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Marshall and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2009] AATA 249 (17 April 2009)

Last Updated: 17 April 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4006

GENERAL ADMINISTRATIVE DIVISION
)

Re
GARRIE MARSHALL

Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS;
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondents

DECISION

Tribunal
Dr K S Levy RFD, Senior Member

Date 17 April 2009

Place Brisbane

Decision
The Tribunal finds as follows:
(1) Not all of the circumstances of Mr Marshall’s affairs were taken into account for the period in which overpayments arose;
(2) The debts are legally recoverable;
(3) The sickness allowance debt of $634.23 for the period 23 May 2001 to 9 September 2001 is affirmed;
(4) The disability support pension debt of $5,493.28 for the period 24 November 2001 to 8 October 2004 is waived; and
(5) The disability support pension debt of $14,407.22 for the period 9 October 2004 to 13 July 2007 is waived.


..................[Sgd]....................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Sickness allowance debt – Applicant not suffering severe financial hardship – Secretary may not write off debt – Debt not attributable solely to an administrative error made by the Commonwealth – No special circumstances that make it desirable to waive debt – Secretary may not waive debt – Decision under review affirmed.


SOCIAL SECURITY – Disability support pension debts – Applicant not suffering severe financial hardship – Secretary may not write off debts – Debts attributable solely to administrative error made by the Commonwealth – Payments received in good faith – Special circumstances exist that make it desirable to waive debts – Disability support pension debts waived – Decisions under review set aside.


Evidence Act 1995 (Cth), s 55

Social Security Act 1991 (Cth), ss 1236(1A), 1236(1C), 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth), ss 100(1), 179


Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204

R v Campbell [2004] NSWCCA 314

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Cadwallader v Bajco Pty Ltd [2002] NSWCA 328

O’Meara v Dominican Fathers [2003] ACTCA 24

Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225

Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729

Re L and Secretary, Department of Social Security [1995] AATA 159; (1995) 38 ALD 176

Re W (an infant) [1971] AC 682

Powell v Evreniades (1989) 87 ALR 117

Groth v Secretary, Director of Social Security [1995] FCA 1708; (1995) 40 ALD 541

Re Ivovic and DGSS (1981) 3 ALN N61

Secretary, Department of Education, Employment, Training and Youth Affairs v Prince [1997] FCA 1565; (1997) 50 ALD 186

Haggerty v Department of Education, Training and Youth Affairs [2000] FCA 1287; (2000) 31 AAR 529


REASONS FOR DECISION


17 April 2009
Dr K S Levy RFD, Senior Member

INTRODUCTION

  1. The Applicant in this matter, Garrie Marshall, ran his own business as a plumber for 32 years. In 1999, he suffered from clinical anxiety and depression. He received sickness allowance and, later, disability support pension. During the period 23 May 2001 to 13 July 2007, he incurred various Centrelink debts as a result of overpayments. Each debt was reviewed by an Authorised Review Officer (“ARO”) in separate decisions, dated 3 April 2008, 4 April 2008 and 17 April 2008. In respect of the latter decision, the ARO waived a considerable part of the debt related to sickness allowance. All three decisions determined that the overpayments were not solely due to an administrative error of the Commonwealth and that there were no special circumstances which would justify write off or waiver of the resultant debts. The total amount of the debts was then $20,534.73.
  2. Mr Marshall then appealed to the Social Security Appeals Tribunal (“the SSAT”), which affirmed the three decisions. He now appeals to this Tribunal.

ISSUES

  1. The Respondents submitted, and it is agreed, that the issues for determination are as follows:
  2. The current debts under review and the periods to which they relate (“the relevant periods”) are as follows:

EVIDENCE

  1. The Tribunal had the benefit of a considerable amount of documentary evidence from previous reviews by the ARO and the SSAT. In addition, Mr Marshall appeared in person and had the support of his wife, Carol Marshall. Mrs Marshall had many direct dealings both with Mr Marshall and Centrelink staff for the relevant periods. Mr Kenneth Dan Stevens, of Centrelink’s Maroochydore office, provided evidence by telephone. This is the officer known as “Dan” with whom Mr and Mrs Marshall dealt. In reaching a decision, I have taken all of the evidence provided into account as well as statutory and other legal requirements.
  2. Mr Marshall is now 61 years of age. He had conducted a plumbing business for 32 years when, in 1999, he suffered from severe anxiety accompanied by panic attacks and, subsequently, a co-morbid condition of depression. This was associated with poor concentration and suicidal ideation. He received a sickness allowance from Centrelink for approximately two years and did not leave home for most of that time. At night he sometimes wandered off and Mrs Marshall would have to drive around to find him.
  3. Mr and Mrs Marshall told the Tribunal they had been informed by Centrelink that it was not necessary to go to Centrelink each fortnight to advise of Mrs Marshall’s income. She was told this was because she worked as a cleaner in a government department and received the same amount each fortnight. She said Centrelink told her only to phone if her circumstances changed, and that the officer to contact was Mr Stevens. Mrs Marshall emphasised that her direct communications with Centrelink were that there was no point in her coming to the office as her fortnightly salary did not change. She told the Tribunal she had provided information to Centrelink when each change occurred for herself or her husband, and so could not understand how he could have been overpaid; for example she rang Mr Stevens, the Centrelink officer, when Mr Marshall started working at a golf club in 2001 and 2002. She stated she also rang Mr Stevens to advise of changes after that date.
  4. On a number of occasions in 2001, Mr Marshall received letters from Centrelink all of which had the standard inclusions about the obligation to inform Centrelink of any changes to income. As the medical evidence on the record is unchallenged, it appears that Mr Marshall was not in a position to deal with those letters competently. However, Mrs Marshall did receive those letters and dealt with them on Mr Marshall’s behalf. She acknowledges that, during that period, she may not have read the letters fully or understood them. However, she did contact Mr Stevens personally and told him of all changes and queries for the relevant periods on behalf of Mr Marshall. Between 2001 and 2007, there are Centrelink notes about some advices received from Mr and Mrs Marshall and also about other matters, such as a review of Mr Marshall’s family trust in 2002 and 2003.
  5. In the period 2004 to 2007, when Mr Marshall was recovering his health, he had left the golf club and was employed by Education Queensland as a cleaner at the local high school, as was Mrs Marshall. He was employed for 38 hours per week. Mrs Marshall stated that she rang Mr Stevens to inform of that change. Both Mr and Mrs Marshall said that Mrs Marshall then took payslips to Centrelink and left copies with Mr Stevens, who advised that the change in income was “OK” and that they were “still way under the threshold”. A Centrelink note, dated 13 November 2003, is in evidence recording that Mrs Marshall phoned to advise that Mr Marshall had ceased work at the golf club and commenced cleaning work at the local high school. The note also states: “Unsure of how many hours per week or pay rate at this stage. Will phone and advise as soon as info available”. The Centrelink officer who created the note used a code, which Mr Stevens acknowledged when giving evidence as being his “user-name”. Mrs Marshall was cross-examined on the subject of the note.
  6. A “Request for Information” letter, dated 13 February 2007, was sent to Mr Marshall following a periodic check by Centrelink with the Australian Taxation Office. In 2007 and 2008, following that letter, debts were raised against Mr Marshall. These debts were the subject of reconsideration and review by an ARO and, more recently, the SSAT. During this period, Mr and Mrs Marshall went to the Maroochydore Centrelink office to meet Mr Stevens. Mr Marshall corroborated Mrs Marshall’s evidence of the following meeting. Their evidence was that Mr Stevens showed them a computer screen of their record and Mrs Marshall saw one column at the end of the screen which showed an amount of $1,700 to $2,000 per fortnight. She asked Mr Stevens what that amount represented and he told her it was her fortnightly income. She told Mr Stevens this information was clearly wrong because, as a cleaner with Education Queensland, she earned nowhere near that amount. Mrs Marshall told the Tribunal that Mr Stevens then said words to the effect “I am so glad you picked up something wrong” and then said “go for it”. She told the Tribunal that she then got payslips from Education Queensland and sent them to Centrelink. She emphasised that she sent them to Centrelink twice.
  7. Mrs Marshall told the Tribunal that also in the course of that meeting, Mr Stevens pointed out that $2,000 had been deducted from Mr Marshall’s benefit over the previous two years. Mrs Marshall replied they had never been told about that. Mr Stevens told her the deductions had been made because the level of her income had not been accounted for.
  8. At the hearing, Mrs Marshall referred Mr Stevens to the conversation in his office when the computer screen showed an error about her earnings. He responded that he did not recall the exact words used. He did however agree with Mrs Marshall that she had phoned in changes from time to time. Mrs Marshall stated that she and Mr Marshall knew Mr Stevens since he was five years old: they had worked with his mother, knew his father, and he had gone to school with one of their sons and been to their place as a child. She asked him about paragraph 6 of his statement dated 17 February 2009 which reads, “I have never been to Mr Marshall’s residence and do not know Mr Marshall in a personal capacity”. He merely responded that he remembered “they had had a talk about that”. At the end of the parties’ questioning of Mr Stevens, I put to him that his answer to Mrs Marshall was not really an answer to the question she had asked. He again gave an equally vague answer.
  9. The statement of Mr Stevens, dated 17 February 2009, shows that Mr Stevens has worked for Centrelink since August 1998 and was a Seniors and Carers Customer Service Officer at Centrelink Maroochydore between 2002 and 2006. I note that he is still employed there, although as an Indigenous Services Officer. His statement acknowledges that he has had contact with Mr and Mrs Marshall. He makes reference to file notes that are in evidence. He describes his “usual practice” about making file notes and then updating records upon receipt of changed employment information. When giving evidence, he stated on a number of occasions that he assumed he would have “updated accordingly” on the computer system any new information provided that affected entitlements. He denies advising any client that they would not be required to report earnings to Centrelink. At paragraph 14 of his statement, he refers to a meeting with Mr Marshall on 22 February 2006 and says that Mr Marshall did not “state to me that he acted on my advice and did not report his earnings because I had advised him that he did not have to if his earnings were below the personal income threshold”. He has made no specific declaration about whether he did ever make such a statement himself (as opposed to what Mr Marshall did not say to him).
  10. Mr and Mrs Marshall were cross-examined by Mr Guthrie, for the Respondents. Apparently, the fact that Mr Marshall left the golf club and commenced employment at the local high school was recorded by Centrelink as being reported seven months late. Mrs Marshall said she was certain that she had reported the change immediately it had occurred, and that Mr Marshall could not have been working in both positions during that period as the hours would have conflicted.
  11. Submissions were made on behalf of the parties. Mr Guthrie, for the Respondents, submitted that the overpayments were due solely to the inaccurate information or lack of information provided by Mr or Mrs Marshall. He submitted that there was no ground for either write off or waiver of any of the debts. Mrs Marshall, on the other hand, submitted that she had provided Mr Stevens with information at all times about any change in her or Mr Marshall’s income. She also emphasised that she could not understand Mr Stevens’ evidence, given the many conversations she had with him and given that she had attended his office over the years of the relevant periods.

CONSIDERATION

  1. This Tribunal is vested with authority to review the decisions affirmed by the SSAT: s 179 of the Social Security (Administration) Act 1999. I have considered all statutory and other legal provisions relevant to determining this matter and all evidence in oral and documentary form submitted to the Tribunal.

Findings of Fact

  1. The evidence presented to the Tribunal left an impression, at least in part, that there were significant errors with the Centrelink records. Some errors were alluded to by Mr and Mrs Marshall when giving evidence of their dealings with Mr Stevens. After reconsidering all of the evidence available, the doubt about those errors has not dissipated.
  2. There were also other unresolved questions at the hearing, about annual income amounts pertaining to “customer other personal exertion income (business)”, “partner other income (financial investments)” and “partner other personal exertion income (business)”. These amounts appeared to take into account annual income amounts, possibly interest income: see T documents, folio 186. At the hearing, the Respondents’ advocate (and an officer of Centrelink who was also present) could not satisfactorily explain those annual income amounts. That is not a criticism of them: I am sure that is not their ordinary work at Centrelink. However, since the hearing, it seems apparent to me that those amounts were recorded in 2001, when Centrelink was assessing income from a family trust and other income of Mr and Mrs Marshall: for example, see T documents, folio 256. I am satisfied that there is no reason to suspect error in respect of these amounts in the calculation of any debt owed by Mr Marshall.
  3. Mr Marshall (through Mrs Marshall) also stated that Education Queensland (Mrs Marshall’s employer) employed another “Carol Marshall”, and that some of the amounts taken into account for the present debts may have been based on the wrong records. I have considered the records provided and I am now satisfied that the summary and most of the calculations of the debts are correct: T documents, folios 127, 186 - 189. However, I find that there were some errors of recording in the chronology of the debt period, that is, before the investigation, reconciliation and calculation of the current debts.
  4. Another aspect also has an overriding effect in determining the relevance and weight of various parts of the evidence: the credibility of witnesses. The medical evidence in relation to Mr Marshall has not been questioned. I found Mr and Mrs Marshall to be witnesses of truth. Mr Marshall seemed to be less capable of dealing with his affairs (even at the time of the hearing) than Mrs Marshall, who demonstrated competence and diligence. She oversighted and dealt with the affairs of Mr Marshall, and I am satisfied that her efforts more than made up for any lack of capacity which Mr Marshall may have had at any time throughout the relevant periods, up to (and including) the date of hearing.
  5. Mr Stevens denies some of the assertions of Mr and Mrs Marshall. According to Mrs Marshall, Mr Stevens told her in the early stages of Mr Marshall’s illness that rather than report fortnightly, she need only report changes as they occurred. Mr and Mrs Marshall also say that on a number of occasions when reporting changes to Centrelink, Mr Stevens told them they were still well below the income threshold affecting eligibility for the disability support pension payments. As referred to above, an apparent error on a Centrelink computer screen was discovered by Mrs Marshall, and her evidence is that Mr Stevens said that he was “...so glad you picked up something wrong” and that they should “go for it”.
  6. Mr and Mrs Marshall also say that Mr Stevens and his parents were known to them. They say he had been to their place as a child to play with one of their sons with whom he went to school. They also say Mr Stevens came to their place twice in 2000 when Mr Marshall was unwell and could not leave the house. At the Tribunal, Mrs Marshall asked Mr Stevens why he said, in his statement of 17 February 2009, that “I have never been to Mr Marshall’s residence and do not know Mr Marshall in a personal capacity”. Mr Stevens’ response to that question was merely, “I remember we had a talk about that”. My subsequent questioning of Mr Stevens on this issue resulted in him saying he couldn’t recall, but also that “I can’t say it didn’t happen”. Mr Stevens’ evidence was evasive in a number of ways. I found his evidence to be very unreliable; clearly, it was not a full or accurate account. I regard him as not truthful (at least in some respects) and avoidant.
  7. Section 55(1) of the Evidence Act 1995 provides that evidence in a proceeding is relevant if it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue”. The credibility of a witness can be affected by veracity, motive and many other circumstances: Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 at 254; also R v Campbell [2004] NSWCCA 314 at [13] – [20]. Also, at common law, adverse inferences may be drawn where a party has not adduced particular evidence or where such evidence would reasonably have been expected to be provided, particularly where direct questions have been put to a witness: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; see also Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 at [95] – [100] and O’Meara v Dominican Fathers [2003] ACTCA 24 at [69] (referring to Jones v Dunkel (above) at 321). In terms of s 55 of the Evidence Act 1995, I find Mr Stevens’ evidence to be of little weight in comparison to Mr and Mrs Marshall’s evidence.
  8. I therefore make the following findings of fact:

Issue One – Were all circumstances taken into account when calculating Mr Marshall’s rate of disability support pension and sickness allowance?

  1. From the findings of fact above, I am satisfied that the circumstances prior to seeking disability support pension were correctly recorded. In respect of the period from late 2001 onwards, I am satisfied that not all of the information provided by Mr and Mrs Marshall to Centrelink was properly recorded or taken into account at the time it was provided. Centrelink has failed to adequately explain aberrations in the evidence. I therefore find that not all of the circumstances were taken into account in calculating the rate of disability support pension at the times the information was provided.

Issue Two – Does Mr Marshall have legally recoverable debts totalling $20,534.73?

  1. From what I have stated earlier, I am satisfied that the calculations during the course of the investigation and determination of the debts are technically and legally correct.

Issue Three – Should all or part of each debt be written off for a period or waived?

  1. The Respondents’ contention is that Mr Marshall failed in his duty to properly inform Centrelink of his own and his partner’s income from time to time. The Respondents then assert that this was the sole cause of the overpayments to Mr Marshall.
  2. Section 100(1) of the Social Security (Administration) Act 1999 provides that if a person is receiving a social security payment and a notice (requiring an event or change in circumstances to be reported) is given to that person, the social security payment is payable at the reduced rate only from the date when the event or change in circumstance occurred.

Write Off

  1. The write off of a debt is possible in certain circumstances under s 1236 of the Social Security Act 1991 (“the Act”). “Write off” or “write down” are technical accounting terms which refer to reducing the amount of a debt to a lower, or even nil, amount. It is an administrative action and does not preclude the debtor pursuing the debt at a later date. Under s 1236(1A) of the Act, the write off of a debt may occur if: the debt is “irrevocable at law”; there is “no capacity to repay the debt”; or it would not be “cost effective for the Commonwealth to take action to recover the debt”. In this case, I am not satisfied those provisions can be satisfied by Mr Marshall.
  2. Section 1236(1C) of the Act provides that a debt does not have to be repaid if it would cause “severe financial hardship”. That term is not defined by legislation. However, the Respondents submitted that severe financial hardship would not exist unless Mr Marshall’s entire financial position was materially less than the current rate of pension: Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225. The Respondents also relied on Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729 at [20], where the Tribunal referred to that term as follows: “... while not implying destitution, [it] goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature”. The Respondents also submitted the relevance of Re L and Secretary, Department of Social Security [1995] AATA 159; (1995) 38 ALD 176. There, at 177, the (then) President of the Tribunal considered personal financial hardship and said a relevant question was whether recovery of the debt would cause hardship “that would contradict the beneficial nature” of the legislation.
  3. Mr Marshall stated he felt so aggrieved that he would not seek Centrelink assistance again. I am not aware of his present income or pension status, but Mrs Marshall is working and Mr Marshall has had some work over the relevant periods. He even increased his level of work for some years until he recently stopped working. In considering whether there is severe financial hardship, no clear test emerges from the authorities. As was said by Lord Hailsham L.C. in Re W (an infant) [1971] AC 682 at 700, a Court “... must have regard to the totality of the evidence ...” He went on to say:
“... it is extremely dangerous merely because a factor weighs little or nothing in the circumstances of a particular case or, of most particular cases, to argue from that that it should not be ‘put into the scales’ at all, or to argue that because a totality of inconclusive factors taken individually weigh little to weigh them collectively is, as it were, to add nought to nought and produce a digit”.

This reasoning was influential in the decision of Powell v Evreniades (1989) 87 ALR 117 at 123, where severe financial hardship was said to comprise “a band or spectrum of situations”. Hill J further reasoned that “[c]learly, there would be severe financial hardship if the dependants of a deceased person were left destitute without any means of support. That is not to say that in any particular case something less than that will not constitute serious hardship”.

  1. A decision of whether Mr Marshall is suffering severe financial hardship must be based on the evidence. Mr Marshall has had to sell a property because of his present financial circumstances. Mr Marshall has had some difficult times since 1999 and reduced earnings for a lengthy period. However, he and his wife have had work as cleaners and, while their income would not provide all of the comforts they may have had when running their own business, based on the evidence presented, they are not in severe financial hardship. I find therefore that the debts cannot be written off.

Waiver

  1. The Respondents’ submissions are based to some degree on cases concerned with “special circumstances”. This clearly refers to s 1237AAD of the Act, although I was not referred to that provision specifically. That provision is discretionary and relies on the existence of a debt that is not due to any fault on the part of the debtor. That provision also requires “special circumstances” which make it more appropriate to waive a debt than to write it off. Special circumstances occur when there is “something to distinguish ... [an applicant’s] ... case from others, to take it out of the usual or ordinary case”: Groth v Secretary, Director of Social Security [1995] FCA 1708; (1995) 40 ALD 541. Also, “whilst keeping the dominant principle of ... [recovery of debt] ... in mind ... [the decision maker] ... must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise ”: Re Ivovic and DGSS (1981) 3 ALN N61 at N97.
  2. I am satisfied that special circumstances exist for the disability support pension debts but not for the sickness allowance debt. However, s 1237A of the Act is a mandatory provision which applies in this case. It provides as follows:
“Waiver of debt arising from error
Administrative error
             (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.
Note:  Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
          (1A) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.”
  1. Based on the above findings of fact, I am satisfied that the sickness allowance debt of $634.23 (for the period 23 May 2001 to 9 September 2001) is not due to the sole administrative error of the Commonwealth. Therefore, that debt cannot be waived. In relation to the two disability support pension debts, I find they were not raised within six weeks of the first payment that caused either debt; nor were they raised within six weeks from the end of a notification period. Thus, s 1237A(1A) of the Act is met. I also find that the two disability support pension debts were due to the sole administrative error of the Commonwealth from when Mr and Mrs Marshall started reporting to Mr Stevens. Any errors in relation to those two debts are due to the sole administrative error of the Commonwealth. I make this finding because there have been other errors made by Centrelink during the relevant periods and also because of the unreliability of Mr Stevens’ evidence.
  2. One remaining question to be satisfied is whether Mr Marshall received the payments “in good faith”, as required by s 1237A(1) of the Act. A long-standing authority in relation to the test of good faith was set out by Finn J in Secretary, Department of Education, Employment, Training and Youth Affairs v Prince [1997] FCA 1565; (1997) 50 ALD 186 at 189. There, His Honour discussed an appropriate test of good faith and referred to the mental element of the person receiving the payment. He said:
“... if that person knows or has reason to know that he or she is not entitled to a payment received – ie is not entitled to use the monies received as his or her own – that person does not receive the payment in good faith. Absence of such knowledge or reason to know, the receipt would be in good faith”.
  1. Further elaboration of this test is found in the decision of Haggerty v Department of Education, Training and Youth Affairs [2000] FCA 1287; (2000) 31 AAR 529 at 534, where French J (as he then was) said:
“A waiver can only, in my opinion, be declined where there has been a receipt, without good faith, of moneys mistakenly paid. This accords with the general approach taken by Finn J whose construction of the provision is related to the criteria for want of good faith.
Consistently with what his Honour said in the Prince case, want of good faith will arise where there is a positive belief that the payment has been made by mistake. It will also arise where there is a suspicion held by the recipient that he or she may not be entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt”.
  1. In this case, I find no want of good faith on the part of Mr or Mrs Marshall. I do not hold the same view of Mr Stevens, on the basis of his evidence. Mr and Mrs Marshall were both aware that a change in either of their incomes could affect Mr Marshall’s sickness allowance and, later, his disability support pension. I accept that Mrs Marshall diligently reported changes in their circumstances. Those changes have not been, or have not always been, reflected in the Centrelink records and adjustments to their entitlements have not been made in a timely fashion.
  2. I find that errors occurred which are attributable solely to the administrative error of the Commonwealth. These errors date from the commencement of Mr Marshall’s disability support pension and from the time Mr Stevens dealt with Mr and Mrs Marshall. I also find that the payments in the relevant periods were received by Mr Marshall in good faith. Mrs Marshall’s alertness and her attention to the details of Mr Marshall’s affairs leave me in no doubt about the truth of her evidence concerning her reporting to Centrelink.
  3. Consequently, I find:

(1) Not all of the circumstances of Mr Marshall’s affairs were taken into account for the period in which overpayments arose;

(2) The debts are legally recoverable;

(3) The sickness allowance debt of $634.23 for the period 23 May 2001 to 9 September 2001 is affirmed;

(4) The disability support pension debt of $5,493.28 for the period 24 November 2001 to 8 October 2004 is waived; and

(5) The disability support pension debt of $14,407.22 for the period 9 October 2004 to 13 July 2007 is waived.


I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member


Signed: ...........................[Sgd]..................................................

Mátyás Kochárdy, Research Associate


Date of Hearing 11 March 2009

Date of Decision 17 April 2009

The Applicant was self-represented

Solicitor for the Respondents Joe Guthrie, Departmental Advocate


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