Decision 1. The Tribunal sets aside the decision under review and in substitution therefor decides that pursuant to section 1237AAD of the Social Security Act 1991, an amount of $10,000 is waived from the debt owed to the Commonwealth by Mrs Brown.

2. The rate of withholdings for the remainder of the debt owing is to be reduced to $40 per fortnight and this rate should not be increased unless Mrs Brown's finances significantly improve.

Social Security - Age Pension - overpayment - debt due to the Commonwealth - waiver - whether debt attributed to administrative error - whether special circumstances exist

Social Security Act 1991, s 1237A(1), s 1237AAD

Re Secretary, Department of Social Security and Saracik [1993] AATA 44; (1993) 30 ALD 567

Re Secretary, Department of Social Security and McAvoy (1996) 44 ALD 721

Gerhardt v Department of Employment, Education Training and Youth Affairs (Federal Court 970815, 20 August 1997)

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

Secretary, Department of Social Security v Hales (1998) 153 ALR 259

Re Gerhardt and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 10941, 17 May 1996)

Secretary, Department of Social Security v Hodgson (1992) 33 FCR 32

Secretary, Department of Social Security v Riddell [1993] FCA 261; (1993) 30 ALD 31

Commonwealth of Australia v Daniels (1994) 33 ALD 111

Re De Neumann and Secretary, Department of Social Security (1996) 45 ALD 787

Re Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997)

Secretary, Department of Social Security v Greenwood [1992] FCA 148; (1992) 26 ALD 554

Re Moss and Secretary, Department of Social Security (AAT 10387, 31 August 1995)

Beadle v Director-General of Social Security (1985) 7 ald 670

Re Secretary, Department of Social Security and Smallacombe [1991] AATA 155; (1991) 23 ALD 141

1. The Applicant, Mrs Florence Hilda Brown, has sought review of a majority decision of the Social Security Appeals Tribunal (SSAT) of 14 January 1998 not to waive a debt of $15,341.50 as a result of an overpayment of Mrs Brown's Age Pension. The majority of the SSAT members found that there was no sole administrative error in relation to the manner in which the overpayment arose and also considered that there were no special circumstances in this matter to warrant the waiver of the debt (T2).

2. A dissenting SSAT decision concluded that the overpayment of Age Pension had arisen because of administrative error solely on the part of the Commonwealth pursuant to the provisions of section 1237A(1) of the Social Security Act 1991 (the Act), and decided that the debt owing to the Commonwealth should be waived (T2).

3. A delegate of the then Department of Social Security, now known as the Department of Family and Community Services (the Department) decided on 15 August 1997 that Mrs Brown had been overpaid her Age Pension for the period 10 September to 12 June 1997. On 13 November 1997, an Authorised Review Officer (ARO) of the Department affirmed the decision of the Departmental Delegate. Mrs Brown subsequently appealed the decision of the ARO to the SSAT on 21 November 1997. Mrs Brown then appealed the SSAT's decision to the Administrative Appeals Tribunal (the Tribunal) on 9 February 1998. As a result of the SSAT's decision, Mrs Brown is repaying the debt owing to the Commonwealth at the rate of $80 per fortnight.

4. A hearing was held before the Tribunal on 13 November 1998. Mrs Brown was represented by Ms S Koller of the Welfare Rights Centre, Sydney, and gave oral evidence to the Tribunal. The Department was represented by Ms S Lawrence, Departmental Advocate.

5. The Tribunal had before it documents (T Documents T1-T55) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the following exhibits:

Exhibit No A1 A2 A3 A4 A5 A6 R1 R2 Description Claim for Age Pension by Mrs Florence Hilda Brown Claim for Service Pension by a Veteran or Mariner by Mr Kenneth Bowers Brown Departmental Pensions Manual extract Letter from Blacktown Meals on Wheels Service Inc addressed "TO WHOM IT MAY CONCERN" Financial position of Mrs Brown, as in facsimile transmission from Welfare Rights centre Letter to Ms S Koller from ComSuper re Mrs Brown Facsimile Transmission from Mr J Castellari, ComSuper to Ms S Lawrence, Centrelink re Mrs Brown Departmental computer printouts regarding Mrs Brown Date 11 June 1992 28 January 1988 2 April 1991 10 November 1998 11 November 1998 26 October 1998 12 November 1998 11 November 1998

6. The relevant legislation is the Social Security Act 1991 (the Act) and, in particular, subsections 1237A(1) and 1237AAD. The legislation is as follows:

"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.

Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

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 partly from the debtor or another person knowingly;

(i) making a false statement or false representation;

(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;

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

7. There is no dispute between the parties that Mrs Brown was overpaid her Age Pension. This debt arose as Mrs Brown was in receipt of Commonwealth superannuation payments at the same time as receiving an Age Pension from the Department. The relevant issues for determination are as follows:

* whether or not the debt arose solely due to the administrative error of the Commonwealth and, if so, whether or not Mrs Brown received the payments of Age Pension in good faith; or

* whether or not, pursuant to section 1237AAD, the Secretary should waive recovery of part or all of the debt because of the special circumstances of Mrs Brown's case

8. The following information is provided by way of background and there is no dispute between the parties as to this material:

* At age fourteen, Mrs Brown's education was interrupted by the Second World War and she did not return to school after the war, nor has she subsequently undertaken any further education.

* Mrs Brown met her husband and married in England. Mr Brown worked for the British Navy.

* On 13 April 1958, Mr and Mrs Brown emigrated to Australia by ship and have lived here ever since.

* Mr and Mrs Brown have three children, the youngest of whom is thirty six years old.

* Mrs Brown was variously employed as a process worker in a number of factories, in kitchens and as a cleaner. Mrs Brown last worked in or about 1968.

* Mr Brown retired in 1985 and received payments from the Department of Veterans' Affairs recognising his service.

* The Department of Veterans' Affairs files indicate that Mr Brown claimed a Service Pension and a Spouse Pension in 1988. He was also receiving superannuation from the then Defence Force Retirement and Death Benefits Scheme (DFRDB). These payments were deposited in the one and only joint account held by Mr and Mrs Brown at the Metropolitan Credit Union.

* In 1992, Mr Brown was admitted to hospital for a routine operation. Most unfortunately and unexpectedly, while in hospital, Mr Brown suffered a heart attack and subsequently died on 2 June 1992.

* On 11 June 1992, Mrs Brown claimed an Aged Pension from the Department (T4). This claim was initially rejected pending further payment by the Department of Veterans' Affairs of Death Benefits and other associated benefits owing to Mrs Brown as a result of her husband's death. On 22 June 1992, Mrs Brown signed an "Authority to Cancel Service Pension and Adjust with the Age/Invalid Pension" form (T7). This form acknowledged that claimants for an Age Pension who were currently in receipt of a Service Pension from the Department of Veterans' Affairs would have to cancel their Department of Veterans' Affairs Pension as the applicant was not entitled to receive both payments. The form authorised the cancellation of the Department of Veterans' Affairs Pension and to repay to the Department of Veterans' Affairs any outstanding money.

* On 28 August 1992, Mrs Brown was advised by the Department that the Age Pension had been granted with effect from 10 September 1992 (T9). This letter also advised Mrs Brown that pursuant to sections 68 and 69 of the Act, she should inform the Department if her weekly income increased beyond $43 per week.

* On 16 September 1992, Mrs Brown was advised by the DFRDB, now known as ComSuper, of her possible entitlements in relation to superannuation and was asked to complete a form in order to apply for such possible payments (T11).

* In October 1992, the then DFRDB advised that under the DFRDB Scheme, Mrs Brown was entitled to a Spouse Benefit of $6,723.33 per annum, payable for life which amounted to a gross fortnightly benefit of $257.88 payable from the day after Mr Brown's death (T51). The original letter recording this information could not be found on any Departmental files nor did Mrs Brown have a record of this letter. The letter at T51, upon which the information is based as to the initial grant letter, is actually dated 2 June 1998. By facsimile of 12 November 1998, Mr J Castellari of ComSuper attested to the fact that this was a true copy of the original grant letter and was "an exact and identical copy of Mrs Brown's payment letter" (Exhibit R1).

* From the time of grant of Age Pension in 1992 until 1 May 1997, Mrs Brown received at least fifteen notices from the Department advising her of her pension rate and requesting that she notify the Department of any increase in income.

* On 15 August 1997, the Department decided that Mrs Brown had been overpaid $15,341.50 (T42).

9. Mrs Brown told the Tribunal that she left school at age 14 because of the war. She later undertook work in a factory and then worked for the British Transport Group during the war. Mrs Brown married in 1946 in England then emigrated to Australia in 1958. In Australia she worked variously at EMI and cleaning houses. Mrs Brown has three children and her only previous experience with the Department of Social Security was to claim and receive Child Endowment Payments. Mr Brown was in the Navy for approximately 22 years and, as Mrs Brown understood it, Mr Brown received a pension from the Department of Veterans' Affairs when he left the Navy. This was in addition to his wage from Davis Pumps.

10. In mid 1992, Mr Brown was admitted to hospital for a routine operation. While in hospital he had a massive heart attack and died. Mrs Brown's daughter, son-in-law and grandson lived with her from the time of her husband's death until mid-July 1992 in order to assist her through the period following the tragic death of her husband. Mrs Brown told the Tribunal that she was very lonely and coped by imagining that her husband was still at sea as he had been in previous years. In order to combat her loneliness and assist with the grieving process, Mrs Brown commenced voluntary work with the Blacktown Meals on Wheels.

11. Mrs Brown explained that in response to a letter from the Department of Veterans' Affairs following her husband's death, she decided to apply for an Age Pension from the Department. A representative from Legacy assisted her with this process. Mrs Brown stated that while she signed the Age Pension claim form, it was filled out by a Departmental Officer who recorded Mrs Brown's answers to questions.

12. Mrs Brown could not recall answering "no" to a question as to whether or not she received other income. When questioned further about this particular question, Mrs Brown told the Tribunal that the reason that she might have answered "no" was because she knew that she could not receive both a Department of Veterans' Affairs pension and a Social Security pension. Mrs Brown also stated that as a consequence of knowing that she could no longer receive a Department of Veterans' Affairs pension, she would therefore have written that she was not receiving any other pension or income to reflect this knowledge.

13. Mrs Brown recalled signing the Authority to Cancel the Department of Veterans' Affairs pension and to make any necessary adjustments. Having signed this Authority and Adjustment form (T7), she then thought that the Department of Social Security and the Department of Veterans' Affairs would "sort it out". Mrs Brown believed she would then be provided with the correct rate of pension to which she was entitled. Mrs Brown stated that her neighbour, Paul, had informed the Department of Veterans' Affairs of her husband's death because she had read somewhere on a form that this was what should occur. Mrs Brown believed that someone must also have informed the DFRDB of her husband's death.

14. Mrs Brown told the Tribunal that she thought that her husband only received one source of income. While she received Credit Union statements in relation to her joint account with her husband, once the statements were opened she threw them on the sideboard.

15. Mrs Brown acknowledged that she read the letter from the Department advising her of the grant of the Age Pension and also of the requirement that she should inform the Department if her income rose above $43 per week. However, she disregarded this requirement because she was of the view that the various Departments had sorted out her correct pension entitlement and therefore the requirement to report did not apply to her. In relation to further letters from the Department requiring her to advise of any increase in income, Mrs Brown stated that she just did not "bother" about these notices because she thought that they were irrelevant to her, given her understanding that the Departments had sorted out between themselves her correct pension entitlement.

16. While Mrs Brown indicated that she recalled receiving a letter from the DFRDB in relation to her possible eligibility for a Spouse Benefit, she stated that she did not recall receiving an actual letter from the DFRDB in relation to the grant of a Spouse Benefit. Mrs Brown further stated that she was the only person dealing with correspondence sent to her. When Mrs Brown eventually received additional monies, initially in a lump sum from the DFRDB, she believed this money related to money owed to her husband following his contribution into superannuation over many years. She again did not consider this to be out of the ordinary and believed that the Departments knew about this additional income and she did not need to do anything. Mrs Brown reiterated that in relation to the letter of 16 September 1992 from the DFRDB, which indicated her possible eligibility for a Spouse Benefit, she did not think she needed to do anything further. It is quite clear that either Mrs Brown or someone on her behalf must have replied to this letter from the DFRDB because subsequently, the Spouse Benefit was granted. The benefit could only be granted if Mrs Brown or her representative had filled out the application form.

17. Mrs Brown explained to the Tribunal that she certainly was aware that she could not be paid two benefits at the same time. She reiterated, however, that she took the Commonwealth Departments "at their word" that they would work out what she was entitled to and then pay her. Mrs Brown posed the question for the Tribunal "why should she read the back of Departmental notices when the Departments had sorted out her affairs?"

18. The Tribunal was informed by Mrs Brown that she had read a letter from the Department suggesting she apply for a United Kingdom pension. This letter was out of the ordinary and one upon which Mrs Brown believed she should act. Mrs Brown subsequently received a pension from the United Kingdom and she notified the Department that the pension had been received in order that any adjustments could be made to her Age Pension.

19. In terms of her finances, Mrs Brown provided the following financial information:

Grace Bros Account $60- p/m 27- may duplicate above costs

Household replacements eg new kettle $25- say...100p/a 4-

___________________________________________________________________________________________________________

20. Mrs Brown advised the Tribunal that she had forgotten to add to this statement of her financial position her membership of the NRMA which totalled $40 per year. Mrs Brown informed the Tribunal that she is still paying off her War Service Home Loan and believes there is three or four thousand dollars outstanding on the loan.

21. In terms of her finances Mrs Brown stated that she is just existing, she has never budgeted and finds it very hard to make ends meet. By way of example, Mrs Brown informed the Tribunal of her need to pay for the registration of her car and stated that she was not sure how she was going to do this. She concluded that she would probably be assisted by her son who had helped her with such matters in the past. Apart from Mrs Brown's poor financial position, she informed the Tribunal that she is in quite good health although worries constantly about her finances.

22. Mrs Brown stated that she is very angry about the overpayment because she does not believe that this debt arose because of any wrongdoing on her part.

23. When Mrs Brown was informed of the overpayment, she sought assistance from both the Department of Social Security and the Department of Veterans' Affairs but to no avail. Mrs Brown reiterated that it was her firm view that the rate of Age Pension paid to her was a matter which the Department of Veterans' Affairs, the Department of Social Security and the DFRDB "sorted out" and that she, therefore, had no active role to play in relation to this pension payment.

24. Ms Koller referred the Tribunal to the dissenting decision of the SSAT, which determined that there was Departmental administrative error in this matter. In this regard, Ms Koller submitted that the information received by Mrs Brown from various Commonwealth agencies led her to believe that these Departments exchanged information about her financial position amongst themselves. This information, for example, was indicated in the Adjustment letter between the Department of Veterans' Affairs and the Department (T11) and letters from the DFRDB and ComSuper.

25. Ms Koller noted that the Department of Veterans' Affairs did liaise with the DFRDB and also ComSuper. Ms Koller further noted that the Department was aware of payments to Mr Brown from the DFRDB (Exhibit A3). This exhibit is a copy of Departmental Instructions of 2 April 1991 in relation to income review and compensation matters. Point 16.805 of this instruction notes that:

"Most superannuation rates are automatically adjusted each year in line with the Consumer Price Index. It is necessary to note reviews in computer records in cases involving non-Commonwealth superannuation.

When compensation is granted or the rate varied, all details should be verified with the appropriate body, except where the pensioner is able to provide detailed documentary information. Information should be obtained on the current rate paid in respect to the pensioner, his or her spouse and each dependent child, together with the date of first payment of compensation or payment at the new rate.

Where compensation is awarded to a widow following the death of her husband, inquiries should be made to establish whether any sums are outstanding or held in trust and what access the widow has to such monies."

26. Following Mr Brown's death, the Department of Veterans' Affairs was notified and Mrs Brown was sent a letter from that Department explaining all benefits available to her (T50). Mrs Brown was newly widowed and inundated with information about her various entitlements. She had never dealt with such matters before and could quite easily have misconstrued or misunderstood information and instructions.

27. Ms Koller referred the Tribunal to Mrs Brown's evidence that at the time of completing her claim for Age Pension, Mrs Brown had orally informed the Department that she was receiving another payment which she believed to be an Age Pension. The Departmental Officer assisting Mrs Brown with the completion of the claim form had noted this on the form. In this regard, the notation on the claim form was:

"Client insists that she gets AP [Age Pension] NOT able to find any record." (T4, p13)

28. The Department was therefore on notice, Ms Koller submitted, that Mrs Brown was receiving additional income. In addition to this information, which should have been followed up by the Department and carefully investigated, the Department should also have been alerted to Mrs Brown's misunderstanding of her financial position, given her answer of "no" to the question about receiving a pension from the Department of Veterans' Affairs, particularly when the Department had a previous year's Statement of Benefit from the Department of Veterans' Affairs and also the Adjustment letter (T7).

29. Ms Koller submitted that Mrs Brown was not sure herself where all the money she received was coming from. Even though she did not know the source of the income, Mrs Brown still made oral representations to the Department, as recorded by a Departmental Officer, that additional money was being received.

30. The Department also had in its possession the information from the "Department of Social Security Pension/Benefit Clearance" form completed by both the Department of Veterans' Affairs and the Department (T11). Ms Koller contended that this particular form was completed incorrectly by the Department of Veterans' Affairs but nevertheless, provided all the information needed for the Department to be alerted to the fact that Mrs Brown was not receiving a full Spouse Pension, the corollary of which is that Mrs Brown was receiving income from another source. The Department did not follow up this Clearance form information and this omission was a critical error and trigger to the administrative error committed by the Department in relation to Mrs Brown's overpayment. Ms Koller further submitted that the Department held critical pieces of information about Mrs Brown's financial situation before it granted her the Age Pension and once it had granted the pension, it failed to follow up on this information. The Department could not argue therefore that any error made by Mrs Brown on the claim form was instrumental in the creation of the overpayment.

31. Further, Ms Koller submitted that both the Department and Mrs Brown understood that her receipt of the Age Pension would be subject to matters being adjusted with the Department of Veterans' Affairs so that she did not, in fact, receive two pensions at the same time. Mrs Brown was entitled to form the view that because she signed the Adjustment form on 22 June 1992 (T7) acknowledging that she could not receive both pensions, that these Departments would between themselves ascertain the appropriate rate of pension payable to her.

32. Following on from the Adjustment form, a Clearance form completed by both the Department of Social Security and the Department of Veterans' Affairs contained further errors. The Department of Veterans' Affairs knew that Mrs Brown was receiving income from the DFRDB and this is reflected in their recording of the amount of pension the Department of Veterans' Affairs itself was paying to Mrs Brown. In support of Ms Koller's submission that the Department did not investigate properly the reduced rate of pension being paid to Mrs Brown by the Department of Veterans' Affairs, whereby they would have been alerted to additional income sources, Ms Koller referred the Tribunal to Departmental Minutes regarding whether or not prosecution action should have been taken against Mrs Brown. The Prosecution Section, having investigated the circumstances of the overpayment, decided not to take prosecution action. A handwritten file note was recorded by a Prosecution Section officer on 19 August 1992 which noted:

"Pension Advice from DVA shows current rate of $171. Agree this was not followed up at grant." (T39)

33. Mrs Brown was granted an Age Pension with effect from 10 September 1992 and the letter advising of the grant required Mrs Brown to inform the Department if her income increased beyond $43 per week. Mrs Brown thought that the Departments had talked to each other about her financial position and there was no need for her to have any regard to this requirement. Ms Koller further contended that after the grant of Age Pension, Mrs Brown received a letter from the DFRDB which noted that she may be entitled to a Spouse Benefit, which gave the impression that the various Commonwealth agencies were communicating with each other (T11). Paragraph 6 of this letter states:

"If you already receive a Social Security Pension or Veterans' Affairs Service Pension you will be exempt from supplying a TFN provided you write the type of pension you receive in the file number block on the Employment Declaration Form, eg 'Age Benefit' " (T11)

34. Further reference was made by Ms Koller to the DFRDB, in particular Ms Koller referred to the fact that there is no copy of the original grant letter to Mrs Brown from the DFRDB, neither on the Departmental files or ComSuper files, nor does Mrs Brown herself have a record. Mrs Brown's evidence, in fact, is that she does not recall ever receiving a letter of grant from the DFRDB, although it is quite clear that a Spouse Benefit was granted to her. Ms Koller referred to the letter claimed to have been sent out by the DFRDB in October 1992 (T51). The critical question, given that the original letter or copy is not available, is what information was provided in the grant letter. Although ComSuper have provided a reconstructed letter which it claims contains identical information to the letter which would have been sent out to Mrs Brown in October 1992, Ms Koller pointed out clear differences in the reconstructed letter. For example, the reconstructed letter was on a completely different letterhead with different contact people. Ms Koller concluded that without the original letter or its copy, there was no evidence available that Mrs Brown was put on notice that the Department may not have known about the DFRDB benefit. The reconstructed letter notes:

"Compensation payments and benefits paid by other Government Departments such as Social Security and Veterans' Affairs may be affected by the grant of this benefit. If you receive such a benefit you should advise the appropriate office of the Department concerned to avoid any overpayment." (T51)

35. Despite the warning in the reconstructed letter, there is simply no evidence, Ms Koller submitted, to suggest that Mrs Brown ever received such advice and given this, it is understandable that Mrs Brown had the view, in the absence of such information, that the Commonwealth agencies had communicated with each other and she did not need to provide the Department with any further information about her financial position. There is no evidence that Mrs Brown was put on notice that the Department may not have known about the DFRDB money, nor was there anything to indicate to her that she held an erroneous view that the Departments were communicating with each other.

36. Mr Koller contended that either the Department of Social Security or the Department of Veterans' Affairs produced the causative administrative error and all the letters following just compounded the confusion presented to Mrs Brown. These errors prevented the Department and Mrs Brown from being able to find out her true financial position. In addition these causative administrative errors were compounded by the fact that there were no formal reviews undertaken by the Department or review forms sent. Ms Koller further submitted that any letters sent to Mrs Brown by the Department were, in fact, irrelevant to Mrs Brown because of her view that the relevant Departments and agencies had communicated with each other in relation to her financial position and she need do no more.

37. Ms Koller submitted that Mrs Brown is a forthright and honest woman as evidenced by her disclosure to the Department of Social Security that she was in receipt of a United Kingdom pension. Ms Koller concluded that Mrs Brown acted in good faith in relation to the receipt of her Age Pension.

38. The Tribunal was referred by Ms Koller to Re Secretary, Department of Social Security and Saracik [1993] AATA 44; (1993) 30 ALD 567, a case which considered the question of whether a failure to adhere to the usual Departmental practices constituted "special circumstances". The Tribunal in that case decided that the Department's failure was an administrative error. In Mrs Brown's case, on the facts, the Departmental error was a causative administrative error, Ms Koller submitted. The decision in Re Saracik (supra) points out that where there is a failure to adhere to the usual Departmental practices, it is an administrative error and the reasoning in that case should be applied to Mrs Brown's circumstances.

39. Ms Koller further referred the Tribunal to Re Secretary, Department of Social Security and McAvoy (1996) 44 ALD 721 in which Mr McAvoy had incorrectly completed Departmental forms for Job Search/Newstart Allowance following Departmental advice. An overpayment of Allowance resulted. It was concluded by the Tribunal in that case that the overpayment had resulted solely due to administrative error by the Commonwealth. In Mrs Brown's particular circumstances, there had been a series of administrative errors not just in the clearance procedures, but through incorrect advice provided to Mrs Brown by a series of Government Departments, reinforcing Mrs Brown's view that she was receiving her correct entitlement for Age Pension.

40. Ms Koller referred the Tribunal to the decision of Gerhardt v Secretary, Department of Employment, Education, Training and Youth Affairs (Federal Court 970815, 20 August 1999) where the Court decided that the Departmental error was not determinative or the sole cause of an overpayment. Because there were other errors, it was not open to the Federal Court to waive recovery of the overpayment as the errors were not solely attributable to administrative error on the part of the Commonwealth. In Mrs Brown's case, while she did not complete forms correctly, the causative administrative error was not committed by her but by the Department's failure to follow correct procedures. Causative errors were also committed by the Department of Veterans' Affairs in its completion of the Clearance form, in addition to the Department's incorrect assessment of the information provided to it by the Department of Veterans' Affairs.

41. The fact that Mrs Brown did not advise the Department or respond to Departmental notices about the level of her income is not a major impediment in this case because Mrs Brown was entitled to rely on the information and the impression given to her that everything had been sorted out between the various Commonwealth Departments, Ms Koller submitted.

42. Ms Koller referred the Tribunal to Secretary, Department of Employment, Education, Training and Youth Affairs v Prince [1997] FCA 1565; (1997) 50 ALD 186, the facts of which were that Mr Prince knew he was not supposed to receive a Departmental benefit but continued to receive it. The Tribunal in this case found no administrative error for reasons, amongst others, that Mr Prince did not receive the benefit in good faith. In Mrs Brown's case, she had received the Age Pension in good faith, believing that she was entitled to the rate of pension paid to her.

43. In the alternative, Ms Koller referred the Tribunal to section 1237AAD of the Act concerning special circumstances. Ms Koller submitted that a case in point in relation to special circumstances is Secretary, Department of Social Security v Hales (1998) 153 ALR 259 in which French J concluded that:

"The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be a few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose."

44. Ms Koller submitted that in Hales (supra) there was no need for there to be financial hardship in order that a finding of special circumstances be reached and that the Tribunal should heed French J's consideration of the issue of "unfairness". Further, the Tribunal should consider whether or not in Mrs Brown's circumstances, recovery would be unfair.

45. In Mrs Brown's case, Ms Koller contended that the main special circumstance was the manner in which the debt had arisen. In this regard, an overpayment had occurred during a time of great grief and stress in Mrs Brown's life. Her dealings with the various Commonwealth Departments commenced within ten days of her husband's death. Not only did Mrs Brown have to contend, therefore, with the grief associated with the loss of her husband, but also the arrangement of her finances. This was a responsibility for which Mrs Brown had been ill prepared, nor did she have any great experience in relation to financial management or planning. There was a great deal of correspondence with which Mrs Brown had to contend and on her evidence, it was Mrs Brown alone who dealt with this correspondence. Mrs Brown thought, on the understanding of the various pieces of correspondence and her discussions with Departmental officers that the two Departments and the DFRDB would communicate with each other and sort out her entitlements. Ms Koller was further concerned no formal review process was undertaken in relation to Mrs Brown's Age Pension. There was, in fact, nothing Mrs Brown could have done, Ms Koller submitted, which could have assisted with the discovery of the overpayment.

46. Another special circumstance in Mrs Brown's case was her inexperience in handling finances. Mrs Brown left school at age fourteen and although she was "very hardy and jolly", Ms Koller submitted that she was not skilled in handling money. It would be unfair in these special circumstances to pursue recovery, Ms Koller concluded.

47. If the Tribunal did not agree that special circumstances existed in Mrs Brown's case, Ms Koller submitted that the Tribunal should decide to reduce the rate of withholdings by the Department in order that Mrs Brown would have more disposable income available to her. The current withholdings of $80 per fortnight were very onerous.

48. Ms Koller urged the Tribunal to consider the beneficial nature of social security legislation and to consider the unfairness of the situation of Mrs Brown having to repay a debt to the Commonwealth arising out of the administrative error of various Commonwealth Departments. These Departments had a heightened duty of care to administer the legislation to correctly pay benefits to clients. Ms Koller concluded that the greater burden and responsibility fell upon the Department of Social Security to properly, fairly and correctly administer its functions and this onus was greater upon the Department than on the recipients. Finally, Ms Koller submitted that it was more appropriate to waive the debt in Mrs Brown's circumstances than to write-off. There was no possibility of Mrs Brown increasing her income and accordingly write-off was not a viable option.

49. Ms Lawrence, for the Department, submitted that an overpayment of pension had arisen due to Mrs Brown's failure to declare her Commonwealth superannuation. The overpayment began at the time of Mrs Brown's claim for Age Pension when she answered "no" to the question, did she receive superannuation and also her negative response to the question about receiving money from other sources (T4).

50. Following the grant of Age Pension, Mrs Brown received fifteen Departmental notices requiring her to inform the Department of any increased income above certain stated income levels. Mrs Brown did not inform the Department of any increase in income. There is no dispute, Ms Lawrence submitted, that there is a debt owing to the Commonwealth, but the issue is in relation to recovery. Ms Lawrence submitted that the applicable sections of the Act are sections 1237A(1) and 1237AAD.

51. In relation to section 1237A(1), Ms Lawrence submitted that "sole" should be given its ordinary meaning, being "the only one, exclusive or alone" as defined in the Concise Oxford Dictionary. Ms Lawrence referred the Tribunal to Re Gerhardt and Secretary, Department of Employment, Education and Training (AAT 10941, 17 May 1996, in which the Tribunal used the ordinary and everyday meaning of the word "sole". In Re Gerhardt, the Tribunal concluded that:

"There is nothing in sub-289(1) [s1237A(1)] which indicates that any meaning should be given to "solely" other than its ordinary meaning. Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error. The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth's administrative error (ie. they are incidental to the Commonwealth's error), then it may be that the debt is attributable solely to the Commonwealth's administrative error. Whether it is or is not attributable in that situation to the Commonwealth's administrative error will be a question of fact."

52. This approach in relation to the construction of "solely" as referred to in section 1237A(1) was also referred to with approval in De Neumann and Secretary, Department of Social Security (1996) 45 ald 787.

53. Ms Lawrence submitted that the error on Mrs Brown's part in failing or omitting to declare her true circumstances at the time of her claim for Age Pension and subsequently over the four year period during which the debt arose, following the receipt of each of the fifteen notices that Mrs Brown was sent by the Department, meant that any error by the Department or the Commonwealth as a whole was not wholly or solely responsible for the debt. Mrs Brown's errors were "independent", Ms Lawrence submitted, when looked at as a whole. Therefore, since Mrs Brown contributed in part to the overpayment of Age Pension, the debt cannot be attributable "solely" to administrative error on the part of the Commonwealth. Ms Lawrence referred the Tribunal to Re Moss and Secretary, Department of Social Security (AAT 10387, 31 August 1995) in which Deputy President Barnett considered a similar issue where an applicant had been provided with misleading information by the Department at the time of her claim for pension. Deputy President Barnett concluded that:

"... on 11 August 1989 the applicant received a form which should have focussed her attention to the 'combined income' of she and her husband and on that same form, 'income' was defined to include not only 'wages' but also 'income from any other source within or outside Australia'. Had the applicant or her husband read that definition, it should have been clear that the 'income' which they needed to take into account covered a much wider range of receipts than merely her husband's earnings in the very restricted way in which they had been interpreting that term 'earnings' ...

... her failure to do so was an error on her part so therefore, the overpayments that occurred in the relevant period were not caused solely by administrative error by the Commonwealth and therefore cannot be waived pursuant to s.1237A(1) of the Act."

54. Ms Lawrence further referred the Tribunal to the Pension/Benefit Clearance (T10) of 8 September 1992. Ms Lawrence admitted that the Department of Social Security had not taken account of the reduced amount of Service Pension being paid to Mrs Brown and hence the likelihood of another income source, but that this particular error was compounded by Mrs Brown's own two or three errors made in the completion of the Age Pension claim form. There was a further error by Mrs Brown in that she did not provide the Department of Social Security with advice as to her true financial position, particularly as her income increased. The error committed by Mrs Brown in not responding to the fifteen notices sent to her from 28 August 1992 until 1 May 1997 was significant in the contribution to the continuance of the overpayment of Age Pension. Ms Lawrence submitted that it could not be concluded, in these circumstances, that there was solely administrative error on the part of the Commonwealth in relation to the overpayment of Mrs Brown's Age Pension.

55. If the Tribunal were minded that there was "sole administrative error" on the part of the Commonwealth, then Ms Lawrence submitted that the pension received by Mrs Brown was not received in "good faith" and therefore section 1237A(1) does not apply. The Department relied upon the reasoning in the decision Prince (supra), and in this regard Ms Lawrence submitted that the same reasoning ought to be applied to Mrs Brown's circumstances. Ms Lawrence submitted that Mrs Brown knew and understood at the time she made the claim for Age Pension and completed the "Authority to Cancel Service Pension and Adjust with Age/Invalid Pension" form, that she should not receive both an Age Pension and a Service Pension at the same time and therefore her Service Pension would need to be cancelled. From this point, Ms Lawrence submitted that Mrs Brown was aware that she was not entitled to more than one payment. Accordingly, it could not be argued that Mrs Brown received the Age Pension in good faith as she clearly was aware of her entitlement at this early stage. Thus, Ms Koller's submission that Mrs Brown received the payments in good faith as she had no knowledge of her lack of entitlement was clearly unfounded. Mrs Brown's awareness of the fact that she could not receive two pensions at the same time was further compounded by her receipt of fifteen notices from the Department of Social Security clearly setting out what income was being taken into account when calculating the rate of Age Pension applicable to her. At no stage did Mrs Brown advise the Department of Social Security that she was in receipt of other income, namely income from the DFRDB. Therefore, Ms Lawrence concluded that the overpayment could not be said to have arisen from sole administrative error as Mrs Brown was aware that she did not have an entitlement to a full Age Pension, a Service Pension and superannuation and therefore she did not receive the payments in good faith.

56. Ms Lawrence further referred the Tribunal to the reconstructed letter from ComSuper in relation to Mrs Brown's grant of a service benefit from the DFRDB (T51). This reconstructed letter states expressly that the benefits paid by other Departments, such as Social Security, might be affected by the grant of this benefit. The DFRDB further advised that receipt of that benefit should be advised to the appropriate office of the Department concerned to avoid any overpayment. Ms Lawrence submitted that this was a clear warning to Mrs Brown that she should provide the Department of Social Security with advice of her DFRDB service benefit.

57. Ms Lawrence submitted that Mrs Brown had a responsibility to read the Departmental notices sent to her and to declare her true and correct financial position. This approach was taken in Re Hales and Secretary, Department of Social Security (AAT 12159, 27 August 1997) and also in Secretary, Department of Social Security v Greenwood [1992] FCA 148; (1992) 26 ALD 554.

58. Ms Lawrence then turned to consideration of section 1237AAD in relation to whether or not special circumstances might be present in Mrs Brown's case. Ms Lawrence referred the Tribunal on this issue to Beadle v Director-General of Social Security [1984] AATA 176; (1985) 7 ALD 670 where the Full Federal Court considered that special circumstances are "circumstances that are unusual, uncommon or exceptional". In relation to Mrs Brown's circumstances, Ms Lawrence submitted that there are no unusual, uncommon or exceptional circumstances present in this matter to justify the waiving of the debt to the Commonwealth. Ms Lawrence further contended that Mrs Brown's age and health, which on Mrs Brown's evidence were not problematic, are not special circumstances of themselves. There are no other circumstances in relation to Mrs Brown that could be considered unusual, uncommon or exceptional. Mrs Brown is paying off her own home, she is in receipt of a pension from the United Kingdom of $200 per month, in addition to $260 per fortnight received from ComSuper and $90 per fortnight from the Department. It was Ms Lawrence's contention that Mrs Brown's financial situation is better than most social security recipients.

59. The Tribunal was referred to Re Secretary, Department of Social Security and Smallacombe [1991] AATA 155; (1991) 23 ALD 141 in relation to the discussion of special circumstances. In this regard the Tribunal concluded that:

"'Special circumstances' is unlikely to exist, in isolation of any other factor at least, simply by reason of the application of a legislative provision. Even where the effect of a legislative provision may be harsh or unjust, the Tribunal is bound by the clear intention of Parliament. (Krzwyak and Secretary, Department of Social Security (1988) 15 ALD 690; Stevens and Secretary, Department of Social Security (1989) 18 ALD 659)".

60. In conclusion, Ms Lawrence submitted that Mrs Brown could not rely on her understanding of the Adjustment letter as meaning that the Department of Social Security communicated with all other Commonwealth Government Departments and agencies (T7). The Adjustment letter simply referred to a communication between the Department of Veterans' Affairs and the Department of Social Security. It did not refer to communications with other agencies such as the DFRDB. Further, by not reading notices to her from the Department of Social Security, Mrs Brown failed to inform herself and the Department of Social Security of the true situation in relation to her financial position.

61. Ms Lawrence distinguished the case of Re Saracik (supra) on the facts, and this approach was similarly submitted in relation to Re McAvoy (supra) in which the facts were different to those circumstances of Mrs Brown. In this regard, Ms Lawrence urged the Tribunal to consider that Mrs Brown did not seek clarification of her circumstances as did the applicant in Re McAvoy (supra).

62. Ms Lawrence explained to the Tribunal that there were two ways the Department of Social Security was able to obtain information upon which it bases its decisions in relation to rates of payment and entitlements. The Department of Social Security obtained information from the actual original claim form and through the process of review. In Mrs Brown's circumstances she incorrectly completed her Age Pension Claim form and, in addition, she did not inform the Department of Social Security of her true financial position when required to do so by the fifteen notices sent out to her over the period of overpayment.

63. In conclusion, Ms Lawrence submitted that the respondent would not object to lowering the rate of recovery in recognition that the withholding of $80 per fortnight was high and causing financial difficulties for Mrs Brown.

64. While the respondent was willing to decrease the rate of withholding, Ms Lawrence submitted that the mere fact that the recovery of debt may cause Mrs Brown some difficulty cannot detract from the intention of Parliament in creating legislation in relation to debt recovery, and clearly this is a case where the debt should be recovered. Ms Lawrence supported this approach by referring the Tribunal to the Federal Court in Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 30 ALD 31.

65. In reaching a decision in this matter, the Tribunal has taken into account the evidence, relevant case law and the legislation.

66. The Tribunal found Mrs Brown to be frank in the provision of evidence and considered that she gave evidence to the Tribunal to the best of her recollection. The Tribunal considered Mrs Brown to be an honest witness.

67. There is no dispute that Mrs Brown was overpaid the Age Pension and therefore the Tribunal accepts that there is a debt owed to the Commonwealth. The parties do not dispute this finding.

68. The Tribunal must firstly consider the manner in which the debt arose and pursuant to section 1237A(1) of the Act, whether there was sole administrative error on the part of the Commonwealth and further, whether or not Mrs Brown received the Age Pension in good faith.

69. It is clear to the Tribunal that the Department of Veterans' Affairs knew that Mr Brown was in receipt of a benefit from the DFRDB. Following Mr Brown's death, Mrs Brown applied for an Age Pension. Her claim form, filled out by a Departmental Officer in Mrs Brown's presence but signed by Mrs Brown, contained a number of factual errors, namely, that Mrs Brown did not receive money from any other Government Department and that further, she did not receive superannuation. This claim form was signed on 11 June 1992. At the time, Mrs Brown was in receipt of a Department of Veterans' Affairs Spouse Pension. She was also receiving income from the DFRDB although she claims not to have been aware of this and the Tribunal accepts this claim.

70. Mrs Brown told the Tribunal that she believed that she was not in receipt of a Department of Veterans' Affairs Pension at the time she claimed her Age Pension from the Department of Social Security because she had signed an Authority to Cancel Service Pension and Adjust the Age Pension (T7). The difficulty the Tribunal has with this explanation is that this Adjustment letter was signed on 22 June 1992 whereas the claim for Age Pension was signed on 11 June 1992, some eleven days earlier.

71. In relation to the receipt of superannuation from the DFRDB, Mrs Brown claims that she did not know that she was receiving superannuation. In light of Mrs Brown's circumstances at the time being very recently bereaved, and given her lack of knowledge of the family's finances, the Tribunal can accept that Mrs Brown may not have been aware or had forgotten that her husband and therefore herself were in receipt of superannuation. Accordingly, the Tribunal does not consider the statement by Mrs Brown in her claim form that she did not receive superannuation as being knowingly false. Further, when the Tribunal considers that Mrs Brown's oral advice to the Departmental Officer completing the claim form was that she was in receipt of some other type of pension, which she thought was an Age Pension, there is a clear indication that she was trying to the best of her ability to advise the Department of Social Security of all of her financial circumstances. The fact that she did not consider that the Department of Veterans' Affairs was paying her a pension is not really important. The important fact is that Mrs Brown, to the best of her ability, tried to advise the Department of Social Security that she was in receipt of income from another source which she thought was an Age Pension.

72. The Tribunal finds that the Department of Social Security at this early stage of Mrs Brown's claim for Age Pension did not fully investigate the matters being placed before it by Mrs Brown.

73. The Tribunal considers that a further error was committed by both the Department of Veterans' Affairs and the Department of Social Security in relation to their completion of the Pension/Benefit Clearance form (T11). Firstly, the Department of Veterans' Affairs did not properly complete its section of this form. Despite this error, it provided sufficient information to the Department of Social Security by which it should have realised that Mrs Brown was being paid a reduced Service Pension. This payment of a reduced pension should have immediately alerted the Department of Social Security to the fact that Mrs Brown was receiving income from another source and that her Service Pension had been adjusted to take this additional income into account. The Department of Social Security failed to investigate this very important clue as to Mrs Brown's true financial position. For whatever reason, the Department of Social Security therefore failed to follow its own procedures in relation to investigating the financial position of Mrs Brown, a claimant.

74. The Tribunal notes Ms Koller's submission that the Department of Social Security failed to follow its usual procedures of regular review in relation to recipients' circumstances. While, on the available material, the Tribunal can find no evidence of the issue of the usual review forms sent to recipients to ascertain up-to-date information in relation to recipients' circumstances, the Tribunal notes that on fifteen occasions notices were sent to Mrs Brown which indicated the information upon which Mrs Brown's Age Pension was calculated and requiring Mrs Brown to advise the Department of Social Security of any changes of circumstances and, in particular, any increase in her weekly income. The Tribunal finds that this certainly was a process of Departmental review although not in the sense referred to by Ms Koller where Departmental forms were sent out indicating a formal review process.

75. Mrs Brown was granted the Age Pension with effect from 10 September 1992. Her evidence to the Tribunal is that she read the letter of grant and noted the requirement contained on the reverse of the letter that she should inform the Department of Social Security if her weekly income exceeded $43. Mrs Brown's evidence was that she disregarded this notice because she believed that by completing the Adjustment form (T7), this meant that all the Departments concerned with her financial position would communicate with each other and "sort out" her entitlement. The Tribunal notes that this Adjustment form only refers to communication between the Department of Social Security and the Department of Veterans' Affairs, it does not refer to any communication with DFRDB.

76. Mrs Brown continued to disregard the further fourteen notices sent to her by the Department of Social Security advising her of the basis upon which her Age Pension was calculated and seeking her advice as to any increase of weekly income beyond the level set out in the respective notices.

77. Mrs Brown's evidence was that she read other letters sent to her either from the Department of Social Security, in relation to the possibility of a pension from the United Kingdom and also letters sent to her by the DFRDB. Ms Koller submitted that Mrs Brown was entitled to disregard these notices and, in fact, the receipt of them was irrelevant because of Mrs Brown's justifiable belief that there was communication between the various agencies involved with the provision of income security to her. Ms Koller further supported this contention by claiming that there could be no reliance by the Tribunal on the information contained in the reconstructed letter to Mrs Brown from the DFRDB, which purported to contain identical information as a letter of October 1992 that was sent to Mrs Brown in relation to the grant of a service benefit from the DFRDB. The Tribunal agrees there can be no reliance placed on this reconstructed letter which may have been sent to Mrs Brown. There is insufficient evidence to indicate that the warning contained in the reconstructed letter, that Mrs Brown should advise the Department of Social Security of her additional income from the DFRDB, was in fact contained in the original letter. Mrs Brown does not recall ever receiving this letter and there is no record on any Departmental file that such a letter ever existed let alone whether it was sent.

78. The Tribunal finds that clearly there were errors made by the Department of Social Security, the Department of Veterans' Affairs and Mrs Brown. The Department of Social Security in particular failed to properly investigate information supplied to it by Mrs Brown in her original claim form, the Department of Veterans' Affairs failed to complete correctly the Clearance form and the Department itself further failed to properly investigate the information provided to it by the Department of Veterans' Affairs in the Clearance form. However, while the Tribunal accepts that Mrs Brown was in grief and inundated with material upon which she was having to make decisions about her future financial security, Mrs Brown was receiving letters requiring her to inform the Department of Social Security of increases in her income. Even if Mrs Brown had been confused or thought that the matter was being handled by the various Commonwealth agencies involved, the fact that the letters kept arriving should have alerted her to the possibility that the Department of Social Security did not have all the information it required. The Tribunal cannot accept Ms Koller's submissions that the Department of Social Security's failure to carry out formal reviews of Mrs Brown's circumstances negates Mrs Brown's actions in not responding to Departmental notices. The fact of the matter is that the various fifteen notices sent out to Mrs Brown were part of a process of review. Mrs Brown ignored these notices and the Tribunal is of the view that any formal review notice sent out to Mrs Brown might also have been ignored by her. The Tribunal considers that Mrs Brown was not incapable of reading correspondence as she was able to read correspondence about a potential entitlement to a United Kingdom pension and was also able to act on this written advice from the Department of Social Security.

79. The Tribunal has carefully considered all the facts in this matter and the relevant case law and is unable to find that the overpayment of Age Pension to Mrs Brown arose solely due to administrative error. There was significant contribution to the creation of errors by both Mrs Brown and the various Commonwealth Departments involved. Mrs Brown contributed to these errors by her failure to respond to notices sent to her by the Department of Social Security. Just as Ms Koller submitted that Mrs Brown was entitled to interpret the various correspondence and her dealings with Commonwealth agencies to the effect that she did not need to do anything further in relation to her Age Pension, the Department of Social Security was entitled to consider that Mrs Brown's failure to reply to notices requiring her to advise of any increase in income, provided the true picture of Mrs Brown's financial position. Both Mrs Brown and the Department of Social Security held erroneous views as a result of their own various errors.

80. While the Tribunal has found that there is no sole administrative error pursuant to section 1237A(1) of the Act, and the Tribunal is not required then to consider whether or not Mrs Brown received her Age Pension in good faith, nevertheless, the Tribunal finds that Mrs Brown did receive her payments in good faith and that there is no suggestion, in the Tribunal's mind, that Mrs Brown was trying to deliberately deceive the Department of Social Security about her financial status.

81. It is then necessary for the Tribunal to consider section 1237AAD of the Act. The Tribunal has found on the evidence that Mrs Brown did not knowingly make a false statement or representation to the Department of Social Security. Mrs Brown may have been careless and even reckless in her dealings with the Department of Social Security, but not dishonest nor deceitful. She also did not knowingly fail to comply with the Act. The Tribunal therefore considered it appropriate to examine whether or not special circumstances existed in relation to Mrs Brown's situation.

82. The circumstances leading to Mrs Brown receiving an Age Pension at a rate beyond that to which she was entitled, occurred because her husband died and she was required to make some arrangements in relation to her financial security. Mrs Brown was bereaved, unused to dealing with finances or to dealing with Government instrumentalities. Suddenly, Mrs Brown was forced to do all of these things at a time of great stress and confusion. Mrs Brown, having read correspondence sent to her by the Department of Social Security and also the Department of Veterans' Affairs, considered that she did not need to take any further action in relation to her Age Pension because the Department of Veterans' Affairs, the DFRDB and the Department of Social Security would all communicate with each other and thereby come up with the correct rate of Age Pension. This was an erroneous view and not supported by the facts available to her at the time. While the Tribunal finds that Mrs Brown contributed to the overpayment in terms of her failure to respond to Departmental notices, the Tribunal also determines that the overpayment arose because of the failure of the Department of Social Security in particular to follow its own procedures and to investigate information provided to it not only by Mrs Brown, but also by the Department of Veterans' Affairs. Accordingly, the Tribunal considers that the Departmental administrative error in this case is a special circumstance which should be taken into account in terms of the manner in which the debt arose.

83. Mrs Brown's health, on her own evidence, is good and this is not considered by the Tribunal to be a special circumstance.

84. The Tribunal also considers that while Mrs Brown's financial situation may be tight, she is not destitute and certainly is in no way in a straitened financial position, as is the case with many other social security recipients.

85. The Tribunal further finds that there is a special circumstance in relation to the occurrence of this overpayment which relates to the fact that Mrs Brown was completing claim forms and reading correspondence from various Commonwealth agencies at a time of great distress and increased vulnerability. In these circumstances, it is likely that Mrs Brown was not fully aware or providing full concentration to the matters being presented to her in relation to her financial security. These circumstances, combined with Mrs Brown's inexperience of financial matters and dealings with bureaucracies, are likely to have caused her to have been less able to fully appreciate the matters being presented to her and she therefore, in the Tribunal's view, had a reduced capacity to deal with the matters arising following her husband's death.

86. The Tribunal therefore concludes and so finds that pursuant to section 1237AAD of the Act, there are special circumstances which allow for the waiver of part or whole of the debt owed to the Commonwealth by Mrs Brown. The Tribunal further finds that it is more appropriate to waive than to write off a part or whole of the debt because Mrs Brown's financial circumstances have no prospect of future improvement.

87. At the time of the hearing, an amount of $12,608.10 was owed to the Commonwealth. The Tribunal determines that $10,000 of the outstanding debt should be waived to reflect the special circumstances of Mrs Brown's case including the Departmental administrative error, the circumstances of her recent bereavement and her inability to deal with the administrative requirements in her quest to secure her future financial position. The Tribunal has therefore decided that $2,608.10 remains the outstanding debt to be repaid by Mrs Brown. The Tribunal considers that the amount to be repaid by Mrs Brown reflects the fact that Mrs Brown did herself contribute in some way to the manner in which the debt arose.

88. The Tribunal further decides that the remainder of the debt owing to the Commonwealth should be collected by withholdings from Mrs Brown's Age Pension at a reduced rate of $40 per fortnight.

89. Accordingly, for all the reasons set out above, the Tribunal decides that:

(1) the decision under review be set aside and substitutes therefor its decision that:

(a) section 1237AAD of the Act having been satisfied, the amount of $10,000 of the outstanding debt to the Commonwealth be waived; and

(b) the rate of withholdings for the remainder of the outstanding debt be reduced to $40 per fortnight and this rate should not be increased unless Mrs Brown's financial circumstances significantly improve.

I certify that the preceding eight-nine (89) numbered paragraphs are a true copy of the reasons for decision herein of Ms S Bullock, Member.

Signed: .....................................................................................

Solicitor for the Applicant Ms S Koller, Welfare Rights Centre, Sydney

Solicitor for the Respondent Ms S Lawrence, Departmental Advocate