Harris and Secretary, Department of Social Services (Social services second review) [2017] AATA 1364 (25 August 2017)

Last Updated: 29 August 2017

Harris and Secretary, Department of Social Services (Social services second review) [2017] AATA 1364 (25 August 2017)

Division: GENERAL DIVISION

File Number(s): 2016/2395 & 2396

Re: Richard Harris & Bettina Harris

APPLICANTS

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Mr S. Webb, Member

Date: 25 August 2017

Place: Canberra

The decision in application 2016/2395 is affirmed to the extent that Mr Harris’ overpayment debt is $7,733.67. The decision in application 2016/2396 is varied to the extent that the amount of Mrs Harris’ overpayment debt is $8,117.64.

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

Mr S. Webb, Member

SOCIAL SECURITY – newstart allowance – undeclared earnings in employment – employment income not to include travel allowance - overpayment – calculation of overpayment debts – amounts of debts varied - no grounds to write off debts – debts not due to administrative error alone – no special circumstances to waive recovery of debt amounts – decision varied

Social Security Act 1991, ss 8, 1068, 1223, 1236, 1237A, 1237AAD, 1228B

REASONS FOR DECISION

Mr S. Webb, Member


25 August 2017

1. Richard and Bettina Harris were paid amounts of newstart allowance. The amounts were affected by income they earned in employment. A delegate of the Secretary decided that they had each been overpaid and raised debts against them. Mr and Mrs Harris are not happy about this and they have pressed their rights of review.
2. On several occasions, the amount of their respective debts has been recalculated, including in the course of these proceedings. This has caused some consternation for Mr and Mrs Harris, who complain that the debt recalculations are incomprehensible and wrong.
3. While I have some sympathy for the difficulties they have encountered understanding such matters, as will appear, I am satisfied that the final calculations are correct. The complexity of applicable legislative formulae and related fortnightly calculations may well appear to be mysterious and confusing to anyone who is not familiar with the rate calculation and income test provisions that must be applied under the legislation. Mr and Mrs Harris are not alone in that regard. But lack of understanding does not render the provisions inapplicable and it does not invalidate the results obtained from a correct application of the rate calculation formulae.

Facts

4. Mrs Harris was granted newstart allowance in May 2013.
5. From 24 June 2013 to 30 November 2014, Mrs Harris was employed on a casual basis by Mission Australia and her weekly earnings varied. Thereafter her employment was on a full time basis with regular income.^[1]
6. Mr Harris was paid newstart allowance from 13 December 2013.
7. From 5 March 2012 to 31 October 2014 he was employed as a casual driver by Compass Group (Australia) Pty Ltd (Compass).^[2] It should be noted, however, that Compass pay records reveal that Mr Harris was last paid on 9 November 2014.^[3] Throughout the period of his employment by Compass, his fortnightly earnings varied.
8. Mr and Mrs Harris were sent notices by Centrelink, setting out their reporting obligations.^[4] Two notices were sent to Mrs Harris on 21 May 2013. The first includes the following text –“If you get paid any allowances from your work (e.g. for fuel, meals, clothing) ask us if you need to report them with your gross earnings. Most allowances are not counted as part of your income from employment”. The second notice sent to Mrs Harris on 21 May 2013 sets out what must be reported to Centrelink for each reporting period, including –

“the amount you/your partner earned for any work done during each Centrelink Reporting Period. The amount reported must be the amount earned BEFORE tax and other deductions such as salary sacrifice. You must report even if you have not received all or some of the pay yet” [Original emphasis].

9. Notices containing the same information were sent to Mr Harris on 1 July 2013 and 14 January 2014. Additionally, on 14 January 2014, Mr Harris was sent a notice that contained the following additional information –

“If you earned more or less than you estimated, please call us on 132 850 within 14 days of reporting your estimate to tell us the correct gross amount of earnings.”

10. Mrs Harris reported their earned income to Centrelink – records of income she reported for herself and Mr Harris in the period from 30 November 2013 to 9 January 2015 are before the Tribunal.^[5]
11. On 10 June 2015, a delegate of the Secretary decided that Mr and Mrs Harris had been overpaid amounts of newstart allowance during specific periods and issued debt recovery notices.^[6] Mr Harris’ debt was calculated to be $7,943.03 in the period from 12 January 2014 to 10 January 2015, to which was added a debt recovery fee of $435.65 – a total of $8,378.68. Mrs Harris’ debt was calculated to be $8,345.84 in the period from 14 December 2013 to 27 December 2014, to which a recovery fee of $397.55 was added, producing a total debt in the amount of $8,743.39.
12. I understand that recovery of these debts was vigorously pursued by a debt collection service under contract to the Department. Mr and Mrs Harris are very upset about this. Those are not matters about which I can comment – their complaints would be better directed to the Secretary.
13. On 31 July 2015, an Authorised Review Officer decided to vary the debt amounts to exclude the recovery fee amounts.^[7]
14. On 3 March 2016, the Social Services and Child Support Division of this Tribunal decided to set aside the decisions then under review (the AAT first review) and to remit to the Secretary to recalculate the amounts of the overpayment debts for which Mr and Mrs Harris were liable. This was to be done on the basis that travel allowance paid to Mrs Harris for use of her private vehicle was to be excluded and no recovery fee would be applied.^[8]
15. The debt amounts were recalculated. In the result, Mrs Harris’ debt was calculated to be $8,000.63,^[9] and Mr Harris’ debt was calculated to be $7,733.67.^[10]
16. Mr and Mrs Harris applied for further review.
17. In the course of the resulting proceedings, three further debt recalculations have been undertaken on behalf of the Secretary. On 23 August 2016, Mrs Harris’ debt was recalculated to be $8,056.08 and Mr Harris’ debt was unchanged. On 30 May 2017, Mrs Harris’ debt was recalculated to be $8,005.39 and Mr Harris’ debt was unchanged. On 28 June 2017, Mrs Harris’ debt was recalculated to be $7,993.38 and Mr Harris’ debt was unchanged.

Issues

18. The issues to be decided are –
    • (a) whether Mr and Mrs Harris have each been overpaid an amount of newstart allowance; and if so
    • (b) if the overpayment amounts are debts due to the Commonwealth; and if so
    • (c) whether a 10 percent recovery fee should be applied; and
    • (d) if there are grounds to write off or waive recovery of the debts.

Overpayments

19. Mr and Mrs Harris assert that the full amount of their earnings in employment was reported to Centrelink by Mrs Harris. This was done using the online services offered by Centrelink and, when this was not possible, by telephone. Mrs Harris explained that she found it difficult to accurately report their earnings as their earnings were variable, week by week, and their pay periods did not coincide with Centrelink’s reporting periods. While she told me that she knew she should report their incomes, she was not clear about what should be included or excluded – she regularly reported their net fortnightly income, without allowances.
20. Mr Harris is adamant that the debts are ill-founded and he was very critical of Centrelink. He explained that he estimated his earnings from week to week, and he followed advice he was given by Sureway, a job service provider in Corowa, to report his expected average income.
21. I have carefully examined the records placed before the Tribunal in respect of the amount of newstart allowance paid to Mr and Mrs Harris during the periods in which the Secretary asserts they were overpaid amounts of newstart allowance, and to which the debts raised against them relate.
22. As will appear, Mr and Mrs Harris’ actual earnings in employment during the periods I must consider far exceed the amounts they declared as income to Centrelink. The amounts they declared are not consistent with and are well below the net amount of their earnings, and the shortfall is not explained by the exclusion of allowances.
23. There is no evidence to corroborate Mr Harris’ account of being advised to estimate and report his average income. He could not recall the name of the person who gave him this advice. Even if he was advised as he asserts, the amount of his declared earnings falls far short of his average earnings over the period I must assess.

Mr Harris

24. I am satisfied that in the period from 12 January 2014 to 10 January 2015, Mr Harris earned income as reported by his former employer.^[11] As can be seen, his earnings included amount paid in respect of ‘Casual Meal Allowance’, ‘Casual Driving Allowance’ and ‘Casual Standby Allowance’.
25. I understand that the casual meal allowance is paid to cover meal costs during casual employment. The casual driving allowance is paid as a loading for driving on a casual basis. The casual standby allowance is paid for Mr Harris being held on standby. Of these allowances, I would include only the casual driving allowance and the casual standby allowance as income earned by Mr Harris for the purposes of the definition of ‘income’ in s 8 of the Social Security Act 1991 (the Act). The meal allowance is paid to cover out of pocket expenses incurred during a period of casual employment. To my mind, payments of this kind are not properly treated as ‘income’ and they should be excluded from Mr Harris’ gross reported earnings in employment.
26. It should be noted that the ‘Verified Earnings’ recorded by Centrelink in AT13 folio 145 are correct but for the earnings amount recorded for 21 July 2014 to 3 August 2014, which is recorded as $972.47 – this is not correct. The employer recorded Mr Harris’ gross pay in this period to be $965.89, from which $13.42 paid in meals allowance should be deducted. This results in ‘income’ of $952.47 during that period.
27. It should also be noted that on 19 January 2014, Mr Harris was paid $197.27 in respect of the preceding period from 8 December 2013. Only part of this amount is attributable to the period from 12 January 2014, the first day of the period in which an overpayment debt was determined against him. In its debt calculation, Centrelink attributed $70.45 to the period from 28 December 2013 to 10 January 2014.^[12] It appears that this was calculated on a proportional basis and I am satisfied that the amount of $70.45 is attributable to an earlier period. This amount should be excluded from the calculation of Mr Harris’ ‘income’ for present purposes.
28. The Secretary argued that Mr Harris’ earnings paid on 9 November 2014 (an amount of $1,720.22 excluding meal allowance) should be excluded on the basis that the full amount of his earnings in the period 1 to 14 November 2014 was not verified. Support for this proposition is drawn from an extract of Centrelink’s Operational Blueprint in respect of the Earnings Apportionment Tool and partially verified earnings.^[13] In the Secretary’s submission, where a person’s income is not continuous over more than one reporting period, and the person earns income for only part of a reporting period, the income is treated as partially verified earnings and it is not taken into account when calculating the applicable rate of newstart allowance. What is meant by verified or partially verified earnings is not clear to me.
29. Why this amount of his earnings should be excluded when calculating the amount of his earnings and his entitlement to newstart allowance has not adequately been explained. It is quite clear that the amount of his earnings in this period is ‘income’ that must be taken into account when applying the ‘income’ test set out in s 1068-G1 of the Act. I am not persuaded that this ‘income’ is able to be excluded, as the Secretary contends, when calculating the applicable rate of newstart allowance to which Mr Harris was entitled.

There is no discretion to simply ignore income for reasons of pragmatism, as the Secretary contends.

30. I allowed further time for the Secretary to consider these matters. In the result, the Secretary changed position and argued that the earnings Mr Harris was paid on 9 November 2014 were in respect of a prior period, and the amount of $1,720.22 should be added to his reported earnings from 18 to 31 October 2014. No doubt, this is to Mr Harris’ advantage.
31. The basis on which this submission rests is not clear to me. There is insufficient evidence to determine if Mr Harris’ final earnings amount was paid in respect of work done in the pay period from 18 to 31 October 2014, or whether it related to work done or entitlements accrued over a longer period. The present evidence does not permit me to go any further on this point and I am prepared to accept the Secretary’s submission.
32. As Mr Harris’ pay periods are not synchronous with the reporting periods used by Centrelink, it is necessary to apportion his earnings to each of the reporting periods for the purpose of calculating the rate of newstart allowance that is applicable in that period. The Secretary’s apportionments are made on a straight line basis, applying the average daily rate derived by dividing the earnings amount by the number of days in the period, with the exception of the final earnings amount of $1,720.22, which is retrospectively applied to the prior pay period. While there are obvious difficulties with this method, I understand and accept that a pragmatic method of income apportionment is desirable where the information provided is not sufficient to allow actual attribution of earned income on a daily basis, such that in the example of a person who works and is paid for only one day in a fortnight, the income derived is spread over the entire fortnight. I will proceed on this basis as the present materials are not sufficient to allow a more detailed or accurate calculation of apportionment and the Secretary’s construction is favourable to Mr Harris.
33. Taking these matters into account, the adjusted amount of Mr Harris’ employment ‘income’ during the period from 12 January 2014 to 10 January 2015 is $30,167.57 and is set out in the following table.

Earnings: fortnight ending	R Harris earnings	Meals allowance	Adjusted earnings	Daily earning rate	Reporting period: fortnight ending	Apportioned earnings
19/01/2014	197.27		197.27	14.09	24/01/2014	465.20[14]
2/02/2014	947.47		947.47	67.68	7/02/2014	692.59
16/02/2014	233.80		233.80	16.70	21/02/2014	588.15
2/03/2014	1225.99		1225.99	87.57	7/03/2014	1612.01
16/03/2014	2306.85		2306.85	164.78	21/03/2014	2068.90
30/03/2014	1640.58		1640.58	117.18	4/04/2014	1299.94
13/04/2014	686.79		686.79	49.06	18/04/2014	1020.53
27/04/2014	1621.26		1621.26	115.80	2/05/2014	1829.24
11/05/2014	2203.61		2203.61	157.40	16/05/2014	1932.74
25/05/2014	1458.60	13.42	1445.18	103.23	30/05/2014	1280.41
8/06/2014	983.83		983.83	70.27	13/06/2014	1024.51
22/06/2014	1097.74		1097.74	78.41	27/06/2014	1083.95
6/07/2014	1059.14		1059.14	75.65	11/07/2014	995.13
20/07/2014	879.90		879.90	62.85	25/07/2014	905.82
3/08/2014	965.89	13.42	952.47	68.03	8/08/2014	1225.33
17/08/2014	1716.48		1716.48	122.61	22/08/2014	1540.20
31/08/2014	1222.89		1222.89	87.35	5/09/2014	1725.45
14/09/2014	2643.89	13.82	2630.07	187.86	19/09/2014	2256.51
28/09/2014	1584.09		1584.09	113.15	3/10/2014	1456.56
12/10/2014	1240.82	13.82	1227.00	87.64	17/10/2014	2351.50
26/10/2014	2655.39		4375.61	312.54	31/10/2014	2812.89
9/11/2014	1734.04	13.82	0.00	0.00	14/11/2014	0.00
23/11/2014	0.00		0.00	0.00	28/11/2014	0.00
7/12/2014	0.00		0.00	0.00	12/12/2014	0.00
21/12/2014	0.00		0.00	0.00	26/12/2014	0.00
4/01/2015	0.00		0.00	0.00	9/01/2015	0.00
18/01/2015	0.00		0.00	0.00	23/01/2015	0.00
Totals	30306.32	68.3	30238.02			30167.57

34. In the period from 12 January 2014 to 10 January 2015, Mr Harris was paid a gross amount of newstart allowance, including rent allowance, pharmaceutical allowance and CES allowance, but excluding two income support bonus payments, totalling $8,603.85.^[15]
35. I am satisfied that Mr Harris’ income from employment was not properly taken into account when calculating the amount of newstart allowance to which he was entitled during this period. From this it follows that he was overpaid an amount of newstart allowance.
36. Taking his employment income into account and applying the rate calculator set out in s 1068 of the Act, the Secretary argues that Mr Harris was entitled to be paid $870.18 in newstart and related allowances. On the findings I have made, this is correct.
37. From this it follows that he has been overpaid $7,733.67.

Mrs Harris

38. In the period from 16 December 2013 to 28 December 2014, Mrs Harris was paid $24,505.25 gross income by her employer.^[16]
39. It is not controversial that this amount included $1,694.82 in travel allowance. This was paid as Mrs Harris used her private vehicle for the purposes of her employment. The allowance was paid on a per kilometre basis, applying the rate set out by the Australian Tax Office.^[17] This amount should not be included as ‘income’ for the present purposes.
40. From this it follows that her employment ‘income’ during the period is a total amount of $22,810.43.
41. When these earnings are applied in respect of the period I must consider from 14 December 2013 to 26 December 2014, I am satisfied that Mrs Harris’ ‘income’ is $22,557.35 as follows:

Earnings: fortnight ending	B Harris earnings	Travel	Adjusted earnings	Daily earning rate	Reporting period: fortnight ending	Apportioned earnings
29/12/2013	197.46		197.46	14.10	27/12/2013	197.46
12/01/2014	0.00		0.00	0.00	10/01/2014	28.21
26/01/2014	577.19		577.19	41.23	24/01/2014	494.73
9/02/2014	1184.76		1184.76	84.63	7/02/2014	1097.96
23/02/2014	1974.60		1974.60	141.04	21/02/2014	1861.77
9/03/2014	0.00		0.00	0.00	7/03/2014	282.09
23/03/2014	3979.58		3979.58	284.26	21/03/2014	3411.07
6/04/2014	394.92		394.92	28.21	4/04/2014	907.01
20/04/2014	0.00		0.00	0.00	18/04/2014	56.42
4/05/2014	394.92		394.92	28.21	2/05/2014	338.50
18/05/2014	0.00		0.00	0.00	16/05/2014	56.42
1/06/2014	0.00		0.00	0.00	30/05/2014	0.00
15/06/2014	230.88		230.88	16.49	13/06/2014	197.90
29/06/2014	185.22	185.22	0.00	0.00	27/06/2014	32.98
13/07/2014	197.46		197.46	14.10	11/07/2014	169.25
27/07/2014	0.00		0.00	0.00	25/07/2014	28.21
10/08/2014	795.76		795.76	56.84	8/08/2014	682.08
24/08/2014	2252.87		2252.87	160.92	22/08/2014	2044.71
7/09/2014	2091.59	214.20	1877.39	134.10	5/09/2014	1931.03
21/09/2014	0.00		0.00	0.00	19/09/2014	268.20
5/10/2014	1510.31	321.30	1189.01	84.93	3/10/2014	1019.15
19/10/2014	652.26	214.20	438.06	31.29	17/10/2014	545.34
2/11/2014	0.00		0.00	0.00	31/10/2014	62.58
16/11/2014	1611.43		1611.43	115.10	14/11/2014	1381.23
30/11/2014	2071.12	428.40	1642.72	117.34	28/11/2014	1638.25
14/12/2014	1902.42		1902.42	135.89	12/12/2014	1865.32
28/12/2014	2300.50	331.50	1969.00	140.64	26/12/2014	1959.49
Totals	24505.25	1694.82	22810.43			22557.35

42. During this period, Mrs Harris was paid a total gross amount of $11,914.95 in newstart and related allowances, but excluding two income support bonus payments.^[18] Taking her employment income and Mr Harris’ employment income into account, and applying the rate calculator set out in s 1068 of the Act, she was entitled to be paid $3,797.31 in newstart and related allowances from 14 December 2013 to 26 December 2014.
43. From this it follows that Mrs Harris was paid $8,117.64 more than the amount to which she was entitled.

Debts

44. By operation of s 1223(1) of the Act, and pursuant to notices sent to Mr and Mrs Harris on 10 June 2015, the amounts of newstart and related allowances they each received over their entitlement is a debt due to the Commonwealth.

Recovery Fee

45. Under s 1228B(1)(c)(i) a 10 percent ‘Recovery Fee’ is to be applied to a debt due to the Commonwealth in circumstances where the debtor ‘refused or failed to provide information in relation to the person’s income from personal exertion’ when required by law to do so, unless the Secretary is satisfied under s 1228B(4) that the person had a reasonable excuse for refusing or failing to provide the information required.
46. The Secretary accepts, correctly in my opinion, that Mrs Harris believed that she had provided correct information about employment income she and Mr Harris earned during the periods presently under consideration. That she failed to do so correctly was not, I accept, done knowingly or recklessly.
47. I am satisfied that Mrs Harris experienced difficulty apportioning income she and Mr Harris earned into periods required by Centrelink. I also accept that she experienced difficulty understanding which allowances she and Mr Harris were paid in their gross earnings should have been excluded. To my mind, her explanation is sufficient to be taken as a reasonable excuse for failing to provide the required information about their employment incomes.
48. For this reason, I am satisfied that a recovery fee should not be applied to that part of Mr and Mrs Harris’ debts to the Commonwealth that relate to income from personal exertion.

Write off or waive recovery of debts

49. Mr and Mrs Harris are not within the terms of s 1236 of the Act. Their debts cannot be written off under this provision.

Administrative error

50. Mr and Mrs Harris assert that they were given incorrect information about Mr Harris remaining on newstart allowance when Mrs Harris commenced full time regular employment at the end of November 2015. Whether or not their allegation is right, and their assertion lacks reliable corroboration, their debts are not attributable to this cause.
51. I have carefully gone through the available materials and I am satisfied that, while errors have been made in calculating the correct amount of Mr and Mrs Harris’ overpayments of newstart and related allowances, their debts are not due to an administrative error of the Commonwealth. The cause of the overpayment is their failure to accurately report their employment income.
52. As their debts are not due to administrative error of the Commonwealth, recovery cannot be waived under s 1237A of the Act.

Special circumstances

53. I have heard Mr and Mrs Harris explain their circumstances.
54. Even though Mrs Harris told me she has a stress-related illness and Mr Harris is diabetic, they are in reasonable health – both conditions are well managed with ongoing treatment. They have health care cards and obtain subsidised medical care.
55. Their circumstances have changed during the protracted course of the hearing – Ms Harris’ employment ended and she was made redundant as of 30 June 2017. She received a final gross payment of approximately $23,000. They are presently without any source of income, although Mrs Harris has claimed Age Pension. I understand that her claim has not yet been granted. Mr and Mrs Harris are both hopeful of gaining further employment; she as a teacher and he as a truck driver. Should they succeed in doing so in the next few months, as they intend, their circumstances will change again.
56. Presently, however, they have debts in the form of credit cards that are “maxed out”, totalling approximately $14,000 for Mr Harris and $7,000 for Mrs Harris. Mr Harris told me that his repayments are up to date and cost roughly $300 each month. Mrs Harris told me that her repayments are up to date and that she has insurance protection which will cover her repayments for up to six months – she is intending to make a claim. Mr Harris has a car loan over his 2015 model Mitsubishi Triton Dual Cab Ute with approximately $35,000 outstanding; he estimated that present value of the vehicle to be $30,000. Mrs Harris purchased a Suzuki Swift in October 2016. There is no debt over this vehicle and Mrs Harris estimated its present value to be $14,000.
57. Mr and Mrs Harris were forced to vacate their rented home when Mrs Harris’ employment ceased. They had planned to purchase a caravan and paid a deposit of $1,000 on expectation that her redundancy payment would cover the total cost. I understand that they obtained advice about this from an accountant. This turned out to be incorrect, and the amount of the redundancy was somewhat less than they had been led to expect – it was insufficient to meet the cost of the caravan, and they forfeited their deposit. Rather than be homeless, Mr and Mrs Harris moved to temporarily reside with Mr Harris’ mother, paying $180 per week in rent. This is not their preference.
58. Mr Harris cashed out his superannuation, drawing an amount of $9,000 in 2016 to cover living expenses. Mrs Harris has only $1,600 in her superannuation account.
59. Aside from personal effects, they have no other assets of any significance.
60. They have good relations with family members in Mildura, Condoblin, Sydney and Adelaide.
61. I accept that Mr and Mrs Harris are presently in straightened financial circumstances. They describe their present circumstances as precarious. But they are not impecunious or entirely without resources, and their circumstances, while somewhat parlous perhaps, are not presently dire. They are strongly motivated to obtain employment and to improve their lot. They are drawing upon the remaining balance of Mrs Harris’ redundancy payment to meet their living costs and expenses. They are suitably housed, albeit against their preference.
62. Considering their circumstances, I am not persuaded that recovery of their debts is likely to drive them into severe financial hardship. Furthermore, it is open to them to negotiate a suitable periodic repayment regime with the Secretary should their circumstances worsen.
63. I understand that Mr and Mrs Harris are frustrated and upset about what they perceive to be unfair treatment by Centrelink, and by the aggressive manner in which debt recovery was pursued. Unfortunately for them, this does not amount to a special circumstance that renders it appropriate to waive recovery of any part of the debts to the Commonwealth for which they are liable.
64. Additionally, Mr and Mrs Harris are very critical of errors that have been made by Centrelink officers when attempting to calculate their entitlements and debts. Considering the difficulties that have arisen in the hearing of this matter on related points, I can understand their consternation. While errors have been made calculating Mr and Mrs Harris’ overpayment debts, the debts are not properly attributable to those errors. Nevertheless, I accept that the calculation errors have caused Mr and Mrs Harris stress, uncertainty and delay in having their applications determined.
65. It is an unfortunate fact that claimants in so many cases experience stress in proceedings involving disputed overpayment debts. There are many cases in which errors come to light and policy questions must be resolved before a final determination can properly be made. So it is here.
66. As much as I accept that Mr and Mrs Harris feel aggrieved by what has transpired, this does not mean their circumstances, separately or in combination, are ‘special circumstances’ for the purposes of s 1237AAD of the Act. It is not necessary to refer to points of principle rising from authoritative cases for the simple reason that there is little to distinguish their circumstances from the usual course, other than perhaps that their circumstances are better than many who are not able to draw upon a lump sum payment, and who do not have disposable assets, or who are unable to reside with family members and struggle to find suitable housing. I do not seek to in any way diminish the difficulties Mr and Mrs Harris experience in their present circumstances, the upset they feel can be accepted, but this does not mean that ‘special circumstances’ exist such that recovery of any part of their debts should be waived.
67. For these reasons, while the AAT first review decision is correct in general terms and the related recalculation of Mr Harris’ debt is correct, the recalculation of Mrs Harris’ overpayment debt was not correct. The correct amount of her overpayment debt is $8,177.64. For this reason, the decision in application 2016/2396 must be varied to correct the amount of her debt.

Decision

68. The decision in application 2016/2395 is affirmed. The decision in application 2016/2396 is varied such that the amount of Mrs Harris’ overpayment debt is $8,117.64.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

......................................................................
Associate

Dated: 25 August 2017

Date(s) of hearing:	17/05/2017; 15/06/2017; 01/08/2017
Date final submissions received:	16/08/2017
Applicants:	In person
Solicitors for the Respondent:	Department of Human Services

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^[1] T9 folios 127 and 130.

^[2] T9 folio 121.

^[3] AT12 folio 144.

^[4] Secretary’s Supplementary Statement of Facts and Contentions, 13 July 2017, Annexure G.

^[5] T17 folios 191-220.

^[6] T12 folio 147 and AT14 folio 147.

^[7] T13 and AT16.

^[8] T2 folios 3-10 and AT2 folios 3-10.

^[9] T18 folio 230.

^[10] AT21 folio 186.

^[11] AT12 folios 140-144.

^[12] AT13 folio 145.

^[13] Secretary’s Supplementary Statement of Facts and Contentions, 13 July 2017, Annexure H.

^[14] This amount excludes $70.45 in earnings apportioned to the period ending on 11 January 2014.

^[15] AT21 folios 188-195; Secretary’s Supplementary Statement of Facts and Contentions, 31 May 2017, Annexure E; and Secretary’s Supplementary Statement of Facts and Contentions, 13 July 2017, Annexure K.

^[16] T9 folio 130 and T10 folio 144.

^[17] T2 folios 13 and 14.

^[18] See Secretary’s Supplementary Statement of Facts and Contentions, 31 May 2017, Annexure D; and Secretary’s Supplementary Statement of Facts and Contentions, 13 July 2017, Annexure I.