Ugochukwu and Department of Family and Community Services [2000] AATA 53 (1 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/965

GENERAL ADMINISTRATIVE DIVISION )

Re CASIMIR UGOCHUKWU

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R P Handley, Senior Member

Date 1 February 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

(Sgd) R P Handley

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

Senior Member

CATCHWORDS

SOCIAL SECURITY - newstart allowance - overpayment - applicant ineligible when enrolled in full-time course of education - determination of 'full-time course of education' - whether educational institution's classification as 'full-time course' is conclusive - whether debt caused solely by administrative error - debtor knowingly making a false statement - consideration of 'special circumstances'

Social Security Act 1991 ss 613(1), 1224(1), 1237A(1), 1237AAD, 1236

Harradine v Secretary, Department of Social Security (1989) 25 FCR 35

Secretary, Department of Social Security v Jordan; Secretary, Department of Social Security v Jiang (1998) 83 FCR 34

Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435

RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123

Beadle v Director-General of Social Security (1985) 7 ALD 670

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Secretary, Department of Social Security v Hales (1998) 153 ALR 259

REASONS FOR DECISION

Mr R P Handley, Senior Member

1. This is an application by Casmir Ugochukwu ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 8 June 1999 to affirm a decision of a delegate of the Secretary of the Department of Social Security (now the Department of Family and Community Services, "the Respondent") and an authorised review officer to raise and recover a debt of $2629.24 in respect of an overpayment of newstart allowance.

2. At the hearing, the Applicant was represented by Ignatius Asuzu, of Counsel, and the Respondent was represented by Anthony Cox of Centrelink. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Act 1975 (the "T documents") together with exhibits tendered by the Respondent. The Applicant gave oral evidence on his own behalf and Stephen Geddie gave evidence for the Respondent.

BACKGROUND

3. The Applicant, who is aged 45, is married and has five dependent children including two children of his brother. In 1996, he completed a Bachelor of Laws ("LLB") degree at the University of Technology Sydney ("UTS"). In October 1996, the Applicant applied to undertake the Graduate Certificate of Legal Practice at UTS in Autumn Session 1997, a course designated as full-time by UTS. The Applicant was accepted into this course which commenced on 3 March 1997 and concluded on 4 July 1997.

4. The Applicant completed his LLB at UTS as a part-time student over the years 1991-1996. During this period, he had a number of jobs but at the time of the completion of his LLB, and until 6 May 1998, he was receiving newstart allowance.

5. The Applicant claims that he attended the Department of Social Security ("DSS") office at Bondi Junction in late February or early March 1997 when he informed a departmental officer of his commencing the Graduate Certificate in Legal Practice course at UTS, but said that he would be continuing to look for work. The Applicant claims that the officer advised that his attendance at the course would not affect the payment of his newstart allowance.

6. On 1 August 1997, the Respondent decided that the Applicant was not entitled to payment of newstart allowance for the period 3 March 1997 to 4 July 1997 because he had been enrolled in a full-time course of education. This decision was affirmed by an authorised review officer on 23 March 1998 and by the SSAT on 8 June 1999. On 29 June 1999, the Applicant lodged an application for a review by the Tribunal.

APPLICABLE LEGISLATION

7. Section 613(1) of the Social Security Act 1991 ("the Act") states that "...a newstart allowance is not payable to a person who is enrolled in a full-time course of education..."

8. An overpayment will be a debt:

1224(1) If:

(a) an amount has been paid to a recipient by way of social security payment; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii)failed or omitted to comply with a provision of this Act or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth.

9. The relevant provisions of the Act relating to waiver of a debt are as follows:

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.

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 a 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.

THE APPLICANT'S EVIDENCE

10. The Applicant said he is married with three children and has two further dependent children of his brother. The Applicant is currently working as a para-legal with the Crown Solicitor's Office in Sydney which counts as a work placement for the purpose of meeting the requirements for admission as a solicitor in NSW.

11. The Applicant confirmed that he has studied both in Western Australia and NSW, as detailed in his resume (T21). He has never received AUSTUDY while studying. He undertook his LLB course part-time at UTS over the years 1991 to 1996 while working at the same time when he could obtain work. Because of his experience of dealing with the Department of Social Security ("DSS"), the Applicant said he went to the DSS office at Bondi Junction in late February/early March 1997 to inform them that he would be undertaking the Graduate Certificate in Legal Practice at UTS and to check that this would not affect the payment of his newstart allowance. With a large family to support, he would not otherwise have undertaken the course.

12. The Applicant said he spoke to a male, blond-haired DSS officer at the Bondi Junction office. He told the officer that although the course was designated as full-time, he would be studying on a part-time basis and continuing to look for work. The course encouraged students to find suitable work placements since the completion of approved work placements is a requirement for admission to practice.

13. The Applicant said the timetable for the course at UTS did not require that students attend class all day. There was time available for students to study in the library or, if they were able to obtain part-time work, to undertake that work once formal classes on particular days had been completed. The Applicant said he had undertaken voluntary unpaid legal work at "Shopfront", a youth legal centre at Darlinghurst, usually on one day a week. No record of attendance at classes was kept although the Applicant said he was aware that students were required to attend classes.

14. The Applicant was referred to the "Application for Payment of Newstart/ Youth Training Allowance" ("SU19") forms that he completed between March and June 1997 which are included in the T Documents (T3-T8). He told the Tribunal that he had made a genuine effort to find work through this period and would have undertaken a job had he found one.

15. In cross-examination, the Applicant was referred to a letter dated 28 September 1997 (T20) he had written to Glen Sevil, a departmental officer with whom he had been in communication at the DSS Hurstville office. The Applicant said this letter had been in response to his being notified of the debt, and confirmed the reasons for his disputing the debt. The Applicant agreed that he had described the course as an "intensive law program" in the letter but said this did not necessarily mean that the course was full-time. The Applicant acknowledged that UTS classified the course as full-time, and said he knew he was enrolling in a full-time course. However, he said that while he was studying full-time, he was also looking for work.

16. The Applicant was asked why, in the SU19 forms he lodged with the Respondent, he answered "No" to Question 7, "Did you enrol or did you study in a course of education in the above period?". The Applicant replied that he answered "No" because he had already told the Respondent what he was studying and, having notified them, he believed that it was not necessary to refer to this when completing the forms. He was fully aware of the need to keep the Respondent informed of what he was doing, having been in receipt of social security benefits on and off for a number of years. It was because of this that he went to the Bondi Junction office of DSS to explain his situation. Thereafter, he considered he should answer "No" to the above unless his circumstances changed in which case Question 9, "Did any of the things listed below happen to you in the above period?", required that he disclose this.

17. The Applicant was referred to a timetable of the course run in Spring Semester 1999 (T26) stated by the Director of the Professional Program at UTS to be "very similar to that of 1997 except for Week 0". The Applicant said this timetable was different from that for the course he attended in Autumn Semester 1997. In particular, the timetable for the course he attended included various times when there were no prescribed activities.

STEPHEN GEDDIE'S EVIDENCE

18. Mr Geddie acknowledged that he was an administrative officer at the DSS Bondi Junction office during the period in question. He had considerable experience in handling unemployment benefits such as newstart allowance. He had worked for the DSS since March 1991 and had been located at the Bondi Junction office since October 1996.

19. Mr Geddie's name appears on the Customer Record Access Monitor Report for the Applicant's file (R1) in respect of access on 28 February 1997 and 3 April 1997. Mr Geddie is also blond-haired and is the only officer the Respondent was able to locate who accords with the Applicant's claim that he spoke to a blond-haired officer at the DSS Bondi Junction office at that time.

20. Mr Geddie said he had no recollection of either the Applicant or his name and could not recall why he accessed the Applicant's computer file record on the two dates recorded. He said that he might have been serving at the reception counter and, if the Applicant had attended the counter, he might have looked up the Applicant's DSS number on the computer system.

21. Mr Geddie was asked to describe the circumstances in which departmental officers would make a notation on a person's computer file. He said that if an officer regarded information given by a person as insignificant or if the information stimulated the officer to issue the person with a form to complete, then the officer would probably not make any file notation. Whether a notation was made ultimately depended on how the particular officer viewed the matter. Mr Geddie said that had he been told by a person who was receiving newstart allowance that the person was undertaking a full-time course of education, then Mr Geddie would have made a notation on the person's file.

SUBMISSIONS

APPLICANT

22. Mr Asuzu, for the Applicant, contended that an administrative error had been made by the Respondent. The Applicant went to the DSS office in Bondi Junction to inform them of his intention to undertake the Graduate Certificate in Legal Practice. Having been so informed, the Respondent should be taken to have accepted that the Applicant could continue to receive newstart allowance through this period. The Applicant had been dealing with the Respondent for more than five years. He was aware of his obligations. He would not have risked losing his social security payments while he had a dependent wife and five children.

23. Mr Asuzu submitted that the Applicant was a part-time student. He referred the Tribunal to the Federal Court decision in Harradine v Secretary, Department of Social Security (1989) 25 FCR 35, where Von Doussa J discussed what is meant by full-time study. Von Doussa J (at 44) said that a University's classification of a full-time student was determined

...having regard to the curriculum and to the content of the subjects undertaken by the students. The description does not depend on the number of contact hours of lectures and tutorials provided by the relevant faculty, on whether the attendance of the student at the University during set hours for tuition is compulsory, or on the hours an enrolled student in fact devotes to study.

The Applicant was not required to attend lectures and so was only filling in time while searching for work. He could have discontinued the course had he found full-time work.

24. Mr Asuzu submitted that if there was an error, it was solely the DSS officer's failure to determine the Applicant's proper social security entitlement. If the Applicant received money to which he was not entitled, he received it in good faith. There was no other evidence that the Applicant had ever misled the Respondent in more than five years of receiving social security benefits. Even if the Applicant had not been entitled to newstart allowance for the period of study, he should have been entitled to some form of social security payment or Austudy. The circumstances in which the Applicant had relied on the advice of the blonde DSS officer, were sufficient to establish special circumstances which would justify waiver of the debt.

25. Mr Asuzu submitted that the SSAT had made an error of law in that it had failed to follow the Federal Court decision in Secretary, Department of Social Security v Jordan; Secretary, Department of Social Security v Jiang (1998) 83 FCR 34, where the court found that both respondents were not enrolled in a course of full-time education and so were entitled to payment of social security benefits. The Tribunal should look at the facts of the case to determine whether a student is full-time or part-time, rather than using a mechanical formula.

26. Mr Asuzu submitted that an alternative was for the debt to be written off indefinitely in the light of the Applicant's financial circumstances. Mr Asuzu stated that the Respondent's action in garnisheeing the Applicant's bank account in November 1999, without notifying the Applicant, to recover the outstanding debt had subjected the Applicant to additional stress. This should not have occurred while the outcome of the Applicant's appeal to the Tribunal had not yet been determined.

REPSONDENT

27. Mr Cox, for the Respondent, noted the wording of s 613(1) of the Act which states that newstart allowance is not payable to a person "who is enrolled in a full-time course of education". The meaning of "enrolled in a full-time course of education" was discussed by Hill J in Jordan (supra at 41-42):

The classification of the course by the educational institution offering it is a factor to consider; indeed it may provide at the least a prima facie indication and perhaps often will, absent other factors, be determinative. But that classification can not be the only factor to be considered...

Other relevant facts will include the number of hours the student is required to attend the university, the number of hours expected to be spent working at home on study and assessments and the times and days the student is required to attend the university...An applicant who is enrolled in a full-time course of educational or vocational study is to be regarded as not able to participate in the full-time work force and thus disentitled to the benefit. Hence in construing the expression "full-time course of education" it will often be relevant to consider whether the course is so structured that it would be inconsistent with the ability of the applicant to become engaged in full-time employment.

28. Mr Cox submitted that the evidence showed that the Applicant was enrolled on a full-time basis. He referred to information supplied by Ms Bronwyn Olliffe, Director of the Professional Program at UTS (T26 and R2). This showed that the Applicant was enrolled on a full-time basis in the Graduate Certificate of Legal practice, a course which was only available on a full-time basis and required a full-time commitment between 9.00am and 5.00pm five days per week. Attendance was compulsory. The Higher Education Contribution Scheme ("HECS") loading for the course was 0.499 which corresponds to full-time study. The Applicant had not at any stage in the course changed his enrolment to part-time. Ms Olliffe had supplied a 1999 timetable which she described as "very similar to that of 1997 except for Week 0". This timetable was consistent with the full-time nature of the course. Mr Cox noted that the Applicant had himself referred to the course being "intensive" in a letter to the Respondent dated 28 September 1997 (T20).

29. Mr Cox contended that because the Applicant had been enrolled in a full-time course of education between 3 March 1997 and 4 July 1997, he was not entitled to receive newstart allowance for that period.

30. Mr Cox referred to the SU19s completed by the Applicant in which he had answered "No" to the question "Did you enrol or did you study in a full-time course" in the relevant period. Mr Cox submitted that these were false statements as per s 1224(1)(b)(i). The Applicant had also failed or omitted to comply with a provision of the Act as per s 1224 (1)(b)(ii) in that he had not supplied information required to be supplied in response to a notice given under s 658. Thus, in accordance with s 1224(1)(b), the amount of newstart allowance received by the Applicant during the relevant period, to which he was not entitled, was a debt due to the Commonwealth.

31. Mr Cox submitted that there had been no administrative error by the Respondent which would require the waiver of the debt under s1237A(1). The debt was solely caused by the Applicant's false statements and failure to comply with the Act. If there were found to be an administrative error, then this waiver provision was still not applicable because the Applicant had contributed to the debt by making false statements.

32. Mr Cox contended that waiver under s 1237AAD was also not available as a result of the Applicant having knowingly made false statements and having failed to comply with a provision of the Act (see s 1237AAD(a)(i) and (ii)). Mr Cox said the Applicant could not credibly claim not to have understood the questions on the SU19 forms which are clear and in plain English. The Applicant had a number of tertiary qualifications including a LLB degree. He must have been aware of the meaning of the questions and of the significance of the declaration he made when signing the form. Mr Cox submitted that the Tribunal was entitled to infer knowledge by the Applicant by assuming that he had the ordinary understanding of a university-trained law graduate embarking on post-graduate professional training. (See Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at 445 in which the Tribunal referred to the Federal Court decision in RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123.)

33. Mr Cox said that if there had been an administrative error, then the Applicant had contributed to the debt by his "wilful blindness" in not querying advice which he must have realised was probably incorrect.

34. Finally, Mr Cox noted that no other "special circumstances" had been contended by the Applicant. Moreover, because the Applicant had completed a Master of Health Administration at the University of NSW in 1987-88, he would not have been entitled to receive Austudy in the relevant period, in accordance with Austudy Regulation 45.

CONSIDERATION OF THE LAW AND EVIDENCE

35. There are three issues for the Tribunal to determine in this case. First, whether the Applicant received newstart allowance to which he was not entitled in the period 3 March 1997 to 4 July 1997. This turns on whether he was "enrolled in a full-time course of education" during that period. If the Applicant was so enrolled, then under s 613(1) he was not entitled to payment of newstart allowance. The second issue is whether any overpayment of newstart allowance is a debt due to the Commonwealth in accordance with s 1224(1). The third issue is whether, if there is a debt, that debt should be recovered. This will require a consideration of the relevant provisions in s 1236 and 1237 with regard to writing off or waiving a debt.

36. With regard to the first issue, the Tribunal notes the discussion of the meaning of "enrolled in a full-time course of education" by Hill J in Jordan (supra), cited above. The tertiary institution's classification of a course as full-time provides a "prima facie indication". However, other relevant factors must also be considered such as the student's required attendance at the course, study pattern, and whether undertaking the course would be inconsistent with the person's ability to engage in full-time employment.

37. The Tribunal finds that the evidence points to the Graduate Certificate in Legal Practice undertaken by the Applicant in the period 3 March 1997 to 4 July 1997 being a full-time course. The Director of the Professional Program at UTS, Ms Bronwyn Olliffe, stated that "In first semester 1997 the Graduate Certificate of Legal Practice was available on a full-time basis only", and required "a full-time commitment between 9.00am and 5.00pm five days per week".

38. In questions in a later notice (R2), Ms Olliffe was referred to what appears to have been a list of students and their designation as part-time or full-time for the autumn and spring semesters of 1997 (T19). The status of this document and who completed it is unclear. Mr Cox stated that it was probably supplied by UTS to the Respondent as part of the normal checking process to ensure full-time students were not also receiving newstart allowance. The other students whose names, blanked out, appear on the form are not necessarily students in the Graduate Certificate in Legal Practice. In this document, the Applicant is designated as part-time for autumn semester 1997. Ms Olliffe stated that this information was incorrect.

39. The Tribunal does not consider that any great weight should be given to this document. The Tribunal notes that in his application for admission to the course, signed on 10 October 1996 (T26), the Applicant stated that his attendance pattern for the course was "full time". In his letter to a departmental officer dated 28 September 1997 (T20), he also described the course as an "intensive law program".

40. The Tribunal also does not place any weight on the 1999 timetable supplied by Ms Olliffe in the absence of a 1997 timetable for the course being available (T26). The Applicant said in evidence that the 1997 timetable did not require students to attend classes all day: there was also time for study in the library and for students to undertake part-time employment, approved work placements being a requirement of admission to practice. However, the Applicant said that although no record of attendance at classes was kept, he was aware that students were required to attend all classes. In cross-examination, the Applicant acknowledged that UTS classified the course as full-time and that he knew he was enrolling in a full-time course. But he said that even though he was studying full-time, he was also looking for work.

41. In the Tribunal's view, the evidence clearly points to the Applicant being "enrolled in a full-time course of education" for the purpose of s 613(1). During the relevant period, the Applicant did not find employment and maintained his full-time student status. The consequence of this is that newstart allowance was not payable to the Applicant for the relevant period and he therefore received an overpayment.

42. The second issue is whether the overpayment is a debt due to the Commonwealth in accordance with s 1224(1). The Tribunal accepts the Applicant's evidence that in late February/ early March 1997 he attended the DSS office at Bondi Junction and informed a male, blond-haired officer that he was commencing the Graduate Certificate in Legal Practice at UTS, and that, while the course was designated as full-time, he would be studying on a part-time basis and looking for work. In the Tribunal's view, a DSS officer having been so informed, should have taken steps to check this information and, had he done so, the present situation would not have arisen. No notation appears to have been made on the Applicant's computer file about this information and there is no file record of any advice given by a DSS officer as to the Applicant's continuing entitlement to newstart allowance.

43. On balance, the Tribunal accepts that there may have been an administrative error by the Respondent which gave rise to the overpayment. However, the situation was undoubtedly compounded by the Applicant answering "No" to the question "Did you enrol or did you study in a course of education?" in the SU19s completed by him in the relevant period. The Tribunal does not accept the Applicant's explanation - that he did this because he had already notified the DSS Bondi Junction - as being reasonable. The wording of the question is clear, the Applicant is a legally educated, intelligent man who should have been aware that by so answering he was making a false statement. The Tribunal does not, however, consider there was any fraudulent intent on the Applicant's part - rather he was foolish and that this foolishness contributed to the overpayment.

44. Thus, in accordance with s 1224(1)(b)(i), the Tribunal considers that the Applicant made a false statement on the SU19s completed by him in the relevant period, and the overpayment of newstart allowance is, therefore, a debt due to the Commonwealth.

45. The third issue is whether the debt should be recovered. Mr Asuzu submitted that the debt should either be written off or waived. There is no power to write off the Applicant's debt because in accordance with s 1236(1A) (a), for this power to be exercisable, the debt must be "irrecoverable at law". Section 1236(1B) provides that "a debt is taken to be irrecoverable at law if, and only if, the debt cannot be recovered by a variety of means including by garnishee notice." Although recovery by means of garnishee notice is not likely to endear the Respondent with debtors, as was the case with the Applicant, the Respondent is, nevertheless, legally empowered to utilise such means (s 1233).

46. The relevant waiver provisions in the Applicant's case are s 1237A(1) and s 1237AAD. Section 1237A(1) provides for waiver in respect of the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth. As stated above, the Tribunal accepts that there may have been an administrative error by the Respondent which gave rise to the overpayment. However, the Tribunal found, above, that the Applicant made a false statement in answering his SU19s during the relevant period. This compounded the situation and contributed to the overpayment which the Respondent might otherwise have become aware of in March 1997. Thus, in the Tribunal's view, the debt is not attributable solely to an administrative error by the Commonwealth and s 1237A(1) waiver is not available to the Applicant.

47. The other relevant waiver provision is s 1237AAD.

In the Applicant's case, s 1237AAD(a) raises the question whether the Applicant "knowingly" made a false statement. The meaning of "knowingly" in this section was discussed by the Tribunal in Re Callaghan(supra). Deputy Registrar Forgie stated (at 445):

(48) There is nothing in s.1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statements or the act or omission.

48. The Tribunal has already stated above that it does not consider that there was any fraudulent intent on the Applicant's part - rather that he was foolish in answering the SU19s as he did. However, the Tribunal finds that he must have been aware that his answer was incorrect - the Applicant himself acknowledges that he was enrolled in a course of education designated by UTS as "full-time". However, even if the Applicant did not knowingly make the false statements, in the Tribunal's view, "special circumstances" have not been made out which make it desirable to exercise the power of waiver (s 1237AAD(b)). Although the Act provides no guidance as to the meaning of "special circumstances", this has been the subject of statutory interpretation by the Federal Court and the Tribunal.

49. The leading case is probably Beadle v Director-General of Social Security (1985) 7 ALD 670, a decision of the Full Federal Court. In Beadle, the Court did not think it possible to lay down precise limits or precise rules. It would depend upon the circumstances of a particular case as to whether they constituted special circumstances. Moreover, even though the phrase "special circumstances" lacks precision, it "is sufficiently understood in our view not to require judicial gloss" (at 228).

50. The Court affirmed the decision of the Tribunal under review in that case, Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in which the Tribunal, whilst acknowledging that the phrase "special circumstances" is "incapable of precise or exhaustive definition", said, nevertheless, that the circumstances "must have a particular quality of unusualness that permits them to be described as special" (at 3).

51. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Keifel J, after referring to the Federal Court's decision in Beadle, observed that special circumstances:

...would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case...it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

52. In the Federal Court decision in Secretary, Department of Social Security v Hales (1998) 153 ALR 259 at 267, French J said of the "concept" of special circumstances:

The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words.

53. The Tribunal accepts that the Applicant's financial situation, supporting his wife and five dependent children, including two of his brother's, may well be strained, although Mr Asuzu did not provide evidence of this. However, in the Tribunal's view, no other special circumstances were made out which would justify exercising the power of waiver.

54. The Tribunal therefore affirmed the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley

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

Associate

Date/s of Hearing 14 December 1999

Date of Decision

Counsel for the Applicant Ignatius Asuzu

Advocate for the Respondent Anthony Cox