Commonwealth Numbered Acts

SOCIAL SECURITY LEGISLATION AMENDMENT ACT (No. 2) 1992 No. 229, 1992 - SECT 128

128. Section 1223 of the Principal Act is repealed and the following section
is substituted: Debts arising under this Act and the 1947 Act Recipient not
qualified for payment and amount not payable

"1223.(1) Subject to subsection (2), if:

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

   (b)  the recipient was not qualified for the social security payment and
        the amount was not payable to the recipient; the amount so paid is a
        debt due to the Commonwealth. Certain amounts not debts

"(2) Subsection (1) does not apply to an amount if:

   (a)  the amount has been paid to a person in advance by way of social
        security benefit; and

   (b)  the amount has not been paid as a result of a person:

        (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

   (c)  the amount has been paid in respect of a period of not more than 14
        days; and

   (d)  during that period the social security benefit ceased to be payable to
        the person. Recalculation of rate of family payment

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

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

   (b)  either:

        (i)    the person's rate of family payment should have been
               recalculated under section 885 (underestimate of taxable
               income) and that section applies to the determination; or

        (ii)   the person's rate of family payment should have been
               recalculated under section 886 (failure to notify notifiable
               event) and that section applies to the determination; the
               amount so paid is a debt due to the Commonwealth. Family
               payment recoverable after end of tax year

"(4) If:

   (a)  family payment is paid to a person in a tax year; and

   (b)  apart from this subsection an amount of family payment would become
        recoverable under subsection (3) before the end of the tax year; and

   (c)  the amount would be recoverable because of an increase in the person's
        taxable income; the amount is recoverable only after the end of the
        tax year. Note: a person's taxable income is defined in point
        1070-D11. A person's taxable income may increase, amongst other
        reasons, because the person underestimated his or her taxable income
        and the Commissioner of Taxation has made a subsequent assessment of
        the person's taxable income. Amount calculated using incorrect maximum
        payment rate - no social security payment payable

"(5) If:

   (a)  an amount (the 'received amount') has been paid to a person by way of
        social security payment; and

   (b)  the social security payment is not payable to the person; and

   (c)  the received amount was calculated using a maximum payment rate that
        was greater than the maximum payment rate that would have been used
        were the social security payment payable to the person; the received
        amount is a debt due to the Commonwealth. Note: a person's maximum
        payment rate (except for family payment) is worked out by following
        the steps set out in the Method statement in Module A of each relevant
        Rate Calculator. Amount calculated using incorrect maximum payment
        rate - social security payment payable

"(6) If:

   (a)  an amount (the 'received amount') has been paid to a person by way of
        social security payment; and

   (b)  the received amount is more than the amount (the 'correct amount') of
        the social security payment that is payable to the person; and

   (c)  the received amount was calculated using a maximum payment rate that
        was greater than the maximum payment rate that was used to calculate
        the correct amount; the difference between the received amount and the
        correct amount is a debt due to the Commonwealth. Note: a person's
        maximum payment rate (except for family payment) is worked out by
        following the Steps set out in the Method statement in Module A of
        each relevant Rate Calculator. Amount calculated using
        non-income/assets tested add-on amount - no add-on amount payable

"(7) If:

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

   (b)  the amount was calculated using:

        (i)    an amount of remote area allowance when an amount by way of
               remote area allowance was not payable; or

        (ii)   an amount of job search training supplement when a job search
               training supplement was not payable; or

        (iii)  an amount of newstart training supplement when a newstart
               training supplement was not payable; each of the following
               amounts is a debt due to the Commonwealth:

   (c)  the amount of remote area allowance;

   (d)  the amount of job search training supplement;

   (e)  the amount of newstart training supplement. Amount calculated using
        incorrect non-income/assets tested add-on amount - add-on amount
        payable

"(8) If:

   (a)  an amount (the 'received amount') has been paid to a person by way of
        social security payment; and

   (b)  the received amount is more than the amount (the 'correct amount') of
        the social security payment that is payable to the person; and

   (c)  the received amount was calculated using:

        (i)    a rate of remote area allowance that was more than the rate of
               remote area allowance that was used to calculate the correct
               amount; or

        (ii)   an amount of job search training supplement that was greater
               than the rate of job search training supplement that was used
               to calculate the correct amount; or

        (iii)  an amount of newstart training supplement that was greater than
               the rate of newstart training supplement that was used to
               calculate the correct amount; the difference between the
               received amount and the correct amount is a debt due to the
               Commonwealth. Methods of recovery

"(9) A debt due to the Commonwealth under this section is recoverable by the
Commonwealth by means of:

   (a)  if the person is receiving a social security payment under this Act -
        deductions from that person's pension, benefit or allowance; or

   (b)  if section 1234A applies to another person who is receiving a social
        security payment under this Act - deductions from that other person's
        pension, benefit or allowance; or

   (c)  legal proceedings; or

   (d)  garnishee notice. Note 1: for 'deductions' see sections 1231 and
        1234A. Note 2: for 'legal proceedings' see section 1232. Note 3: for
        'garnishee notice' see section 1233. Application overseas

"(10) This section extends to:

   (a)  acts, omissions, matters and things outside Australia, whether or not
        in a foreign country; and

   (b)  all persons irrespective of their nationality or citizenship. Meaning
        of social security payment

"(11) In this section, unless the contrary intention appears:
'social security payment' means:

   (a)  a social security pension; or

   (b)  a social security benefit; or

   (c)  an allowance under this Act; or

   (d)  a family payment; or

   (e)  any other kind of payment under Chapter 2 of this Act; or

   (f)  a pension, benefit or allowance under the 1947 Act. Meaning of maximum
        payment rate in relation to family payment

"(12) In this section:
'maximum payment rate', in relation to family payment, is worked out using the
formula:
basic family payment rate + provisional additional payment where:
'basic family payment rate' means the result obtained under Step 3 of the
Method statement in point 1069-A1 of the Family Payment Rate Calculator in
section 1069;
'provisional additional payment' means the result obtained under Step 8 of the
Method statement in point 1069-A1 of the Family Payment Rate Calculator in
section 1069.".