Cornish and Secretary, Department of Family and Community Service s [2003] AATA 91 (31 January 2003)

Last Updated: 3 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 91

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/341

GENERAL ADMINISTRATIVE DIVISION	)
	Re	CRAIG WHITTIER CORNISH

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Senior Member JA Kiosoglous MBE

Date 31 January 2003

Place Adelaide

Decision

Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review, and in substitution therefor decides that a part of the debt, namely the sum of $7,923.77, be waived.

(signed)

JA KIOSOGLOUS

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - overpayment - recovery of debt - waiver - whether debt due to sole administrative error - whether overpayment received in good faith - whether special circumstances

Social Security Act 1991 ss1237A(1), 1237AAD

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

Secretary, Department of Social Security v Hales (1998) 51 ALD 695

REASONS FOR DECISION

31 January 2003

Senior Member JA Kiosoglous MBE

1. This is an application by Mr Craig Whittier Cornish (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 31 July 2001 (T2), which affirmed a delegate's decision of 31 May 2001 (T10), as affirmed by an Authorised Review Officer (ARO) of 19 June 2001 (T12), to raise and recover disability support pension (DSP) in the amount of $11, 923.77 for the period 10 December 1998 to 24 April 2001. The SSAT also affirmed that the debt cannot be waived under s1237A(1) of the Social Security Act 1991 ("the Act"), nor was it able to find any circumstances which could be described as "special" for the purposes of s1237AAD of the Act.

2. The Tribunal received into evidence the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T13), together with sixteen exhibits, ten lodged by the applicant (Exhibits A1-A10) and six lodged by the respondent (Exhibits R1-R6). In addition, the Tribunal heard evidence from the applicant and from his wife, Mrs Kylie Lisa Cornish. The applicant was represented by Mr Christian Goldsworthy, of Counsel, and the respondent was represented by Mr Ray Kilderry, a departmental advocate.

ISSUES

3. At the outset of the hearing the applicant conceded that there had been an overpayment of DSP and that such was a debt due to the Commonwealth. It was further conceded that the amount of the debt was $11,923.77. In issue is whether or not there are grounds to waive or write off all or part of the debt due to sole administrative error and good faith in accordance with the provisions of s1237A of the Act or whether or not, in the alternative, there are grounds to waive the debt due to special circumstances in accordance with s1237AAD of the Act.

HISTORY OF THE APPLICATION AND APPLICANT

4. On 28 October 1997 the applicant lodged a claim for DSP (T3). The applicant indicated on the application that he was married to Kylie Lisa Cornish. At the date of the DSP application, Mrs Cornish was employed with a firm known as "Game Guru" and had been there since about 20 December 1996. Since at least 2 January 1997 the applicant had been notifying Centrelink of the exact amount of his wife's earnings, up until his DSP application. Prior to that he had been advising Centrelink on a fortnightly basis by indicating such on the Newstart incapacitated form.

5. The applicant's application was successful and he thereupon from 27 October 1997 commenced to receive DSP at the maximum rate. Normally, attached to the DSP application form are various other forms referred to as modules, namely, a module for his assets, a module for his income, and a module for his wife requiring her details. In this instance, and it is not disputed, an officer of Centrelink when giving the application form to the applicant made a mistake or erred, and failed to give him module "P", relevant to a partner/wife, to fill out. As such module was never filled out Centrelink did not take his wife's earnings into account and as a result the applicant received the maximum rate.

6. The next significant event is that Mrs Cornish ceased employment with Game Guru on 29 November 1998 and she lodged a claim for Newstart Allowance (NSA), which was granted to her. In her application she gave details of her husband's incapacity and of his DSP payment. Mrs Cornish, however, was only unemployed after leaving Game Guru for about two weeks when she then obtained employment with Savery Retravision ("Savery") at the Gawler Place, Adelaide, store.

7. In issue is the date of commencement with Savery. On her group certificate (Exhibit A4) the date of commencement is 10 December 1998, whereas information obtained from Savery indicated the commencement date as being 1 December 1998 (T7). It would appear that the SSAT, without explaining why, preferred the information provided by Savery (T7). The Tribunal will refer to this herein at a later stage. However, on 21 December 1998, Mrs Cornish together with the applicant, attended the Noarlunga office of Centrelink. This was within about 14 days of her commencement of employment at Savery. She advised Centrelink on that date that she had declared receiving $648.37 (T11/68) and presented her pay-slips.

8. Mrs Cornish enquired whilst at the Centrelink Office of the effect that her earnings would have on the applicant's DSP. They went there in order to have Mrs Cornish's earnings recorded on her husband's Centrelink file. It was alleged by the applicant that failure by Centrelink to record Mrs Cornish's earnings on his file was due to an administrative error. It was submitted by Mr Goldsworthy that the date the debt begins is 21 December 1999. In any case, when at the Centrelink Office, Mrs Cornish was requested to continue to put in fortnightly forms for a few weeks with the last put in on 4 January 1999.

9. About 2 weeks later, 21 January 1999, the date for debt recovery was calculated. However, three days prior to this, namely 18 January 1999, the applicant was selected for what is referred to as a GF review. This is a cross-check of a Centrelink customer's payments with his partner's income. As part of a GF review a letter, dated 3 February 1999, known as Q135, was sent to the applicant (Exhibit A10), which requested him to contact Centrelink Review Section by 25 February 1999 to advise whether or not he is receiving the correct rate of DSP to confirm his wife's details. The same letter stated that if he failed to make contact by the date stated the DSP might be cancelled.

10. Notwithstanding this, the applicant's Centrelink record indicates that the GF review was finalised on 3 February 1999 (Exhibit A8). This was supported by a document generated on 25 March 1999 (Exhibit A7) which also indicated that the GF review was finalised, with Centrelink having been satisfied also on 25 March 1999 that Mrs Cornish's earnings for the period December 1998 to January 1999 had been declared correctly as also had the rate of payment (Exhibit A9). As to overpayment the record indicated than none existed.

11. The next significant event took place thirteen months after the date of Mrs Cornish's commencing work at Savery. She finished her employment there on 4 April 2000. Prior to leaving Savery she had applied for employment with Harris Scarfe at its Noarlunga store. On 6 March 2000 and 7 March 2000 she attended two unpaid training days at Harris Scarfe. It is asserted by the applicant that Mrs Cornish commenced actual employment with Harris Scarfe on 6 April 2000 with the end date for the pay period 2 April 2000 to 9 April 2000 (Exhibit T8/45). The respondent, however, contends that 2 April 2000 is the end date for paid work up to that date and for which she received $649.69. There was also dispute as to the actual dates Mrs Cornish actually ceased employment with Savery and commenced with Harris Scarfe.

12. It was contended that shortly after Mrs Cornish started with Harris Scarfe, she both rang and personally visited Centrelink to give details of her new employment and wages. Unfortunately these notifications were not actioned and hence the applicant continued to be paid at the maximum rate. A year later, on 9 May 2001, Centrelink discovered the overpayments and raised a debt of $12,013.16 (T6) which was later upon reconsideration amended to the amount before this Tribunal of $11,923.77.

13. On 19 June 2001 (T12) an ARO affirmed the delegate's decision resulting in the applicant applying to the SSAT for a review (T13) and the SSAT on 31 July 2001 (T2) also affirmed the decision. The SSAT decided that the applicant had a debt to the Commonwealth and that such debt should not be waived. The matter is now before this Tribunal for review of the SSAT decision (T1) in so far as it relates to waiver pursuant to s1237A(1) of the Act and special circumstances pursuant to s1237AAD of the Act.

APPLICANT'S EVIDENCE

14. The applicant stated that he applied for DSP in 1997. Prior to this he was in receipt of a benefit for chronic fatigue syndrome (CFS) for which he provided medical certificates on a regular basis. He stated that Centrelink then advised him to apply for DSP. He further stated that the CFS caused him to have symptoms of dizziness, fatigue and loss of consciousness. He also experiences aching muscles which make him feel as if he has the flu. He further stated that the CFS affects his memory and he has trouble concentrating and maintaining information.

15. The applicant stated that he was married at the time he applied for DSP. He stated that he did not complete module P and that he was unaware of it. He further stated that he did everything asked of him by Centrelink. Also he was not good at handling money and because of his condition his wife handles everything. He also stated that he could not recall receiving Centrelink's letter of 29 October 1997 (T4) wherein the starting date of the DSP and the amount to be received were set out. He stated that whilst he does not recall receiving it he was not saying he did not get it. He stated also that he was aware of the requirement as set out (T4/23) that he had to notify the Department within 14 days if his and his wife's combined income changed or of any changes to work.

16. The applicant stated that he recalls his wife's change of employment from Game Guru to Savery. He further stated that he did not feel uncomfortable because he was satisfied that Centrelink were being kept informed. With the change of employment he stated that he phoned Centrelink and advised of his wife's change of jobs and had been told by an officer to attend the office and to take in the pay-slips. He stated that he attended the Centrelink office with his wife, Kylie, but was unable to remember whom he saw, and that he gave some pay-slips to an officer at the counter. When it was put to the applicant that the debt started in January 1999 due to a failure on his part to advise Centrelink of his wife's earnings he denied this saying that they had always notified Centrelink of any changes to their income.

17. The applicant was forwarded a letter dated 3 February 1999 (Exhibit A10) referred to as Q135 letter. This requested that either the applicant or his wife contact Centrelink by a certain specified date and stated that failure to do so might result in the cancellation of the DSP. The applicant in his evidence stated that he did not recall receiving this letter. He further stated that they always responded to any correspondence from Centrelink and that had such letter been received they would have contacted them. He stated that in this instance he could not remember responding but that he always responded to any documents forwarded to him.

18. The applicant stated that when his wife started work with Harris Scarfe at Colonnades, they rang the Centrelink Call Centre first and were told to provide pay-slips. He stated that Harris Scarfe was next to the Noarlunga Centrelink Office in the Colonnades Shopping Centre and so his wife handed in the pay-slips and although he was not present he authorised her to do so. He further stated that she told him she had done so.

19. As to his health, the applicant stated that he had been through a varied range of treatments to alleviate the pain and symptoms of his CFS. The only things that have helped him are to meditate and to relax. He stated that since the debt arose his health has taken a "slow downhill turn" requiring injections to give him a boost. He spoke about his deep intermuscular injuries and said that his wife gives him vitamin B12 injections. As to his teeth he stated that with the onset of CFS they have "disintegrated" over the last one and a half years and that he now has upper and lower dentures. He also stated that for quite a long time he was doing volunteer work of some three half days at the Seaford Community Library undertaking general duties. He stated that as a result of his condition he has been finding it hard to keep up and has had to cut this back to two half days.

20. The applicant stated that the more stressed he got the less he was able to function. He further stated that if the debt continued this would cause him to "go further downhill" forcing him to give up the voluntary work. He felt that this would cause him to get gradually worse leading to his virtually being bedridden. He stated that the debt was disheartening and stressful and that he was finding it hard to get the "bills" paid. He also stated that they rent their home; they have a car but are repaying a loan on it; they have no major assets; and the debt is placing more stress on the relationship between him and his wife.

21. Under cross-examination the applicant stated that he has been in receipt of DSP since 1997 and that prior to that he had been receiving NSA for some eighteen months. He stated that he has filled in quite a few forms. He further stated that he was aware that he had to declare the earnings for both his wife and himself and that he knew that this could affect the rate of payment received. He also stated that whilst on NSA he was handing doctor's reports in to Centrelink as a result of which he was advised to apply for DSP.

22. As to the letter dated 29 October 1997 (T4/22), forwarded to his home address at Seaford Rise, he again stated that he did not recall receiving it but it was likely that he did and that he would have read it through. In regard to the explanation of "income" (T4/23) he stated that he would have "skimmed" through this but he did not remember actually reading it. On giving this response the applicant proceeded to read the meaning of "income" whilst in the witness box. He then stated that he knew the income had to be declared and that he was aware of this in 1997 and that such may impact on the rate of DSP to be received. He stated that he was advising of the income being generated by his wife.

23. In cross-examination he again stated that it is likely that he received the letter dated 3 February 1999 (Exhibit A10). He was then asked that after receiving the two letters (T4 and Exhibit A10) whether or not he had any reason to know if his wife's income could have any impact on his rate of DSP and to which he replied "yes". He further stated that whilst he had no idea as to how Centrelink carried out its calculations he did know that his rate of DSP could be impacted upon according to his wife's income.

MRS K CORNISH'S EVIDENCE

24. In her evidence Mrs Cornish stated that she was aware of the requirements to notify Centrelink within 14 days of any employment changes. She stated that because of her husband's illness she handles the finances. She mentioned her employment history commencing with Game Guru in December 1996 and finished up at the end of 1998. She applied for NSA which she received for a few weeks when she then obtained employment with Savery.

25. She stated that her husband rang Centrelink and advised of her commencing employment with Savery and was told to take in the pay-slips.. She further stated that they attended the Centrelink Office together as soon as the first pay-slip was received. She also stated that an officer photocopied the applicant's pension card and the pay-slip and she spoke about her pay and the officer made a note of this. She left Savery in April 2000 to take up employment with Harris Scarfe at the Colonnades Shopping Centre.

26. She stated that the applicant notified Centrelink of the change of employment and that he was told to take in a pay-slip. She also stated that as she worked near Centrelink it was easier for her to take in the pay-slip and his pension card which she did do and these were photocopied. She further stated that at a later date she took in another pay-slip.

27. She stated that she controls the household finances. As to debts she stated that they have a 1992 Toyota Corolla Sedan worth at the most $8,000 of which the amount owed is about $5,500 and with about three years left to pay that off. She also stated that there are no major assets nor do they own any shares. She stated that there is only an amount of $35 in the bank account. In addition to the car debt an amount of $270 is owed on Bankcard, house rental of $270 per fortnight, car registration of $122 per three months, and to AGL for utilities an amount of $200.90.

28. She stated that she suffers with high blood pressure and is on medication because of the debt. She also stated that she constantly feels anxious, always warm, with sweaty palms. There was also the occasion at work that she was not well and was taken to the Noarlunga Hospital suffering with high blood pressure and found to be anaemic due to a lack of iron. She stated she is taking Betaloc tablets for the blood pressure which started since the debt arose.

29. She stated that she and the applicant argue regularly over money and cannot afford to go to the movies or any other form of social pleasure other than going to friend's houses. She further stated that she will be twenty-eight years of age very soon and if the debt is not waived then they would have to "kiss goodbye to having a family" as they want to be financially stable before having children. She also stated that she and the applicant had done everything asked of them and that they had complied with all the information sent to them. She stated that if Centrelink had not made a mistake from the start they would not now have a debt. She agreed that the applicant was not entitled to that full amount.

30. She stated that she first realised the existence of the debt when notified in May 2001. She further stated that at no time did it enter her mind that there had been an overpayment. She also stated that when the DSP was first issued in October 1997 she asked the officer that if after taking her pay into account the amount received by the applicant was the correct rate of pay, to which enquiry she received the answer: "yes".

RESPONDENT'S SUBMISSIONS

31. Mr Kilderry submitted that the applicant was notified by letter dated 29 October 1997 (T4) that he had been granted a DSP and that he was required to notify Centrelink within 14 days if his partner commenced work. Due to failure on the part of the applicant to comply, Centrelink raised debts. He submitted that as at 20 September 2000 the maximum basic rate was $316.30 per fortnight for DSP recipients who are partnered. He further submitted that the DSP is reduced according to a person's ordinary income which is defined in s8 of the Act.

32. Mr Kilderry made submissions by way of explanation as to the entitlement of the applicant and how it was determined. He also submitted that the applicant was paid rent assistance at the rate o $82.80 per fortnight, pharmaceutical allowance currently at $2.90 per fortnight as well as his basic rate of DSP which at 20 September 2000 was $316.30 per fortnight. He further submitted that once the combined income or earnings of Mr and Mrs Cornish went above $200 the applicant was no longer entitled to the maximum rate of DSP. Hence the applicant's payment is made up of three components: the basic rate; rent assistance; and the pharmaceutical allowance. He submitted that the applicant was not entitled to the maximum rate of basic payment during the period of 10 December 1998 to 21 April 2001 by virtue of the income test and Mrs Cornish's earnings.

33. Mr Kilderry addressed the first of the two issues before the Tribunal, namely, the discretion to waive the debt. He submitted that s1237A(1) of the Act provides no relief in this matter. He further submitted that this section provides relief if it can be established that the debt arose solely from administrative error and payments were received in good faith.

34. He submitted that the applicant has contended that there are two periods of his debt. The first period contended is from December 1998, when Mrs Cornish was working for Savery, and the second from 6 March 2000 until 21 April 2001 when she was working at Harris Scarfe. In looking at this second period Mr Kilderry submitted that there is no record of any advice from either the applicant or Mrs Cornish and on that basis he further submitted that it cannot be argued that it was due to sole administrative error and that it was also arguable that payments were not received in good faith.

35. Mr Kilderry submitted that it was contended that the first period from December 1998 though to March 2000 came about due to administrative error as Centrelink was unaware Mrs Cornish was employed at Savery and was paying the applicant NSA. He submitted that Centrelink acknowledged administrative error during this period but contended that the payments were not received in good faith as the applicant had reason to know that he was not entitled to receive the maximum rate of DSP due to his wife's earnings and was in receipt of advice several times. He referred to the evidence of the applicant wherein the applicant suggested that he was aware that he had been told about income and that it may affect his payment rate.

36. Mr Kilderry submitted that s1237AAD provides that debt in part or in full may be waived if there are "special circumstances" that make it desirable to waive such debts. The meaning of "special circumstances" has been considered in a number of cases including Re Beadle and Director-General of Social Security (1984) 6 ALD 1. He cited an extract from Re Beadle, namely:

"An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional" (at 3).

Mr Kilderry further submitted that the circumstances in this matter are not sufficiently uncommon, unusual or exceptional to warrant a discretion being involved to provide relief in this matter.

APPLICANT'S SUBMISSIONS

37. Mr Goldsworthy submitted at the outset of his submissions that the debt is having a very serious impact on the health of the applicant. He further submitted that it is important for the applicant's continued recovery from his CFS that he not be subjected to the stress of being required to pay the substantial debt to the Commonwealth. He also submitted that the debt is affecting the health of Mrs Cornish as well as straining the marriage relationship.

38. Mr Goldsworthy submitted that the applicant did all that was required of him and that he believed he was receiving his correct entitlement. It was emphasised that Mrs Cornish handles the household finances. He further referred to the applicant's health and the negative affect the debt is having on his recovery, the applicant's and his wife's extremely strained finances, their debts, including the amount in issue, Mrs Cornish' health and the negative affects the debt will have on her, the applicant's ability to repay the debt, his job prospects and the earning capacity of both the applicant and Mrs Cornish.

39. Mr Goldsworthy submitted that the Tribunal take all of these matters into account and set aside the SSAT decision and determine that the applicant be exempted from repaying this debt as he does have special circumstances.

40. On the issue of good faith Mr Goldsworthy submitted that the fact that the applicant had always received the maximum rate of DSP from the outset confirmed in the applicant's mind that he was entitled to this amount. He submitted that Mrs Cornish was working at the time at Game Guru, which was at the date of the applicant's first application and that Centrelink had been informed of that. He further submitted that just after the applicant started to receive the DSP he was sent a notification letter which did not indicate what the combined income of both was, hence the applicant had no figure to go by. He also submitted that the applicant had no knowledge of the amount of combined income Centrelink was using to assess his DSP.

41. Mr Goldsworthy submitted that when Mrs Cornish commenced work at Savery her wage was approximately the same as it was for Game Guru and so it did not seem strange to the applicant that his rate of DSP did not fall. It was further submitted that the applicant had given Centrelink details of Mrs Cornish's wage and therefore he held no suspicion that his payment might be wrong. It was also submitted that the same was applicable for the Harris Scarfe employment which commenced in May 2000, with Mr Goldsworthy explaining that the wage was also very similar to that received at Savery and so the applicant, satisfied that Centrelink knew of his wife's wage, was not at all surprised when his DSP did not alter.

42. As to the issue of the Tribunal considering waiving a portion of the debt pursuant to section 1237A of the Act, it was submitted that at least a portion of the debt was attributable solely to the administrative error of Centrelink and that the applicant received the overpayment in good faith.

43. Mr Goldsworthy in his submissions also invited the Tribunal to alter the debt period. He submitted that if waiver of the entire debt is not considered, then the debt should only run from 14 days after Mrs Cornish commenced work at Harris Scarfe, namely 20 April 2000, to the date of the end of the debt being 24 April 2001. By so doing he submitted that the Tribunal would accept that Centrelink was notified within 14 days of the beginning of employment with Savery.

44. In concluding, Mr Goldsworthy submitted that the applicant and his wife are a young couple that survive on a low income. He further submitted that the applicant is ill and Mrs Cornish works in modestly paid employment and that this debt to the Commonwealth is weighing extremely heavily upon them. Her also submitted that the applicant is not a complicated man and that he just relied upon Centrelink to correctly calculate his rate of DSP after his belief that he informed Centrelink of the income and employment of Mrs Cornish.

DISCUSSION AND FINDINGS

45. At the outset of the hearing the applicant conceded that he is not disputing the existence of the debt of $11,923.77 and being a debt due to the Commonwealth as a result of an overpayment of DSP. On the evidence before the Tribunal it is satisfied that such is the case and so finds.

46. In regards to waiver, the applicant centred his submission on s1237A(1) of the Act which relates to sole administrative error. The first requirement that must be met in order for the Tribunal to waive pursuant to this subsection, is that the debt arises solely as a result of administrative error.

47. Before addressing this issue the Tribunal turns to consider the starting date of employment by Mrs Cornish with Savery. Information before the Tribunal from Savery indicates commencement of employment there as being 1 December 1998 (T7). However, on Mrs Cornish's Group Certificate (T4) the date of commencement is shown to be 10 December 1998. Whilst the difference is only that of about one week the Tribunal is satisfied on the balance of probabilities that the information on the Group Certificate is correct and the more preferable and hence deems 10 December 1998 as the commencement date with Savery.

48. Turning back to the consideration of administrative error, it is contended by the applicant that such error resulted as a result of the failure of the respondent to record telephone calls and attendances at the Centrelink office by the applicant, Mrs Cornish, or both. Subsection 1237A(1) states:

"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."

49. As in the case of the SSAT this Tribunal is also of the view that the debt did arise partly due to Centrelink's error, given that it did have some information which indicated that Mrs Cornish was earning an income. However, the Tribunal cannot on the evidence before it be satisfied that the debt was solely attributable to Centrelink's errors. The SSAT in making it's findings found that the requirement to notify Centrelink of any changes within 14 days was not complied with.

50. Before this Tribunal the applicant and Mrs Cornish stated that in fact such had been complied with on at least four occasions as set out previously above. This Tribunal has great difficulty in accepting that officers of Centrelink would omit on each occasion to make note of such. It accepts that such may happen on possibly one or two occasions but finds the explanation of the applicant difficult to accept that such occurred on every occasion. For this reason, the Tribunal does not consider that it was solely the respondent's fault and that the applicant must share responsibility for the failure to notify in this case. Accordingly, the Tribunal finds that s1237A(1) of the Act is not applicable in this case, as there is no sole administrative error that is responsible for the debt.

51. In respect of s1237AAD of the Act, the phrase "special circumstances" has been considered in many previous Tribunal cases as well as by the Federal Court. The Tribunal finds it unnecessary to discuss its meaning at length in the present matter. The Tribunal adopts the meaning given to the phrase in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 and followed in many subsequent cases.

52. The Tribunal also takes into account the authorities referred to by the parties and in particular Secretary, Department of Social Security v Hales (1998) 51 ALD 695. In the present case the Tribunal is satisfied that the applicant has proven that he and his wife do experience financial hardship. Whilst this on its own is not sufficient to satisfy the presence of "special circumstances" the Tribunal takes into account other matters raised by the applicant and his wife.

53. The wording of s1237AAD requires that the person's circumstances be special in such a way that it is "desirable to waive": the debt. The decision-maker therefore must consider not only whether the person's circumstances are special in the sense of being unusual or uncommon but also whether their character is such that it would be "unjust, unreasonable or otherwise inappropriate" on the part of the Commonwealth to recover the whole of the debt or a part of it.

54. Apart from the financial hardship experienced by the applicant and his wife through the various debts not including the one in issue, there is also the health factor of the applicant and the effect of the debt on Mrs Cornish. In addition there is the factor of the ability or lack thereof to repay the debt. In fact the respondent has been recovering the debt at the rate of $100 per fortnight and has recovered an mount of approximately $3000 of the total debt.

55. Section1237AAD is the only relevant section whereby the Tribunal may waive the right to recover all or part of the debt. This right that the Tribunal "may waive" the debt is a discretionary power conferred by the said s1237AAD. Taking into account all of the factors before this Tribunal there is also the factor of the hardship that recovery of the total debt would have on the applicant and his wife. It is reasonable that the circumstances, when taken into consideration together make this case "unusual, uncommon and exceptional", and the Tribunal so finds that it enables the exercise of the discretion to waive a part of the debt. The total debt is the amount of $11,923.77 of which an amount of approximately $3000 has been recovered. The Tribunal is of the view that the amount of $7923.77 should be waived and that the sum of $4000 be recovered including the amount already recovered.

56. Accordingly, it is appropriate that the Tribunal waive a part of the debt of the amount of $7,923.77 pursuant to s1237AAD of the Act, taking the circumstances as a whole into account.

DECISION

57. For the reasons given and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review, and in substitution therefor decides that a part of the debt, namely the sum of $7,923.77, be waived.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of JA KIOSOGLOUS MBE

Signed: (signed)

John Howell, Associate

Date/s of Hearing 21 May 2002

Date of Decision 31 January 2003

Counsel for the Applicant Mr C. Goldsworthy

Solicitor for the Applicant Welfare Rights Centre

Counsel for the Respondent Mr R. Kilderry

Solicitor for the Respondent Advocacy and Administrative Law Team, Centrelink