Delia; Secretary, Department of Family and Community Services [1999] AATA 799 (26 October 1999)

Last Updated: 1 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. S1998/325

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY , DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And TANIA DELIA

Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date 26 October 1999

Place Adelaide

Decision (1) The decision of the Social Security Appeals Tribunal that there is a debt due by the respondent to the Commonwealth in the amount of $1687.50 for the period 24 October 1996 to 20 November 1997 is affirmed. (2) The decision of the Social Security Appeals Tribunal to waive the whole of the debt is set aside and, in substitution therefor, it is decided that: (a) the amount of the debt calculable in accordance with paragraph 25 of these reasons is waived pursuant to s1237A of the Act; and (b) the amount of the debt relating to the period from the payday after 11 June 1997 to the payday 20 November 1997 is waived pursuant to s1237A of the Act. (3) The matter is remitted to the Secretary for recalculation of the amount of the debt which is now recoverable.

............(Signed)......................

Deputy President B.H. Burns

CATCHWORDS

SOCIAL SECURITY - family allowance - overpayment and debt due to the Commonwealth - income estimates - Secretary's powers to obtain and have regard to information provided by a benefit recipient - whether request made under s1069-H21 of the Social Security Act 1991 - waiver - whether debt or portion thereof solely attributable to administrative error made by the Commonwealth - decision to waive the whole of the debt set aside.

Social Security Act 1991 - ss861, 872, 873, 885(1), 878, 879, 1069, 1223(3), 1237A(1), Module H - Family Allowance Rate Calculator, Part 3.7.

Re Stuart and Secretary, Department of Social Security (1999) 54 ALD 241

Re Secretary, Department of Social Security and Jones (1998) 20 ALD 248

REASONS FOR DECISION

26 October 1999 Deputy President B.H. Burns

1. This is an application by the Secretary, Department of Family and Community Services ("the Secretary") for review of a decision of the Social Security Appeals Tribunal dated 22 July 1998 to waive a debt of $1,687.50 owed by the respondent, Tania Delia, arising from overpayments of family payment for the period 24 October 1996 to 20 November 1997.

2. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with the other documentary material placed before it by the parties. In addition, Mrs Delia gave oral evidence before the Tribunal.

3. The Secretary was represented by Mr R. M. Ford, a Departmental advocate, who was assisted by Mr J. Underwood. Mrs Delia appeared in person before the Tribunal with her husband, and she was assisted by the Welfare Rights Centre in the preparation of written submissions.

4. By way of background, the Tribunal finds the following facts that were not in dispute between the parties:

(a) Mrs Delia was in receipt of family allowance in respect of her two children.

(b) For the financial year ended 30 June 1996 ("the 1995/1996 tax year"), Mrs Delia's husband's taxable income was $26,991 whilst Mrs Delia's was $9,109, giving a combined taxable income of $36,100.

(c) Pursuant to the income test provisions of the Social Security Act 1991 ("the Act"), Mrs Delia was assessed as being entitled to receive the basic rate of family allowance, being, as it then was, $45.40 per fortnight. She was paid at this rate from the payday 18 July 1996 until the payday 10 October 1996 (T13 at p82).

(d) In October 1996, Mrs Delia was sent a form entitled "Review of your Family Payment and Childcare Assistance" comprising a "Question Guide" (T3) and "Answer Sheet" (T4). The answer sheet was completed, signed by both Mr and Mrs Delia and dated 18 October 1996, and then returned to the Department.

(e) In answer to question 7 on the above form, Mrs Delia indicated that her income in the 1996/1997 tax year was less or likely to be less than that in 1995/1996. In answer to question 8, she estimated that for the 1996/1997 tax year, her taxable income was likely to be nil whilst her husband's was likely to remain at $26,991, giving a combined income of $26,991.

(f) On the basis of information provided in the above form, Mrs Delia's rate of payment of family allowance was reassessed. In a letter dated 11 November 1996, she was notified of the new rate at which she would be paid together with details as to her entitlement to payment of arrears for the previous two paydays (T5). She was also notified of the fact that the new rate had been worked out using a combined income figure of $26,991.

(g) Accordingly, Mrs Delia was paid at the increased rate of $114.75 per fortnight from payday 24 October 1996 to payday 19 December 1996 (T13 at p82). From payday 2 January 1997 to payday 22 May 1997, Mrs Delia's rate of family allowance increased to $134 per fortnight for reasons that are not relevant here (T13 at p83-84 together with the explanation provided in the respondent's submissions dated 23 July 1999, which was not disputed by Mrs Delia).

(h) In January 1997, Mr Delia changed jobs, commencing work at Valvoline.

(i) In May 1997, Mrs Delia applied for childcare assistance (T6). In an application form signed by Mr and Mrs Delia and dated 20 May 1997, Mrs Delia indicated that there had been two changed circumstances, namely, that she would be starting or recommencing work as of 21 May 1997 and that her husband had changed jobs as of 28 January 1997 (question 19). Accordingly, revised income estimates were provided. In this regard, Mrs Delia estimated her 1996/1997 income to be $1,000 and her husband's to be $29,000, giving a combined taxable income of $30,000 (question 21).

(j) Mrs Delia's rate of family allowance was again reassessed on the basis of the revised income estimate of $30,000. In a letter dated 28 May 1997, Mrs Delia was notified that her new rate of family allowance was to be $76.15 per fortnight and that it had been worked out using an income of $30,000 (T9). Mrs Delia was paid at this rate from payday 5 June 1997 to payday 20 November 1997 (T13 at p84-85).

(k) On 21 November 1997, Mrs Delia completed a further review form. She indicated that for the year ended 30 June 1997, her husband's actual taxable income was $31,315 whilst her own income was $1789, giving a combined taxable income of $33,104 (T10). On this basis, for the period 24 October 1996 to 20 November 1997, Mrs Delia was only entitled to the basic rate of family allowance.

(l) On 13 March 1998, a debt of $1,687.50 relating to overpayments of family allowance for the period 24 October 1996 to 20 November 1997 was calculated and raised (T15). This decision was affirmed by an authorised review officer (T22).

(m) On 22 July, the Social Security Appeals Tribunal decided that the whole of the debt should be waived pursuant to s1237A(1) of the Act on the grounds that it was solely attributable to administrative error made by the Commonwealth. The Secretary applied to the Tribunal for review of this decision.

5. The Tribunal turns now to consider the relevant provisions of the Act. Section 861 of the Act provides that the rate of family allowance payable to a person is worked out using the Family Allowance Rate Calculator at the end of s1069. "Module H - Family Allowance Income Test" in Part 3.7 of the Act (the Family Allowance Rate Calculator) sets out the relevant income test provisions as they relate to payment of family allowance. In short, it provides the means by which the correct rate of family allowance is to be calculated. Submodule 1 sets out the general provisions of the income test, namely, who it applies to, what constitutes income, and other relevant definitions. It was not in dispute that the income test applied to Mrs Delia and that her and her husband's income was to be added for the purposes of the income test (s1069-H3). Section 1069-H8(1) provides:

" Income components for tax year

1069-H8(1) A person's taxable income for a tax year is:

(a) the person's assessed taxable income for that year; or

(b) if the person does not have an assessed taxable income for that year - the person's accepted estimate of taxable income for that year."

Section 1069-H9 specifies that "assessed taxable income" is as assessed by the Commissioner of Taxation or, if amended by a court or tribunal, as assessed by the court or tribunal. Sections 1069-H10, H11 and H12 are also relevant and state:

" Accepted estimate

1069-H10 A person's accepted estimate of an income component for a tax year is that income component according to the most recent notice given by the person under point 1069-H11 and accepted by the Secretary for the purposes of this Module.

Notice Estimating income component

1069-H11 A person may give the Secretary a notice setting out the person's estimate of an income component of the person for a tax year.

Acceptance of notice

1069-H12 The Secretary is to accept a notice referred to in point 1069-H11 for the purposes of this Module only if the Secretary is satisfied that the estimate is reasonable."

It was not in dispute that each of Mrs Delia's income estimates were accepted by the Secretary in accordance with the above provisions.

6. Submodule 2 sets out the method by which the Secretary is to ascertain the appropriate tax year for the purpose of applying the income test. Sections 1069-H13 and H14 are the beginning point and state:

" Appropriate tax year

1069-H13 Subject to the following provisions of this Submodule, the appropriate tax year for a family allowance payday is the base tax year for that payday.

Base tax year

1069-H14 The base tax year for a family allowance payday is the tax year that ended on 30 June in the calendar year that came immediately before the calendar year in which the payday occurs.

Example:

A family allowance payday occurs on 25 January 1995 - this day occurs in the calendar year 1 January 1995 to 31 December 1995 - the calendar year that came immediately before this one is the calendar year 1 January 1994 to 31 December 1994 - the base tax year is the tax year that ended on 30 June 1994 (ie the year of income that began on 1 July 1993)."

Hence, for paydays falling in 1996, the base tax year will be the 1994/1995 tax year whereas for paydays falling in 1997, the base tax year will be the 1995/1996 tax year. Submodule 2 also provides certain circumstances whereby the appropriate tax year may be changed. Sections 1069-H20, H21 and H22 are relevant in this regard and state:

" Change to appropriate tax year at recipient's request

1069-H20 If:

(a) a person requests the Secretary to make a determination under point 1069-H21; and

(b) as a result, the Secretary determines under that point that the appropriate tax year, for the purpose of applying this Module to the person for a family allowance payday on or after the day on which the request is made, is the tax year in which the person makes the request;

the appropriate tax year, for that purpose, is the tax year in which the person makes the request.

Family allowance recipient may ask Secretary to change appropriate tax year

1069-H21 If:

(a) family allowance:

(i) is not payable to a person because of this Module; or

(ii) is payable at a reduced rate because of this Module; and

(b) the person gives the Secretary an estimate of the person's income for a tax year; and

(c) the person requests the Secretary to make a determination under this point; and

(d) the person agrees that the person's rate of family allowance for that tax year is to be recalculated if the person's actual income for that tax year exceeds 110% of the amount estimated by the person;

the Secretary must determine that the appropriate tax year, for the purpose of applying this Module to the person for a family allowance payday on or after the day on which the request is made, is the tax year in which the request is made.

Note 1: For income see point 1069-H2.

Note 2: For the consequences of underestimating income see section 885.

Form of request

1069-H22 A request under point 1069-H21 must be made in writing in accordance with a form approved by the Secretary."

It is the Secretary's contention that Mrs Delia requested that the appropriate tax year be changed and that it was changed in accordance with those sections. In effect, the Secretary's contention is that in October 1996, Mrs Delia requested that the Secretary change the appropriate tax year from the base tax year (which would be the 1994/1995 tax year for paydays occurring in 1996) to her estimate for the year in which the request was made, ie. the 1996/1997 tax year ($26,991). The Secretary also contended that she made a similar request in respect of paydays occurring in 1997, namely, that the 1995/1996 base tax year be changed first, to the estimate of $26,991 for the 1996/1997 tax year and, secondly, to the revised estimate of $30,000 for the same year.

7. The appropriate tax year may also be changed where there has been a notifiable event or assumed notifiable event. Sections 1069-H16, H17 and H19 are not relevant for current purposes. However, s1069-H18 may be relevant and provides as follows:

" Change to appropriate tax year because of notifiable event

1069-H18 If:

(a) a notifiable event occurs in relation to a person; and

(b) the person's income for the tax year in which the notifiable event occurs exceeds:

(i) 110% of the person's income for the base tax year; and

(ii) 110% of the person's income free area;

the appropriate tax year, for the purpose of applying this Module to the person for the remainder of the family allowance period, is the tax year in which the notifiable event occurs.

Note 1: For notifiable event see point 1069-H6.

Note 2: For income see point 1069-H2."

Pursuant to s1069-H6, an event is a notifiable event where a person has been given a notice under s872(1) which states that the event is a notifiable event for the purposes of the Module. In Mrs Delia's case, notifiable events include the events listed in the notices sent to her on 11 November 1996 (T5) and 28 May 1997 (T9) as well as the events referred to in the application form for Childcare Assistance which is also a notice for the purposes of s872 of the Act (T6). It was not in dispute that at least two notifiable events occurred in the relevant period, namely, Mr Delia's change in jobs in January 1997 and Mrs Delia's re-commencement of work in May 1997.

8. Where a benefit recipient's actual income exceeds 110 per cent of an income estimate used to calculate their rate of payment, s885 of the Act is the relevant section for recalculation of the rate of family payment. Relevantly, it states.

"Recalculation if income exceeds 110% of estimated amount

885 (1) If:

(a) in working out the rate of family allowance payable to a person, regard is had to the person's income for a tax year; and

(b) the income to which regard was had consisted of an amount estimated by the person; and

(c) the person's income for that tax year is more than 110% of the amount of the income on which the determination of the rate of family allowance was based;

the person's rate of family allowance is to be recalculated on the basis of that income."

Section 1223(3) of the Act is the relevant section for the raising of a debt due to the Commonwealth where there is an overpayment arising from a recalculation under s885. It states:

"Recalculation of amount of family allowance

1223 (3) Subject to subsection (4), if:

(a) an amount (the received amount) has been paid to a person by way of family allowance; and

(b) the person's rate of family allowance is recalculated under:

(i) ... ; or

(ii) section 885 (underestimate of income); or

...

(c) the received amount is more than the amount (the correct amount) of the family allowance payable to the person;

the difference between the received amount and the correct amount is a debt due to the Commonwealth.

Note: For the date of effect of a determination made to take account of an amendment of assessable income, see section 890."

The Evidence

9. Mrs Delia gave oral evidence before the Tribunal during which she deposed to the circumstances leading up to, and surrounding, the events in question. Her evidence was that, initially, she was receiving the basic rate of family allowance in respect of one child, during which time both she and her husband were working. When her second child was born, she ceased work and her rate of family allowance increased but remained at the basic rate payable for two children. Mrs Delia said that when she received the review form (T3/T4), she was under the impression she was obliged to fill it in and did not appreciate that she could chose whether or not to provide an income estimate, or, that if she did supply an income estimate, she would be taken to have requested that the Secretary make a determination under s1069-H21 ie. that her rate of payment be reassessed on the basis of that estimate. Mrs Delia said she filled in the form to the best of her ability. During cross-examination, Mrs Delia gave evidence that had she been adequately appraised of the options available to her and of the relevant consequences, she may well have chosen not to give an income estimate (and not receive a higher rate of family allowance) thereby averting the risk of incurring a debt should combined income exceed the 10 per cent margin for error allowed by the legislation. In her evidence, Mrs Delia acknowledged that having received the letter dated 11 November 1996, she was aware that her family allowance had increased on account of the income estimate of $26,991 provided in the form submitted in October 1996 (T4).

10. Mrs Delia gave evidence that her next contact with the then Department of Social Security (now, Department of Family and Community Services) - "the Department" - was on 28 January 1997 when she advised it by telephone that her husband had changed jobs and was earning $29,000. She said she was not surprised when her rate of payment remained stable as she assumed everything was under control. Mrs Delia said that in May 1997, she was asked to work part-time for four weeks which prompted her to apply for childcare assistance (T6). At this time, she estimated that her income was to be $1,000 which, together with her husband's income of $29,000, gave a combined total of $30,000. Her evidence was that on 11 June 1997, having found out she was to be working for an extra three weeks, she again contacted the Department by telephone to inform them of this change. She said she spoke to a female officer of the Department who told her that "it won't make any difference, don't worry about it". As the Tribunal understands it, there was no record of this telephone communication or the previous communication on 28 January 1997 in the Department's records (Exhibit A4).

11. The Tribunal has had the advantage of closely observing and listening to Mrs Delia during the giving of her evidence before the Tribunal. She was an impressive witness. The Tribunal formed the distinct impression that she did her best at all times to honestly and accurately portray to the Tribunal the events in question and the Tribunal has no hesitation in accepting the factual content of her testimony.

Consideration of the Issues

12. The first issue in dispute between the parties is whether or not the circumstances surrounding Mrs Delia's filling out of the "Review of your Family Payment and Childcare Assistance" form (T3 and T4) and the application form for Childcare Assistance (T6) could be said to fall within the terms of ss1069-H20, H21 and H22 of the Act ie. whether the supplying of income estimates in those forms could be said to constitute requests by Mrs Delia for the Secretary to make determinations under s1069-H21. This issue has been the subject of previous decisions by the Tribunal in Re Stuart and Secretary, Department of Social Security (1999) 54 ALD 241 and Re Secretary, Department of Social Security and Jones (1998) 20 ALD 248.

13. The second issue was as to whether administrative errors had been made by the Commonwealth for the purposes of waiver in s1237A of the Act arising from the Department's failure to act on the two occasions when Mrs Delia phoned to advise of changes to combined income. In relation to the second occasion in June 1997 when she telephoned to advise that she would be working an extra three weeks, Mrs Delia submitted that she had been given wrong advice by the Department. Had she been given the correct advice, the submission continued, namely, that she should submit a revised income estimate, then the income ultimately would not have exceeded the 110 per cent threshold for the purposes of s885 and hence, she would not have incurred a debt as from that time onwards.

14. The Tribunal raised an additional issue with the parties, namely, whether, having regard to the Secretary's broad powers under the Act for the obtaining of information from benefit recipients, including income details, the Secretary has the power to recalculate the rate of family allowance under s885 irrespective of whether or not there has been a request by the recipient under s1069-H21, or, for that matter, a notifiable event for the purposes of s1069-H18.

15. The Tribunal now turns to consider the relevant issues beginning with that raised by the Tribunal. In so doing, the Tribunal would indicate that it has had regard to the totality of the material placed before it including Mrs Delia's oral evidence, the documentary material placed before the Tribunal, the submissions made on behalf of each party and the authorities referred to therein.

16. Pursuant to s872(1) of the Act, the Secretary "may give a recipient of family allowance a notice that requires the recipient to inform the Department if: (a) a specified event or a change of circumstances occurs; or (b) the recipient becomes aware that a specified event or change of circumstances is likely to occur." Pursuant to s872(2), an event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect payment of family allowance. In addition, s873 of the Act empowers the Secretary to "give a recipient of family allowance a notice that requires the recipient to give the Department a statement about a matter that might affect the payment of the family allowance to the recipient".

17. It was not in dispute that the Secretary had validly exercised the Secretary's powers under the Act in the course of sending Mrs Delia the relevant review forms and in so far as the Secretary had requested, from time to time, other information of Mrs Delia including that requested in the application form for Childcare Assistance. Relevantly, the first review form completed in October 1996 notified Mrs Delia of the following (T3):

"Why you need to complete your review

We have sent you these forms because you get Family Payment and/or Childcare Assistance.

The information that you give us will be used to work out:

* your rate of Family Payment for 1997; and/or,

* your percentage of Childcare Assistance from 1 April 1997.

It may also be used to reassess your current rate of Family Payment and/or your current Childcare Assistance percentage.

...

Returning your review form/s

...

If you do not return the form/s within 21 days, your Family Payment will stop.

..."

At the completion of the form, the following declaration appeared (T4):

"...

If I/we have provided an estimate of my/our income, I/we agree that my ... Family Payment is to be recalculated if my/our actual income is more than 110% of my/our estimate and that I/we may have to repay any overpayment that results.

..."

There was no question as to the validity of the review form which, having regard to ss872(3A) and 873(2A) of the Act, is not affected by reason that it failed to state that it was a "recipient notification notice" or "recipient statement notice" given under the Act. At the completion of the application form for Childcare Assistance, the declaration stated (T6):

"...

If I have provided an estimate of my/our income, I agree that my Childcare Assistance and Family Payment are to be recalculated if my/our actual income is 10% more than my estimate and that I may have to repay any overpayment that results.

...

This is also a recipient notification notice under section 872 of the Social Security Act. Any information you provide on this form may be used to reassess your Family Payment entitlement."

18. Sections 878 and 879 of the Act respectively provide:

"878 Rate increase determination

If the Secretary is satisfied that the rate at which family allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.

...

879 Rate reduction determination

If the Secretary is satisfied that the rate at which family allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.

..."

19. Clearly, the relevant sections of the Act vest in the Secretary very broad powers to obtain relevant information from a benefit recipient, including income details, and to have regard to that information for the purposes of the Act, namely, to assess a person's entitlement to benefit and to ensure that, from time to time, and, in response to changes in a person's circumstances, the person is receiving their correct entitlement to benefit. This serves a two-fold purpose. In the context of family allowance, if the income of a family allowance recipient increases or is likely to increase, the Secretary may reduce or cease payment of benefit in order to prevent overpayments and protect the public purse. On the other hand, if a person's income falls, or is likely to fall, the Secretary may increase the rate of payment of family allowance so as to meet the Secretary's duty to apply the legislative provisions in a manner most beneficial to the recipient of benefit.

20. In the case at hand, Mrs Delia provided two written income estimates, one of $26,991 and one of $30,000. The Tribunal's considered view is that the Secretary is not bound to have regard to such estimates only where it can be said that the person made a request under s1069-H21 or where there has been a notifiable event, but is at liberty to do so whenever information has been properly obtained by the Secretary and the Secretary sees fit for the purposes of ensuring that the person is being paid the correct rate of family allowance provided for by the Act. Such is implicit from the Secretary's wide powers to obtain information from a benefit recipient, but is also reflected in certain provisions in the Act, for example, ss878 and 879, as well as ss1069-H11 and 1069-H12 which state that "A person may give the Secretary a notice setting out the person's estimate of an income component of the person for a tax year" and "The Secretary is to accept a notice referred to in point 1069-H11 for the purposes of this Module only if the Secretary is satisfied that the estimate is reasonable" (emphasis added). Hence, the Tribunal has rejected the submission put on behalf of Mrs Delia which was accepted by the Social Security Appeals Tribunal that the Secretary wrongly had regard to Mrs Delia's income estimates. Rather, the Tribunal finds that in using Mrs Delia's estimates to vary her rate of payment from time to time, the Secretary had appropriate regard to the two estimates as the Secretary was well entitled to do under the Act. The Tribunal has also rejected the submission put by Mr Underwood that the Secretary should only have regard to income estimates in certain situations expressly authorised by Module H of Part 3.7 of the Act and not in others. There is nothing in the Act which expressly fetters the Secretary's powers in this manner and the Tribunal so finds.

21. Mrs Delia expressed concern that when the Secretary, of his or her own motion, increases the rate of payment of family allowance (or takes a person to have requested the same under s1069-H21), it will not always prove beneficial to the recipient, especially where an overpayment results as was the case here. This would be particularly so in the context of casual employees whose annual income is often difficult to accurately predict. However, the Tribunal would point out that any perceived unfairness must be balanced by the fact that the legislation allows a 10 per cent margin for error in the making of income estimates, and, significantly, does not require repayment of overpayments of family allowance which arise as a consequence of a person underestimating their actual income by less than 10 per cent. Hence, although it is possible that bonuses may be received under the legislation, this does not mean it is unfair on a person who is required to pay back moneys they have received to which they were not entitled. Further, the provisions allowing the Secretary to increase the rate of payment are beneficial in light of the fact that there are no arrears provisions to remedy a situation where a person is assessed on the basis of the base tax year and it later comes to light that they were in fact entitled to a higher rate of payment having regard to their actual income. Hence, although a person may, in certain situations, have to repay overpayments of family allowance, the corollary is that they will, at all times, be assured of receiving their maximum entitlement to family allowance and will not miss out on additional amounts of family allowance that they were entitled to but did not receive.

22. Turning now to s885 of the Act, the Tribunal finds that the Secretary has, in working out the rate of family allowance payable to Mrs Delia at various times, had regard to the two income estimates provided by her for the 1996/1997 tax year, being $26,991 and $30,000. This was made abundantly clear in the letters notifying Mrs Delia of the fact that the various income estimates had been used to work out the relevant rates of payment (T5,T9). The Tribunal also finds that Mr and Mrs Delia's actual income of $33,104 in the 1996/1997 tax year was more than 110 per cent of the estimates on which the Secretary's determination was based, meaning that Mrs Delia's rate of family allowance is to be recalculated under s885 on the basis of their actual income. Ultimately, the recalculation under s885 gives rise to a debt owed to the Commonwealth under s1223(3), as calculated by the delegate, and the Tribunal so finds.

23. Turning now to the question of waiver, it follows from the Tribunal's reasoning above that the Tribunal is not satisfied that an administrative error was made by the Commonwealth in so far as the Secretary had regard to the two income estimates provided by Mrs Delia. Rather, the Tribunal is satisfied that this course was entirely appropriate and, moreover, was one which is authorised under the Act.

24. The Tribunal now turns to consider whether there was an administrative error made by the Department in its alleged provision of incorrect advice over the telephone in response to an inquiry by Mrs Delia in June 1997. The Tribunal has accepted the evidence of Mrs Delia in this regard and finds that Mrs Delia contacted the Department by telephone to advise that she would be working for a further three weeks and was advised that it would not make any difference. The Tribunal is satisfied that had she been correctly advised that she should submit a revised income estimate to the Department, it is more probable than not that she would have done so. Further, bearing in mind Mrs Delia's previous estimate of $1,000 income corresponding to four weeks of work, the Tribunal is satisfied that her revised income estimate taking into account an additional three weeks of work would have been in the vicinity of $1,750, giving a combined estimate for her and her husband of around $30,750. In this scenario, their actual income of $33,104 in the 1996/1997 tax year would not have been more than 110 per cent of the estimate which, ultimately, would have prevented a debt from being raised under s1223 via s885 as from this time onwards. There was no dispute that Mrs Delia received the payments that gave rise to the debt in good faith and the Tribunal so finds. For these reasons, the Tribunal finds that as from the payday after 11 June 1997, the debt was solely attributable to administrative error and should be waived pursuant to s1237A of the Act.

25. It is also implicit in the submissions of the respondent and her evidence that she alleges that another administrative error occurred in relation to the failure of the Department to adjust her rate of family allowance as a consequence of her notifying the Department by telephone on 28 January 1997 of the increase in her husband's income from $26,991 to $29,000 on account of his change in jobs. The Tribunal is in agreement with this submission. Had the Department acted upon the information provided by the respondent and reduced her rate of family allowance accordingly, the amount of the overpayment as from the payday after 28 January 1997 would have been reduced. This change to the rate of family allowance, had it occurred, would have been operative until the time her rate of family allowance was next adjusted which occurred as a consequence of her notifying the Department in May 1997 that she was to recommence work and supplying a revised income estimate of $30,000. Hence, the Tribunal is satisfied, and so finds, that the difference between the rate at which the respondent was paid during this period and the rate she should have been paid had the Department done what it ought to have done, namely, reassessed the rate on the basis of the estimate of $29,000, is a portion of the overall debt which is solely attributable to administrative error made by the Commonwealth. As the respondent's good faith was never in doubt in these proceedings, the Tribunal finds that this portion of the debt also be waived pursuant to s1237A of the Act.

26. The Tribunal would indicate that although, at the end of the day, the issue of whether or not there was a request by Mrs Delia for the purposes of s1069-H21 is not determinative of the issues before the Tribunal, in view of the uncertainty surrounding the issue arising from perceived differences in the Tribunal's reasoning from time to time, the Tribunal would consider it appropriate in the circumstances to indicate its view that the preferred approach is that taken by Deputy President Forgie in the case of Stuart (supra). The Tribunal's considered view is that the word "request" is to be given its ordinary meaning and that provision of information to the Department in the circumstances apparent here cannot be considered to be a request. As Mrs Delia said, had she been fully appraised of the fact that she could choose whether or not to provide an income estimate and request a determination to be made, and had she been aware of the potential consequences of adopting such a course, she may well have chosen not to provide an income estimate, thereby sacrificing any additional entitlements she may have been entitled to and avoiding the potential for overpayments to arise. As it was, she was not so appraised but was responding to what she perceived to be a demand by the Department which would result in cancellation of payment should she fail to comply. The Tribunal would indicate that it cannot be assumed that every person who is paid family allowance at a reduced rate and who experiences a fall in income will necessarily choose to receive a higher rate of benefit thereby running the risk of incurring a debt should their estimate prove incorrect by greater than 10 per cent. Accordingly, it cannot be taken that a person in Mrs Delia's shoes has made a request of the Secretary simply because she has supplied an income estimate which, on its face, rendered her being entitled to a higher rate of payment.

27. At the end of the day however, whether or not it would be described as a request is immaterial, given the Tribunal's view as to the Secretary's very broad powers to obtain and utilise information for the purposes of ensuring that persons are, on the material available to the Secretary at the relevant time, being paid their correct entitlements in accordance with the Act. In any event, the Tribunal was informed that the "request" situation has now been rectified by an amendment to the relevant form, and the Department is to be commended for this initiative.

28. For these reasons, the decision of the Tribunal is as follows:

(1) The decision of the Social Security Appeals Tribunal that there is a debt due by the respondent to the Commonwealth in the amount of $1687.50 for the period 24 October 1996 to 20 November 1997 is affirmed.

(2) The decision of the Social Security Appeals Tribunal to waive the whole of the above debt is set aside and, in substitution therefor, it is decided that:

(a) the amount of the debt calculable in accordance with paragraph 25 of these reasons is waived pursuant to s1237A of the Act; and

(b) the amount of the debt which relates to the period from the payday after 11 June 1997 to the payday 20 November 1997 is waived pursuant to s1237A of the Act;

(3) The matter is remitted to the Secretary for recalculation of the amount of the debt which is now recoverable.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B H Burns

Signed: ..........(Signed)......................

Peter Psaltis (Associate)

Date/s of Hearing 15 June 1999

Date of Decision 26 October 1999

Counsel for the Applicant Mr R M Ford with Mr. J Underwood

Departmental advocates

Counsel for the Respondent In person