real estate on a commission only basis, that amount would be apportioned as income for 52 weeks from the date they were entitled to receive that amount.
It is important to note that the commissions will be treated as income for 52 weeks from the date they are entitled to be received, not from the date the commissions were earned. A distinction is made between this type commission and those commissions earned by a person who can be characterised as 'self-employed', such as 'Avon' or 'Amway' consultants and distributors.
NOTE: Of course, where a person is self-employed, basic eligibility criteria apply and consideration must be given to whether they are 'unemployed' if claiming a Newstart Allowance.
This page last updated 17 March 2000COMMISSION-ONLY REAL ESTATE PEOPLE
Commission only real estate sales people have been regarded as employees since the decision of the High Court in the 1973 case of FCT v Barrett. Real estate salespersons were considered EMPLOYEES because their duties (selling real estate) were considered an integral function of the business entity for which they worked.
Explanation: Despite the freedom the sales persons may have about how they perform the work, they are considered employees if they:· only carry out the work as representatives of the organisation,
· have calls made on their time,
· have no control over advertising, and
· have no control over the form of contracts that buyers have to execute.
This page last updated 17 March 2000".
The applicant said that when he received that document he "didn't really go into" it. He said that he read the "first bit" (namely, that a lump sum commission received from the sale of real estate would be apportioned as income for 52 weeks) and he was "happy with it" and he passed that information on to Rod Jones when he next saw him. He said that his understanding from the telephone conversation with the Centrelink officer and from reading the first part of the abovementioned document was that his NSA payments would be reduced, but would not cease, in the event of his receiving a real estate commission payment. As regards the second part of the abovementioned document (regarding the employment status of commission-only real estate salespersons), the applicant indicated that he was not really interested in that information and that, although he "would have read" it, he could not remember its contents.
The applicant said that his last day in the office of Roy Weston Belmont was around 3 July 2000. He said that he then became ill with influenza and spent most of the next 2 weeks in bed, and that he was sacked by Mr Rush, the principal of Roy Weston Belmont, on 17 July 2000 because he had been absent from work.
The applicant told the Tribunal that the only payment he received for his real estate sales work at Roy Weston Belmont was the sum of $2,752-40 in the form of a cheque which was enclosed with the letter of dismissal which he received from Roy Weston Belmont on 17 July 2000. He acknowledged, however, that the cheque was made out on 6 July 2000 and that the relevant pay slip was also dated 6 July 2000 (T17, p58). He said that that cheque represented "the first and last commission from real estate" that he received in connection with his work for Roy Weston Belmont, being his commission from the sale of a property in the suburb of Lathlain which he had previously listed. Later in his evidence, however, the applicant stated that he had also listed a unit in Belmont which was subsequently sold.
In response to questions from the Tribunal the applicant elaborated on his state of mind when he had the discussion with Rod Jones, his case manager at Communicare, referred to in paragraph 16 above. He said that he thought that Communicare, the Job Network member that he was required to attend in order to get NSA, was part of Centrelink and that Rod Jones was an employee of Centrelink. The applicant said that, when he raised with Rod Jones his proposal to go into real estate, Rod Jones approved of that idea and did not warn him at any stage that Centrelink would regard real estate work as a full-time job and that his NSA payments would stop. He added, however, that Rod Jones advised him to telephone Centrelink about the matter to "check it out" and he did so (see paragraph 16 above).
As regards his present financial position the applicant told the Tribunal that he is presently in receipt of NSA and is also earning a small amount of income from a "door-knocking job" for which he is paid on a "cash commission" basis. He owns his own home and has a "minimal" mortgage debt of $20,000.00 and a credit card debt of $4,500.00. He indicated that he was able to "scrape by" and would be "all right" financially as soon as he got a better job.
In cross-examination by Mr Jones (for the respondent), the applicant said that when he decided to go into real estate he thought that it would be full-time. He added that, when he telephoned Centrelink to inquire about the effect of his receiving real estate commission on his NSA payments (see paragraph 16 above), he assumed that they would likewise think that his real estate work would be full-time.
Mr Jones then referred the applicant to the 3 forms of "Application for payment of Newstart Allowance" for the periods 1 March 2000 – 23 May 2000, 24 May 2000 – 4 July 2000, and 5-18 July 2000, which were lodged with Centrelink by the applicant, respectively, on 23 May 2000, 4 July 2000, and 18 July 2000. As regards the form in respect of the period 1 March 2000 – 23 May 2000 (Exhibit R1 – see paragraph 6 above), it was put to the applicant that information that he had provided in that form – namely, that he did not "start permanent full-time work" or "do any part-time, casual or temporary work" in that period – was inconsistent with his oral evidence that he had worked for Roy Weston Belmont from 8 March 2000 and for the rest of that period. The applicant failed to give a satisfactory explanation of that inconsistency. As regards the form in respect of the period 24 May 2000 – 4 July 2000 (Exhibit R2 – see paragraph 7 above), it was put to the applicant that his statement in that form that the work he did for Roy Weston Belmont in that period was part-time was inconsistent with his oral evidence that he thought he was working full-time. The applicant explained that he thought that real estate work would be full-time when he "got a full-time wage every week" but that at that time it was "just…a place I was turning up to, to start earning money". As regards his statement in the form that he worked a total of 20 hours in that period, the applicant initially suggested that that period of 20 hours related to one week, or perhaps a fortnight, during the entire period from 24 May 2000 to 4 July 2000. When it was later put to him that the question in the form related to the total hours worked during that entire period, he agreed that his response of "20 hours" did not seem feasible and said that he did not know how he had arrived at that response. Finally, as regards the form in respect of the period 5-18 July 2000 (Exhibit R3 – see paragraph 8 above), it was put to the applicant that information that he had provided in that form – namely, that he had not yet listed any properties for sale and had not received any payment – was inconsistent with his oral evidence that he had previously listed 2 properties for sale and had received a payment of $2,752-40 by way of commission on 17 July 2000. The applicant was unable to explain that inconsistency.
The LegislationThe relevant provisions of the Social Security Act 1991 ("the Act") in this case are as follows:
"593(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfied the Secretary that:
(i)throughout the period the person is unemployed; or
the person is a CDEP Scheme participant in respect of the period; and
(b) in the case of a person to whom subparagraph (a)(i) applies – throughout the period, or for each period within the period, the person:
(i)satisfies the activity test; or
(ii)is not required to satisfy the activity test; and
(c) if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and
(d) if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and
(e) if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and
(f) while the agreement is in force, the person satisfies the Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
(g) throughout the period the person:
(i)subject to subsection (2B), is at least 21 years of age and has not reached the pension age; and
(ii)is an Australian resident; and
the person was not in receipt of a youth allowance during the period.
…
1223(1)Subject to subsections (1A) and (1B), if an amount has been paid to a person by way of social security payment on or after 1 October 1997 and:
(a) the recipient was not qualified for the social security payment when it was granted; or
(b) the amount was not payable to the recipient;
the amount so paid is a debt due to the Commonwealth.
…
1236(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.
1236(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) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.
…
1237A(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.
…
1237A(3)For the purposes of this section, a proportion of a debt may be 100% of the debt.
…
1237AADThe 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 false representation; or
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."
The Issues
The fundamental issue in this case is whether the applicant was qualified for NSA in respect of the period from 8 March 2000 to 18 July 2000 ("the relevant period"). If he was not so qualified, the question would then arise as to whether the total amount paid to him by way of NSA during that period (which, it is common ground, was $3,163.10) is a debt due by him to the Commonwealth. Finally, if that amount does represent such a debt, the question will then arise as to whether the Commonwealth's right to recover the whole or part of that debt must or should be waived, or whether that debt may or should be written off.
Consideration and Findings
Was the applicant qualified for NSA for the period from 8 March 2000 to 18 July 2000?As regards the criteria prescribed by s 593(1) of the Act to qualify for NSA, it is common ground that the applicant satisfied the relevant criteria referred to in paras (b)-(i) of that subsection throughout the relevant period. There was, furthermore, no suggestion that the criterion referred to in subpara (a)(ii) of that subsection was applicable in this case. The only matter which may be in dispute between the parties is whether the applicant satisfied the criterion referred to in subpara (a)(i) of that subsection throughout the relevant period – namely, whether he was "unemployed" throughout that period. Although at times during the hearing the applicant appeared to concede that he was not "unemployed" throughout that period, the Tribunal will treat that matter as being in dispute and not conceded.
The applicant's own evidence was that, as from 8 March 2000, he worked for Roy Weston Belmont as a real estate salesperson on a commission-only basis, working from 3.00pm until 11.00pm each day, until he was dismissed on 17 July 2000. Documentary evidence in the from of a Centrelink questionnaire completed by Mr T Rush, the principal of Roy Weston Belmont, on 11 December 2000 (T16 – see paragraph 9 above) also confirmed that the applicant was employed on a full-time basis for 5-6 days per week by Roy Weston Belmont, commencing on 8 March 2000 and ceasing on 18 July 2000, and was paid the sum of $2,752-40 (gross) on 6 July 2000. On the basis of that evidence the Tribunal has no difficulty in finding that the applicant was not "unemployed", within the meaning of s 593(1)(a)(i) of the Act, throughout the relevant period. The fact that the only remuneration he received during that period was one commission payment of $2,752.40 towards the end of that period is not inconsistent with his being employed – or not unemployed – throughout that period: Re Secretary, Department of Social Security and Smitherman (1991) 22 ALD 336; Re Brown and Secretary, Department of Social Security (1991) 25 ALD 757.
Accordingly, the Tribunal finds that, in respect of the relevant period, the applicant was not qualified for NSA under s 593(1) of the Act.
Is the amount of $3,163.10 paid to the applicant by way of NSA during the relevant period a debt due by him to the Commonwealth?In accordance with the terms of s 1223(1) of the Act, as in force at the relevant time, the amount of $3,163.10 paid to the applicant by way of NSA during the relevant period, for which he was not qualified and which was not payable to him, is a debt due by him to the Commonwealth, and the Tribunal so finds.
Must the Commonwealth's right to recover the whole or a part of that debt be waived under s 1237A(1) of the Act?The obligation, imposed by s 1237A(1) of the Act, to waive the Commonwealth's right to recover a debt (or part thereof) applies only in a case where the whole or part of the debt, as the case may be, is "attributable solely to an administrative error made by the Commonwealth". The applicant submitted, for the purposes of s 1237A(1) of the Act, that the whole of the relevant debt (comprising overpayment of NSA) was solely attributable to incorrect or inadequate advice, regarding the effect of his real estate work on his qualification for NSA, which was given to him by Rod Jones, his case manager at Communicare, and the Centrelink officer with whom he subsequently discussed that matter by telephone. He attributed "99%" of the administrative error to Rod Jones, and "1%" thereof to the Centrelink officer.
The answer to the applicant's submission is that, according to information provided to the Tribunal by Mr Jones (for the respondent) which the Tribunal accepts, Communicare, the relevant Job Network member, is a private entity and is not part of the Commonwealth and its employees (including Rod Jones) are not employed by the Commonwealth: see, generally, Secretary, Department of Employment, Workplace Relations and Small Business v The Staff Development and Training Centre Pty Ltd (2001) 32 AAR 531 at 533, 545, 546. The applicant's belief that Communicare and Rod Jones were part of Centrelink is, for the purposes of s 1237A(1) of the Act, irrelevant. In any event, the Tribunal is not satisfied that Rod Jones gave misleading or inadequate advice to the applicant. According to the applicant's own evidence, Rod Jones advised him that the question of whether his real estate work would affect his continued payment of NSA was a "grey area" and that he should "check it out" with Centrelink. That, in the Tribunal's opinion, was appropriate advice and cannot be described as erroneous or inadequate in any respect. Nor is the Tribunal satisfied that erroneous or inadequate advice was given to the applicant by the Centrelink officer with whom he subsequently discussed that matter by telephone. The information sent to the applicant by that officer (Exhibit A1 – see paragraph 16 above) was not in itself incorrect or misleading; rather, it seems to the Tribunal that the applicant himself failed to appreciate the significance of the second part of that information regarding the employment status of commission-only real estate salespersons. Furthermore the Tribunal is of the opinion that at least a substantial cause of the applicant's being paid NSA throughout the relevant period and thereby incurring the abovementioned debt was that he provided incorrect or misleading information to Centrelink in the "Application for payment of Newstart Allowance" forms which he lodged with Centrelink in relation to the relevant period (Exhibits R1, R2 and R3 – see paragraphs 6-8 above). That information, which the Tribunal finds to be incorrect or misleading, was as follows:
in the form in respect of the period 1 March 2000 to 23 May 2000 (Exhibit R1), the applicant indicated that he did not start permanent full-time work, or do any part-time, casual or temporary work, in that period;
in the form in respect of the period 24 May 2000 to 4 July 2000 (Exhibit R2), the applicant indicated that he worked part-time for a total of 20 hours in that period;
in the form in respect of the period 5 July 2000 to 18 July 2000 (Exhibit R3), the applicant equivocated regarding whether he had done permanent full-time work in that period and stated that he did not receive any work payment in that period.
Having regard to the foregoing considerations, the Tribunal finds that no part of the debt of $3,163.10, owed by the applicant to the Commonwealth by reason of his having received payments of NSA throughout the relevant period for which he was not qualified, is attributable solely to an administrative error made by the Commonwealth, within the meaning and for the purposes of s 1237A(1) of the Act. Accordingly, an essential precondition of the operation of that subsection not having been satisfied in this case, the Commonwealth's right to recover the abovementioned debt from the applicant cannot be waived under that subsection.
Should the Commonwealth's right to recover the whole or a part of the abovementioned debt be waived under s 1237AAD of the Act?Pursuant to s 1237AAD of the Act the Tribunal has a discretionary power to waive the Commonwealth's right to recover the whole or a part of the abovementioned debt if satisfied regarding the matters referred to in paras (a), (b) and (c) of that section.
The matter referred to in para (b) of s 1237AAD of the Act is:
"there are special circumstances (other than financial hardship alone) that make it desirable to waive".
In Secretary, Department of Social Security v Hales (1998) 82 FCR 154 the Federal Court of Australia (French J) said in relation to s 1237AAD(b) of the Act (at 162):
"The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion.
…
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose."
Having regard to the circumstances of the applicant's case, the Tribunal is of opinion that there are no special circumstances such as would warrant the exercise of the discretionary power conferred by s 1237AAD of the Act to waive the Commonwealth's right to recover the debt owed by the applicant. In the first place, there is no evidence of real financial hardship in this case (and the applicant did not contend otherwise). The applicant's contention in respect of special circumstances centred on his perception that Communicare (the relevant Job Network member) was part of Centrelink, and the advice (or, rather, lack thereof) that he received from Rod Jones (his case manager at Communicare) and Centrelink regarding the effect his engaging in real estate work would have on his qualification for NSA. The Tribunal is prepared to accept that the applicant had an honest (but mistaken) belief that Communicare was part of Centrelink, but the Tribunal does not accept that that mistaken belief was induced by either Communicare or Centrelink. Nothing in the documentary material relied on by the applicant (Exhibits A2-A4) indicates or implies that Communicare is part of Centrelink or any other Commonwealth agency or is itself a Commonwealth agency. Furthermore, according to the applicant's own evidence, Rod Jones advised him, as regards his query whether working in real estate would affect his NSA payments, to "check it out" with Centrelink – thereby implying that Centrelink was a body separate from him and Communicare. Moreover, when the applicant did contact Centrelink regarding that matter he was sent information (Exhibit A1) which was not inaccurate or misleading and which, according to his own evidence, he did not bother to read, or at least to digest, in full. In short, there is nothing in the evidence or material relied upon by the applicant which would suggest that recovery by the Commonwealth of the debt in this case would be unfair, unreasonable or otherwise inappropriate and which would warrant the exercise of the discretionary power under s 1237AAD to waive the Commonwealth's right to recover that debt.
In the Tribunal's opinion, the applicant is in his present position of owing a debt to the Commonwealth largely because of
his own self-induced mistaken beliefs or assumptions regarding the status of Communicare and Rod Jones;
his failure properly to consider the contents of material sent to him by Centrelink and to make further inquiries with Centrelink in order to clarify the matter of whether his real estate work would affect his qualification for NSA; and
his providing incorrect or misleading information to Centrelink in the "Application for payment of Newstart Allowance" forms which he lodged with Centrelink in relation to the relevant period (see paragraph 30 above).
In short, in the Tribunal's opinion the applicant is seeking unreasonably to blame others – in particular, Rod Jones and Centrelink – for his present position of owing a debt to the Commonwealth, instead of accepting responsibility for creating that state of affairs by his own errors and omissions.
In the light of the Tribunal's abovementioned finding that the are no special circumstances, within the meaning of para (b) of s 1237AAD of the Act, in this case, it is not necessary for it to make findings on the matters referred to in paras (a) and (c) of that section.
May or should the abovementioned debt be written off under s 1236(1) of the Act?The short answer to this question is that none of the preconditions specified in paras (a)-(d) of s 1236(1A) is, on the material before the Tribunal, satisfied in this case and, accordingly, by reason of that subsection, the debt owed by the applicant to the Commonwealth cannot be written off under s 1236(1) of the Act.
DecisionFor the above reasons the Tribunal affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: ..............(sgd V Wong)..................................
AssociateDate/s of Hearing 10 May, 7 June 2002
Date of Decision 14 June 2002
Counsel for the Applicant In Person
Counsel for the Respondent Mr A JonesSolicitor for the Respondent Advocacy and Administrative Law Team, Centrelink
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