2. The Social Security Appeals Tribunal found that there was an overpayment but decided to grant waiver of the amount of the overpayment from 21 February 1990 pursuant to Section 251 of the Social Security Act 1947, due to the special circumstances of the case. Further, the Social Security Appeals Tribunal decided "that the amount of the overpayment for the period prior to 21 February 1990 should be recovered following discussion with the applicant regarding her ability to repay the overpayment by instalments."

3. On 19 February 1991, the Department of Social Security decided to raise an overpayment of $18,826.28 representing the full amount of Special Benefit received by the applicant's parents up to 30 September 1990. As a result of the Social Security Appeal Tribunal decision, the overpayment raised was recalculated to $11,482.48. The overpayment is currently being recovered at the rate of $90 per fortnight by way of withholdings of family allowance payable in respect of the applicant's three children.

4. At the hearing of this matter in Darwin, the applicant appeared on her own behalf and Ms Carstairs of the External Appeals (Brisbane) Branch of the Department of Social Security represented the respondent. The facts presented to me were not in dispute. Both parties agreed that the facts presented in the decision of the Social Security Appeals Tribunal were accurate and comprehensive. I therefore determine this matter on the basis of the facts as recounted by the Social Security Appeals Tribunal in its decision, parties' submissions and the documentary evidence before me.

5. The applicant's parents came to Australia, on temporary entry status, in early 1987. The applicant signed an Assurance of Support on 25 October 1987. The applicant's parents gained permanent resident status on 18 October 1988 and they became Australian citizens on 21 August 1990.

6. The Assurance of Support appears as Document T21 in Exhibit 1. That document presents as an undertaking by the applicant in the following terms:

Government or maintenance support is provided by a

State or Charitable Institution to the person(s) sponsored in this

application during the validity of this Assurance, the funds shall

be deemed to have resulted from a breach of this undertaking and I

will repay those funds.

. That action may be taken in a Court to recover such funds expended

as due debt.

That this Assurance is given with effect from the date of grant of

resident status to the applicant for a period of up to ten years.

This Assurance will terminate, however, upon grant of Australian

citizenship to the applicant."

7. The applicant has consistently denied that she signed an Assurance of Support as she could not remember doing so. However, the applicant stated that before her parents came to Australia, she signed a Statutory Declaration which she had obtained from a Police Station or Court. In that document, the applicant declared that she would support her parents if necessary while they are visiting in Australia. The applicant sent the Statutory Declaration to the Australian Embassy in the Philippines. She did not retain a copy of that document. In any event, the Statutory Declaration was not signed in the pursuit of permanent resident status and cannot be the Assurance of Support signed later in 1987 after her parents' arrival. The applicant agreed that the signature upon the Assurance of Support at Document T21 of Exhibit 1 is, in fact, her signature.

8. The applicant stated that she had completed and returned many forms sent to her by the Department of Immigration at the time that her parents sought permanent resident status. She had stated that she was "confused" regarding which forms she had sent to the Department of Immigration and that she was not interviewed by an officer of that Department.

9. To further explain the applicant's state of confusion during this period in late 1987 when the Assurance of Support was signed and permanent resident status sought, I note that the applicant was then under a lot of pressure; she was sacked from the Department of Social Security in November 1987. The applicant claims that she was unfairly dismissed for not being able to speak English properly.

10. The applicant's neighbour, Mr John Anderson, had recommended to the applicant that her parents should apply for special benefit. The applicant initially refused to make such application because she felt that she should support her parents in accordance with the Statutory Declaration submitted to the Australian Embassy prior to her parents' arrival. Mr Anderson asked the applicant whether she had signed an Assurance of Support and she stated that she did not remember doing so. Mr Anderson was an employee of the Department of Social Security and made enquiry as to the existence of an Assurance of Support upon the online enquiry function of the Departmental mainframe which should have identified the existence of any such document under the Migration Act regulations. His enquiries did not reveal the Assurance of Support.

11. Some two to three weeks after the initial discussions regarding special benefits, Mr Anderson went to the applicant with a special benefit claim form and asked her to complete it. The applicant still expressed disapproval of the parents seeking the special benefit but Mr Anderson advised her that it was their "right to claim" such benefits, there being no Assurance of Support. Mr Anderson had contacted the Departmental Benefits Control Unit and was referred to the online enquiry of the mainframe system which he checked revealing no registration of an Assurance of Support. The Departmental Benefits Control Unit then told Mr Anderson that special benefit could be granted; if there was no record on the mainframe system then there was no Assurance of Support.

12. Hence, the applicant completed on her parents' behalf a claim for special benefit dated 15 January 1989. She had her parents sign it. Document T6 of Exhibit 1 records a Department of Social Security file note to the effect that a check on the mainframe between the Department of Social Security and the Department of Immigration, Local Government and Ethnic Affairs did not record an Assurance of Support in respect of the applicant's parents.

13. At the hearing, Ms Carstairs submitted an extract of the Departmental Benefits Policy Manual, which in part reads:

"24.422 Where an Assurance of Support exists the claimant

should be requested to provide an authority for the

Department to release information concerning the claim to

the assuror. The assuror should then be advised of the

claim for special benefit and of his or her possible

liability. The advice should be given in writing and a copy

of the assurance provided. Where possible this action

should be taken at an interview before grant."

14. However, it would appear that, as the departmental enquiry regarding the existence of an Assurance of Support did not so reveal, no written notification of the applicant's liability, nor a copy of the Assurance of Support was provided to the applicant before the grant of special benefit. Further, the applicant was not interviewed by a departmental officer as would have been required by departmental policy. The applicant's parents were simply granted the special benefits.

15. It is to be noted that the applicant was identified in the answer to Question 36 on the special benefit claim forms as having assisted her parents in completing those forms. There is a question on the special benefit claim form which asks the claimant whether entry into Australia was under an Assurance of Support. This question was answered in the negative. However, as the Social Security Appeals Tribunal observed, a negative response is not strictly incorrect as the Assurance of Support was signed after the applicant's parents' arrival. Also, I accept that the applicant filled in the claim forms including the Assurance of Support question, honestly and to the best of her belief and of her ability at the time. I concur with the Social Security Appeals Tribunal statement that "the applicant did not at any stage intentionally mislead the Department or set out to misrepresent her circumstances". Moreover, Mr Anderson, on her behalf, had checked the departmental system because his experience in such matters led him to believe that there must be an Assurance of Support due to the ages of the applicant's parents. The applicant had done all she possibly could to confirm that her failure to recall an Assurance of Support was because there was no such document in existence. She therefore ticked "No" on the claim form when asked if there was an Assurance of Support.

16. However, in accordance with the terms of the Assurance of Support signed by the applicant and the fact of special benefit payments received during the currency of those terms, I find that there is a debt due to the Commonwealth.

17. In order to complete the factual history of the matter, I record that at about November-December 1989, an officer from the Department of Social Security in Katherine telephoned the applicant to advise that an Assurance of Support had been located and that the amount of the special benefit paid would have to be recovered. This was the first time that the Department put the applicant on notice of liability under the Assurance of Support. The applicant then attended on the Department of Social Security to be interviewed.

18. The interview is recorded by a statement at Document T11 of Exhibit 1 and is signed by a departmental officer and the applicant. This statement sets out the confusion and misunderstanding operative in the applicant's parents' receipt of special benefit payments. The statement also identifies a serious change in the applicant's circumstances as her husband had recently undergone surgery in relation to a brain tumour and he was then no longer working, with further surgery imminent.

19. Also, pursuant to the departmental officer's advice recorded by Document T12 of Exhibit 1, the applicant in her statement of interview sought waiver of the Assurance of Support. Clearly, as identified by the Social Security Appeals Tribunal in its decision, this particular advice is incorrect as the provisions for waiver relate to the debt and not the effect of an Assurance of Support. In any event, the applicant was advised to write a letter seeking waiver addressed to the Regional Manager at the Katherine Office of the Department of Social Security. The applicant's letter dated 21 February 1990 seeking waiver appears at Document T14 of Exhibit 1. With this letter, the applicant enclosed a statement of financial circumstances and medical details of her husband's serious surgery.

20. The applicant received no response from the Department to her letter requesting waiver. Instead, the applicant received in the mail a form from the Department entitled "Application for Continuation of Special Benefit". This form was not accompanied by a covering letter of explanation. The applicant quite reasonably assumed that her letter to the Department requesting waiver had been approved and her parents were now permitted to receive special benefits. The applicant completed the form, had her father sign it and returned it to the Department of Social Security. Payment of the benefit to the parents resumed. The applicant later received other such forms which she completed and returned thereby ensuring the continuation of special benefit payments. The applicant again wrote to the Department on 31 October 1990 to update her financial circumstances, and her husband's medical problems. She also then notified that her father was very ill. The applicant's father died in June 1991, one month before the delivery of the Social Security Appeals Tribunal decision.

21. Later, the payments were suddenly terminated. The applicant telephoned the Department to enquire and was told that "it was yearly procedure that they have to review my parents' benefit". The applicant waited two to three weeks before calling the Department again only to receive the same response. Two to three months later, the applicant called the Department once more and was advised that her parents' file was in Darwin as an overpayment was being raised. Finally, the applicant received formal notice of the overpayment raised by letter dated 8 March 1991.

22. I record that the Departmental Benefits Policy Manual states:

"24.2050 Where a special or unemployment benefit is granted

to a person covered by an Assurance of Support, the assuror

should be advised every three months of the amount of the

debt outstanding. The person should be asked by

questionnaire or interview to give details of:

. his or her income and financial

position;

. his or her domestic commitments;

. any assistance being provided to the

claimant; and

. whether the beneficiary obtained

citizenship since the latest review."

23. The Social Security Appeals Tribunal has waived repayment of the debt under Section 251 of the Social Security Act 1947 in respect of the period from 21 February 1990 to 20 August 1990 which corresponds to the date of the applicant's initial letter seeking waiver to the date of the parents becoming Australian citizens. The consideration of waiver, therefore, is applied only to the period for which special benefit was received prior to 21 February 1990.

24. At the hearing, the applicant tendered a photocopy of her family's bank account and updated statement of income and expenses. As at the date of hearing the bank account held a balance of $1,639.24. The applicant's family weekly expenses total $720.96 and the family's weekly income is $741.00. I accept the figures presented to me as reasonable and not out of the ordinary.

25. Ms Carstairs for the respondent submitted that the Tribunal is to apply the current waiver provisions tabled in Parliament under Section 1237(3) of the Social Security Act 1991 (the "1991 Act") to the question of waiver.

26. The Social Security Appeals Tribunal delivered its decision on 12 June 1991 prior to the commencement of the 1991 Act on 1 July 1991. Accordingly, the Social Security Appeals Tribunal decided the question of waiver under Section 251 of the 1947 Act. The 1991 Act repealed the Social Security Act 1947 (the "1947 Act"). The 1947 Act waiver provisions apply to a debt created by an Assurance of Support under the Migration Act Regulations by virtue of subsection 251(4)(b). Section 251 of the 1947 Act, in part, provided:

"(1) The Secretary may, on behalf of the Commonwealth,

decide to -

(a) write off debts arising under or as a result of this Act, or

debts arising under or as a result of this Act that are included in

a class of debts specified by the Minister by notice in writing

published in the Gazette;

(b) waive the right of the Commonwealth -

(i) to recover from a person the whole or a part of a debt that is

payable by the person under or as a result of this Act; or

(ii) to recover debts under or as a result of this Act included in a

class of debts specified by the Minister by notice in writing

published in the Gazette; or

(c) allow an amount that is payable by a person to the Commonwealth

under or as a result of this Act to be paid in instalments.

(1A) In exercising the power under subsection (1) to waive the right

of the Commonwealth to recover the whole or a part of a debt that is

not referred to in subparagraph (1)(b)(ii), the Secretary shall act

in accordance with directions from time to time in force under

subsection (1B).

...

(4) A reference in subsection (1) to a debt, or to an amount,

arising or payable under or as a result of this Act includes a

reference to:

(a) a debt or an amount payable to the Commonwealth because of

subsection 42(1) of the Veterans' Entitlements Act 1986; and

(b) an assurance of support debt."

27. There were no directions in force under subsection (1B). The 1991 Act also makes provision for the Minister to give directions relating to the exercise of the Secretary's power in determinations of waiver. Section 1237 of the 1991 Act provides:

"(1) The Secretary may, on behalf of the Commonwealth,

decide to waive the Commonwealth's right to recover from a

person the whole or a part of a debt.

(2) In exercising the power under subsection (1), the Secretary must

act in accordance with directions from time to time in force under

subsection (3).

(3) The Minister may, by determination in writing:

(a) give directions relating to the exercise of the Secretary's

power under subsection (1); and

(b) revoke or vary those directions.

(4) A determination made under subsection (3) giving, revoking or

varying directions is a disallowable instrument for the purposes of

section 46A of the Acts Interpretation Act 1901.

(5) A decision of the Secretary under subsection (1) takes effect:

(a) if no day is specified in the decision - on the day on which the

decision is made; or

(b) if a day is specified in the decision - on the day so specified

(whether that day is before, after or on the day on which the

decision is made).

Note: if the Secretary waives the Commonwealth's right to recover,

this is a permanent bar to recovery of the debt - the debt

effectively ceases to exist."

28. The Minister made a determination under Section 1237(3) of the 1991 Act on 8 July 1991. On 5 May 1992, the Minister made a new determination to take effect from 18 May 1992. The earlier determination was revoked.

29. I adopt the reasoning of the Tribunal in Secretary, Department of Social Security and Bradley (AAT unreported 4.9.92) to find that the Ministerial direction of 5 May 1992 does not apply to the waiver of the applicant's debt. As observed by the Tribunal in Bradley's case, the Tribunal generally applies the law at the time the Tribunal makes its decision regarding a present entitlement to the grant of a right or privilege (Re Costello v Secretary, Department of Transport (1979) 2 ALD 934). This is not the approach, however, to be adopted in relation to accrued rights and incurred liabilities. In the present type of case, as in Bradley's case, rather than an accrued right there is an incurred liability, namely a debt under Section 246 of the 1947 Act.

"The respondent had incurred a liability, namely a debt

under Section 246 of the 1947 Act. That liability was,

however, a liability which could be altered by a decision to

write off or waive the debt. At the time the liability

arose it was in the context that a power to waive and write

off the debt existed. Accordingly, if the power to waive a

debt were repealed, such a repeal would, but for the

doctrine of accrued right and incurred liabilities, affect

the liability. It is true it would affect it to the

disadvantage of the person indebted or otherwise liable, but

there would appear to be no reason to read down the

doctrine. Another way of putting this is to say that a

repeal does not, in the absence of contrary intention,

affect a liability as a whole. A liability, such as

a debt, will often consist of the liability proper and a

number of other provisions. In the Tribunal's view, it

would be irrational and absurd to preserve a liability

without also preserving the rights and obligations which

define it."

31. The reasoning in Bradley's case accords with commonsense, justice and sound legal principles. I therefore determine the issue of waiver without reference to the Ministerial determinations of 8 July 1991 and 5 May 1992.

32. Accordingly, the principles to be applied are those following the cases of Director-General of Social Services v Hangan [1982] FCA 262; 45 ALR 23 and Director-General of Social Services v Hales [1983] FCA 81; 47 ALR 281.

33. Although it is the Secretary's public duty to endeavour to recover an overpayment, financial hardship, prospect of recovery and compassionate considerations may be taken into account.

34. I find that administrative error and omission placed the applicant in debt, originally in the sum of $18,826.28 but later reduced to $11,482.48. It appears on the evidence that the first and only occasion upon which the applicant was issued with a written statement of the incurred debt was on 8 March 1991 by way of formal notice of the overpayment raised. The applicant honestly believed that there was not an Assurance of Support in effect. The applicant did not intend to deceive nor misrepresent. The belief that there was not an Assurance of Support was founded both upon her own confused recollection of documents signed by her at a time when she was under significant stress and upon her communications with a Mr Anderson, friend and departmental officer, who checked the Department's enquiry system to confirm that no such document was recorded and who thereupon encouraged the initial application for special benefit. It was a departmental functional error which confirmed the applicant's belief that there was no Assurance of Support. It was departmental error and omission which permitted this state of affairs to continue, virtually unchecked, for the duration of the debt-accruing period. I find that the applicant, at all times, acted and received payments in good faith.

35. Once the applicant was notified of the existence of the Assurance of Support document in November-December 1989, she diligently pursued the Department to reach a conclusion upon the matter. That conclusion was not reached until 8 March 1991. Although the applicant also received incorrect departmental advice, it does not enter the present consideration for waiver as the advice fell within a period of time currently not under review.

36. The Department of Social Security granted the special benefit on the basis of incorrect information which resulted from an unexplained but obvious bureaucratic error exhibited in the departmental online enquiry function. Furthermore, Departmental policy enunciated in the Benefits Policy Manual was not followed, contrary to principles of fairness and avoidance of error against which the policy obviously is intended to safeguard.

37. As earlier recorded, the applicant's present financial circumstances make repayment of such a sizeable debt extremely difficult, if not impossible for the family. In addition, it is more likely in the long term that the applicant's financial situation will deteriorate rather than improve due to the impact of her husband's residual disability upon his work. I record the medical evidence of the applicant's husband as stated by the Social Security Appeals Tribunal as follows.

"Given the applicant's concern about the working future of

her husband, the Tribunal requested a medical report from Mr

Flores' Neurosurgeon. This report stated that Mr Flores

still suffers from a degree of disability due to his

illness. Although maximum recovery is not expected for

another 6 to 12 months, it is anticipated that he will be

left with a moderate and permanent speech handicap. The

report further states that 'the degree of language

impairment must be considered in the light of his occupation

as an Accountancy Supervisor where defects in reading,

comprehension and written expression may be a major

handicap.'"

38. The circumstances in this case applicable to the consideration of waiver are exceptional in that I find the applicant is blameless and would be put to much hardship if she were again compelled to take part in this departmental saga and repay the debt incurred. Upon consideration of all the evidence before me, I find that it is appropriate and proper for the Secretary to exercise the waiver discretion in the applicant's favour. Accordingly, the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant's debt due to the Commonwealth is to be waived.