Administrative Appeals Tribunal of Australia|1999-07-23

Gray and Witchard; Department of Family and Community Services [1999] AATA 541 (23 July 1999)

CATCHWORDS - SOCIAL SECURITY - disability support pension - disability support with pension - whether overpayments - whether notices sent - whether notices complied with - whether or not recovery of overpayments should be waived or written off - decision affirmed.

Social Security Act 1991 - Ss 4, 17, 132, 147, 168, 172, 1168, 1169, 1170, 1171, 1224, 1236, 1237

Belling v O'Sullivan (1950) SASR 43

Groth v Secretary, Department of Social Security (1995) 40 ALD 54; (1996) 2 SSR 102

Lee v Department of Social Security (1996) 23 AAR 339; (1996) 139 ALR 57; (1996) 68 FCR 491; (1996) 2 SSR 69

Re Pepi and Director-General of Social Security (1984) 7 ALD 155

Re Van Burmmelen and Secretary, Department of Social Security (1995) 37 ALD 729

Secretary, Department of Education, Employment and Youth Affairs v Prince [1997] FCA 1565; (1997) 50 ALD 186; (1997) 152 ALR 127; (1997) 26 AAR 385; (1998) 3 SSR 372

Shervill v Shearer (1979) 26 ALR 454

DECISION AND REASONS FOR DECISION [1999] AATA 541

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 16 June, 1998.

On 30 July, 1998, the applicant, the Secretary of the Department of Family and Community Services ("the Secretary") applied for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 16 June, 1998. In its decision, the SSAT set aside two decisions made by a delegate of the Secretary under the Social Security Act 1991 ("the Act") and substituted other decisions.

2. Both of the delegate's decisions had been made on 28 July, 1997. The first was to raise and recover an overpayment of wife pension from the respondent, Ms Samantha Melody Gray. The decision had been affirmed by an Authorised Review Officer on 11 September, 1997. The amount sought to be recovered was $7,947.40. The second decision set aside by the SSAT was a decision to raise and recover an overpayment of disability support pension from the respondent, Mr Darren Christopher Witchard. That decision had been affirmed by an Authorised Review Officer on 8 September, 1997. The amount sought to be recovered from Mr Witchard was also $7,947.40. Both amounts sought to be recovered related to payments made by Centrelink in the period 6 October, 1994 to 7 March, 1997. In the place of each of the delegate's decisions, the SSAT substituted decisions that the Commonwealth's right to recover the debts from Ms Gray and Mr Witchard be waived.

3. At the hearing, the Secretary was represented by Mr Walsh who is an advocate with Centrelink. Ms Gray was represented by her solicitor, Mr Gallagher and Mr Witchard was represented by his mother, Mrs Gina Witchard. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with other evidence to which we will refer in the course of these reasons. Oral evidence was given by Ms Gray in support of her case. Mr Witchard did not attend the hearing as he was having considerable personal difficulties in living in Lismore and his mother had sent him to the Sunshine Coast. We have not drawn any adverse conclusions from his absence as we accept that his personal difficulties were such that they outweighed what we would otherwise have considered to be the need for him to attend the hearing.

4. There are four primary issues in this case. The first is whether there has been an overpayment of the disability support wife pension paid to Ms Gray and of the disability support pension paid to Mr Witchard. The resolution of that issue depends, in part, upon whether certain letters sent to Ms Gray and Mr Witchard by Centrelink's predecessor, the Department of Social Security ("DSS") were notices that required them to inform it if their income exceeded specified limits. If they were such notices, the next issue is whether they failed to comply with them. The fourth primary issue arises in relation to any debts incurred through any failure of Ms Gray and Mr Witchard to comply with any notices and in relation to any debts which arise by virtue of the application of section 1170 of the Act. That issue is whether or not recovery of the amounts of the overpayments should be waived or written off.

5. Many of the facts forming the background to this case were not in dispute. In light of that and on the basis of both the written and oral evidence, we have made a number of findings of fact. We will set them out in the following paragraphs.

6. Ms Gray was born on 23 July, 1971 and is the youngest of twelve children. She and Mr Witchard have children aged 31/2 and 6 years of age and both are in care. At the time of the hearing, Ms Gray was looking for work. She lived in a women's refuge and had been there for a month. She paid the refuge $40.00 per week for her board and lodging and continued to pay $34.00 per week for the house in which she and Mr Witchard had lived. She was looking for another house in which to live.

7. Mr Witchard was born on 14 February, 1964. On 21 March, 1986, he was injured in a motor bike accident while riding home from work. In the accident, he suffered a severe head injury which was described by Dr Teychenne, who is a consultant neurologist, as a life threatening injury (T documents, page 35). Due to quick treatment, his life was saved but he suffered underlying organic brain damage as a result of his injuries. On the basis of Dr Teychenne's report and on the basis of the oral evidence of his mother during the hearing, we are satisfied that Mr Witchard has regained his motor skills but has significant psychological deficits as well as cognitive deficits. These deficits include deficits in calculation and deficits in recent memory. Mr Witchard's difficulties were set out at length in Dr Teychenne's report dated 30 June, 1987 and we are satisfied that the Department of Social Security received a copy of that report at its Byron Bay office on 5 December, 1990 (T documents, pages 32-39).

8. Mrs Witchard was appointed Tutor for her son from the date of the accident and continues in that role to the present time. She was made his legal guardian in relation to his compensation and his legal affairs.

9. In early 1994, Ms Gray and Mr Witchard were treated as members of a couple for the purposes of the Act and were receiving a disability support pension and a disability support wife pension respectively. Each received pension of $60.00 per fortnight. This was substantially less than the maximum rate of $270.00 per fortnight as Mr Witchard had started to receive payments of compensation from 19 April, 1993. The amount of those payments was in the order of $410.00 to $420.00 per fortnight. Mr Witchard conducted his own affairs with DSS and Centrelink.

10. In the middle of 1994, Mr Witchard and Ms Gray separated. On 25 August, 1994, Ms Gray applied for a sole parent pension on the basis of the separation (T documents, page 113). That pension was paid to her. Mr Witchard's compensation was not relevant in assessing her pension as they were no longer a couple. The whole of his compensation became assessable against Mr Witchard. His pension entitlement was reduced to nil.

11. On 12 September, 1994, Ms Gray surrendered her sole parent pension when she resumed her relationship with Mr Witchard (T documents, page 134). Both she and Mr Witchard re-claimed pensions on 12 September, 1994 (T documents, pages 137-145). Both were paid pensions amounting to $65.70 per fortnight (T documents, pages 157-162). The payments were processed at the Ballina office of the then DSS.

12. In late September or early October, 1994, Ms Gray and Mr Witchard moved from Ballina to Lismore. As a consequence, DSS moved its processing of their claims from Ballina to Lismore.

13. A letter dated 30 September, 1994 was sent to each of Ms Gray and Mr Witchard. That letter sent to Ms Gray addressed her as Mrs Witchard at an address in Goonellabah (T documents, pages 168-170). It concerned her claim for a wife pension and advised her that her pension would be $270.80 beginning from 6 October, 1994. Her wife pension started from pension payday on 22 September, 1994. Ms Gray was advised that her payment was made up of a wife pension of $268.20 and a pharmaceutical allowance of $2.60. On the back of the letter, the letter contained the following statement:

Under sections 172 and 173 of the Social Security Act 1991 you must tell us within 14 days ... if any of these things happen, or may happen. You can tell us by writing to us, by phoning or you can come in and talk to us at any one of our offices.

If your combined income, not including maintenance, becomes more than $90.00 per week;

If you or your partner claim or receive compensation;

you may get more pension if your income goes down, so tell us of any changes;

14. A similar letter was sent to Mr Witchard at an address in Ballina regarding his disability support pension. He was paid an amount of $270.80 starting from pension payday on 22 September, 1994. (T documents, pages 165-167)

15. Mr Walsh conceded that the letters of 30 September, 1994 and the pensions for both Ms Gray and Mr Witchard had been written in error. Mr Witchard's payments of compensation were ongoing and DSS knew about those payments.

16. Ms Gray said that she and Mr Witchard had separated in the middle of 1994. They told DSS that they had separated and DSS then put her on her own payment. When they got together again, Ms Gray went in to DSS. Mr Witchard was not with her, she said. She could not remember when she did so. Ms Gray said that she was then put back on the pension and DSS looked at the money from MMI insurance.

17. Ms Gray said that she and Mr Witchard lived together and then separated again in 1994. She did not know when the two separations occurred in 1994 or the length of time for which the separations continued. They were short, rather than long, length of times. When they got back together again, they received the pension and DSS knew about the MMI insurance money too, she said.

18. Ms Gray said that she and Mr Witchard went to check the bank accounts. There was over $200.00 in each of the accounts. They did not know about that money. They went to the Ballina office of DSS and told them about it. They showed the bank accounts to "Geoff" at the Ballina office of DSS. Ms Gray said that she did not know Geoff and had not seen him before. She and Mr Witchard did not take anyone else with them when they went to the Ballina office.

19. Both spoke to Geoff. Ms Gray said that they told Geoff that it was a bit strange that they were getting $200.00 when they were previously only getting $60.00. Ms Gray recalled saying to Geoff that it was more than a raise. She did not think that it was a raise at all. Geoff checked the computer and said it was a raise. When he had looked at the computer, he just closed it down and said not to worry about it.

20. There had been other occasions, Ms Gray said, when she had gone to DSS to ask about her payments. Once, DSS had put $80.00 in her account and she did not know what it was for and DSS did not know. She said that she is always asking DSS "what's this money about?". On another occasion, DSS put $100.00 in her account and she went to ask about it. DSS did not know about it.

21. In cross-examination, Ms Gray said that they did not touch the money when they saw it but went straight in with their books. At the time, they were living at Goonellabah, near Lismore. They usually went to the Ballina office as they went down there on paydays. That is so even though they lived near Lismore. If there was something wrong, she said, they did not wait. They went to the nearest office and did not wait until they went to Lismore. When they received the increased amount, they both thought that it was too much as Mr Witchard was receiving the MMI cheques too.

22. Ms Gray said that they both saw Geoff. They had not seen a person called "Bruce". When told that Mr Witchard had said that they had seen Bruce, she replied that Mr Witchard always sees Bruce because he is at the "reception part". They had to go past that and Mr Witchard knows Bruce. Ms Gray said that she could recall going past the reception at Ballina and being given a ticket. They waited to be called. She disagreed with Mrs Witchard's view that she and Mr Witchard were both mistaken because it had all happened so long ago. Ms Gray was insistent that she and Mr Witchard had attended the Ballina office even though they lived in Lismore at the time. She told them that Mr Witchard was receiving money from MMI Insurance. Centrelink had seen all of the certificates and letters from MMI Insurance. They had those documents with them. Ms Gray was also definite that Geoff had gone to the computer and "looked things up". He had then closed it down and told them not to worry about it.

23. In response to questions from Mrs Witchard, Ms Gray said that she recalled her going to their house to prepare a budget for them. Ms Gray also agreed with Mrs Witchard that she (Ms Gray) had told her that she had spoken to her own mother about the rise. She said that her mother had told her to go to DSS but they had already done that. Ms Gray also recalled that Mrs Witchard had talked to them about the overpayment and had told them to go and see about it. They had, however, already done that. If they did not understand something, she said, they were always on the phone to ask what a letter was about. They did not understand letters and that is why they went to ask about them. They always told DSS or Centrelink when they changed their address. Every time they could not understand something, they went to the Ballina office. Usually, they could not understand the letters.

24. Ms Gray said that she currently receives Newstart Allowance amounting to $241.00 per fortnight. That is the amount she receives and it is her sole income. The gross amount is $325.00. She no longer lives with Mr Witchard and they separated some time last year. Ms Gray is single and has received Newstart Allowance since last year. She has no money in the bank and no assets. Ms Gray does not pay any money towards the maintenance of her children.

25. Ms Gray said that she has been looking for work. She has worked for one year at Woolworths and for two years at Kentucky Fried Chicken in Lismore. She enjoyed working at the checkout.

26. Mrs Witchard said that when her son was in receipt of compensation payments, in a relationship with Ms Gray and they were expecting their first child, she told them that they might be eligible to receive pensions. She told them that they she should speak to DSS and that they should take records. Mrs Witchard said that she did not think that she attended with them but could not recall whether she had or not.

27. Mrs Witchard recounted how Ms Gray and her son lived next door to her and her husband. She tried to keep an eye on the family. As they never had any money, she set up a budget for each of them. She asked to see their bank accounts and traced the DSS payments through. Her examination revealed that they were being paid too much. She questioned them about the payments. Her son and Ms Gray told her that they had a raise. Ms Gray said that she had talked to her mother on the telephone and it was a raise. Mrs Witchard said that she had advised them to go to DSS. In giving evidence, she said that she did not then do a budget but did contact her son's solicitors. Mrs Witchard did not know what happened with regard to the DSS. She was adamant that her son considered that the money paid to him by DSS was a raise.

28. In cross-examination, Mrs Witchard said that Ms Gray had not mentioned to her at the time that she had gone to the DSS office. That was not to say, however, that she had not done so. Mrs Witchard said that her son had told her that they had received a rise. When Mrs Witchard told him "not that much", he told her that "Sam's mum" said that they had a rise. It was almost a fait accompli. As she had seen it, Mrs Witchard did not think that her son and Ms Gray had been to the DSS office but she was not saying that they did not do it.

29. Mrs Witchard said that her son was not competent to manage his own affairs but had never been declared legally incompetent. She could act as his tutor in relation to his compensation matters and in any legal proceedings. In matters concerned with DSS or Centrelink, however, she could not obtain any information unless he consented to her doing so.

30. Mrs Witchard said that her son had been independent before his accident but that, after the accident, he had to rely on his parents. Mrs Witchard and her husband had been trying to make their son and Ms Gray independent. She told them that if they did not understand something, they had to ask. He had trouble in understanding. Mrs Witchard said that she did not always act on her son's behalf as he must learn to live on his own in the world.

31. Computer Record Access Monitor Reports ("CRAM reports") indicate when access was had to computer records held in relation to those with whom Centrelink deals. Such reports have been prepared in relation to the records relating to both Ms Gray (T documents, pages 278-298) and Mr Witchard (T documents, pages 260-277).

32. Mr Mervyn Bruce Jones, who is known as Bruce Jones, said that he has worked in Centrelink and in DSS since August, 1990. After spending five months at Southport, Mr Jones transferred to the office at Lismore where he worked in the Pensions Section. Early in 1992, Mr Jones was transferred to Ballina.

33. In a statement dated 7 April, 1999, he stated that he recognised the names of Ms Gray and Mr Witchard but was not sure that he would recognise them if he were to see them. In giving evidence, he said that he had not been able to put a face to the name as he saw quite a few people each day. Mr Jones had examined the CRAM reports which record every person's access to the computer records held by Centrelink. His access to Ms Gray's record on 29 September, 1994 indicated that he had access to the message screen and the Family Payments summary screen. His access to Mr Witchard's record on 30 September, 1994 indicated that he had access to the message screen. Mr Jones said that he was unable to recall why he had gained access to the screens. In relation to Mr Witchard, he surmised that it might have been in relation to recording a message about the transfer of documents from the Ballina office to the Lismore office.

"If I had seen Darren and/or Samantha I may have accessed their computer records to ensure they were receiving the correct rates of pension, taking into consideration all income and assets and ensuring they were correctly reflected, particularly if they had indicated that their pension was too high because of compensation income, I would do this as normal practice;" (Exhibit 3)

35. In giving evidence, Mr Jones said that the CRAM report showed that he might have viewed the message screen on 29 September, 1994 in relation to Ms Gray's family payment (T documents, page 285). It was possible that he created a message on that day to explain what had happened with regard to a transaction. It is also possible that he was not the author of the message. A message screen is a computer note. Mr Jones said that he could not recall why he would have gone to that screen on that day but he normally gained such access to find out a person's current or future payment.

36. In relation to Mr Witchard's records, Mr Jones said that the CRAM report showed that he had gained access to those records on 30 September, 1994. He could not recall why he had done so although it could have been connected with a transfer of records. Mr Jones was of the view that he would recall had either or both of Ms Gray and Mr Witchard told him on 29 or 30 September, 1994 that they were being paid too much. He felt that he would recall that clearly as he had been told that type of information on only four occasions. Three of those occasions had involved the one person and the fourth another person. Had it happened at that time, he would have chased the information through the Coffs Harbour office.

37. At the time that the first overpayment was made on 6 October, 1994, Ms Gray and Mr Witchard were living at Goonellabah which is approximately eight kilometres east of Lismore. Mr Jones assumed that they would take up any concerns they had with the Lismore office of Centrelink. The change of address to Goonellabah was noted on the CRAM report in relation to Mr Witchard as coming after an officer had access to the computer records on 5 October, 1999 (T documents, page 264, for example). In relation to Ms Gray's records, the CRAM report shows that the change of address is noted as coming after an access on 29 September, 1994 and before another access on the same day. The notations, Mr Jones said, would have come about if Ms Gray and Mr Witchard had handed in a change of address form or, if renting, shown Centrelink a copy of the lease or a receipt for the rental.

38. Mr Jones advised that the Section Manager of the Pensions Section at Ballina in 1994 was Mr Jeff Williams. Mr Williams no longer works for Centrelink. In cross-examination, Mr Jones agreed that it was possible that Ms Gray had gone into Centrelink and spoken with Mr Williams. Client confidentiality is respected and Mr Williams would not have told him if she had. It is not normal to talk about clients, he said, and it is discouraged.

39. In cross-examination, Mr Jones said that alarm bells would certainly ring if clients, who had difficulty in understanding their financial and other affairs, were to go to him and ask him to explain why they had been paid too much. Payment increases, he said, can be explained by things such as CPI increases but the increase received by Ms Gray and Mr Witchard was out of the ordinary and not a CPI increase. There would have been an examination of the reasons for the increase as it would not have been a routine rate change. The same procedure would have been followed had they come to him with their bank books and asked why the amount had been paid.

40. Mr Jones said that compensation payments were noted on a dedicated screen on the computer. Calculation of a person's pension or benefits where he or she was in receipt of compensation payments were referred to the Coffs Harbour office of Centrelink. It is not possible from the computer screen to work out why a person is being paid compensation. The only way in which it would be known that the Public Trustee had any interest in a person's affairs would be from the address to which material is sent. There could be a message entered on the computer that the person was in the care of the Public Trustee. If a protection order had been made in respect of a person, the Public Trustee or appropriate agency would write to Centrelink. That would be Centrelink's means of obtaining that information. If it does not have such information, it corresponds directly with the individual person concerned. If a person needs assistance, a note of that can be made on the computer.

41. Ms Helen Davidson has worked with Centrelink or DSS since 14 April, 1988. In that time, she has always worked in the Lismore office and, until two years ago, always in the Pensions Section. She had made a statement dated 4 December, 1998.

42. On 6 October, 1994, Ms Davidson recalled, she was acting as an ASO3 doing counter interviews and updating clients' files. She could not recall either Ms Gray or Mr Witchard. The CRAM report showed her as having gained access to Mr Witchard's record on 6 October, 1994. The screens on the record, she said, all appeared to concern DSS's payments to Mr Witchard. She could not recall whether the compensation details were recorded on the PGI screen.

43. Mrs Davidson reported upon the access shown by the CRAM report to the records at the end of September and early October:

*30/9/94...J Styles...was not a Lismore person. I did not know him/her. Probably just coding his Tax File Number.

*30/9/94...MB Jones...Bruce did work in Lismore then moved to Ballina office but I don't know exactly when. He either put a message on the computer or read one that was already there.

5/10/94...H Bienke...Helen was in Lismore Pensions then and now in Families section with me. She remembers nothing about this case. She changed the address, accommodation details and updated his bank account.

*6/10/94...This is my access looking at payments made.

*7/10/94...M Puusep...Martin was in Pensions Lismore. He is no longer working in the department. He did something with rent or accommodation and put up a message.

*7/10/94...N Bonamy. Not a Lismore person. I don't know him/her. Same activities as the previous person.

*13/10/94...C Shipway...Carol worked in the Families section in Lismore. More payment details but I don't know what 'UFR, or PFR' are. Carol has left too.

*13/10/94...M Puusep... a message and I don't know what DES is.

13/10/94...C Shipway again. Nothing down but a message.

*30/9/94...J Styles again...All Families screens - rent, payment, and I don't know some of these.

*30/9/94...W Page...Not in Lismore..Don't know this person.

It looks as if he/she accessed some pensions screens, but I don't remember what the P11D had on it.

*30/9/94...A Chapman...I'm told he was at Ballina. He just accessed general Family screens.

*4/10/94,...P Thompson...Peta worked in Families, Lismore.

She did general Family activities and I think the RS screen was the relationship Summary. Probably they were separating or getting back together that day. Peta moved to the Brunswick Heads office.

*4/10/94...A Morpeth...Ann worked in Families Lismore.

She was coding the estimates for Families. Ann has left the department.

*6/10/94...C Shipway. Just general stuff." (Exhibit 4)

44. Ms Davidson described the steps which she would probably have taken had someone come to the counter and told her that he or she was receiving compensation:

" a) looked up the compensation screen to see if we knew about it. While I can't remember what that screen was (because everything has changed so much), I feel sure that it was not accessed on 6 October 1994.

b) given the client a Mod C to complete. When completed and returned to us it would have been faxed to the compensation section for them to action, and the original form probably put on file. I can't remember if the Compensation Unit coded it on the client's records or if they somehow let us know what they wanted coded." (Exhibit 4)

45. Ms Helen Amarant is a social worker at the Ballina office of Centrelink. At the time of the hearing, she was on leave and could not be contacted. Mr Gallagher asked that we have regard to what she was reported as saying to the SSAT at its hearing. We set out that passage but are mindful that Mr Walsh did not have an opportunity to cross-examine Ms Amarant on the issues she discussed. The passage reads:

"Following the hearing the Tribunal rang the senior social worker at Ballina Centrelink, Helen Amarant, to ascertain if Ms Gray was known to Centrelink. Ms Amarant stated that Ms Gray was well known to all the agencies in the area and was known to frequently attend at Centrelink Ballina. Ms Amarant advised that in her opinion Ms Gray did suffer from an intellectual impairment and often did not know what was going on in her life. Ms Amarant added that Ms Gray had limited literacy and numeracy skills and had no independent living skills. She was being encouraged to improve her living skills and had attended a basic literacy and numeracy course. Ms Amarant confirmed that the couple's children were being cared for by Ms Gray's mother after intervention by the Department of Children's Services because of violence in the home." (T documents, page 10)

46. Ms Jan Cody is a registered psychologist and a member of the Australian Psychological Society. She has worked for three years as a Child Protection Officer in Victoria and for two years as a District Officer in New South Wales as well as spending a further three years as a counselling psychologist and consultant in private practice. Mr Gallagher referred Ms Gray to Ms Cody to assess Ms Gray's ability to comprehend written material and to act upon it appropriately. Ms Cody did so in a report dated 5 April, 1999. She had previously met Ms Gray through work which she had done when she had been employed by the Department of Children's Services in New South Wales.

47. As part of her assessment, Ms Cody administered selected tests from the Weschler Adult Intelligence Scale - Revised ("WAIS-R) in order to establish an objective measure of her capacity with words and selected tests from the Employee Aptitude Survey ("EAS") to establish her verbal comprehension and her verbal reasoning. Ms Cody set out her findings and her assessments in the following passage:

"5. Weschler Adult Intelligence Scale-Revised (WAIS-R)

The WAISR is a global measure of an individual's mental abilities, comprising five subtests contributing to Performance IQ and six subtests contributing to Verbal IQ. It is the latter IQ which is of interest here as it provides an indication of verbal abilities, which include language comprehension and expression, recall of information, and the ability to reason with words. Hence I administered only the Verbal tests.

Ms Gray scored in the Borderline range, only two points above the Mentally Retarded classification. None of the scores contributing to the Verbal IQ differed significantly from her average verbal score. Therefore this score appears to be a true summary of her general ability with words.

Given that these tests are all administered aurally, I considered that it may be useful to get a clear picture of her capacity with the written word. With this end in mind I administered the Employee Aptitude Survey.

The EAS is a pencil and paper test designed to assess abilities that are important for a wide variety of jobs. It consists of ten tests, each assessing different abilities. The Verbal Comprehension test and the Verbal Reasoning tests from this survey were chosen for administration because they tap the skills which are under review for Ms Gray, -

6.1 The Verbal Comprehension test is a 30-item vocabulary test, in which the examinee must select the synonym for a designated word from the four possibilities present.

Ms Gray achieved a raw score of three out of a possible thirty, which is extremely low and clearly indicates that Ms Gray's ability to comprehend the written word is extremely limited and is unlikely to be of a necessary standard to understand the vocabulary commonly used in Departmental documents.

6.2 The Verbal Reasoning test assesses ability to recognize if available facts do or do not support a conclusion. This ability is important in arriving at practical decisions of business and everyday life. The test presents a series of facts for the examinee to review. Five conclusions follow each series. The examinee is required to indicate whether based on the factual information given, the conclusion is true, false, or uncertain.

Ms Gray achieved a raw score of six out of a possible thirty, which is also extremely low and suggests that her ability to draw logical conclusions from written material is extremely limited.

Low-end borderline range Verbal IQ indicates that Ms Gray would experience difficulty in managing even quite simple every-day matters and that handling the intricacies of Social Security payments would be beyond her capacity.

The EAS scores further indicate that she has great difficulty with the written word and would not be capable of handling and responding to mail. It also raises the question of reasonableness for the community, including Government Departments to expect her to competently handle what are often quite complex affairs.

It would appear from the tests presented above that Ms Gray's reading ability is not matched by her ability to understand the words she is reading, nor to reason the meaning of the message contained within the words. It is my opinion that this would have serious implications for her ability to sensibly manage her household and financial affairs and would have particular implications for her capacity to adequately respond to written communications.

Hence, it is with respect that I recommend that all future communication with Ms Gray needs to be presented to her in both written and verbal format in order to maximise her potential to understand the message behind the words, and to act upon the requirements of the document." (Exhibit A)

48. In an assessment prepared for DSS on 11 May, 1993, Dr Douglas wrote of Mr Witchard:

" Claimant, age 29, suffers from post traumatic cognitive defects following a motor vehicle accident in 1986.

He is educated to year 10 and last worked doing factory work.

He had surgery after his accident to drain an intracranial haemorrhage and since then has had temper outbursts, memory problems, and an inability to perform tasks allocated to him. He has had assessment by psychologist who states he has perceptual, memory, learning, and personality dysfunctions and fulfils the criteria for anti-social personality or organic personality syndrome.

He is currently unfit for work and needs ongoing counselling. He may improve in the next two or three years to the extent that he can be retrained and I would suggest review in 2 years.

He is unfit for Vocational Rehabilitation - needs further medical rehabilitation." (Exhibit B)

49. In September, 1995 and during the period under consideration, 6 October, 1994 to 7 March, 1997, amendments were made to the Act. Of particular concern in this case are the amendments relating to compensation recovery. We will first set out the framework of the provisions relating to compensation recovery as they applied for the period 6 October, 1994 until 29 September, 1995. We will then set out the provisions which applied after 29 September, 1995.

Compensation recovery provisions before 25 September, 1995

50. Sub-section 1168(1) provides, in general terms, that the rate of a person's pension, benefit or allowance is to be reduced under sub-section 1168(3) where that person:

"(a) ... or the person's partner, receives a series of periodic compensation payments; and

(b) the person is qualified for a compensation affected payment for the periodic payments period; and

(c) the person was not, at the time of the event that gave rise to the entitlement of the person, or the person's partner, to the compensation, receiving a compensation affected payment referred to in paragraph (b); ..."

"if a person, or a person's partner, was, at the time of an event that gave rise to the entitlement of the person, or the person's partner, to compensation, receiving a compensation affected payment, the compensation is treated as ordinary income."

52. "Compensation" is defined in sub-section 17(2). In general terms, it includes compensation or damages payments. There is no need to consider its meaning further in this case as there is no dispute that Mr Witchard received payments of compensation and that, during the relevant periods, he did so in the form of a series of periodic payments.

53. A "compensation affected payment" includes a "disability support pension" and a "disability support wife pension" (paragraphs 17(1)(a) and (e)). A "disability support wife pension" is defined to mean "... a wife pension for a woman whose partner is receiving a disability support pension or disability wage supplement" (sub-section 17(1)).

54. A "compensation affected payment" also includes a "social security benefit" (paragraph 17(1)(c)). A "social security benefit" is defined in turn by sub-section 23(1) to include, in so far as it is relevant:

55. The "periodic payments period" means, in so far as it is relevant:

"(a) in relation to a series of periodic payments - the period in respect of which the payments are, or are to be, made; and

56. Sub-section 1168(3) provides that the Table, which is set out in the sub-section, is to be used to work out the person's reduced rate. The Table sets out the various compensation affected payments and specifies various rates or reduction according to whether the person was partnered or not, whether the partner was or was not qualified for particular pensions, benefits and allowances and whether or not the compensation recipient was the person qualified for the pension or was the partner of that person. In general terms, the Table specifies a formula for each set of circumstances. That formula is based on the deduction of the fortnightly rate of compensation, or of half of that amount, from the person's or the partner's fortnightly rate of pension, benefit or allowance.

57. Regard must also be had to section 1168 which provides:

"If the amount per fortnight of a pension, benefit or allowance payable to a person is reduced under section 1168 because of a series of periodic compensation payments, those payments are not to be regarded as ordinary income of either the person or the person's partner for the purposes of this Act (apart from Module D of the Family Payment Rate Calculator and section 710).

Note 1: for 'ordinary income' see section 8.

Note 2: Module D of the Family Payment Rate Calculator deals with additional family payment.

Note 3: section 710 deals with limitations on the amount of sickness allowance payable."

58. Section 1170 provides for situations in which a person has received both a series of periodic compensation payments and a compensation affected payment in relation to the periodic payments period. If the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, receiving a compensation affected payment and the compensation affected payments had not been reduced under section 1168, the Secretary may determine the amount that the person is liable to repay. That amount, which is known as the "recoverable amount", is determined according to the Table set out in sub-section 1170(2) and to sub-sections 1170(3) and (4).

59. Apart from the specific provisions relating to periodic compensation payments, regard need also be had to the provisions which require a person to comply with certain notices. In relation to a disability support pension, sub-section 132(1) provides:

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

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

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

The notice may only specify an event or change of circumstances if the occurrence of the event or change may affect the payment of the pension (sub-section 17(2)). Certain formalities are required by sub-section 132(3) and there is no question that they were complied with in the notice sent to Mr Witchard on 24 September, 1994.

60. In relation to a wife pension, section 172 makes similar provision in relation to a notice. Again, there is no question that the notice sent to Ms Gray complied with that notice. We note that section 172 refers to a "wife pension" but also note that a "disability support wife pension" means a wife pension for a woman whose partner is receiving, among other payments, a disability support pension (sub-section 17(1)). It follows that section 172 applies to a person in Ms Gray's circumstances.

61. If a person does not comply with a notice sent under either section 132 or 172, section 1224(1) becomes relevant. It provides:

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

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth."

Compensation recovery provisions from 25 September, 1995

62. Sub-section 1168(1) remains unchanged. That is to say, it provides that a person's "compensation affected payment" is to be reduced if that person or his or her partner receives periodic compensation payments, the person receives or claims a compensation affected payment for the periodic payments period and the person was not, at the time that gave rise to the entitlement of the person or the person's partner to the compensation, receiving a compensation affected payment. The rate of reduction is determined in accordance with that section. Note 2 also remains in substantively the same terms as its predecessor.

63. A "compensation affected payment" includes a "disability support pension", a "disability support wife pension" and a "social security benefit" (paragraphs 17(1)(a) and (c)) as before but now also includes "a former payment type" (paragraph 17(1)(k)). A "disability support wife pension" is defined to mean a "... wife pension for a woman whose partner receives a disability support pension or disability wage supplement" (sub-section 17(1)). In general terms, "a wife pension", which could not be granted after 30 June, 1995, was granted to a woman who was a member of a couple and whose partner was receiving certain pensions or allowances including a disability support pension (section 147). A "social security benefit" is defined to include a newstart allowance and a sickness allowance (paragraphs 23(1)(a) and (c)). The definition of a "former payment type" is defined to include "an unemployment benefit" (paragraph 17(1)(e)).

64. Sub-section 1168(2) provides that, subject to sub-sections 1168(4), (5), (6) and (7), sub-sections 1168(3), (3A) and (3B) are to be used to work out a person's reduced rate if the rate of that person's compensation affected payment is to be reduced under sub-section 1168(1). Sub-section 1168(3) applies in cases in which a person is not a member of a couple. In those cases, the person's fortnightly rate of the compensation affected payment is reduced by the fortnightly rate of periodic compensation.

65. Sub-sections 168(3A) and (3B) are concerned with situations in which a person is a member of a couple. Sub-section 1168(3A) provides for the situation in which a person is a member of a couple but the person's partner does not receive or claim certain payments including a compensation affected payment. Sub-section 1168(3B) provides:

(b) the person's partner receives or claims a compensation affected payment, a youth training allowance or a compensation affected pension under the Veterans' Entitlements Act;

the person's fortnightly rate of the compensation affected payment is reduced by half the fortnightly rate of the periodic compensation."

66. If a person's fortnightly compensation affected payments are reduced under section 1168 because of a series of periodic compensation payments,

"... those payments are not to be regarded as ordinary income of either the person or the person's partner for the purposes of this Act (apart from section 710, and section 5B of the Health Insurance Act 1973).

Note 1: For ordinary income see section 8.

Note 3: Section 710 deals with limitations on the amount of sickness allowance payable.

Note 4: Section 5B of the Health Insurance Act 1973 deals with the Disadvantaged Persons Health Scheme." (section 1171)

67. Section 1170 provides for the situation where periodic compensation payments have been received, payments of a compensation affected payment have been made for the periodic payments period and the latter have not been reduced under section 1168. Provided the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, receiving a compensation affected payment, the Secretary may give the person a written notice. In that notice, the Secretary may determine that the person is liable to pay the Commonwealth the amount specified in the notice. The amount which may be specified in the notice is described as the "recoverable amount" and is calculated according to sub-sections 1170(3), (4), (4A) and (4B).

68. Of these, only sub-section 1170(4A) is relevant. It provides:

(b) the person's partner receives a compensation affected payment, a youth training allowance, or a compensation affected pension under the Veterans' Entitlements Act for the periodic payment period:

the recoverable amount is equal to the smaller of the following amounts:

(c) the sum of the periodic compensation affected payments made to the person for the periodic payments period; and

(d) the payments of the compensation affected payment and (if applicable) the payments of the youth training allowance or a compensation affected pension under the Veterans' Entitlements Act, made to the person's partner for the periodic payments period."

69. The provisions relating to notices under sections 132 and 172 and the recovery of debts under section 1224 where such notices are contravened are identical with those which we have set out above (see paragraphs 59-61above).

70. Where a debt is due to the Commonwealth, the Secretary may write off the debt in the circumstances set out in section 1236 or waive it in accordance with sections 1237-1237AAD. As the issue of waiver and write off were not considered until the decisions were reviewed by the Authorised Review Officer on 8 and 11 September, 1997 (see, Lee v Department of Social Security (1996) 23 AAR 339, Cooper and Moore JJ, Davies J dissenting).

71. In so far as it is relevant, section 1236 provides that:

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

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

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

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

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

72. In so far as waiver is concerned, only sub-section 1237A(1) and section 1237AAD are relevant. They provide:

"1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt."

1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt."

73. There was no dispute between the parties, and we are satisfied that, at all times between 6 October, 1994 and 7 March, 1997, Mr Witchard received payments of compensation payments from MMI Insurance. Those payments are "compensation" within the meaning of sub-section 17(2) of the Act at all relevant times. Based on the extract from the document headed "L&SB Tax History Masterfile Microfiche Listing for the 85-86 Tax Year New South Wales" (Exhibit 5), we are satisfied that, at the time of the accident which gave rise to his entitlement to compensation (i.e. 21 March, 1986), Mr Witchard was receiving unemployment benefit. We are also satisfied that, at all times between 6 October, 1994 and 7 March, 1997, Mr Witchard was qualified to receive the disability support pension. Ms Gray was in receipt of the disability support wife pension from as at 6 October, 1994.

Are Ms Gray and Mr Witchard members of a couple and so partners for the purposes of the Act?

74. During the period from 6 October, 1994 until 7 March, 1997, Ms Gray and Mr Witchard were treated by DSS and Centrelink as members of a couple and so partners as the term "partner" is defined in sub-section 4(1) of the Act. This was not an issue which was explored at the hearing and we have considered the matter on the same basis. We do, however, have some reservations as to whether they could properly be considered as members of a couple even though they have two children. Those doubts arise from the comprehensive assessment made by Dr Teychenne of Mr Witchard's intellectual functioning and upon the evidence of Ms Cody and Ms Amarant as well as upon our own assessment of Ms Gray. Their arrangement may have some of the indicia of their being members of a couple as that term is defined in sub-sections 4(1), (2), (3), (3A), (6) and (6A).

75. Before reaching a conclusion that they were members of a couple, we would need to have explored the nature of their arrangements before we could find that they had a relationship with a level of mutual support, responsibility and commitment which could be described as marriage-like relationship. This is not to say that they could not have had such a relationship simply because they have intellectual impairments. That would be quite wrong. We are simply concerned that, in the case of Ms Gray and Mr Witchard, there are various issues which may be relevant in determining the nature of their relationship and which were not canvassed. Those issues would include, for example, the degree to which they mingled their financial arrangements. On the evidence we had, we are satisfied that Ms Gray was not aware of all of Mr Witchard's financial affairs and, in particular, was not aware of the amount of compensation he received. In view of our conclusions on other matters, we have not asked the parties to consider this issue further, and have accepted that for the purposes of this decision, they were members of a couple.

Are there recoverable debts from Ms Gray and Mr Witchard?

The period between 6 October, 1994 and 24 September, 1995

76. We will consider first the period 6 October, 1994 until 24 September, 1995 and will do so in relation to Mr Witchard. At that time, he came within paragraphs 1168(1)(a) and (b) of the Act. He was receiving both a series of periodic compensation payments and was qualified for, and indeed received, a compensation affected payment i.e. a disability support pension.

77. Whether he also came within paragraph 1168(1)(c) is another matter. At the time of his accident (which is the relevant time for the purposes of the paragraph) he was receiving an unemployment benefit. There is some question whether he was entitled to receive that unemployment benefit for it would seem that he was also employed at or about this time. For the purposes of the first period, it is irrelevant whether or not he was entitled to receive that payment for an unemployment benefit is not a compensation affected payment. That follows from the fact that it does not come within any of the classes of pensions, benefits or allowances specified in the definition of a "compensation affected payment" at that time. In particular, an unemployment benefit is not either a jobstart allowance or a newstart allowance for the purposes of the definition of a "social security benefit". That is so even though all of the payments are made in respect of a person's unemployment and even though an unemployment benefit preceded the other two allowances. They differ not only in name but also in the qualifications required for each.

78. It follows that, at the time of the accident which gave rise to his entitlement to compensation, Mr Witchard was not receiving a "compensation affected payment" as that term was then defined. Consequently, his circumstances do meet the requirements of paragraph 1168(1)(c). In that case, the compensation payments received between 6 October, 1994 and 24 September, 1995 were subject to the provisions of section 1168 as they were then drafted. Had his rate of payment been reduced at that time, it would have been reduced by half of the amount of his compensation payments and Ms Gray's payment of disability support wife pension would also have been reduced by a similar amount.

79. As their payments were not reduced under section 1168, regard must be had to whether recovery action may be taken under section 1170 against Mr Witchard. Section 1170 applies only to payments made to Mr Witchard as he is the person who received the periodic compensation payments. Sub-section 1170(1) provides that an amount may be recovered in accordance with the remaining provisions of section 1170. As Mr Witchard is being treated as a member of a couple and as Ms Gray had claimed a compensation affected payment (i.e. a disability support wife pension), the recoverable amount is calculated according to Item 3 in the table in sub-section 1170(2) and sub-section 1170(4). The effect of those provisions is that the amount that may be recovered from Mr Witchard is the smaller of the sum of the periodic compensation payments he received and the sum of the disability support pension paid to him and the disability support wife pension paid to Ms Gray for the period 6 October, 1994 to 24 September, 1994. Whether or not Mr Witchard complied with the notice sent to him pursuant to section 132 has no relevance for section 1170 permits recovery whether or not he complied with that notice.

80. That brings us to Ms Gray's circumstances. Section 1170 makes no provision for recovery from her. Indeed, it is apparent from Item 4 that Mr Witchard is responsible to repay the whole of the amount which would have been withheld from their combined compensation affected payments had section 1168 been properly applied at the appropriate time.

The period between 25 September, 1995 and 7 March, 1997

81. While the substantive provisions of sub-section 1168(1) remained the same after 25 September, 1995, there was a significant change in the definition of a "compensation affected payment". That was to the effect that it now includes "a former payment" which, in turn, includes an unemployment benefit paid under the Social Security Act 1947 ("1947 Act"). Mr Witchard was in receipt of such a benefit at the time that he was involved in the accident which gave rise to his entitlement to the compensation he received.

82. As we have noted earlier in these reasons, there is a question whether or not Mr Witchard was entitled to receive an unemployment benefit at the time of the accident because there is evidence to suggest that he may have been working at the time. This raises an initial question as to whether paragraph 1168(1)(c) is referring to his "not ... receiving" a compensation affected payment in the sense of his "not ... receiving and entitled to receive" that compensation affected payment or in the sense of his "receiving regardless of his entitlement to receive". After we had reserved our decision, we sought further submissions from the parties regarding the proper interpretation of paragraph 1168(1)(c).

83. Mr Walsh drew our attention to sub-sections 23(2) to (4AA) of the Act. Those provisions are concerned with when, for the purposes of the Act, "a person is to be taken to be receiving" particular types of payment. All of the sub-sections follow the same format. Sub-section 23(2), which is illustrative of all of the provisions, provides:

"For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day." (own emphasis added)

84. Each of the payments of pensions, benefits and allowances provided for in the Act is subject both to a person's being qualified for those payments and to their being payable to that person. Payments are not payable unless a person is qualified for those payments. In view of this, we are persuaded that the word "receive" used in paragraph 1168(1)(c) means "received and entitled to receive".

85. As we have no evidence one way or the other on Mr Witchard's entitlement, we are not in any position to determine whether or not he was entitled to receive the payment. We have no indication whether the Secretary will raise the issue of his entitlement by seeking to raise and recover an overpayment of unemployment benefits paid at and about the time of Mr Witchard's accident. In view of that, we have considered the application of the Act on both bases i.e. first on the basis that he was entitled to receive unemployment benefits at the date of the accident and then on the basis that he was not.

Consideration on the basis that Mr Witchard was entitled to receive unemployment benefits at the time of the accident

86. A conclusion that a person received and was entitled to receive an unemployment benefit at the time of the accident and that this is a compensation affected payment does not lead immediately to the conclusion that section 1168 had no application in this case. That follows from the fact that the compensation affected payment Mr Witchard received at the date of the accident (i.e. unemployment benefit) was not the compensation affected payment he received for the periodic payments period (i.e. disability support pension). We note that paragraph 1168(1)(c) provides that the person was not receiving a "compensation affected payment referred to in paragraph (b)" (emphasis added). On the face of it, the reference to paragraph (b) would suggest that the compensation affected payment must be the payment which the person receives or claims for the periodic payments period rather than simply a compensation affected payment of any type.

87. One factor which militates against that suggestion is the use of "a" in the words "a compensation affected payment referred to in paragraph (b)" in paragraph (c). Had it been intended that the compensation affected payments be identical, it could have been expected that paragraph (c) would have read: "the compensation affected payment referred to in paragraph (b)". The second factor which militates against it is section 1170. Except in one respect, paragraphs 1170(1)(a)-(c), would seem to complement paragraphs 1168(1)(a)-(c). That one respect is that paragraph 1170(1)(c) makes reference to a person's receiving a compensation affected payment but not to such a payment referred to in paragraph (b). Section 1170 clearly does not limit the compensation affected payment received at the time of the event that gave rise to the entitlement to the compensation affected payment received during the periodic payments period. As it appears from the structure of the Act that it is intended that sections 1168 and 1170 are to be complementary and taking into account the first factor, we have concluded that paragraph 1168(1)(c) is not limited to the compensation affected payment received during the periodic payments period.

88. Applying this interpretation, Mr Witchard was receiving a compensation affected payment at the time that he had the accident which was the event that gave rise to his entitlement to compensation. As section 1168 only applies if he had not been receiving such a payment, it does not apply when regard is had only to his circumstances. The payments of compensation would have been treated as ordinary income in calculating his rate of disability support pension if regard were had only to his circumstances.

89. When regard is had to Ms Gray's circumstances, a different conclusion is reached. At the time that Mr Witchard had his accident, she was fifteen years of age and was not receiving a compensation affected payment. She did, however, receive such a payment when she received the disability support wife pension for the periodic payments period and her partner, Mr Witchard, received a series of periodic compensation payments. It follows that the rate of her compensation affected payment should have been reduced pursuant to section 1168 and, in particular, pursuant to sub-section 1168(3B). An application of that sub-section would have led to the conclusion that her fortnightly payments of disability support wife pension would have been reduced by half the fortnightly rate of periodic compensation paid to Mr Witchard. Sub-section 1168(3B) applies equally to the circumstances of Mr Witchard. His disability pension would have been reduced by half the fortnightly rate of periodic compensation paid to him.

90. As section 1170 applies only to payments made to the person who receives the payments of periodic compensation, that section has no relevance in recovering any overpayment made to Ms Gray. As Mr Witchard was receiving a compensation affected payment at the time of his accident, it has no relevance in recovering any overpayment made to him.

91. If the amounts are to be recoverable from each of them, we must be satisfied that Mr Witchard failed to comply with the notice sent to him under section 132 and Ms Gray failed to comply with the notice sent to her under section 172. If they did so, the amounts paid to them as a result of their failure are recoverable pursuant to sub-section 1224(1). We are satisfied that the letters sent to them on 30 September, 1994 were notices which, when read objectively, did require them to inform DSS when their income exceeded $90.00 per fortnight. As the sections refer to a notice that "requires the person" (emphasis added) to inform it, did the particular notices sent to Mr Witchard and Ms Gray require each of them to inform it?

92. That depends upon the meaning of the word "requires". Its ordinary meaning of demand, insist upon, order or instruct (The New Shorter Oxford English Dictionary, 3rd edition, 1993 and Macquarie Dictionary, 2nd edition, 1991) are clear. What is not so clear is whether a person must be able to understand the demand being made of him or her for that demand to be a request within the meaning of the Act.

93. The meaning of the word "require" was considered by Forster CJ in Shervill v Shearer (1979) 26 ALR 454 in the context of the Traffic Act 1949 (NT). The defendant had been charged with driving a motor vehicle with more than the prescribed amount of alcohol in his blood contrary to sub-section 8(2) of that legislation. Paragraph 9(8)(b) provided that, in specified circumstances, a police officer might "require [a] person to have a blood test carried out on a sample of his blood". The defendant was unconscious when requested by the police officer to have a blood test. In concluding that an unconscious person could not be required to have a blood test under paragraph 9(8)(b), Forster CJ said:

" I do not think that the defendant can properly be said to have been required by Senior Constable Crowell to have a blood test carried out on a sample of his blood. The only authority in point to which counsel referred me is R v Nicholls [1972] 2 All ER 186, and my own researches have revealed no other. In that case Megaw LJ, speaking for the Court of Appeal said (at 188) 'Can a person properly be said to have been 'required' to do something if in fact he has not heard or has not understood the words spoken to him by another person, although the other person has spoken the words in the honest and reasonable belief that they would be, and were being, heard and understood by the person to whom they were addressed? In our judgement the answer is 'Yes'. The person concerned has been 'required'.

It will be noted that in that case the person making the requirement had an 'honest and reasonable belief' that his words would be understood. In the present case, of course, Senior Constable Crowell had no such belief. The Traffic Act deals in s 9(12) with the consequences of the failure or refusal of a person required to give a sample of his blood to do so. Section 9(11)(b) of the Traffic Act is as follows:-

'9.(11) No action or proceedings for assault, whether in or outside the Territory, lies against, a medical practitioner who takes, for the purpose of a blood test, a sample of blood of a person -

Belling v O'Sullivan

At a glance

Court

Decision date

Source

Judgment (231 paragraphs)

Gray and Witchard; Department of Family and Community Services [1999] AATA 541 (23 July 1999)

Parties

Legislation Cited (7)

Cases Cited (4)