Sheehan; Secretary, Department of Family and Community Services [2003] AATA 12 (8 January 2003)

Last Updated: 8 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 12

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/442

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And WILLIAM JOHN SHEEHAN

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date 8 January 2003

Place Perth

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 31 October 2001 and, in substitution therefor, decides that, pursuant to s 1224(1) of the Social Security Act 1991 ("the Act"), a debt is due by the respondent to the Commonwealth, the amount of such debt comprising overpayments of Disability Support Pension made to the respondent during the period from 17 October 1996 to 1 May 1997, and that that debt is recoverable by the Commonwealth under Part 5.2 of the Act. The matter is remitted to the applicant for determination of the amount of that recoverable debt.

.........(sgd S D Hotop)................

Deputy President

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension ("DSP") - respondent suffered employment-related injury and employment was subsequently terminated on 28 August 1996 - applicant received DSP from 5 September 1996 - applicant received notice from Department of Social Security ("DSS") dated 29 August 1996 and subsequent DSS notices requiring him to notify within 14 days if he claimed "or" received compensation - respondent received first compensation payment at end of September 1996 - respondent had previously informed DSS that he had claimed compensation but did not subsequently inform DSS that he had received compensation - respondent received overpayments of DSP - whether overpayments of DSP a debt due by respondent to Commonwealth - whether respondent had complied with requirement to notify DSS if he claimed "or" received compensation - whether word "or" in that requirement to be understood as disjunctive or conjunctive - whether overpayments of DSP made because respondent failed to comply with provision of Social Security Act - whether appropriate to write off debt - whether appropriate to waive right to recover debt

WORDS AND PHRASES - "or"

Social Security Act 1991 ss 132(1), 1224(1), 1236, 1237A(1), 1237AAD

Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609

Re Hales and Secretary, Department of Social Security AAT Decision No 12159, 27 August 1997

Re Ivovic and Director-General of Social Services (1981) 3 ALN No 61

Re Perkich and Secretary, Department of Social Security (1997) 49 ALD 137

REASONS FOR DECISION

8 January 2003 Associate Professor S D Hotop, Deputy President

1. The Secretary to the Department of Family and Community Services ("the applicant") has applied to the Tribunal for a review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 31 October 2001. On that date the SSAT decided to set aside a decision of an Authorised Review Officer ("ARO") within Centrelink that William John Sheehan ("the respondent") had received an overpayment of Disability Support Pension ("DSP") for the period from 5 September 1996 to 1 May 1997 in the amount of $4,309.10, and that that overpayment was a debt due by the respondent to the Commonwealth which should be recovered from him. In place of the ARO's decision so set aside, the SSAT substituted a decision that no such debt was due by the respondent to the Commonwealth.

2. At the hearing the applicant was represented by Mr A Jones of the Advocacy and Administrative Law Team within Centrelink, and the respondent appeared in person without representation. The Tribunal had before it the documents ("T documents") lodged by the applicant pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and a documentary exhibit comprising 6 pages (being computer printouts listing compensation payments made by Allianz Australia Insurance Ltd to the respondent) tendered by the applicant (Exhibit A1). The respondent gave oral evidence. There were no other witnesses.

The Factual Background

3. The relevant background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents and Exhibit A1, are as follows.

4. The respondent claimed DSP in December 1993 and was in receipt of DSP during 1994 and 1995.

5. The respondent subsequently obtained employment and suffered an employment-related injury on 31 May 1996 which rendered him unfit to continue with that employment. His employment was subsequently terminated on 28 August 1996.

6. On 29 August 1996 the respondent attended the Parramatta (NSW) office of the (former) Department of Social Security ("DSS") and gave information about his ceasing of his employment on 28 August 1996 and provided an employment separation certificate. DSP was again granted to the respondent as from 5 September 1996. (T7, T10)

7. By letter dated 29 August 1996 a DSS officer informed the respondent that his DSP would "start again from pension payday 4 April 1996 (sic)" and provided details of the amount of the payments he would receive. That letter also informed the respondent that, under ss 132 and 133 of the Social Security Act 1991, he was required to notify the DSS within 14 days if any of various specified events or changes of circumstances occurred, including:

"if you claim or receive compensation".

Similar letters, dated 6 September 1996, 3 October 1996 and 4 November 1996, were sent to the respondent by the DSS. (T11-T14)

8. The respondent received periodic compensation payments from Allianz Australia Insurance Ltd covering the period from 19 August 1996 to 10 May 1997. The first such payment received by the respondent directly from Allianz Australia Insurance Ltd was by cheque dated 27 September 1996 and the last such payment received by him was by cheque dated 30 April 1997. (Exhibit A1)

9. It appears from the T documents (T16) that Centrelink became aware in July 2000 that the respondent had received compensation in 1996-1997, and on 2 May 2001 an officer within Centrelink decided that the respondent had received an overpayment of DSP for the period from 5 September 1996 to 1 May 1997 in the amount of $4,375.10 and that that amount was, pursuant to s 1224 of the Social Security Act 1991, a debt due by the respondent to the Commonwealth and should be recovered from him. (T17-T18) The respondent was formally notified of that decision by letter dated 8 May 2001. (T20)

10. Following a request by the respondent, the abovementioned decision was reviewed by an ARO within Centrelink. The ARO decided that a debt was due by the respondent to the Commonwealth, although the amount of that debt was varied to $4,309.10, and that that amount should be recovered from him. The respondent was formally notified of that decision by letter dated 30 May 2001. (T23)

11. On 31 October 2001 the SSAT decided to set aside the ARO's decision and to substitute a new decision that no such debt was due by the respondent to the Commonwealth. (T2)

12. On 5 December 2001 the applicant lodged with the Tribunal an application for a review of the SSAT's decision. (T1)

The Respondent's Evidence

13. The Tribunal questioned the respondent about any contacts he had had with the DSS following his employment-related injury and his ceasing of employment and the information he had provided to the DSS during any such contacts.

14. The respondent told the Tribunal that he was in hospital for about 2 weeks after his work accident and that he visited the DSS office a few days after his discharge from hospital, probably towards the end of June 1996. He said that he thought that he had visited the DSS "a couple of times" at that time and that he may also have done so towards the end of August 1996.

15. The respondent told the Tribunal that when he first visited the DSS office in Parramatta (NSW) after his discharge from hospital he spoke to an officer and told him that he had no money and needed to "get back on the pension". He said that he also told the officer that he was expecting to receive compensation but was not sure when that would be, and that the "gist" of the officer's response was:

"all right, you have told us, we will sort it out".

(Transcript, p11)

He added that he then "started getting some money". [The Tribunal infers that that reference to money is a reference to DSP payments and not to compensation payments.] Asked what transpired on his subsequent visits to the DSS office, the respondent said that he thought he had gone back to try to get an advance payment so that he could return to Perth where his mother and his friends lived. As regards the matter of his expected receipt of compensation the respondent said:

"I know that when they sent me out letters saying that you were going to be receiving compensation, tell us how much and all this sort of stuff, I gave them the relevant information when I did go in. That's right, I did go in again."

(Transcript, p11)

Asked specifically whether he informed the DSS when he received his first compensation payment at the end of September 1996, the respondent said that he thought that he informed them by telephone during the same week. Later he said that he was "sure...very positive" that he had informed them and added that he thought he had telephoned the DSS from his father's house in Berowra (NSW).

16. The respondent was asked what he thought at the time about the DSS' continuing to pay him DSP after he had informed them of his receipt of compensation. He responded that he thought that "they must know what they are doing" and that he "must be entitled to it". He said that he did not query the matter with the DSS office. He added that when he subsequently received letters from the DSS after he had returned to Perth, he thought that he had notified a DSS office in Perth that he was still receiving compensation payments. Asked when he returned to Perth, the respondent initially said that it was in November 1996 but he ultimately agreed that it was at the end of September/beginning of October 1996.

17. In cross-examination Mr Jones (for the applicant) referred the respondent to 2 official file notes. A DSS file note dated 29 August 1996 states:

"[the respondent] attended Parramatta office on 29/8/96. He informed the office that he last worked on 28/8/96/ employment separation certificate provided. Previously earning $870 gross per fortnight that will preclude him from receiving pension. Pension restored from 5/9/96".

(T7)

A Centrelink file note dated 7 May 2001 states:

"[the respondent] phoned re O/P and stated that he had notified Parramatta RO that he received compensation. He said it was after he came out of hospital and thinks it was when he provided his separation certificate and advised he had ceased work. He had to provide sep cert before his pens could be restored. He advised verbally - went into RO while still on crutches. I asked him if he realised he may have been overpaid as he was receiving pens as well as comp and his pens was susp while he was receiving wages. He said that he didn't know anything was wrong and he realised he had to inform Centrelink as he didn't want another overpayment. He remembers telling Parramatta because he was organising to come to WA at the time.

Review by ODM - decision affirmed. I rechecked ODR in 'S' environment and there is no record of [the respondent] advising that he was receiving compensation. A notice was issued to him on 29/8/96 telling him to notify within 14 days if he claimed or received compensation. He has received other letters after this date stating the same thing and also not showing any income. He knew that income affected his rate of pension as he previously had an o/p...".

(T19)

Mr Jones put it to the respondent that those file notes were inconsistent with his oral evidence that he had first notified the DSS in late June 1996 that he expected to receive compensation. The respondent acknowledged that these events occurred a long time ago and that it was very difficult trying to recall exact dates. Mr Jones also referred to the respondent's oral evidence to the effect that he had notified the DSS by telephone, that he had received compensation, within a week of that receipt in late September 1996, and he asked the respondent whether he had then told the DSS the amount of the compensation he had received. The respondent replied:

"I don't know, probably not, then again I may have just said what I would be getting weekly, I don't know, I may have mentioned something about it, but I just said I was getting it, I could - may not have, I may have, it is - I just remember saying I was getting it and then, yes, I think I told them how much I was going - weekly I was going to get, but they pay it every fortnight, it is sort of hard to remember."

(Transcript, p21)

He agreed with Mr Jones' suggestion that it was possible that the only information he had given to the DSS in relation to the amount of his compensation payments was that given on 29 August 1996 (referred to in the abovementioned DSS file note) regarding his employment earnings prior to his accident on 31 May 1996. [The Tribunal notes that that information was provided to the DSS approximately 1 month before the respondent received his first compensation payment and was apparently provided as an estimate of the amount of compensation he was expecting to receive.]

18. The respondent was asked by the Tribunal to outline his present financial circumstances. He said that his only assets are a 1973 model motor vehicle (worth about $1,000.00) and household furniture. His outstanding debts comprise a power bill ($129.00) and a telephone bill ($2,001.00). He has no credit card debts. His income is about $880.00 per fortnight (comprising DSP and Family Assistance payments) and his outgoings are rent ($150.00 per week) and general living expenses (including those of his 15 year old stepson who lives with him). He said that he is just able to manage on his fortnightly income and cannot afford any luxury items. He has no savings.

The Legislation

19. The relevant provisions of the Social Security Act 1991 ("the Act"), as in force during the relevant period, were as follows:

"132(1) The Secretary may give a person to whom disability support pension is being paid a notice that requires the person to inform the Department if:

(a) a specified event or change of circumstances occurs; or

(b) the person becomes aware that a specified event or change of circumstances is likely to occur.

...".

"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.

...".

The Act also contains provisions relating to the writing off and the waiver of social security debts. The relevant provisions for present purposes are as follows:

"1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt.

...

1236(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of deductions from a person's social security payment, the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

...".

"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."

Consideration and Findings

Is there a debt due by the respondent to the Commonwealth?

20. It is common ground that the only provision of the Act, pursuant to which a debt may presently be due by the respondent to the Commonwealth, is s 1224(1). It is also common ground that para (a) of that subsection has been satisfied, and that subpara (b)(i) of that subsection is not relevant, in this case. The only matter in dispute is whether subpara (b)(ii) of s 1224(1) has been satisfied in this case - that is, whether the relevant amount of DSP that was paid to the respondent for the period from 5 September 1996 to 1 May 1997 was paid because (relevantly) he failed or omitted to comply with a provision of the Act.

21. The only provision of the Act that the applicant contends the respondent failed or omitted to comply with is (the former) s 132(1). The applicant contends that the respondent failed or omitted to comply with that provision by reason of his failing or omitting to comply with DSS notices given under that provision requiring him to inform the DSS within 14 days "if (relevantly) [he] claim(s) or receive(s) compensation". The applicant is prepared to concede that the respondent notified the DSS, on 29 August 1996, that he had claimed, and was expecting to receive, compensation, but contends that he at no material time notified the DSS that he had received compensation.

22. The applicant's contention immediately raises for determination the issue of the proper interpretation of the standard requirement in "recipient notification notices", issued (formerly) by the DSS or (nowadays) by Centrelink, to notify them within 14 days if the recipient "claim(s) or receive(s) compensation" - in particular, whether the word "or" in that prescribed requirement should be interpreted as having a disjunctive or a conjunctive meaning.

23. In the present case the SSAT found that on 29 August 1996 the respondent had notified the DSS that he had claimed compensation and he had "therefore not failed to comply with [the] obligation", contained in the relevant DSS notices of 29 August 1996, 3 October 1996 and 4 November 1996, to notify the DSS within 14 days if he "claim(s) or receive(s) compensation". That conclusion was obviously based on the word "or" in those notices having a disjunctive meaning.

24. The Tribunal, with respect, does not agree with the disjunctive interpretation given by the SSAT to the word "or" in the relevant requirement in the abovementioned DSS notices. In the Tribunal's opinion, the word "or" in that notification requirement, having regard to the overall context of the notice in which it appears and to the purpose of the notification requirement itself, should be understood in a conjunctive sense. In Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609 at 617 Einfeld J cited with approval the following dictum of Atkin LJ in Brown and Co Ltd v Harrison (1927) 43 TLR 633 at 639:

"I disagree with the learned judge in his view that the word 'or' can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the court to give the word a conjunctive use."

25. As regards the context in which the relevant notification requirement occurs, the Tribunal notes that, in the relevant DSS notices, the list of matters of which the recipient is required to notify the DSS is prefaced by the following words:

"Under sections 132 and 133 of the Social Security Act 1991 you must tell us within 14 days...if any of these things happen, or may happen..."

(emphasis added)

That prefatory statement, in the Tribunal's opinion, must, as a matter of common sense, be understood as communicating to the recipient as requirement that he or she notify the DSS if "any" - in the sense of "any one or more" - of the listed events or changes of circumstances occur. Giving the word "or", in the relevant requirement to notify of a claim or a receipt of compensation, a conjunctive meaning is consistent with that understanding of the abovementioned prefatory statement.

26. A consideration of the purpose of such a notification requirement points to the same conclusion. The predominant, if not the sole, purpose of issuing recipient notification notices pursuant to provisions such as (the former) s 132 of the Act (see, now, s 68 of the Social Security (Administration) Act 1999) is - as is made clear by those very provisions - to obtain from the recipient of a relevant social security payment relevant information that might affect such a payment. See, for example, s 132(2) of the Act which provided:

"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 the payment of the pension."

(See, now, s 68(5) of the Social Security (Administration) Act 1999.) It is clear from a consideration of Pt 3.14 of the Act ("Compensation recovery") that the fact of receipt of compensation by a person to whom certain social security payments (including DSP) are being made is highly relevant information because the receipt of compensation by such person will certainly affect the payment of social security to that person. Indeed that information is likely to be of much greater significance as regards such social security payments than information regarding the mere making of a claim for compensation because the mere making of such a claim does not of itself affect those social security payments and, furthermore, such a claim may, of course, ultimately not be successful and not result in the receipt of compensation.

27. Accordingly, the Tribunal concludes that the requirement specified in the relevant DSS notices of 29 August 1996, 6 September 1996, 3 October 1996 and 4 November 1996 sent to the respondent - namely, that he notify the DSS within 14 days if he "claim(s) or receive(s) compensation" - constituted both a requirement to inform the DSS, within 14 days, if he claimed compensation, and a requirement to inform the DSS, within 14 days, if he received compensation.

28. The next question which arises is whether the respondent complied with the abovementioned notification requirement. As previously indicated, the applicant is prepared to concede that the respondent complied with the requirement to notify the DSS that he had claimed compensation. Notwithstanding that concession, however, the question still arises whether the respondent complied with the requirement to notify the DSS that he had received compensation.

29. The material before the Tribunal unfortunately does not provide a clear answer to the lastmentioned question. The T documents contain Centrelink computer records of only 2 contacts between the respondent and the DSS in 1996 - namely, an attendance by the respondent at the Parramatta office on 29 August 1996 following which his DSP was restored (see paragraph 17 above), and information provided on 3 October 1996 that the respondent had moved to Western Australia.(T7) There is no contemporaneous official record or file note in the T documents to the effect that the respondent notified the DSS at any time in 1996 or 1997 that he had received, or was receiving, compensation. On the other hand, the respondent in his oral evidence stated that it was his recollection that he had telephoned the DSS from his father's house and informed them that he had received his first compensation payment, and that he did so within a week after receiving that payment at the end of September 1996. The respondent acknowledged, however, that the period in question was a long time ago and that it was very difficult for him now to remember the details of what had occurred at that time.

30. In the Tribunal's opinion the respondent gave his evidence honestly and to the best of his recollection. His evidence, however, appeared to the Tribunal to involve a degree of reconstruction of the events of August/September 1996 regarding his contacts with the DSS and the information he provided to the DSS in relation to his DSP. Having regard to the long passage of time since that period and to the respondent's (understandable) admitted difficulty in recalling in detail his contacts with the DSS at that time, coupled with the fact that there is no contemporaneous official record of the respondent's having informed the DSS that he had received compensation at that time, the Tribunal's conclusion is that the respondent's (self-serving) evidence that he notified the DSS in late September/early October 1996 that he had received compensation earlier in the same week cannot reasonably be regarded as reliable.

31. Having regard to the whole of the material before it and to all relevant circumstances, the Tribunal is satisfied, and finds, that the respondent did not at any material time notify the DSS that he had received compensation during the period from 27 September 1996 to May 1997 and that, accordingly, he thereby failed to comply with the relevant DSS notices given under s 132(1) of the Act on 29 August 1996, 6 September 1996, 3 October 1996 and 4 November 1996 requiring him to inform the DSS within 14 days if he claimed or received compensation.

32. The failure by the respondent to comply with the abovementioned notices given by the DSS under s 132(1) of the Act also constituted a failure by him to comply with s 132(1) of the Act itself (see Re Perkich and Secretary, Department of Social Security (1997) 49 ALD 137; Re Hales and Secretary, Department of Social Security AAT Decision No 12159, 27 August 1997), and the Tribunal so finds.

33. The Tribunal also finds that an amount was paid to the respondent by way of "social security payment" (namely, DSP - see s 23(1) of the Act) because of the abovementioned failure by the respondent to comply with s 132(1) of the Act and that, accordingly, that amount is, pursuant to s 1224(1) of the Act, a debt due by the respondent to the Commonwealth. A question arises, however, as to the precise amount of that debt.

34. It was accepted by the applicant, on the basis of Exhibit A1, that the respondent received his first compensation payment, by cheque dated 27 September 1996, at the end of September 1996 or the beginning of October 1996, and the Tribunal so finds. Accordingly, the respondent was required, pursuant to the DSS notices which he had already received (namely, those dated 29 August 1996 and 6 September 1996) and by reason of s 132(1) of the Act, to notify the DSS of his receipt of compensation within 14 days thereafter - that is, by mid-October 1996 at the latest. As already found by the Tribunal, the respondent failed to notify the DSS that he had received compensation either by that date or at any time thereafter. Accordingly, the respondent's failure to comply with the relevant DSS notices and s 132(1) of the Act first occurred on the expiration of the prescribed 14-day notification period, namely (as abovementioned) around mid-October 1996. It follows that the amount paid to the respondent by way of DSP because of that failure to comply with s 132(1) of the Act in mid-October 1996 is, pursuant to s 1224(1) of the Act, a debt due by the respondent to the Commonwealth. The amount of that debt will, accordingly, comprise the overpayments of DSP that were made to the respondent after mid-October 1996 because of his failure to comply with s 132(1) of the Act at that time. It appears from the T documents (T18, p 55) that the date in mid-October 1996 from which overpayments of DSP were made to the respondent was 17 October 1996. The Tribunal will, therefore, treat that date (17 October 1996) as the date of commencement of the overpayments of DSP that constituted the relevant debt.

Is it appropriate to write off that debt?

35. The abovementioned debt may be written off pursuant to s 1236(1) of the Act, but only in the circumstances specified in paras (a)-(d), of s 1236(1A). It was not suggested that para (a), para (c) or para (d) is applicable in this case. As regards para (b), the Tribunal understands that the respondent is presently in receipt of DSP and that the debt can be recovered from him by means of deductions from his DSP without necessarily causing him severe financial hardship. Accordingly, pursuant to s 1236(1C) of the Act the respondent is taken to have a capacity to repay the debt and, therefore, para (b) of s 1236(1A) is not satisfied in this case.

36. It follows, therefore, that there is no power under s 1236(1) of the Act to write off the debt in this case because none of the circumstances specified in s 1236(1A), in which that power may be exercised, exists in this case.

Is it appropriate to waive the debt?

37. Section 1237A(1) of the Act requires the waiver of a debt that is "attributable solely to an administrative error made by the Commonwealth" provided that the debtor received in good faith the payment(s) that gave rise to the debt. It necessarily follows from the Tribunal's abovementioned finding that the relevant payments of DSP that gave rise to the respondent's debt were made because he failed to comply with s 132(1) of the Act that no part of that debt could be said to be "attributable solely to an administrative error made by the Commonwealth". Accordingly, that debt cannot be waived under s 1237A(1) of the Act.

38. Finally, under s 1237AAD of the Act there is a discretionary power to waive a debt where, inter alia, "there are special circumstances (other than financial hardship alone) that make it desirable to waive". The respondent informed the Tribunal of certain circumstances of his case which he regarded as special or exceptional but, in the Tribunal's opinion, those circumstances are not such as to render reovery of his debt "unjust, unreasonable or otherwise inappropriate" (Re Ivovic and Director-General of Social Services (1981) 3 ALN No 61 at p N97) and are not relevantly "special circumstances" for the purposes of s 1237AAD of the Act. As regards the respondent's financial circumstances, his evidence was that he was able (albeit, barely) to make ends meet financially on his fortnightly income from social security payments. Accordingly, it cannot be said that the respondent is suffering such financial hardship as might, in combination with other relevant circumstances, constitute special circumstances for the purposes of s 1237AAD of the Act. The Tribunal concludes, therefore, that a necessary precondition of the existence of the power under s 1237AAD of the Act to waive the respondent's debt - namely, "special circumstances...that make it desirable to waive" - is not fulfilled in this case and, accordingly, there is no power to waive the respondent's debt under that provision.

Conclusion

39. The conclusion of the Tribunal is, therefore, that a recoverable debt is due by the respondent to the Commonwealth pursuant to s 1224(1) of the Act, and that the amount of the debt comprises overpayments of DSP made to the respondent during the period from 17 October 1996 to 1 May 1997 (not the period from 5 September 1996 to 1 May 1997 as determined by the ARO). The amount of that recoverable debt will, therefore, be somewhat less than the amount of $4,309.10 determined by the ARO. The Tribunal, however, does not have the information necessary to determine the precise amount of that debt and, for that reason, that matter must be remitted to the applicant for determination.

Decision

40. For the above reasons the Tribunal sets aside the decision of the SSAT made on 31 October 2001 and, in substitution therefor, decides that, pursuant to s 1224(1) of the Act, a debt is due by the respondent to the Commonwealth, the amount of such debt comprising overpayments of DSP made to the respondent during the period from 17 October 1996 to 1 May 1997, and that that debt is recoverable by the Commonwealth under Part 5.2 of the Act. The matter is remitted to the applicant for determination of the amount of that recoverable debt.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President

Signed: ..........(sgd V Wong)......................................

Associate

Date/s of Hearing 26 November 2002

Date of Decision 8 January 2003

Counsel for the Applicant Mr A Jones

Advocacy and Administrative Law Team, Centrelink

Counsel for the Respondent In person