Younes and Secretary, Department of Family and Community Services
[2002] AATA 711
•21 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 711
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1019
GENERAL ADMINISTRATIVE DIVISION )
Re JUDALINE YOUNES
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms N Bell, Member
Date21 August 2002
PlaceSydney
Decision The decision under review is set aside and, in substitution therefor, the Tribunal decides to waive recovery of the debt.
[SGD] Ms N Bell
Member
CATCHWORDS
SOCIAL SECURITY – carer allowance – overpayment – duplicate payment made in error by Centrelink – overpayment is a debt due to the Commonwealth – whether overpayment solely attributable to administrative error – whether debt raised within a period of 6 weeks from the first payment that caused the debt – whether applicant received the overpayment in good faith – whether special circumstances under section 1237AAD of the Social Security Act 1991 to waive debt
Social Security Act 1991 sections 1237A, 1237AAD
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186
Re Secretary, Department of Social Security and Neuendorf (AAT 13427, 4 November 1998)
Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424
Haggerty v Department of Education, Training and Youth Affairs ( (2000) 31 AAR 529
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
21 August 2002 Ms N Bell, Member
This is an application by Mrs Judaline Younes ("the Applicant") for review of the decision of Social Security Appeals Tribunal ("SSAT") dated 11 May 2001 which affirmed the decision made by a Centrelink delegate of the Secretary, Department of Family & Community Services ("the Respondent") on 20 June 2000 to raise and recover a debt of overpayment of carer payment in the sum of $4,494. The decision of the delegate was affirmed by an authorised review officer on 8 January 2001. The Applicant appeared on her own behalf in the hearing before the Tribunal and the Respondent was represented by Mr George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Applicant gave oral evidence to the Tribunal and the following documentary evidence was before the Tribunal:
TD1 T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ,T1-T47 pp1-88
A1 Applicant's Statement of Facts and Contentions 7 pages 5 July 2002
A2 Applicant's Statement 7 pages 2 July 2002
A3 Information for medical condition 5 pages 4 July 2002
A4 Decision of Consumer, Trader and Tenancy Tribunal to the Applicant 1 page 11 March 2002
A5 Letter from Charmaine and Dennis Brown 3 pages 21 July 2002
A6 Bundle of documents including: - Certificates, reports in relation to medical condition - Letter from The Smith Family to the Applicant 8 pages Various Dates
A7 Bundle of documents including: - Correspondence in relation to Daewoo Motor Vehicle - Application to Fair Trading Tribunal 10 pages Various Dates
A8 Applicant's undated handwritten letter to Sue Taylor (SSAT) 2 pages Undated
A9 Bundle of documents including: - Documents in relation to Applicant's financial circumstances 7 pages Various Dates
R1 Respondent's Statement of Facts and Contentions 7 pages 26 February 2002
R2 Bundle of documents including: 22 pages Various Dates- Documents in relation to Katrina Younes'
payments
Background
The Applicant was in receipt of child disability allowance, later called carer allowance, when on 9 March 2000 a duplicate payment of $4,494 for the period 27 March 1997 to 22 February 2000 was made to her in error by Centrelink. On 20 June 2000 Centrelink raised a debt in the sum of the overpayment (T21), and on 21 June 2000 a notice was issued to the Applicant advising her of that debt (T22). On 2 August 2000 withholdings from the Applicant's Centrelink payments were commenced by the Respondent (T25).
Issues and LegislationThere is no dispute between the parties that the amount of $4,494 paid by the Respondent to the Applicant on 9 March 2000 was a duplicate payment made in error by Centrelink. There is also no dispute that that duplicate payment constitutes a debt due to the Commonwealth. The issue to be considered by Tribunal in this application is whether the debt should be recovered.
The legislation relevant to the issue before the Tribunal is sections 1237A and 1237AAD of the Social Security Act 1991 ("the Act"). Section 1237A of the Act provides that the Secretary must waive the right to recover a debt or a proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received the payment giving rise to the debt in good faith. Section 1237AAD of the Act provides that the Secretary may waive the right to recover all or part of the debt if the Secretary is satisfied that, among other things, there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt.
Applicant's EvidenceThe Applicant provided a written statement to the Tribunal and confirmed that statement in her oral evidence. In brief, that statement was to the effect that she has four children: Bernadette (24), Katrina (19), Peter (17) and Noelle (16). The three younger children live with her in the house formerly owned by the Applicant and her late husband but sold in 2002 to her sister. She and the children now rent the house from her sister and brother-in-law. She pays rent of $218 per week. The Applicant's sister and her husband share the house with the Applicant and her children.
The Applicant and her three younger children suffer from a skin condition called epidermolysis bullosa simplex, which gives them extremely sensitive skin and painful blisters at points of friction or pressure. The Applicant's statement describes a vicious cycle of skin irritation, infection of blisters, increase in body temperature followed by more irritation and blisters. The Applicant described this condition as having been constant for herself and her children and considerably worse in summer because of the heat and humidity. The Applicant's younger daughter has scarring all over her body for which she is treated in Westmead Hospital. She said that the children's conditions gave rise to frequent absences from school and emotional difficulties throughout their childhood in learning to deal with the effects of their condition. She said her children have low self-esteem, having suffered from the comments of other children and resulting in the need to see the school counsellor regularly. She said she is still involved in the caring for and supervision of her children's conditions, having to help dress them when they cannot use their fingers to do up buttons, help them with washing their hair when they cannot hold the soap and changing their bed linen several times a week. She said she regularly prepares wet bandages and sometimes applies ointments to them and supervises them in their required self-care. The Applicant said that on the basis of the severity of her own skin condition she was granted disability support pension and has received child disability allowance (later called carer allowance) in relation to Noelle, Peter and Katrina.
The Applicant in her statement said that her husband had an aneurysm in 1990 and was hospitalised for 12 months, having been in a coma for six weeks. She said when he returned home, he had to attend rehabilitation daily for three years and required nursing care from her. He continued to have seizures from time to time and suffered severe problems with his short-term memory and cognitive skills.
The Applicant said that by the year 2000 her husband was able to drive again but went out in the car only occasionally. She said that four weeks before he died, he did not return home after going out for a drive and she and her family were unable to locate him for 18 hours. She said the car had broken down and her husband did not know where he was and could not work out what to do about it. She said the next day he had the worst seizure he had ever had and four weeks later he died of another aneurysm. The Applicant said that when she attended the hearing of the SSAT it was only 3 months after her husband had died and she considers that at that stage she was still not able to clearly explain her circumstances to the Tribunal.
The Applicant described in her statement a period of 10 years over which she was the primary carer for her husband and children. She described a very high level of stress, having to make all decisions and financial arrangements and provide physical and emotional support to her whole family while at the same time attempting to manage her own illness. This illness included a hernia operation in the mid 1990s, a large ovarian cyst which had attached itself to her bowel, angina, pneumonia, pleurisy, repeated eye infections and a dislocated finger.
The Applicant also described in her statement the drug problem experienced by her daughter Katrina. She said that she learned about Katrina's addiction to heroin in 1999 and found out that she had been using heroin and other drugs since 1997. She said Katrina goes on and off the methadone program and is now living at home but has in the past resided with other family members and friends. At the time of the Applicant's statement she said that Katrina is still using heroin.
The Applicant then described her financial circumstances in the year 2000. She said that she and her family had moved to a house in Cecil Hills in 1996 or 1997 and had three mortgages on that house since that time. She said that in the year 2000 approximately $220,000 was owed on the house and the house had a market value of approximately of $300,000. She said she and her family also had a house in Blacktown which had been the original family home. She said that in the year 2000 there was a mortgage of approximately of $97,000 on the Blacktown house. The Blacktown house was sold in March 2000 for $150,000 and the profits of the sale after payment of the mortgage were applied to the family's debts which included $8,000 on a Visa credit card and personal loan from the St George Bank.
The Applicant said that she and her husband had, after payment a $10,000 deposit from the profits of the sale of the Blacktown house, purchased a four wheel drive vehicle for $40,000 with a loan. She said she also went guarantor for her oldest daughter's car and that that loan was for approximately for $21,000.
In relation to the Applicant's current income and debts she said in her statement that, the Cecil Hills house was sold recently for $220,000 and all of the profits of the sale were paid to the mortgagee bank. She said the vehicle she purchased in 2000 with her husband has been repossessed and she has an order from the Consumer, Trader and Tenancy Tribunal to pay $9,622.62 in relation to the loan for that car. She also said that her daughter Bernadette is behind in the payments for her car and she is concerned that it may be repossessed.
The Applicant also said in her statement that her daughter recently married in Ireland and that she travelled to Ireland for the wedding having obtained some money from the Anglo Indian Community Association, a cheap air ticket and an informal loan of $2,000 from an acquaintance. The Applicant also said she has outstanding debts to Telstra and AAPT Communications in the sum of approximately $900.
The Applicant said she is currently in receipt of disability support pension and some carer allowance and family payment. She said that on alternate weeks she receives $380 and approximately $270. She said that she is attempting to organise Austudy for her youngest child but this has not yet come through. Her son Peter is working and studying part time and does not receive any Centrelink payments. She said he attempts to contribute to the household expenses when he can.
The Applicant said in addition to other basic needs she also has expenses for the children's schooling and medication. She receives some assistance from her mother and her sister with extra expenses and they provide clothing for the children on occasion. She said that she had attended the Society of St Vincent de Paul to obtain a food hamper and some vouchers for electricity and the Salvation Army for voucher for electricity. She said that she had attended the Smith Family for help but was refused as she had been assisted twice last year. She said she has not yet applied to Centrelink for rent assistance.
The Applicant said that over the last three years she and her family had seen a number of social workers and counsellors including a Centrelink social worker, a counsellor at Centrecare Liverpool and the Community Health Centre at Liverpool.
The Applicant said that at the time of the overpayment she had two bank accounts and would do most of her banking using automatic teller machines. She said that whichever account had money in it at any particular time would be used by her to provide funds.
The Applicant said that in early 1999 her daughter Katrina dropped out of school and in the year 2000 she attempted to get Katrina into a TAFE course. She said that she met with Centrelink officers to work out what payment Katrina could receive and that she thought Katrina had applied for youth allowance. She said that around this time she also had other contacts with Centrelink in relation to carer allowance for her son Peter. She said this was cancelled and restored in early 2000.
The Applicant said that when the $4,494 was paid into her bank account she first thought that it was money from the sale of the Blacktown house that she had been expecting to receive. She said the solicitor had not advised her how much she could expect to receive and some of the money was to be applied directly to some outstanding bills. She said she first became aware of the money when she attended an auto teller to withdraw money in order to go shopping. She said that her two accounts with St George Bank had identical cards with the same personal identification number. She said she had given her bank details to her solicitor and the arrangement was for him to pay the proceeds of the sale of the Blacktown property, after payment of other debts, directly into her account. She said that after noting the presence of the money in her account she thought nothing further of it until a couple of weeks later when her solicitor provided a cheque to her husband in the sum of $22,400 on 2 March 2000 and accompanied him to deposit that money in her other account.
The Applicant said that following the receipt of the cheque from her solicitor, she telephoned the bank and asked what the $4,494 payment was. She said the bank advised her that it was a payment from the Department of Social Security and she thought it was a payment that she had been trying to arrange for Katrina. She said that was the reason she did not telephone Centrelink about the payment. The Applicant told the Trinubal that she thought nothing further of the matter until three months later when Centrelink told her that she owed a debt to the Commonwealth.
She said that Katrina had ceased to be a full time student and in the meeting with the social worker at Centrelink, the Applicant had been advised that Katrina was entitled to arrears of some kind of payment. The Applicant said that when she received the $4,494 she applied it to the payment of bills and other expenses.
The Applicant gave evidence that she received monthly bank statements but often did not open them because she was too preoccupied with other matters. However, she later said that, she would have opened and read her March 2000 bank statement but said that the words appearing on the bank statement next to the entry of a deposit of $4,494, that is, "DSS CHILD DIS ALL", meant nothing to her.
The Applicant said that at that period of time she was very involved in her husband's rehabilitation and not cognisant of her financial affairs. She said that she was trying to get her husband into a program or to find him some work. She said that his short term memory loss was fairly bad, that he was continuing to have seizures and could not be left on his own and that it was like having a fifth child.
The Applicant said that she sold her house at Cecil Hills to her sister and brother-in-law for a sum equivalent to the amount owing to the bank, that is, $240,000. She said that she had considered the house to be worth approximately $350,000 but only received offers of $280,000 and $290,000. She said it was worthwhile to sell to her sister and her brother-in-law for such a low price because they would allow her to remain in the house for a very low rent and, while they have been considering selling the house and moving to the Central Coast, they have offered to let the Applicant and her children live with them.
Other EvidenceDocument T16 is a computer generated file note made by an officer of Centrelink dated 10 February 2000 to the effect that the Applicant and her husband were seen by a Centrelink social worker in relation to "family issues". The file note says that referrals were made to community counselling agencies and there was discussion around recent changes to youth allowance as it relates to the Applicant's daughter. The file note also says that the social worker advised the Applicant and her husband to attempt to claim youth allowance by bringing in proof of acceptance of the Applicant's daughter's TAFE course.
Exhibit R2 is a number of extracts from the file of the Applicant's daughter, Katrina, together with a chronology prepared by the Respondent. These documents show that Katrina's youth allowance was cancelled on 29 January 1999 and that no further payments were received by Katrina until 19 August 1999 when she was granted youth allowance at the living away from home rate. However, it appears that payments of youth allowance ceased in the latter part of August 1999 and no further payments were received by Katrina until September 2000.
Exhibit A3 is an extract from a website called MEDLINE plus, an online medical encyclopedia, in relation to the condition epidermolysis bullosa. The information contained in the extract is to the effect that the hallmark of the condition is the formation of large, fluid-filled blisters that develop in response to minor trauma. The extract also says that chafing of the skin, rubbing, or even increased room temperature may cause blisters to form and that scarring and secondary infection is common.
Exhibit A5 is a statement by Charmaine and Dennis Brown, the sister and brother-in-law of the Applicant. The statement confirms the Applicant's evidence in relation to her husband's illness and death, her daughter's drug addiction and the Applicant's and her children's condition of epidermolysis bullosa. The statement describes in some detail the difficulties faced by the Applicant over the last decade or so and more particularly in the last few years.
Exhibit A4 is a decision by the Consumer, Trader and Tenancy Tribunal dated 11 March 2002 to the effect that the Tribunal orders that the Applicant pay the sum of $9,622.62 to G E Automotive Financial Services on or before 2 April 2002. This decision relates to the loan for the vehicle purchased by the Applicant and her husband for $40,000.
ConsiderationThere being no dispute that the amount of $4,494 paid to the Applicant was paid in error and constitutes a debt due by the Applicant to the Commonwealth, the issue that remains for the Tribunal to consider in this application is whether that debt should be recovered. This requires consideration of sections 1237A and 1237AAD of the Act.
In particular, section 1237A of the Act provides for waiver of recovery of a debt that is attributable solely to the administrative error of the Commonwealth if the debtor received the relevant payment in good faith.
Section 1237A of the Act provides:
"Administrative error
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.(1A) Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later."
The Respondent conceded that the debt is solely attributable to its administrative error and that the debt was not raised within a period of six weeks from the date of the overpayment so it remains to be determined whether the Applicant received the payment in good faith. If the Tribunal concludes that that is not the case, then it must be considered whether, pursuant to section 1237AAD of the Act, there are special circumstances that warrant the waiver of the debt.
In Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186 Finn J said at 189:
"For my own part, I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received - ie is not entitled to use the moneys received as his or her own - that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.
Given the conventional liability of a mistaken payee of money from consolidated revenue to repay that money irrespective of his or her belief as to an entitlement to it (ie the "rule" in Auckland Harbour Board v The King [1924] AC 318), the concession made to the mistaken payee by s 289 of the SYA Act does seem in all probability to be directed to a payee who receives the money (to put the matter positively) in the good faith belief that he or she is entitled to receive it. In other words the frame of the section is to exclude from the right to a waiver, a person who knows or has reason to know that he or she is not entitled to receive the payment. It would be surprising to find that the Parliament intended otherwise."The state of mind of the Applicant at the time of her receipt of the payments is therefore the Tribunal's main inquiry. The Tribunal's decision in Re Secretary, Department of Social Security and Neuendorf (AAT 13427, 4 November 1998) applied the decision in Prince (supra) by reference to the particular circumstances and considerations of the recipient in that case, that is, subjectively.
In Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424 Cooper J said at 435 to 436:
"40. Prima facie, s 1237A(1) is concerned with actual personal receipt by the debtor of the payment or payments which give rise to the debt. The issue of good faith is, for the purpose of the section, to be determined when the debtor commences to exercise control over the payment by retaining it. It is at this time that the recipient must act with the requisite good faith. A lack of good faith does not mean that the recipient of the payment must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive and retain the payment when he or she receives the payment and decides to exercise control over it by retaining it.
41. A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists. Although said in a different context, the observations of Lord Blackburn in Jones v Gordon (1877) 2 App Cas 616 at 629 are apposite. His Lordship said :"... If he was (if I may use the phrase) honestly blundering and careless, and so took a bill of exchange or a bank-note when he ought not to have taken it, still he would be entitled to recover. But if the facts and circumstances are such that the jury, or whoever has to try the question, came to the conclusion that he was not honestly blundering and careless, but that he must have had a suspicion that there was something wrong, and that he refrained from asking questions, not because he was an honest blunderer or a stupid man, but because he thought in his own secret mind - I suspect there is something wrong, and if I ask questions and make farther inquiry, it will no longer be my suspecting it, but my knowing it, and then I shall not be able to recover - I think that is dishonesty. I think, my Lords, that that is established, not only by good sense and reason, but by the authority of the cases themselves."
In Haggerty v Department of Education, Training and Youth Affairs ( (2000) 31 AAR 529 French J at 534 said:
"16. Consistently with what his Honour said in the Prince case, want of good faith will arise where there is a positive belief that the payment has been made by mistake. It will also arise where there is a suspicion held by the recipient that he or she may not be entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt. The provision does not, however, authorise the imputation of want of good faith in any of the senses above described simply because there are in existence objective facts which would raise a belief or a doubt or a suspicion of non-entitlement in the mind of some imaginary recipient. That proposition is quite consistent with the view that the existence of such facts may support an inference that the recipient disbelieved or doubted or was suspicious about his or her entitlement. "Reason to know" as Finn J used that term in Prince does not necessarily import a criterion of imputed as distinct from actual want of good faith as I have described it."
Therefore, where there is a doubt or suspicion on the part of the Applicant, coupled with some objective basis for that doubt or suspicion, there will be a want of good faith. However, the mere existence of a fact that would raise a doubt or suspicion in an "imaginary recipient" will not necessarily impute a lack of good faith on the part of the recipient in a particular case.
The Tribunal accepts the Applicant's evidence concerning her husband's illness and death and her role in his care. The Tribunal also accepts that the Applicant and three of her children suffer from the condition of epidermolysis bullosa and that this condition has created the difficulties for the family that were described by the Applicant in her evidence.
The Tribunal accepts that the sale of the Applicant's Blacktown house took place in early 2000 and that at the time of the erroneous Centrelink payment she was expecting to receive some monies from the proceeds of that sale. The Tribunal also accepts, on the basis of the Applicant's evidence and the Centrelink records provided by the Respondent's representative at Exhibit R2 and at document T16, that she had had discussions with Centrelink officers in February 2000 about Katrina's payments and that those discussions included the possible payment of arrears in respect of a long period of non-payment for Katrina. In this respect, the Tribunal notes that the material in Exhibit R2 shows that Katrina had not been paid from January 1999 to August 1999 and then those payments were cancelled in late August 1999, Katrina receiving no further payments until September 2000. In addition, the Tribunal accepts the Applicant's evidence of her and her family's financial dealings over the last few years including the purchase of a relatively expensive four wheel drive vehicle and its repossession, the Applicant's going guarantor for her daughter's car loan and its imminent repossession, her visit to Ireland for her daughter's wedding and various unfortunate financial decisions made by the Applicant.
It is in this context that the question of whether the Applicant received the overpayment in good faith must be considered. The Applicant's evidence was that when she first became aware of the payment, she thought it was a payment by her solicitor into her account arising out of the sale of her house. Her evidence was also that she was disabused of this view when her solicitor provided her husband with a cheque for a substantially larger amount, being in fact the proceeds of the sale. According to the Applicant's evidence it was then that she enquired of her bank as to the origin of the payment, was advised it was a payment from Centrelink and she accepted this without reservation, given her recent discussions with Centrelink.
Against this evidence is the discrepancy of almost $18,000 between the amount of the Centrelink payment and the amount of the cheque provided by the solicitor as the proceeds of the sale of the Blacktown house. The Applicant explained this by saying that she had thought that the solicitor was to deal with some of the outstanding expenses to which the proceeds of the sale were to be applied and to pay the remainder into her bank account. There is also the matter of the entry on the Applicant's bank statement of the words "DSS CHILD DIS ALL" and the Applicant's evidence that she had read that bank statement. The Applicant's discussions with Centrelink officers about a payment for Katrina had been in relation to youth allowance. It could be argued that the above entry on her bank statement should have alerted her to the fact that the payment was not in respect of youth allowance but her evidence was that the entry was meaningless to her except for the letters "DSS" which confirmed the advice she had received from the bank.
The Tribunal considers the explanations of the Applicant to be plausible and accepts her evidence of her reasoning and belief at the time of and shortly following the Centrelink payment.
As to whether this reasoning constituted receipt of the payment in good faith, the Tribunal concludes that the only doubt held by the Applicant was, initially, as to the provenance of the payment. This did not equate to doubt as to her entitlement once the origin of the payment was established by her. Nor does the Tribunal consider that, as in Jazazievska (supra), the Applicant turned a "blind eye" to circumstances that raised doubt or that she failed to make reasonable enquiries where doubt existed. It is possible that a person with fewer other concerns and better financial judgement would have made further enquiries. However, the decisions in Prince (supra) and Haggerty (supra) establish that it is the state of mind of the individual concerned at the relevant time that is to be considered and that the mere existence of a fact that would raise a doubt or suspicion in an "imaginary recipient" (for example an entry on a bank statement) will not necessarily impute a lack of good faith on the part of the recipient in a particular case. In the absence of doubt on the part of the Applicant after she had established the origin of the payment, the existence of the entry on the bank statement does not serve to establish a lack of good faith on her part.
The Tribunal therefore concludes that the Applicant received the payments in good faith and it follows that, pursuant to section 1237A of the Act, the debt must be waived.
Having reached this conclusion, it is not necessary for the Tribunal to consider whether the debt should be waived pursuant to section 1237AAD of the Act on the basis that the Applicant's circumstances are special and make it desirable to waive the debt. However, the Applicant's circumstances, on her evidence and accepted by the Tribunal, include the death of her husband after a long and debilitating illness, her own and her children's serious medical conditions, her daughter's drug addiction, her straightened financial circumstances and her level of debt. The Tribunal is of the view that, taken together, these circumstances are special in that they are "unusual, uncommon or exceptional" and "have a particular quality of unusualness that permits them to be described as special" (Re Beadle and Director-General of Social Security (1984) 6 ALD 1). While it may be that no single one of the circumstances described by the Applicant is sufficiently exceptional or uncommon to be described as special, the combination of those circumstances in one unfortunate family is indeed unusual. Had the Tribunal not found that the Applicant received in good faith the payment made to her in error by the Respondent, it would find that her circumstances are sufficiently special to make waiver of the debt desirable pursuant to section 1237AAD of the Act.
DeterminationThe decision under review is set aside and, in substitution therefor, the Tribunal decides to waive recovery of the debt.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: H Sim .....................................................................................
AssociateDate of Hearing 22 July 2002
Date of Decision 21 August 2002
Representative for the Applicant Self represented
Solicitor for the Respondent George Lozynsky
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