Bruneau and Department of Family and Community Services [1999] AATA 48 (28 January 1999)

Last Updated: 28 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/1573

GENERAL ADMINISTRATIVE DIVISION )

Re MARIE-ANGE BRUNEAU

Applicant

And DEPARTMENT OF FAMILY AND COMMUNITY SERVICES (FORMERLY SECRETARY, DEPARTMENT OF SOCIAL SECURITY)

Respondent

DECISION

Tribunal Dr J.D. Campbell, Member

Date 28 January 1999

Place Sydney

Decision The Tribunal makes the following determination:

(1) The decision under review of the Social Security Appeals Tribunal dated 24 October 1997 is set aside.

(2) In substitution thereof that:

(a) The recoverable debt of $969 resulting from overpayment of the Home Child Care Allowance for the period  29 September 1994 to 28 April 1995 is waived.

(b) The recoverable debt of $6,813.50 resulting from overpayment of the Parenting Allowance for the period 28 February 1996 to 8 May 1997 is confirmed. This debt is not waived, and is therefore due and payable.

(c) The recoverable debt of $2,351.80 resulting from overpayment of the Family Payment for the period 28 February 1996 to 8 May 1997 is confirmed. This debt is not waived and is therefore due and payable.

(Sgd.) John D. Campbell

..............................................

Member

CATCHWORDS

Social Security - Home Care Child Allowance - Parenting Allowance - Family Payments - Failure or Omission to respond to notice under the Act - Availability of Information to Department - Waiver - Administrative Error - Waiver - Special Circumstances

Social Security Act (1991) (the Act)

REASONS FOR DECISION

28 January 1999 Dr J.D. Campbell

Member

1. Mrs Bruneau (the Applicant) in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 24 October 1997 (T2) that she had been overpaid a sum of $10,134.30 in respect of Home Care Child Allowance, Parenting Allowance and Family Payments over varying periods. This decision affirmed a decision of Department of Family and Community Services (the Respondent) (formerly the Department of Social Security) taken by an Authorised Review Officer on 29 August 1997 (T28).

2. The Tribunal had placed before it Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1-T43.

3. A hearing was conducted on 17 September 1998 at which the Applicant gave oral evidence.

4. The Applicant was unrepresented, while the Respondent was represented by Mr P. McDougall, an Advocate.

ISSUES

5. The Issues between the two parties were:

a. (1) Whether the Applicant had been overpaid Home Child Care Allowance of $969 for the period 29 September 1994 to 28 April 1995.

(2) Whether the Applicant had been overpaid $6,813.50 in Parenting Allowance for the period 28 February 1996 to 8 May 1997.

(3) Whether the Applicant had been overpaid $2,351.80 in Family Payment for the period 28 February 1996 to 8 May 1997.

b. Whether any of these overpayments involve a failure by the Applicant to properly advise the Respondent of pertinent and particular information at the time of completing various applications for particular allowances; whether the Applicant has provided misleading responses in the same applications; whether the Applicant has failed to comply with notices served by the Respondent requesting particular and timely information as to income for both the Applicant and her partner.

c. Whether there has been Administrative error made by the Respondent and/or whether there has been a failure by the Applicant to respond in a timely fashion to notices served in accordance with the Act by the Respondent, coupled with a consideration of whether any special circumstances are seen to exist.

LEGISLATION

6. The relevant Legislation is in Sections 872, 876, 886, 909, 929, 943, 950, 951B, 951P, 1069, 1224, 1237, 1237A and 1237AAD of the Social Security Act (1991) (the Act).

APPLICANT'S EVIDENCE

7. The Applicant stated that she had worked for Telecom for twenty years until in 1991 she, in partnership with her husband and nephew, purchased a newsagency. In 1993, the Applicant stated that the business was not generating sufficient income to pay her a wage. As a consequence, the Applicant contacted the Department of Social Security (the Respondent) and sought advice as to any entitlement she may seek to claim. The Applicant stated that all her Income Tax Returns to support her application were forwarded to the Respondent. Accordingly, the Applicant stated that she was surprised when in 1996 ("I think") she received a letter from the Respondent stating that she had been overpaid.

8. The Applicant stated that she had first supplied an Income Tax Return to the Respondent in 1992; that she was not sure exactly when she provided the 1993/94 Income Tax Return; that she forwarded an Income Tax Return each time in support of any application she made; that in her mind she was not getting a wage, albeit that the Income Tax Returns indicated income allocated to her from the business; that she was unaware of the consequences of the income allocation to her as portrayed in the Income Tax Returns; that her duties in the business involved a few hours each day and when needed on the weekend; that the accountant prepared the Income Tax Returns and she just signed the prepared document; that she lodged the claim with the Respondent and she cannot remember telling the accountant of any matters, including income received from the Respondent.

9. In response to questions from the Advocate for the Respondent, the Applicant stated that in her application for Home Child Care Allowance, made on 4 August 1994 (T6), she had indicated that she had received no money from wages/salary (Qu.7(b) p21) and that she had not acknowledged that she was self-employed or the owner or part-owner of a business from which she was receiving or will receive income (Qu.7(c) p21). It remained the Applicant's position on these two questions that she did not receive any wages/salary, while the second one was left blank. She stated that the Income Tax Return which she had provided the Respondent would give them a better understanding of her position, as she herself was unsure as to what she should complete. Further, she felt it unnecessary to make extra inquires as the Income Tax Return would, in itself, be sufficient to determine the issue.

10. The Applicant, in response to further questioning, stated that she had no other reason as to why she had not completed question 7(c) at p21 of the T Documents; the third partner left the business in 1995; that the provision of her Income Tax Return would clearly have identified the part ownership in the business; that the letter dated 20 September 1994 (T8 p27) to her from the Respondent did detail that:

* her total personal income was nil per fortnight

* she should notify the Respondent if the personal income is more than ten dollars and 85 cents per fortnight

* she should notify the Respondent if she starts work ... start any form of business or self-employment;

that she considered her provision of her tax return should have been sufficient.

11. In this regard, the Applicant indicated a letter had been sent to her requesting a copy of her and her husband's Taxation Notice of Assessment for 1992/1993. This letter (T5) arose from the inadequate completion of an earlier application for Family Payment. The letter from the Respondent requested either provision of a Notice of Assessment or provision of an authority to allow direct provision of such information from the Australian Taxation Office.

12. Further, the Applicant indicated that she had provided such Notices for both herself and her partner, and that on further consideration it was noted that in response to Question 8 of T6 at p21, the Applicant indicated that Tax File Numbers for her and her partner had been previously provided to the Respondent, and that the Respondent was authorised to use it for the claim under consideration (Home Child Care Allowance).

13. The Applicant indicated that as far as she could determine, she sent her 1994/95 Income Tax Return to the Respondent either in person or by mail or fax in March 1996, the exact mode she being unable to remember. In further comments, the Applicant indicated that the Respondent would have ceased payments in the normal course of her not forwarding such information.

14. In response to Qu.6 contained in her application for Parenting Allowance (T13 p54), the Applicant indicated that she was unable to provide any details of wages/salary as requested, until she was in a position to provide the appropriate Income Tax Return. It is noted that the date of this application was 26 April 1995.

15. Further, the Applicant indicated that she acknowledged the requirement nominated, that is, to advise the Respondent of a change in her personal financial position when her personal income exceeds $188.95 per fortnight (T15 p62); that she discharged this responsibility by the provision of an Income Tax Return or Notice of Assessment when they were available; that she was unaware as to whether the accountant was aware of the reason for her request for a copy of her Income Tax Return for provision to the Respondent, although the Applicant did state that she told the accountant that she needed the Returns to assist her in working through her application(s) with the Respondent; further, that she did provide these Income Tax Returns in a timely manner despite any documentation to the contrary (T39), which demonstrates a date of 5 June 1997 when the copy of the 1994/95 Income Tax Return was received by the Respondent.

FILE EVIDENCE

16. The Applicant made an application for continuing Family Payment for 1994 on 13 October 1993. In this application (T3), she described her occupation as domestic/home duties and her partner as self-employed; that the Respondent was to use the 1991/92 income as an estimate for 1992/93 income for both her and her partner; that the taxable income of the Applicant and her partner was below the limit for 1992/93, and will be below the limit for 1993/94.

17. The Respondent requested a Taxation Notice of Assessment for the financial year 1992/93 on 17 May 1994 from the Applicant, or alternatively requested the Applicant to authorise the Respondent to seek such details directly from the Australian Taxation Office (T5). The Respondent notes (T27 p136) that the Applicant did provide Taxation Notice of Assessments for 1992/93 on 20 May 1994. These showed income of the Applicant being $12,041 and for her partner being $9,041.

18. The Applicant lodged a claim for Home Child Care Allowance on 4 August 1994 (T6). In this application, the Applicant indicated that she received no money from wages/salary; failed to indicate that she was self-employed or part-owner of a business, and further, both the Applicant and her partner authorised the Respondent to seek information from the Taxation Office concerning this claim.

19. The Respondent authorised payment of the Home Child Care Allowance to the Applicant in an advice dated 26 September 1994 (T8). In this advice, the Respondent gave notice to the Applicant, pursuant to Section 943 of the Act, that the Applicant must tell the Respondent within 14 days by writing, phoning or visiting the Respondent, if the total personal income of the Applicant goes over $10.85 per fortnight, or if the Applicant starts any form of business or self-employment (T8 p28).

20. On 28 November 1994, the Applicant completed a recipient statement notice under Section 873 of the Act. In this document, the Applicant indicated that the Respondent should use the Applicant's 1992/93 income as an estimate of her 1993/94 income. The document also contains a statement that if the 1994/95 estimate of income is too low, any overpayment of Family Payment may have to be repaid. Further, it stated that taxable income details on this form will be confirmed direct with the Australian Taxation Office (T10 p41).

21. On 26 April 1995, the Applicant completed a Parenting Allowance claim form (T13) in which she stated that she did get money from wages/salary, and that both herself and her partner were self-employed; that she was a part-owner of a business and that she had provided proof of income. In furtherance of this claim, a Business - Income and Assets Details form was completed by the Applicant on 9 May 1995 (T14). In response to Qu.2 on p59 of the T Documents the Applicant indicated that she was not involved in a partnership for business or investment purposes and likewise she was not involved in any capacity in a private company or a trust arrangement.

22. The proof of income, which accompanied the Application on 26 April 1995 was the Income Tax Returns for 1993/94 which indicated a taxable income for the Applicant as $4,895 and for her partner as $1,732 (T37 and T38).

23. Parenting Allowance was granted in a letter from the Respondent to the Applicant on 8 July 1995 (T15). Further, the letter stated that the Applicant must, among many other matters, inform the Respondent within 14 days if her income exceeds $188.95 per fortnight, or if her partner's income exceeds $182.19 per fortnight. As a consequence of the Parenting Allowance being paid at the maximum rate, Family Payment was also paid at the maximum rate for the same period.

24. An additional Parenting Allowance Review was completed by the Applicant on 30 April 1997. A note on T18 p88 states "Letter sent for tax returns income over limit Resubmit 20/5/97". A Family Payment/Child Care Assistance Request for Income and Asset Details was duly completed by the Applicant on 21 May 1997 (T19). In this the Applicant declared her taxable income for 1995/96 as $21,604 and that of her partner as $14,800; that she was self-employed; that both her and her partner's income was likely to decrease in 1996/97; that there was a net rental loss from property.

25. The Respondent states at T29 p148 that the first information they received from the Applicant regarding the 1994/95 taxable incomes for herself and her partner was 5 June 1997. This is further evidenced by the date stamps attached to T41 and T42.

DISCUSSION AND FINDINGS

home child care allowance

26. The Applicant did lodge a claim for Home Child Care Allowance on 4 August 1994. She stated at the time that she was not receiving any wages or salaries; that she was not self-employed or part-owner of a business (T6). The Applicant in evidence contended that she was not receiving any wage or salary; that she was not self-employed and that she considered her provision of the Taxation Notice of Assessment for 1992/93 on 20 May 1994 to the Respondent when responding to their request of 17 May 1994, would have clarified any issues where she had either failed to respond, or responded inappropriately.

27. The Applicant acknowledges that the letter from the Respondent dated 26 September 1994 (T8 p27) granting her Home Child Care Allowance, did detail particular matters and place her on notice that she had to notify the Respondent when her personal income is more than $10.85 per fortnight, or commences any form of business or self-employment. The Applicant again contends that the provision of Taxation Notice of Assessments for 1992/93 and her previous provision of her and her partner's Tax File Numbers to the Respondent, together with an authorisation at Qu.8 of T6 p21 for the Respondent to use it for the claim under consideration (Home Child Care Allowance), satisfies any responsibility owed by her.

28. The Tribunal, in assessing the competing, but separate responsibilities of the Applicant and the Respondent, concludes that the Applicant did not correctly complete her claim for Home Child Care Allowance, particularly as regards the omission that she was a part-owner in a business, and the consequences as to income generation arising from that part-ownership. In turn, the Tribunal notes that the Respondent assessed the claim on the facts nominated in the claim, which included an authorisation to use previously provided Tax File Numbers in assessment of the claim. The Tribunal also notes that a Taxation Notice of Assessment for the year 1992/93 had been received by the Respondent on 20 May 1994 for both the Applicant and her partner, albeit in relation to an assessment for Family Payment in 1994.

29. As a consequence of detailing these matters, the Tribunal concludes that the Applicant had made available to the Respondent, all the necessary material upon which the Respondent could then proceed to make a correct decision in dealing with the Applicant's claim for Home Child Care Allowance. Further, the Tribunal concludes that the information was provided across a reasonable time frame, with the Respondent failing to take this information into consideration in their decision-making material, which was readily available to them at the time of making the decision to grant the Applicant's claim for the Home Child Care Allowance. In essence, the Tribunal concludes, that despite the Applicant's omissions in completing the form at T6, the Respondent had constructive knowledge of the Applicant's particulars, by way of information provided by the Applicant, which was not necessarily accessed in the process of the Respondent's decision-making, which resulted in the Applicant being granted a Home Child Care Allowance as from 26 September 1994.

30. The Tribunal, in noting the Respondent's argument that the approval letter of 26 September 1994 placed the Applicant on notice to provide the Respondent with advice when particular personal circumstances of the Applicant changed, takes little comfort from this position. The Tribunal concludes that if a more diligent approach had been taken to harness and assess the available information by the decision-maker at the time of the decision, a correct decision to decline the application for a Home Child Care Allowance would have been made. The Tribunal can well appreciate the Applicant's position that where a decision has been made with both provision of, and access to, information being provided, then any further information to be notified, as required, must relate to matters other than that which has already been provided to the Respondent at the time of making a decision to grant payment of the Home Child Care Allowance.

31. The Tribunal, in considering all the issues raised, concludes that the correct decision at the time of the original determination was that the Applicant was not entitled to any payment of Home Child Care Allowance. This finding takes into consideration the taxable income of $12,041 disclosed by the Applicant in her Taxation Notice of Assessment for the year 1992/93, and the application of Section 929 of the Act as at September 1994. The Tribunal notes that the notice served by the Respondent upon the Applicant in September 1994 was in accord with Section 943 of the Act as at September 1994.

32. Accordingly, the Tribunal finds that the Applicant had received an overpayment of Home Child Care Allowance in the amount of $969 for the period 29 September 1994 to 28 April 1995. Section 1224 of the Act deems an overpayment to be a debt due to the Commonwealth, where it has arisen because a person has failed or omitted to comply with a section of the Act.

33. The Tribunal, in considering whether the debt should be recovered, concludes that after considering the earlier conclusions reached by the Tribunal (paras 28-30) that the debt arose from administrative error, when the Respondent granted the application for Home Child Care Allowance without consideration of all material available to the decision-maker at the time. Further, while the debt continued to mount when the Respondent did not comply with the written notice, it can be contended that the latter would not have arisen if, indeed, the former had been correctly decided. The Tribunal concludes that in the circumstances nominated, the debt arising from the overpayment is solely attributable to administrative error by the Respondent.

34. Accordingly, the Tribunal determines that the right to recover the debt of $969 is waived on the following grounds:

(1) An administrative error was made, with the debtor receiving the payments in good faith, there being no evidence adduced by the Respondent to the contrary with, indeed, the Respondent not taking issue with the credit of the Applicant. (Section 1237A(1) of the Act)

(2) The Applicant did not knowingly make a false statement or false representation, or knowingly fail or omit to comply with the notice served under Section 943 of the Act. (Section 1237AAD(a)(i)(ii))

(3) Further, the Tribunal, in the light of the particular circumstances nominated, that is, the Respondent having available all the relevant information to make the correct decision, failed to do so. This, in the Tribunal's view, satisfies a special circumstance as per Section 1237(b) of the Act. In such circumstances the Tribunal concludes that it is appropriate to waive the debt. (Section 1237(c))

PARENTING ALLOWANCE

35. The Tribunal notes that a different set of circumstances relate to the payment of this allowance. There is no dispute between the parties that the application for the Parenting Allowance and the decision to grant the allowance were correct. The Tribunal observed that apart from some inconsistency between details supplied by the Applicant on 26 April 1995 (T13) and the Income and Assets Details completed on 9 May 1995 (T14) (where it relates "to involvement in a partnership for business or investment purposes"), the Applicant had provided complete Income Tax Returns for herself and her husband for the financial year 1993/94. The Tribunal does conclude that the decision to grant the allowance was correct, which in turn leaves issues arising from the Applicant's failure to advise the Respondent within 14 days of any increase in income beyond $188.95 per fortnight on her account, or if her partner's income exceeds $182.19 per fortnight. There was no argument made to the Tribunal that the notice to the Applicant was in anyway irregular in form or service (Section 950 of the Act).

36. The Tribunal, in considering this matter, notes that the Income Tax Returns for financial year 1994/95 for her and her partner were completed on 28 February 1996 by her accountant. Further, while the Applicant believes that she did inform the Respondent in person or by telephone or fax of the details of this Income Tax Return, the Respondent and the T Documents indicate that these documents were received by the Respondent on 5 June 1997. The Tribunal also notes that the taxable income for financial year 1995/96 for both the Applicant and her partner was made available to the Respondent on 21 May 1997 (T19) while copies of the Income Tax Returns 1995/96 were made available to the Respondent on 5 June 1997.

37. The Tribunal notes, as regards this matter, that the Applicant has made particular assertions as to the production of documentary evidence as to the date and time of fax advice to the Respondent. The Social Security Appeals Tribunal adjourned the hearing to allow the fax advice to be produced. The Applicant was unable to produce such documentary evidence. Further, the Tribunal notes that the Applicant has had, during the time in which these claim circumstances have arisen, access to financial advice from an accountant. There is also evidence (T41) that the accountant was aware in April 1997, when preparing the Applicant's Income Tax Return for financial year 1995/96 that the Applicant had received Parenting Allowance of $3,712 for that financial year (T41 p186).

38. While mindful of the matters mentioned in the preceding paragraph, the Tribunal, in dealing with the factual matters, concludes that the Applicant has not adduced any material or corroborative evidence that advice was rendered to the Respondent as to the Income Tax Return for the financial year 1994/95, between 28 February 1996 and 5 June 1997. In arriving at this finding, the Tribunal has concluded that the Applicant has not demonstrated the necessary diligence in ensuring that advice requested by the Respondent was duly provided in a timely fashion.

39. Further, the Tribunal was of a view that the Applicant's verbal statements on this matter had in the past (Social Security Appeals Tribunal hearing) been found to be wanting in supporting documentation. It is these set of circumstances, that leads the Tribunal to the view that verbal statements of no particularity as to mode, date or time of communication allegedly made by the Applicant on the matter of rendering advice to the Respondent, require some form of corroboration. The Tribunal observes that such has not been forthcoming.

40. Accordingly, the Tribunal concludes that the Applicant, having received a notice under Section 950 of the Act on 8 July 1995 to notify the Respondent within 14 days when her fortnightly income exceeded $188.95, and that of her partner exceeds $182.19 per fortnight, has failed to effectively discharge her legal responsibility. The Tribunal, in arriving at such a finding, concludes that the Applicant would have had knowledge of such information on or about 28 February 1996, that is, at the time of completion of Income Tax Returns for her and her partner for the financial year 1994/95. The Tribunal further finds that such advice, that is the advice concerning income information for her and her partner for financial year 1994/95, was not made available to the Respondent until 5 June 1997.

41. The Tribunal notes that the change in income for the Applicant and her partner would have been known to them at latest on 28 February 1996. The change in income for both the Applicant and/or her partner meant that no further Parenting Allowance would have been payable from 28 February 1996 until such time at which the financial income of either the Applicant and her partner fell to a level commensurate with the recommencement of paying a Parenting Allowance.

42. Thus the Tribunal concludes that the Applicant has been overpaid Parenting Allowance for the period 28 February 1996 until 8 May 1997. The overpayment amounts to $6,813.50, covering the period 29 February 1996 to 8 May 1997 and this is a legally recoverable debt (Section 1223(1) of the Act).

FAMILY PAYMENT

43. Section 1069-H1 of the Act provides for Family Payment to be paid without the application of an income test if the person is in receipt of Parenting Allowance. The Applicant was in receipt of Parenting Allowance from 8 July 1995, and was accordingly paid a Family Payment at a higher rate without application of an income test from that date. The Applicant's change in income effective from 28 February 1996 altered her entitlement to Parenting Allowance. The Tribunal has concluded that the Applicant had no entitlement to Parenting Allowance from 28 February 1996 until 8 May 1997 and that any entitlement to Family Payment during that period was subject to the income test.

44. The Tribunal determines that the Applicant was overpaid $2,351.80 in Family Payment Allowance for the period 28 February 1996 to 8 May 1997. This finding takes account of the combined income levels of $40,259 for financial year 1994/95 and $36,404 for financial year 1995/96.

CONSIDERATION OF WAIVER

45. The Tribunal accordingly determines that the Applicant has failed or omitted to comply with a notice served on 8 July 1995 by the Respondent; that such a failure or omission to comply as nominated in Section 950 is a failure or omission to comply with a Section of the Act; that as a result of the failure or omission to comply an overpayment to the Applicant of $9,165.30 has occurred; that this overpayment involves both Parenting Allowance and Family Payment made to the Applicant during the period 28 February 1996 to 8 May 1997; that such overpayment is a debt due to the Commonwealth (Section 1224 of the Act).

46. The Tribunal, in considering whether there are any circumstances whereby the right to recover this debt of $9,165.30 should be waived, has given much consideration to both the overall circumstances of the matter and the particulars as to how the overpayments have arisen. As mentioned earlier, the Tribunal is mindful that the Applicant is a partner in a business, participates, in part, in the conduct of the business, and has access to, and uses, an accountant for financial returns. Further, the Tribunal considers the Applicant to be articulate, assertive and intelligent. Section 1237A of the Act says, in part:

"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."

47. In considering avenues for waiver, the Tribunal concludes that as far as the recoverable debt is concerned, that there is no evidence of administrative error demonstrated on the part of the Respondent, nor has there been, for that matter, a particular administrative error alleged by the Applicant, that provide particulars as to time, place and date.

48. In giving consideration to the Secretary's power to waive the right to recover all or part of a recoverable debt, the Tribunal considered Section 1237AAD of the Act, which states:

"1237AAD. 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 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."

49. After due consideration, the Tribunal concludes that there are no special circumstances upon which the Applicant has addressed the Tribunal or, in turn, that the Tribunal been made aware of during the course of considering this matter. Accordingly, the Tribunal concludes that matters in Section 1237AAD(b) have not been established by the Applicant, and accordingly the Tribunal is not satisfied that there are special circumstances which make it desirable to waive the debt. As a consequence, the Tribunal finds the debt should stand and be paid by the Applicant.

50. Further, the Tribunal has previously concluded that there had been a failure or an omission to comply with a provision of the Act, when the Applicant failed to advise the Respondent as to a change in income for herself and her partner, as so requested in the Respondent's notice to the Applicant of 8 July 1995. The Tribunal's reasons for this finding has been detailed earlier in this decision. The Tribunal is satisfied that the Applicant was aware that she had a duty to notify the Respondent of the particular facts relating to income when it exceeded the nominated figure, for the Applicant has never argued or addressed the Tribunal on the issue that such an obligation did not exist. Thus the Tribunal concludes that the debt did arise as a consequence of the Applicant knowingly failing or omitting to comply with a notice duly served under the Act upon the Respondent (Section 1237AAD(a)(ii)).

DETERMINATION

51. The Tribunal makes the following determination:

(1) The decision under review of the Social Security Appeals Tribunal dated 24 October 1997 is set aside.

(2) In substitution thereof that:

(a) The recoverable debt of $969 resulting from overpayment of the Home Child Care Allowance for the period 29 September 1994 to 28 April 1995 is waived.

(b) The recoverable debt of $6,813.50 resulting from overpayment of the Parenting Allowance for the period 28 February 1996 to 8 May 1997 is confirmed. This debt is not waived, and is therefore due and payable.

(c) The recoverable debt of $2,351.80 resulting from overpayment of the Family Payment for the period 28 February 1996 to 8 May 1997 is confirmed. This debt is not waived and is therefore due and payable.

I certify that this and the 17 preceding pages are a true copy of the decision and reasons for decision herein of

Dr J.D. Campbell.

Signed: .....................................................................................

Assistant

Date/s of Hearing 17 September 1998

Date of Decision 28 January 1999

Solicitor for the Applicant Unrepresented

Advocate for the Respondent Mr P. McDougall