Jenner and Secretary, Department of Family and Community Services [2000] AATA 289 (13 April 2000)

Last Updated: 14 April 2000

DECISION AND REASONS FOR DECISION [2000] AATA 289

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/425 & S99/312

General Administrative DIVISION )

Re ANNE JENNER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 13 April 2000

Place Adelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decisions under review and in substitution therefor decides that: (a) the Family Payment debt for the period 2 January 1997 to 31 July 1997 is waived in its entirety; and (b) there is no recoverable Family Payment debt for the period 4 January 1996 to 5 December 1996.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits & allowances - Family Payment - whether applicant "requested" estimate be used - whether erroneous use of estimate constitutes "administrative error" - meaning of "regard was had" - whether regard was had to an estimate - "having regard" involves factual considerations

Social Security Act 1991 ss.885, 891, 1069 1223, 1237A

Re Secretary, Department of Social Security and Jones (1998) 50 ALD 248

Re Secretary, Department of Family and Community Services and Delia [1999] AATA 779

Re Brittain and Secretary, Department of Family and Community Services [2000] AATA 161

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

Re Secretary, Department of Social Security and Pyke (AAT 12794, 9 April 1998)

Re Secretary, Department of Social Security and Cox (AAT 13050, 2 July 1998)

Re Secretary, Department of Family and Community Services and Couch [2000] AATA 1

REASONS FOR DECISION

13 April 2000 Senior Member J.A. Kiosoglous MBE

1. This is an application by Ms Anne Jenner (the applicant) for review of two decisions of the Social Security Appeals Tribunal (SSAT) dated 28 September 1998 (TA2) and 19 July 1999 (TB2) affirming decisions of authorised review officers (ARO) dated 31 August 1998 (TA14) and 25 May 1999 (TB16) respectively. These decisions had affirmed decisions of delegates of the respondent dated 29 July 1998 (TA9) and 30 April 1999 (TB14) respectively, to raise and recover debts of Family Payment in the amounts of $1,519 and $2,549.60 respectively.

2. For the purposes of this decision, the SSAT decisions under review will be referred to by their Tribunal file numbers. The SSAT decision dated 19 July 1999, will be referred to as the "S99/312" decision and the 28 September 1998 decision will be referred to as the "S98/425" decision.

3. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (TA1-18 in respect of S98/425 and TB1-20 in respect of S99/312 ), together with three exhibits, one lodged by the applicant (Exhibit A1) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant, who represented herself. The respondent was represented by Mr A. Goldie, a departmental advocate.

4. The issue before the Tribunal in respect of both matters is whether or not the applicant was overpaid Family Payment; and if so, whether there is a debt; and if so, whether part or all of the debt should be waived.

legislation

5. Section 885 of the Social Security Act 1991 (the Act) provides for a recalculation in the event of an overestimate of income, with section 891 of the Act setting the date of effect:

"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.

885.(2) For the purposes of this section, a person's income for a particular tax year is the sum of:

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

(b) the person's adjusted fringe benefits value for that year; and

(c) the person's target foreign income for that year; and

(d) the person's net rental property loss for that year.

885.(3) In this section:

adjusted fringe benefits value has the same meaning as in points 1069-H25 and 1069-H26 in Module H of the Family Allowance Rate Calculator in section 1069.

...

891. If:

(a) the Secretary makes a determination of a person's rate of family allowance; and

(b) in making the determination, the Secretary had regard to the person's income for a tax year; and

(c) the income to which regard was had included an amount or amounts estimated by the person; and

(d) the person's income for the tax year is more than 110% of the amount of the income on which the determination referred to in paragraph (a) was based; and

(e) the Secretary makes a determination varying the person's rate of family allowance, or cancelling the person's family allowance, to give effect to the recalculation required by section 885;

the later determination takes effect on the day on which the earlier determination took effect."

6. Section 1069-H (as it was with effect from 1 January 1996) sets the appropriate tax year in respect of the Family Payment and states (inter alia):

"...

1069-H17. If:

(a) an assumed notifiable event occurs in relation to a person after the end of the base tax year and before the beginning of the family allowance period; and

(b) point 1069-H16 does not make the year in which the event occurs (the event tax year) the appropriate tax year; and

(c) the person's income for the tax year that follows the event tax year is likely to exceed:

(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:

(d) the part of the family allowance period in which the event occurs that comes after the end of the event tax year; and

(e) the next family allowance period after the one referred to in paragraph (d);

is the year that follows the event tax year.

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.

1069-H19. If:

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

(b) point 1069-H18 does not make the year in which the event occurs (the event tax year) the appropriate tax year; and

(c) the person's income for the tax year that follows the event tax year is likely to exceed:

(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:

(d) the part of the family allowance period in which the event occurs that comes after the end of the event tax year; and

(e) the next family allowance period after the one referred to in paragraph (d);

is the year that follows the event tax year.

...

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

7. Section 1223 of the Act outlines when a debt arises in respect of Family Payments:

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

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

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

(i) section 884 (amendment of assessable income); or

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

(iii) section 886 (failure to notify notifiable event); and

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

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

8. Section 1237A of the Act contains the relevant waiver provisions:

"1237A (1) 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.

1237A(2) If:

(a) a debt arose because the debtor or the debtor's partner underestimated the value of particular property of the debtor or partner; and

(b) the estimate was made in good faith; and

(c) the value of the property was not able to be easily determined when the estimate was made;

the Secretary must waive the right to recover the proportion of the debt attributable to the underestimate.

1237A(3) For the purposes of this section, a proportion of a debt may be 100% of the debt."

s98/425

9. The applicant was in receipt of Family Payment in 1996 and lodged a Family Payment review form (TA3) in which she estimated her 1996/97 income at $25,000 (at question 8). At question 4 of that form she stated her actual income for 1995/96 as $27,965. The applicant signed the statement on the form (Statement 15) which reads (inter alia):

"...

If I/we have provided an estimate of my/our income, I/we agree that my Childcare Assistance and/or 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.

..."

10. The applicant received a letter dated 15 December 1996 (TA4) stating that her 1997 Family Payment would be calculated using an income of $27,965. Until May 1997, the applicant was paid Family Payment on the basis of this income. In May 1997 the Department decided to use 1996/97 as the appropriate tax year and pay the applicant for the 1997 calendar year on the basis of the estimate of $25,000. Mr Goldie, on behalf of the respondent, was unable to explain to the Tribunal why the Department took this course of action. From 22 May 1997 payday the applicant received Family Payment at an increased rate and received arrears for the period 2 January 1997 to 8 May 1997 inclusive, as confirmed to the applicant in a letter dated 7 May 1997 (TA5).

11. The applicant's actual income turned out to be $29,935 for the 1996/97 year, which, being more than 110% of $25,000 gave rise to an overpayment for the period during which the applicant was paid in accordance with the estimate. Accordingly, a delegate of the respondent raised a debt, varied by an ARO to only include the number of paydays affected by the estimate in the amount of $1,519. The SSAT affirmed this decision.

applicant's evidence and submissions

12. The applicant told the Tribunal that she did not query in December 1996 why the estimate of $25,000 was not going to be used for the 1997 year, as she presumed that her income was not low enough and that she anticipated her income to remain at around $27,000. She stated that in March 1997 she rang the Centrelink Call Centre to advise that her income would be around $27,000 due to her continuing on higher duties in her then employment. She stated that she was told at that time that she was being paid on the basis of her actual income and not the estimate, and only needed to next inform the Department when she received her tax return. She stated that in August 1997 she revised the estimate and submitted that since this was within 13 weeks of the decision made in May 1997 to use the original estimate, she should be paid from May 1997 on the basis of the August 1997 estimate. She stated that she was not given the opportunity to provide a revised estimate.

respondent's submissions

13. Mr Goldie submitted that as "regard was had" to the estimate and the actual taxable income turned out to be more than 110% of that estimate, there is a debt due to the Commonwealth. He argued that there is no administrative error in that the Department was correct to regard the estimate, relying on Re Secretary, Department of Social Security and Jones (1998) 50 ALD 248 and Re Secretary, Department of Family and Community Services and Delia [1999] AATA 779. He submitted that there are no special circumstances in respect of this debt.

discussion and findings

14. As "regard was had" to "a tax year" which amounted to more than 110% of the "estimate to which regard was had", section 885 of the Act necessarily gave rise to a recalculation of the applicant's entitlement, and a debt arises pursuant to section 1223(3) of the Act. It is sufficient at the stage of establishing a debt that regard was had to the estimate and to the 1996/97 tax year, whether or not the Department was right to do so.

15. There is no evidence before the Tribunal as to why the Department suddenly decided in May 1997 to have regard to the estimate, and changed the tax year from 1995/96 to 1996/97. There was no notifiable event presented to the Tribunal which would warrant such a change. In the absence of a notifiable event the estimate for the 1996/97 tax year may only be used if so requested. Mr Goldie submitted to the Tribunal that the annual review form (TA3) can be taken as a request to use the estimate and that the Department did so correctly.

16. This Tribunal made its position as to the use of estimates very clear in Re Brittain and Secretary, Department of Family and Community Services [2000] AATA 161. In that case, the Tribunal stated at paragraphs 30-35:

"30. In the present matter, the Tribunal has had careful regard to the form upon which the estimate was given (T3/47) and notes that no evidence was put before it to indicate that this was an "approved form" in accordance with sub-s.1069-H22. Nor is there any indication that the applicant knew that she was making a choice that an estimate be used to calculate her entitlement by virtue of providing an estimate. As Dr Horr told the Tribunal, the estimate was provided because the letter accompanying the form clearly sets out the penalties for failure to provide an estimate. The estimate in this case was simply provided because the Department was threatening to cancel the applicant's benefit. Further, there is no evidence on the form, that the provision of the estimate is a "request" by the person filling out the form. In the circumstances, the Tribunal finds that no "request" was made.

31. In Re Delia, the Tribunal considered that whether or not a request is made is "immaterial, given the Tribunal's view as to the Secretary's very broad powers to obtain and utilise information" (paragraph 26), and hence found that the use of the estimate did not amount to administrative error. This conclusion is contrary to that reached in Re Stuart as followed in Re Flores and Re Abeyratne, wherein the use of the estimate was considered to amount to administrative error. In considering these, this Tribunal adopts the strict approach taken in Re Stuart as followed in Re Flores and Re Abeyratne.

32. The Tribunal, in the current matter, does not accept that the Secretary of the Department be allowed to have regard to estimates which are not generated by specific request, for this appears to fly contrary to the specific legislative provisions contained in the Act.

33. If the Secretary were able to operate in this manner, it would make useless the inclusion of sub-ss.1069-H21(c) and 1069-H22 of the Act, wherein it is specifically noted that a person must "request" the Secretary to make a determination in accordance with an estimate, and goes so far as to specify the form of such a request.

34. There is a clear policy objective behind this, which is noted in Re Delia (in the second half of paragraph 26 (supra)), that it cannot be assumed that people want to receive a higher rate of benefit following a fall in income. It must be an individual assessment as to whether or not the risk of incurring a debt is outweighed by the potential for a higher rate of payment. What is significant in this present matter, is that the applicant was denied that choice, and according to the specific legislative provisions, it must be her choice to make, not the Department's. Family Payment is something that should not be forced upon people whether they like it or not. Where legislation provides that people must be given choice to either elect to be paid according to an estimate or to their base tax year, and moreover must elect to do so in a specific form, that legislation must be given its due.

35. Having proper regard for the legislation in this matter means the Tribunal considers that sub-ss.1069-H21 and 1069-H22 of the Act have not been properly applied, and the Department should not have had regard for the estimate provided in July 1997 (T3/47) in calculating the applicant's rate of Family Payment. The Department's reliance on this estimate constituted administrative error in the circumstances and the Tribunal so finds."

17. In this case, the form purported to contain the "request" to use the estimate is the annual review form. In its terms, it is comparable to the application forms considered in Re Stuart and Secretary, Department of Social Security (1999) 54 ALD 241. In Re Stuart, Deputy President Forgie held that such an application cannot be treated as a request that the estimate be used, and this Tribunal concurs with the reasoning in Re Stuart in line with the Tribunal's findings in Re Brittain. There is nothing in the annual review form (TA3/28-29) which suggests that it is an approved form in accordance with section 1069-H22 of the Act. There is nothing on that form which demonstrates that the applicant was making a choice that the estimate be used. In the absence of such evidence, the Tribunal finds that the Department was in error in treating that form as a request that the estimate be used. In the absence of formal request, the appropriate tax year continued to be the 1995/96 tax year. The overpayment of Family Allowance therefore, can be said to be as a result of departmental administrative error.

18. Section 1237A of the Act requires waiver where a debt can be said to be due to sole administrative error. The Tribunal does not consider that the applicant contributed in any way to the overpayment. Mr Goldie did not challenge her evidence that she contacted the Department in March 1997 to advise of her income and was told that all she need do is provide her tax return when received. The fact that such a conversation occurred is supported by an entry in the Computer Record Access Monitor (CRAM) report (TB20/50) for 6 March 1997. The Tribunal found the applicant highly credible and so finds that a conversation occurred around 6 March 1997 in the terms the applicant described.

19. The letter dated 7 May 1997 (TA5/33-35) only tells the applicant to provide her tax return and contact the Department if she is "self-employed" and earns more than $27,500 in the 1995/96 or 1996/97 financial years. The Tribunal considers that there is nothing "notifiable" in that letter to which the applicant failed to notify in respect of.

20. Apart from suggesting that the applicant could have queried the income figures used by the Department, Mr Goldie put nothing before the Tribunal to suggest that the applicant failed to comply with her obligations. Accordingly, the Tribunal is satisfied that the applicant contacted the Department in March 1997 and was told that she only need provide her tax returns at a later date. It is satisfied that the letter dated 7 May 1997 (TA5) did not give rise to any notification obligations. It finds that the applicant did not contribute to the administrative error which resulted in the overpayment. There was no challenge as to "good faith" and hence the Tribunal finds that the applicant received the payments in good faith.

21. Accordingly, the Tribunal being satisfied that the Department was in error in using the estimate when it was not entitled to pursuant to the legislation, and that this error was the sole cause of the overpayment, finds that the entirety of the debt for the period 2 January 1997 to 31 July 1997 must be waived pursuant to section 1237A of the Act.

s99/312

22. The applicant lodged a claim for additional Family Payment on 7 July 1995 stating an actual income for 1993/94 of $16,310 and an estimated income for 1994/95 of $21,847 (TB4). On 16 October 1995 she lodged a Family Payment review form with an actual income for 1994/95 of $18,016 and also an estimated income for 1994/95 of $25,000 (TB5).

23. The applicant received a letter dated 20 December 1995 stating that her Family Payment for 1996 would be calculated using an income of $18,016 (TB6). This letter identified that amount as being income for 1995/96.

24. In the 1996 calendar year the applicant was paid Family Payment on the basis of the $18,016 figure. On 17 October 1996 the applicant lodged a review form stating an actual income for 1995/96 of $27,965 (TB7).

25. As this actual income was more than 110% of the figure of $18,016, and the delegate determined that "regard had been had for an estimate", a debt was raised pursuant to section 885 of the Act for the paydays 4 January 1996 to 5 December 1996 in the amount of $2,549.60 on 19 April 1999 (TB12). This decision was affirmed upon review by an ARO and the SSAT, the latter of whom stated in its reasons for decision (TB2/10-11) (inter alia):

"...

It is clear that the rate of family allowance paid to Ms Jenner during the 1996 calendar year was worked out using her 1993/94 taxable income of $16,310. It does not follow, however, that Centrelink ignored or did not in any sense have regard to an income estimate. On the contrary, the evidence is consistent with Centrelink having considered the 1995/96 income estimate provided by Ms Jenner but because, and only because, that figure was below the income threshold applicable at that time, there was no requirement for Centrelink to alter the income figure used to work out the family allowance rate. ...

..."

applicant's evidence and submissions

26. The applicant submitted that the letters she received from the Department only indicated that she had to notify in respect of events happening after July 1995, and that increases in salary only had to be notified if a person was "self employed". She submitted that no regard was had to the estimate in calculating her rate for the 1996 calendar year. She further submitted that there was no notifiable event from July 1995 onwards.

27. She told the Tribunal that there is no debt as she has complied with all obligations and the Department was in error, for example, referring the figure of $18,016 to the 1995/96 tax year in its letter of 20 December 1995 (TB6).

respondent's submissions

28. Mr Goldie, on behalf of the respondent, submitted that the Department had considered both the estimate provided in July 1995 and the actual income figure provided in October 1995 when calculating the rate of Family Payment for the 1996 calendar year. A debt arose, pursuant to section 1223(3) of the Act, having regard to section 885 of the Act when the actual income for 1995/96 turned out to be more than 110% of the actual income for 1995/96. Pursuant to section 891 of the Act, in his submission, the debt arises as from 4 January 1995.

29. He submitted that waiver was not appropriate in this case.

discussion and findings

30. It appears to this Tribunal that the SSAT has erred in its finding that the applicant was paid in the 1996 calendar year on the basis of her 1993/94 tax year income. The base tax year for 1996 calendar year was 1994/95, and the letter dated 20 December 1995 (TB6) states that an income figure of $18,016 was being used to calculate the rate for the 1996 calendar year. This Tribunal so finds that $18,016 is the actual amount upon which the applicant's 1996 calendar year payments were based.

31. In order to satisfy section 885 of the Act, the Tribunal must be satisfied that "regard was had" to an amount estimated by a person. The meaning of "having regard" in this context has been the subject of several Tribunal decisions. In Re Stuart Deputy President Forgie made reference to the High Court in R v Hunt (1979) 25 ALR 497 wherein Mason J and Gibbs J (as he then was) stated at p504 that to have regard to costs was "to take those costs into account and to give weight to them as a fundamental element in making his determination". Deputy President Forgie went on to say in Re Stuart (at paragraph 51 inter alia):

"... In the context of the scheme of family payments, it can only be said that regard has been paid to an estimate when it formed the basis, or a part of the basis, upon which the rate of payment has been assessed."

32. In Re Secretary, Department of Social Security and Pyke (AAT 12794, 9 April 1998), Senior Member Webster stated at paragraph 25:

"...

25. The normal meaning of the term "regard to", in the view of the AAT in the context of s.885, is to take into account or to consider. This means that before determining the rate of payment of family payment the applicant had to consider or take into account the respondent's estimate of income provided 1 November 1994.

..."

33. In Re Secretary, Department of Social Security and Cox (AAT 13050, 2 July 1998), the Tribunal found that regard had been had to an estimate in the context of a notifiable event bringing section 1069-H17 into being, and in the context of the particular forms and advice given in that case.

34. Re Cox and Re Pyke were applied most recently in Re Secretary, Department of Family and Community Services and Couch [2000] AATA 1, wherein Senior Member Gibbs stated at paragraphs 39-41:

"...

39. I further find that, as submitted by the applicant, the facts in Re Stuart differed in comparison with this matter, in that in the former no notifiable event as such occurred. That being so, I have concluded that Re Stuart should not be followed.

40. It will have been noted that Mr Perdon cited two authorities: Re Secretary, Department of Social Security and Pyke (1998) 51 ALD 417 and Re Secretary, Department of Social Security and Cox (AAT 13050, 2 July 1998).

41. As Mr Perdon correctly pointed out, the factual circumstances in respect of both these decisions are identical to those of Mrs Couch in that there was a notifiable event. Regard was had for both the "base year" income and the current year estimate. The estimate was not used in the FP calculation and exceeded 110 per cent (section 1069-H18).

..."

35. In the present case, the applicant's return to work in June 1995 was a notifiable event. The tax year 1994/95 therefore constituted an "event year", however as it was also the base tax year, neither sections 1069-H17 or 1069-H18 were relevant.

36. In the Tribunal's opinion, this case can be distinguished from Re Cox and Re Couch on its facts. As Senior Member Gibbs implicitly noted in Re Couch, the question of "having regard to" involves a factual assessment of the process by which the income figure used as the basis for Family Payment was arrived at. In both Re Cox and Re Couch, evidence was lead before the Tribunal which pointed to estimates for the current year being provided contemporaneously with the provision of actual income for the base tax year. Evidence was also lead in those cases as to the process behind the calculation (see Re Couch paragraphs 28-32, Re Cox paragraph 39).

37. In this case, no evidence was lead as to the process behind the calculation, Mr Goldie simply asserted that the estimate must have been regarded. The particular forms (TB4 and TB5) differ from those considered in Re Couch and Re Cox, and the date of lodgement of the forms was 7 July 1995 and 16 October 1995 respectively. The estimate provided on 7 July 1997 cannot be said to be contemporaneous to the provision of the actual income figure on 16 October 1995. The form lodged 7 July 1995 (TB4) gives no indication that the estimate will be used, stating (somewhat ambiguously) underneath question 5 (at TB4/26) that:

"(If your combined income has changed significantly since the 1993/94 financial year, we may use your most recent income to work out how much you can be paid.)"

38. "Your most recent income" does not equate to the estimate, but more to the most recent actual income, which in this case was indicated on that form as $16,310. On the form lodged 16 October 1995 (TB5) the actual income for 1994/95 was given as $18,016, and an estimate was given also for 1994/95 of $25,000. It is clear that no regard was had for the $25,000 estimate, as at that time, the Department had the most up to date actual indication of income for the 1994/95 tax year, that being the figure of $18,016.

39. The next information the Tribunal has regarding the process, is the notification letter dated 20 December 1995 (TB6). The date of this letter indicates that the applicant's rate of Family Payment for the 1996 calendar year was worked out subsequent to the receipt of the 7 October 1995 advice. Significantly, this letter contains the statement:

"your income of $18,016.00 for the 1995/96 financial year."

40. Whether or not it was simply a typographical error to attribute the income of $18,016 to 1995/96 instead of 1994/95 is unclear, but it gives rise to doubt in the Tribunal's mind as to whether regard was had for the estimate provided in July 1995. In the absence of any other evidence presented to the Tribunal by Mr Goldie to demonstrate that it was simply typographical, it could equally be assumed that the departmental officer in fact thought that the 1995/96 income was $18,016 and simply calculated the 1996 calendar year rate on this basis. If indeed the Department did use a figure of $18,016 for the 1995/96 year (for whatever unknown reason) as the basis of its calculations for the 1996 calendar year, then it cannot be said that regard was had for the estimate of $21,847, for the departmental officer would have had regard to a 1995/96 income of $18,016. If indeed the departmental officer thought $18,016 was income for 1995/96, there is nothing to suggest that he took that figure to be an "estimate".

41. Further, there is doubt in the Tribunal's mind as to whether the Department would have been mindful of any advice given in July 1995 when it made its calculations in December 1995. In the interim period it had received updated information (in the "Answer Form" lodged 16 October 1995). As the notation under question 5 on the July 1995 form (TB4/26) states, the "most recent income" is used to calculate rate of Family Payment. As of December 1995, the most recent income must be said to be that provided in October 1995, not July 1995. In October 1995, an income figure of $18,016 had been provided and no estimate given for the 1995/96 tax year.

42. Given that the most recent information was provided in October 1995, and in the absence of any other evidence presented by the respondent to demonstrate that there was express consideration of the July 1995 information, the Tribunal is doubtful that regard was had to the estimate provided in July 1995 when the rate for the 1996 calendar year was calculated in December 1995.

43. In conclusion, the Tribunal notes that there are differences in the forms between this case, Re Cox and Re Couth. There is a lack of a contemporaneous connection between the provision of the estimate and the actual income figures. The letter dated 20 December 1995 (TB6) relates an income figure of $18,016 to the 1995/96 year and the Tribunal is not satisfied that this was merely a typographical error. The rate was calculated some time after October 1995 which was the date at which the last information was given. These factors lead the Tribunal to conclude that this case is distinct on its facts from Re Cox and Re Couch. The facts of this case are such that there is sufficient doubt raised as to whether the process by which the 1996 calendar year rate of Family Payment was struck necessitated the need to take into account the estimate provided in July 1995. On the evidence before the Tribunal, it seems equally plausible that that rate could have been struck only having regard to the actual income figure provided in October 1995. However the Department may have treated that income figure, it cannot necessarily be said to have "had regard to" an estimate given it was provided by the applicant as an actual income figure. Given the doubts in the Tribunal's mind and the beneficial nature of this legislation, the Tribunal is not satisfied, on the balance of probabilities, that regard was had to an estimate and so finds.

44. Accordingly, section 885 of the Act does not apply. As a result, given that the applicant has complied with her notification obligations, there is no debt arising pursuant to section 1223 of the Act and the Tribunal so finds.

decision

45. For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decisions under review and in substitution therefor decides that:

(a) the Family Payment debt for the period 2 January 1997 to 31 July 1997 is waived in its entirety; and

(b) there is no recoverable Family Payment debt for the period 4 January 1996 to 5 December 1996.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

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

Personal Assistant

Date/s of Hearing 8 March 2000

Date of Decision 13 April 2000

Counsel for the Applicant In person

Solicitor for the Applicant -

Counsel for the Respondent Mr A. Goldie

Solicitor for the Respondent Centrelink