Evidence Act 1995 - s 160

Social Security Act 1991 - ss 23, 68, 69, 71, 73A, 73B, 74, 76, 77, 81, 1064, 1222A, 1223, 1224, 1237, 1237A, 1237AAD, 1344, 1345, 1346, 1347, 1348, 1358A, 1358B

Social Security (Administration) Act 1999 - ss 212, 213, 214, 215, 216

Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225

Cameron v Holt [1980] HCA 5; (1980) 142 CLR 342

Holt v Cameron (1979) 22 SASR 321

Hooi v Brophy (1984) 52 ALR 710; 3IPR 16

Jazazievska v Secretary, Department of Family and Community Services (unreported, [2000] FCA 1482, 20 October, 2000)

Re Armitage and Secretary, Department of Family and Community Services [1999][ AATA 700), Senior Member Kiosoglous

Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996-97) 45 ALD 435

Re Gray and Witchard and Secretary, Department of Family and Community

Re Morgan and Secretary, Department of Family and Community Services [1999] AATA 390, unreported, Associate Professor Hotop, then Senior Member, 8 June, 1999)

Saunders and Secretary, Department of Family and Community Services (unreported, [1999] AATA 952, unreported, Senior Member Kiosoglous, 15 December, 1999)

Secretary, DEETYA v Prince [1997] FCA 1565; (1997) 26 AAR 385

Re Gray and Witchard and Secretary, Department of Family & Community Services [1999] AATA 541 (unreported, S A Forgie (Deputy President), IRW Brumfield and AM Brennan (Members), 23 July, 1999)

Taylor's Centra Garages (Extra) Ltd v Roper [1951] WN (Eng) 383

DECISION AND REASONS FOR DECISION [2001] AATA 72

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

1. sets aside the decision of the Social Security Appeals Tribunal dated 13 September, 1999; and

2. substitutes a decision that a debt of $6,917.30 for the period 10 July, 1997 to 1 April, 1999 be raised and recovered from the applicant.

On 11 November, 1999, the applicant, the Secretary of the Department of Family and Community Services ("Secretary"), applied for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 13 September, 1999. In that decision, the SSAT had set aside a decision made by a delegate of the Secretary made on 9 April, 1999 to raise and recover from the respondent, Mr Edward Jonauskas, a debt of age pension of $6,917.30 for the period 10 July, 1997 to 1 April, 1999 and affirmed by a decision of an Authorised Review Officer on 6 July, 1999. It substituted a decision that a debt be raised for the period 24 July, 1997 to 1 April, 1997 and that recovery of the balance of that debt outstanding at the date of its decision be waived.

2. At the hearing, the Secretary was represented by Mr Walsh, an advocate with Centrelink, and Mr Jonauskas by Ms Cruse with Ms Lee. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a copy of information regarding Mrs Jonauskas' income from Liquorland (Australia) Pty Ltd ("Liquorland"), a copy of Mrs Jonauskas' registration for the Pension Bonus Scheme, two computer screen dumps regarding that registration, a letter from Dr Brian Reid, General Practitioner, dated 23 May, 2000 and Inpatient Clinical Progress Notes and Emergency Department Medical Records from the Department of Health and Community Services. Also taken into account were a letter from Dr Reid dated 30 May, 2000, a letter from Mr Zacharia, ENT Surgeon at the Royal Darwin Hospital ("RDH") and a letter from Dr Jim Burrow, Physician, at the RDH dated 16 January, 1998. Oral evidence was given by Mr John Parsons in support of the Secretary's case and by Mr and Mrs Jonauskas in support of Mr Jonauskas' case.

3. The issue in this case is whether Mr Jonauskas incurred a debt under the Social Security Act 1991 ("Act"). If he did, the issues for determination then become whether he received the overpayment solely as a result of an administrative error of the Department of Social Security ("DSS") or of Centrelink and, if so, whether he received the overpayment in good faith. The further issues are whether the overpayment resulted from his knowingly failing to comply with a provision of the Act and whether there are special circumstances that apply.

4. A number of factual matters were not in dispute between the parties. In light of that and on the basis of the evidence, I have made a number of findings of fact that I will set out in the following paragraphs.

5. Mr Jonauskas was born on 30 September, 1931 and his wife, Mrs Kaye Jonauskas, on 13 June, 1937. Both Mr and Mrs Jonauskas were born in Lithuania with Mrs Jonauskas arriving in Australia in June, 1950 and Mr Jonauskas the year before. Both are Australian citizens. They were married in Adelaide on 25 December, 1958. For many years Mr Jonauskas was self-employed as a painter and worked in various locations. He last worked in approximately October, 1996. Mrs Jonauskas has worked for Liquorland since 9 April, 1984.

6. On 8 July, 1997, Mr Jonauskas lodged a claim for an Age Pension. Neither he nor his wife had previously applied for a pension, benefit or allowance. Mr Jonauskas also submitted a copy of a Pay Advice from Liquorland in respect of his wife's earnings for the period ending 29 June, 1997. It showed that her taxable income for that period was $397.38 and was made up of the following amounts:

7. On the same day, 8 July, 1997, an officer of the DSS made a note on the computer records relating to Mr Jonauskas:

Spouse is Kaye - She works at Liquorland - Payslip provided shows her gross income is $397.38 per fn. Mod I states this. If income changes they will advise within 14 days.

Proof of Age used is reverse of CITIZENSHIP papers.

Mr Jonauskas was self employed as a painter. He is now virtually immobile. He advised the business has wound down years ago, but he will advise if any income is received from employment." (T documents, page 33)

An income of $397.38 per fortnight equates with an income of $10,331.88 per year.

8. On 11 July, 1997, Mrs Jonauskas lodged a document headed "Partner Details" setting out details relating to her. The document stated at the outset that it was part of her partner's claim for payment. Mrs Jonauskas showed that she worked as a shop assistant and that she earned approximately $480.00 per week.

9. On 22 July, 1997, DSS wrote to Mr Jonauskas advising that his Age Pension started from the pension payday on 10 July, 1997. His payment would be $252.50 per fortnight starting from 7 August, 1997 and he would be paid arrears of $512.70. The letter went on to advise him that he was entitled to a Telephone Allowance and a Remote Area Allowance and that he could obtain assistance under the Pension Loans Scheme. It asked him to:

"Please read the back of this letter. It tells you about your Social Security rights and what you have to tell us." (T documents, page 39)

10. On the back of the letter appeared a section headed "Payment Details". It advised Mr Jonauskas that his payment of $252.50 was made up Age Pension of $234.80, Pharmaceutical Allowance of $2.70 and Remote Area Allowance of $15.00. The arrears were $512.70. Details of the bank account into which the payments would be made were set out. The material on the back of the letter then stated:

"How we have assessed your combined yearly income.

11. The material then went on to advise Mr Jonauskas of a number of things that he must tell DSS about. Of relevance in this case is the following passage:

Under sections 68 and 69 of the Social Security Act 1991 you must tell us within 14 days (28 days if residing outside Australia) 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 of our offices.

Income (income means your gross income before payment of any tax, or if self employed, your net profits after allowable deductions).

if your combined income, not including financial investments, or maintenance increases,

if your combined income as shown above is incorrect;

if you or your partner start any form of profession, trade, business or self employment;

if you or your partner claim or receive compensation;

if you or your partner buy or sell any shares or managed investments;

12. On 6 August, 1998, Mrs Jonauskas lodged a Registration for the Pension Bonus Scheme (Exhibit 3). A computer record of the same date indicates that an officer of Centrelink sighted Mrs Jonauskas' Pay Advice of 29 June, 1997 on the file together with other documents (Exhibit 4). Centrelink wrote to Mrs Jonauskas on 24 August, 1998 asking her for proof of identity, proof of age and proof of residency (Exhibit 3).

13. A letter in almost identical terms but advising that he would be paid $252.50 per fortnight starting from 7 August, 1997 was dated 11 August, 1997 (T documents, pages 42-44). Other than the date of payment and the omission of information relating to the Pension Loans Scheme, the remaining information in the letter appears identical to that in the earlier letter.

14. A further letter dated 17 September, 1998 was sent to Mr Jonauskas by Centrelink to whose officers the Secretary had now delegated his powers under the Act. It advised him that the payment of his Age Pension would be $260.50 per fortnight with effect from 1 October, 1998. The amount had increased, the letter told him, because of a change in his circumstances. He was told that he would receive $7.90 by way of Telephone Allowance and, on the back of the letter, that his payment of $260.50 was made up of Age Pension of $242.80, Pharmaceutical Allowance of $2.70 and Remote Area Allowance of $15.00. Again on the back of the letter, he was told that his combined yearly income had been assessed on the basis of earnings of $10,331.88 and told that he was required to advise Centrelink of, among other matters, increases in his combined income or if his combined income previously shown in the letter was incorrect. The back of the letter was expressed in terms very similar to, if not the same as, the backs of the earlier letters. (T documents, pages 45-47)

15. On 9 March, 1999, Centrelink issued an Income and Assets Review to Mr Jonauskas. The passage at the beginning of the review form stated that the information asked for on the form would be used to ensure that he could still be paid a pension. He was told that he had to answer questions about his partner even if she were not a pensioner. In answer to a question regarding employment, Mr Jonauskas wrote that his wife earned $511.19 gross per week from her employer, Liquorland (Coles), and that she had earned $25,929.00 in the previous twelve months (T documents, page 54). Mr and Mrs Jonauskas signed and lodged the form on 16 March, 1999. They also lodged a copy of a Notice of Assessment issued by the Commissioner of Taxation to Mrs Jonauskas for the years ending 30 June, 1997 and 1998 (T documents, pages 56 and 57). The former showed her taxable income to be $26,104.00 and the latter $25,929.00.

16. Mr and Mrs Jonauskas also lodged a copy of a Pay Advice received by Mrs Jonauskas from Liquorland. It was for the period ending 7 March, 1999 and showed her taxable income as $522.59 comprising earnings of $511.19 and payments of $11.40. Details of her earnings were:

Mrs Jonauskas had written at the bottom of the details that "Overtime is no more. We will only work 38 hrs a week starting from 15.3.99" (T documents, page 58)

17. On 16 March, 1999, Centrelink noted in the computer that Mrs Jonauskas earned $511.19 each week or $1, 022.38 each fortnight. It retained its earlier entry made on 9 July, 1997 that she earned $397.38 per fortnight. (T documents, page 60) Centrelink calculated that Mr Jonauskas was entitled to be paid Age Pension with effect from 1 April, 1999.

18. In reply to a letter from Centrelink, Liquorland set out the gross payments it had made to Mrs Jonauskas from 8 July, 1998 to 24 March, 1999 (T documents, page 65). Of the thirty eight payments listed, the lowest was $465.40 and that was made on two occasions (26 August, 1998 and 16 December, 1998). The highest was $615.23 and that occurred only once on 29 July, 1998. Of the remaining payments, fourteen payments were above $520.00, twenty two were between $500.00 and $519.00 .

19. A delegate of the Secretary then used the two Notices of Assessment and the weekly payments as notified by Centrelink to calculate an overpayment of $6,917.30 for the period 10 July, 1997 to 1 April, 1999. Mr Jonauskas was advised of the decision and, on 18 June, 1999, requested a review of the decision.

20. In reply to a letter from Centrelink dated 10 April, 2000, Liquorland set out the weekly payments made to Mrs Jonauskas from 11 June, 1997 to 1 July, 1998. None of the dates coincided with the date of 29 June, 1997 on the Pay Advice (T documents, page 32) submitted by Mr Jonauskas with his application for Age Pension. Liquorland advised that Mrs Jonauskas was paid an annual leave payment in advance in June, 1997. It explained that the two amounts shown as leave payments on the Pay Advice for the period ending 1 June, 1997 would need to be added to the gross figure on the payslip dated 29 June, 1997. The total represented the sum for a four week period.

21. Liquorland's list of payments to Mrs Jonauskas includes weekly payments made to her from 2 July, 1997 to 15 October, 1997 of $488.10. In the Partner Details she completed on 10 July, 1997, she showed that she earned a gross amount of $480.00 each week (T documents, page 35). When asked in cross-examination why she had done that, she replied that she was too lazy to get the slip out. She knew that she received $480.00 something. She agreed with Mr Walsh that $480.00 was "not quite right" if he liked to say that.

22. On the Partner Details form, Mrs Jonauskas had written that she would receive $381.00 from her employer within the next fortnight. She said in cross-examination that she had not put the gross figure down as she always thinks in terms of net income. They do not live on the gross income. She also put down the net figure for a week as she was paid by the week and not by the fortnight. The correct answer in net terms for a fortnight was to double the figure she gave.

23. Both Notices of Assessment issued by the Commissioner of Taxation showed the "Rebates and Other Credits" to include Franking Rebate of $61.00 in the year ending 30 June, 1997 and $65.00 in the year ending 30 June, 1998. Franking Rebates equal the amounts of imputation credits attached to dividends an individual receives on shares. The amounts of $61.00 and $65.00 suggest that Mrs Jonauskas received income from shares but that the dividends received were very low. I note that the Income and Investments form completed by Mr Jonauskas and lodged with the claim on 8 July, 1997, the Partner Details completed by Mrs Jonauskas on10 July, 1997 and the Income and Assets Review Form lodged subsequently signed by both of them on 16 March, 1999 do not disclose that she owned any shares or obtained income from them. (T documents, pages 56 and 57 and 51)

24. Mr John Parsons is an officer with Centrelink, who had previously worked with Centrelink since 1992. He readily agreed that he had incorrectly recorded Mrs Jonauskas' weekly income in the computer records as a fortnightly income. Mr Parsons did not recall how he came to make the mistake and agreed with Mr Walsh that it was possible that he had just assumed the figure on the Pay Advice of 29 June, 1997 to be a fortnightly figure. He could not recall the details of his conversation with Mr Jonauskas at the time he lodged his claim or even whether Mr Jonauskas was accompanied by his wife. Their faces were familiar though. He knew from the file that he had conducted a face to face interview at DSS's office at Casuarina, that he had entered the details in the computer and that he had assessed the rate at which Mr Jonauskas should be paid Age Pension.

25. It was his practice to talk to a new claimant, as Mr Jonauskas was, about changes in their income. He told a new claimant that he or she should advise of any increase or decrease in income to ensure that he or she is paid the entitlement at the correct rate. Mr Parsons said that the computer notes after the interview "perhaps" reflected his discussion with Mr Jonauskas but more might have been discussed. He could not now recall precisely what was discussed. Mr Parsons said that he could not understand why he had referred to Module I in the computer note. As to his statement that Mr and Mrs Jonauskas would advise within 14 days if their income changed, Mr Parsons said that he generally said that. He hoped that he had as it was a most important matter.

26. In cross-examination Mr Parsons said that officers are not required to obtain any minimum number of Pay Advices in order to determine a person's income. An officer must believe that the figures given fairly reflect that person's current income. Where there are fluctuations in income, it may be that his or her income is averaged over a twelve week period. In some instances, a single Pay Advice may be enough but it all depends upon his or her circumstances.

27. Mr Jonauskas said that he and his wife decided to go to Centrelink when his money was really down and they could no longer live. He asked for a form, explained what he needed, told them how much his wife earned and asked if it was all right. They said that it was and that was all that they asked him. They paid him $250.00 per fortnight and told him he would be paid about $500.00 in back pay. Mr Jonauskas said that he took a form home for his wife to fill out. He said that Centrelink had looked at everything - pay slip, tax form, what was earned, whether they were married and whether they had been naturalised. The next morning he got a letter saying he had the pension and the next moment he was told that he had been overpaid.

28. When asked whether he received a letter telling him that he had been granted the Age Pension, Mr Jonauskas said that he had been told it was granted. Centrelink did not send only one letter. He said that there was not much written in the letter. It was only small and only told him that he would receive $252.50. There was nothing on the back of the letter but there could have been. He was happy that he was getting $252.00 and never looked at the other side. If a letter is sent to him, he reads it but he never looks at other things. What he was to be paid was an important part of the letter. When asked whether he thought that he was being paid the correct amount, Mr Jonauskas said that he had never been on the "dole" as he had worked all his life. He had thought that there was no need to apply to Centrelink at that time as he thought that he would recover from his accident within six months and be back at work. Mr Jonauskas had savings to live on in that time but the doctors did nothing. His money ran out and he and his wife could not live on their money and continue to pay rent. He heard from other people who asked him why he was not on the pension. They told him that it was $350.00 and that "you live good. Bloody hell."

29. In cross-examination, Mr Jonauskas said that he did not know how much his wife was earning as he never asked her. He did not ask how much pension he would receive if his wife earned $26,000.00. When asked why he had not done so, he said that he brought them what they asked for. He did not know if he would get anything but he claimed the pension because he was entitled to it. Everyone knows that there is a pension when you are 65, he said. The amount he was entitled to was up to Centrelink. He trusted Centrelink to get it right.

30. Mr Jonauskas said that he did not need help to read his letters and he read them himself. He read one letter from Centrelink where they wanted to take it all. How is he supposed to live, he asked. When he came to Australia, he was 18 years of age. He had a few words of English at the time. Over the years he has learnt to read English but not to write it as the alphabet is different. Mr Jonauskas said that he can read the words that are pronounced the same and he uses a dictionary to look up words. The letter he read about the $6,000.00 said that he was cheating. He had trusted them to put the right amount in the computer. Mr Jonauskas said that he and his wife always trusted Centrelink as they did any office. They put trust in them. If you buy a car, he said, you pay a deposit and they say how much is to be paid. It is the same with Centrelink, he said. He never looked. Now he would "never trust nobody".

31. In cross-examination, Mr Jonauskas said that he read the front page of the letter dated 22 July, 1997 (T documents, page 39) but not the back of it (T documents, pages 40-41). Of the front page, he said that he had not read the passage appearing in the penultimate paragraph stating:

"Please read the back of this letter. It tells you about your Social Security rights and what you have to tell us." (T documents, page 39)

Although he had said that he had read the front page, he had not read that as he had wanted to see how much money he would get to enable him to live. Mr Jonauskas said that he recalled receiving the letter dated 11 August, 1997 containing the same paragraph (T documents, page 42). He said that he had not read that either. Why read the back, he asked. They gave him the money and why should he bother. He was in a bad condition then. For nearly two years, he had walked with a stick. He was happy to get the money. He agreed with Mr Walsh's suggestion that, if he received too much money, it was Centrelink's problem. He would pay it back if he were working.

32. Mrs Jonauskas said that her husband took the claim form to DSS. When he returned, he told her that she had to supply six weeks worth of pay slips. Her husband took the first pay slip and then he had to take the rest. They were copied. She was adamant that she had given her husband the pay slips. When the pay slips were not in the T documents, she asked an officer of Centrelink as to their whereabouts. She was told that they were not kept for more than two years as there is too much paperwork.

33. Mrs Jonauskas said that she produced the Notices of Assessment when she was asked to do so. She said that she went to the DSS office quite a few times because there were no discounts or allowances given until she took in the payslips for 5-6 weeks. She had not produced any pay slips when she submitted her registration for the Pension Bonus Scheme. In cross-examination, she said that she had to go into Centrelink when her wages went up or down. She could not remember whether she had completed an Income and Assets Review form of the sort in the T documents or something different. We were going back quite a while and there are so many forms.

34. Mrs Jonauskas said that her husband told her that he had received a letter about his Age Pension. She looked at it and thought that the figure of $10,331.88 shown on the back of it referred to the amount that he had already received. She thought "what a lot of bull". Her husband read the letter but not the back of it. In cross-examination, she said that she thought to herself that it would be like a charity if her husband had to live on that for the whole 12 months. Whether or not she reads his letters depends upon her mood when she gets home from work. She just reads the headlines but she did read the letter of 22 July, 1997.

35. In cross-examination, Mrs Jonauskas said that she did not have to supply pay slips to the Housing Commission when she was paying full rent for it. It was only when she asked for a rebate that she had to take a letter from Centrelink. When it was suggested to her that she did not take any pay slips other than that dated 29 June, 1997, she replied that, if they had asked her, she would have. When asked if she would not have if the form did not ask for them, she replied "of course not". She disagreed that the Income and Assets Review Form she signed on 16 March, 1999 was the only form she completed after the Age Pension was granted to her husband. There were a few more, she said, but they were different. She agreed that she had to fill in forms for the Housing Commission but did not agree that she could have confused the two as they were "different cups of tea". She had to fill out a review form every three months. When Mr Walsh observed that she had not mentioned that to the SSAT, she replied that she could not remember and did not think that she had to think about it. There were so many people on the phone.

36. Mr Jonauskas said that he shakes if he does not take his medication and he is still giddy.

37. In his report dated 23 May, 2000, Mr Jonauskas' general practitioner, Dr Brian Reid wrote:

"Mr Jonauskas, a retired painter, has been a patient of this practice since 1978. He has generally been in good health apart from some recurring joint problems. In September 1995 he fell from a ladder whilst painting a unit in Humpty Doo and injured his head and left wrist. He was initially treated in Royal Darwin Hospital (RDH) where fractures to his nose, base of skull and wrist were identified. His injuries resolved well apart from a persisting giddiness and poor hearing in his right ear. Subsequent brain scans did not reveal any intracranial injury.

The giddiness continues to be a persisting problem. He has been under the care of Ear, Nose and Throat Department of RDH where two surgical interventions have been attempted. The effectiveness of the last, earlier this year, is still being evaluated." (Exhibit A)

38. Dr Reid's report is consistent with the Inpatient Clinical Progress notes taken during Mr Jonauskas' admission in the RDH from 14 September, 1995 to 22 September, 1995 (Exhibit B). In response to a request for further information, Dr Reid wrote a further report dated 30 May, 2000:

"... When Ed had his fall he was about 64 years old. I have few details other than he was apparently severly (sic) concussed and required inpatient hospital management.

1. 2. The dominant lingering effect of the multiple fractures was ataxia or a sense of giddiness accompanied by deafness, fullness and tinnitus in the right ear. This was presumably the result of the skull fracture. The extent of cognitive disturbance was not determined as far as I am aware in any event not easy to measure in Ed. The ataxia particularly caused him great distress and continues to do so. I have enclosed copies of specialist correspondence from around the 1997 period that do not clarify the nature of his disability but give weight to the extent of his 'unfortunate situation'. It is very likely this problem preoccupied him to the extent of not managing normally his affairs.

3. There is little more to add. Both middle ear interventions have not relieved the ataxia or sense of fullness. He actually had quite a nasty middle ear infection after the first. He is now ageing, retired and resigned to living with his problem.

4. Medicines generally have not helped him. He puts considerable faith in antibiotics which he feels settle the problem a little when it is bad. Stemetil and the like anti-giddiness medications that can cause drowsiness and confusion he uses intermittently as he feels they do not help much."

39. Mr Zacharia is an Ear Nose and Throat Surgeon at the RDH. On 30 December, 1997, he wrote to Dr Reid:

"I once again reviewed Mr Jonauskas in the ENT Clinic and he is in the unfortunate situation of having continuing ataxia and right-sided ear fullness following his injury last year. He has a dead ear on the right side and previous ENG and caloric testing has shown that there is absolutely no response on the right side. There is also decreased response on the left side.

Today's examination was completely normal and the Hall-Pike's test was negative and tympanograms were performed and showed normal middle ear pressure.

I think that his unfortunate problem is due to his inability to accommodate the ataxia as a result of losing the right ear. This is compounded by the fact that he has a decreased response on the left side. I cannot suggest any further intervention and have suggested he use Stemetil on a prn basis and if he is continuing to have problems he should be reviewed by Dr Burrow in the Neurology Clinic.

I have asked him to perform Cawthorn-Cookley exercises but he has tried these in the past and does not like the fact that he has to lie down on the ground and do certain things that he feels only pregnant women should be doing."

40. Dr Jim Burrow reviewed Mr Jonauskas on 15 January, 1998. In a report to Mr Zacharia, Dr Burrow set out Mr Jonauskas' history and set out his clinical findings before concluding:

"I think the likely cause of continuing symptoms is some vestibular activity from the right labyrinth although cochlear function is clearly absent. I could not find any evidence of disturbed brain stem function to account for his balance or vertiginous problems. I could not explain the feeling of fullness in the right ear although this is his most compelling symptom. I wondered if perhaps there is a hydrops of that ear related to injury of the cochlea at the time of the skull fracture? I have sent him back to see you again to see if anything further might be done to help him."

41. Mrs Jonauskas said that she now works at Liquorland casually and fills in when a staff member is sick. Consequently, her income varies but is in the order of $100.00 each week. Her pension varies as a result and is in the order of $250.00 to $290.00 per fortnight. She notifies Centrelink of her income by taking a copy of her pay slip in each Monday after she collects it. She and her husband pay a mortgage of $271.00 per fortnight as well as rates, car registration and insurance, house insurance. Petrol costs her between $25.00 and $35.00 each week. The amount depends upon how many times she sees her first grandchild. Her husband requires medication and that can range from $4.00 each week to more than $10.00. Although she has to be careful with the amount that she spends, Centrelink is not withholding any money to pay the debt at the moment and she can manage.

42. Mrs Jonauskas said that she and her husband had been saving to buy a house when he fell and hurt himself. When she left work, she received her superannuation and still had some holiday pay in the bank. They had rented the house from the Housing Commission and had made improvements such as erecting a shed and adding verandahs. Those improvements were worth approximately $21,000.00. The Housing Commission wanted them to move to a unit but, as their daughter did not want them to do that, she gave them $35,000.00. They put in another $12,000.00 and their daughter borrowed the rest as they could not get a loan themselves. It was cheaper to pay $271.00 per fortnight as mortgage repayments than $210.00 per week as rental payments.

43. There was no disagreement between the parties, and I find, that Mr Jonauskas' Age Pension was incorrectly assessed on the basis that he and his wife earned $10,331.88 each year. I also find that the then DSS did so because the earnings from Mrs Jonauskas' Pay Advice dated 29 June, 1997 had been incorrectly entered in its computer records as $397.38 per fortnight instead of per week as was clearly the case. Neither Mr nor Mrs Jonauskas, I find, played any part in DSS's making that error.

44. I also find that DSS sent Mr Jonauskas a letter dated 22 July, 1997. Not only did the front page of the letter advise him of the amount of Age Pension that he would be paid each week but it also asked him to read the back page. It did so by telling him that the back page told him about his rights and what he had to tell DSS. On the basis of the evidence of both Mr and Mrs Jonauskas, I find that Mr Jonauskas did not read the back page at all. I find that Mrs Jonauskas did look at the back page but misunderstood its meaning in so far as it referred to the sum of $10,331.88. She understood it to mean what her husband had already been paid rather than being a reference to their "combined yearly income".

45. Age Pensions are the subject of Part 2.2 of the Act. Under s. 68(1):

"The Secretary may give a person to whom an age 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."

46. The notice must be in writing, be given personally or by post, specify how the person is to give the information to DSS and the period within which he or she is required to do so and specify that the notice is a recipient notification notice given under the Act (s. 68(3)). The Secretary may give a similar notice to the recipient of an Age Pension requiring him or her "... to give the Department a statement about a matter that might affect the payment of the pension to the person" (ss. 69(1) and (2)).

47. The notice on the back of the letter of 22 July, 1997 complied with each of these requirements other than to state that it was a recipient notification notice. It did, however, state that the person was obliged to notify the DSS of the matters it specified and that he or she was obliged under ss. 68 and 69. In view of the provisions of ss. 68(3A) and 69(2A) that a notice is not invalid merely because it fails to state that it is a recipient notification notice, I find that the notice was validly given. I reach the same conclusion in relation to the notice given in DSS's later letter dated 11 August, 1997.

48. Each of the notices required Mr Jonauskas to tell DSS within 14 days if his combined income shown on the letter (i.e. $10,331.88) was not correct. That was an event that might affect the payment of the Age Pension to him as it was a matter taken into account under s. 1064 in calculating the amount of pension he was paid. It was, therefore, an event of the sort referred to in s. 68 and a matter of the sort referred to in s. 69. Mr Jonauskas, as I have already found, did not advise DSS that the amount of $10,331.88 did not accurately reflect his combined income. It follows that Mr Jonauskas was in breach of both ss. 68 and 69.

49. A determination of the rate of an Age Pension continues in effect until the pension becomes payable at a lower rate under ss. 73A, 73B or 74 or a further determination in relation to the pension under ss. 76 or 77 has taken effect (s. 71(2)). In this case, only s. 77 is relevant. It provides:

"If the Secretary is satisfied that the rate at which an age pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination."

The rate of Age Pension paid to Mr Jonauskas was more than provided for under the Act because the greater the combined income then the less was his Age Pension when it was calculated under s. 1064. Therefore, the Secretary was required to determine that the rate was to be reduced. That is to say, he was required to make an adverse determination.

50. The date of effect of that determination is worked out in accordance with s. 81. As Mr Jonauskas was in breach of s. 68, I will consider only s. 81(5), which provides that:

(a) the person whose age pension is affected by the adverse determination has contravened a provision of this Act ...; and

(b) the contravention causes a delay in the making of the determination;

the determination takes effect on such day (which may be earlier than the day on which the determination is made) as is specified in the determination."

51. There is no requirement that a person's contravention must be made knowingly or unknowingly or innocently or fraudulently (see also Re Gray and Witchard and Secretary, Department of Family and Community Services [1999] AATA 541, 23 July, 1999, ( unreported S A Forgie (Deputy President, IRW Brumfield and AM Brennan (Members), 23 July, 1999)). In this case, Mr Jonauskas' contravention did not occur until the expiration of 14 days after he received the letter dated 22 July, 1997. There is no evidence of when he received that letter but, as the letter was posted to him, the effect of s. 29 of the Acts Interpretation Act 1901 is that he is taken to have received the letter at the time it would have been delivered in the ordinary course of post. Pursuant to s. 160 of the Evidence Act 1995, a postal article is presumed to have been received by a person at a specified address on the fourth working day after the article was posted.

52. I am satisfied that DSS, and later Centrelink, did not become aware of Mr Jonauskas' combined income until after it received a copy of the Income and Assets Review form completed by Mr and Mrs Jonauskas on 16 March, 1999. His contravention of the Act by failing to advise DSS that it had incorrectly stated his combined income in its letter of 22 July, 1997 meant that the Secretary was unaware of his income and so delayed in making his determination to reduce his Age Pension until after 16 March, 1999. This means that the determination subsequently made by his delegate may take effect on the day specified in the determination. That day may, in accordance with s. 81(5), be a day earlier than the date of the determination.

53. I have considered whether the determination should only take effect from some time on or after 14 days after he would have received the notice i.e. some time after 11 August, 1997. As it was, the delegate determined that it should take effect from 10 July, 1997, which was the commencement of his Age Pension payments, and the SSAT determined that it should be from the pay day on 24 July, 1997, which was the first pay day after the period in which he was required to comply with the notice. In considering this matter, I have looked to what would have happened had he complied with the notice within the prescribed 14 day time period. Had he not contravened the Act and told DSS of its error, s. 81(2) would have meant that the Secretary's determination would have taken effect from the date of the occurrence of the event i.e. the date of the occurrence of the error. That would have meant that the delegate would have been required to specify that his determination took effect from the day from which Age Pension was first paid to Mr Jonauskas. As that is the date of effect prescribed by the Parliament itself in the case of a person's compliance, it seems to me that, when Parliament has given the delegate a discretion to select the date of determination, it would be unfair to choose a later date where a person has failed to comply with the Act. Therefore, the date of effect of the determination varying Mr Jonauskas' Age Pension should be from 10 July, 1997.

54. If an amount has been paid by way of a social security payment under the Act, the amount paid becomes a debt to the Commonwealth only if, in the circumstances of this case, a section of the Act provides that it is a debt (s. 1222A). A "social security payment" includes a "social security pension", which includes an Age Pension (s. 23). Section 1224(1) provides that, if an amount has been paid by way of a social security payment and it was paid because, among other matters, the recipient or another person failed or omitted to comply with a provision of the Act, the amount so paid is a debt to the Commonwealth. As the amount of Age Pension was paid to Mr Jonauskas from 10 July, 1997 to 1 April, 1999 because of his failure or omission to comply with a provision of the Act, it is a debt due to the Commonwealth. I note that, as Mr Walsh submitted, the amount of Age Pension paid to Mr Jonauskas in excess of his entitlement on and after 1 October, 1997 is also a debt due to the Commonwealth pursuant to s. 1223(5) of the Act.

55. A debt recoverable by the Commonwealth may be written off or waived in certain circumstances specified in Part 5.4 of the Act. Waiver of a debt is the subject of s. 1237 of the Act. The Secretary may only waive a debt in the circumstance set out in the provisions specified in s. 1237(1). Two are relevant in this case. The first is s. 1237A(1) which provides:

"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."

In the circumstances of this case, s. 1237A(1) only applies if the debt is not raised within a period of 6 weeks from the first payment that caused the debt (s. 1237A(1A)).

56. I am satisfied that the initial error in the calculation of Mr Jonauskas' Age Pension was attributable solely to the administrative error of DSS. Neither Mr nor Mrs Jonauskas misstated their income when they completed the claim or the Partner Details. They said nothing to suggest that the income on the Pay Advice of 29 June, 1997 was anything other than weekly. The information on the Pay Advice strongly indicated that it was for a weekly, rather than a fortnightly, period. The debt continued to be solely attributable to the error of DSS until Mr Jonauskas came under an obligation to advise DSS that it was acting on incorrect information. He came under that obligation once he had received the letter of 22 July, 1997 containing the recipient notification notice requiring him to tell DSS if its statement of his income was correct and once the time for his responding had passed. That time passed on or about 11 August, 1997. After that time, the debt was due in part to its own initial error and in part to Mr Jonauskas' omitting or failing to correct their error.

57. It follows that the debt cannot be waived pursuant to s. 1237A(1) from 11 August, 1997 but, provided it was received in good faith, that it must be waived from 10 July, 1997 to 11 August, 1997. Was it received in good faith? The meaning of the expression "good faith" was considered by the Federal Court in Secretary, DEETYA v Prince [1997] FCA 1565; (1997) 26 AAR 385 (Finn J) in the context of s. 289(2)(b) of the Student and Youth Assistance Act 1973. There is no difference of consequence between the provisions of that paragraph and those of s. 1237A(1) of the Act. In that case, Mr Prince had taken appropriate steps to cancel his AUSTUDY payments on 22 December, 1993 but the Department of Employment, Education and Youth Training continued to pay him. The Tribunal found that Mr Prince acted with honesty of purpose and with due diligence in attempting to clarify the situation and to give the Department further information to encourage it to cancel the payments.

"The section asks that a quite specific question be addressed: was the payment received in good faith? It is quite unconcerned, for example, with whether, after 22 December, Mr Price acted in good faith towards DEETYA. Its sole concern is with whether a particular state of affairs exists at the time a payment (or payments) is received.

The significance of the statutory context in which the formula is used is in the illumination it gives as to what is that required state of affairs. It has correctly been observed that the term 'good faith' (or its now less fashionable Latin equivalent 'bona fide') is a protean one having longstanding usage in a variety of statutory and, for that matter, common law contexts. I merely instance provisions protective of public officials in respect of illegal acts done in good faith in the purported execution of a statute; for a discussion of which see, for example, Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94 at 108-110; the duty of good faith of a mortgagee exercising a power of sale (for example Downsview Nominees Ltd v First City Corp Ltd [1993] 1 NZLR 513); and 'good faith' as an essentially knowledge or notice idea in both statutory and common law contexts involving property dealings: see, for example, Bankruptcy Act 1966 (Cth), s. 120(6); Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266.

The burden of the formula can vary significantly given the purpose it is intended to serve in a given setting. In one context it can focus inquiry upon a person's reason for action (eg, as with the good faith duty of company directors); in another, to a person's state of knowledge when a particular event occurs.

For my own part, I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received - that is, is not entitled to use the moneys received as his or her own - that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.

Given the conventional liability of a mistaken payee of money from consolidated revenue to repay that money irrespective of his or her belief as to an entitlement to it (that is, the 'rule' in Auckland Harbour Board v The King [1924] AC 318), the concession made to the mistaken payee by s 289 of the SYA Act does seem in all probability to be directed to a payee who receives the money (to put the matter positively) in the good faith belief that he or she is entitled to receive it. In other words the frame of the section is to exclude from the right to a waiver, a person who knows or has reason to know that he or she is not entitled to receive the payment. It would be surprising to find that Parliament intended otherwise." (pages 387-388)

59. Cooper J considered the matter further in Jazazievska v Secretary, Department of Family and Community Services (unreported, [2000] FCA 1484, 20 October, 2000). As to when good faith must be shown, his Honour said:

"40. Prima facie_, s 1237A(1) is concerned with actual personal receipt by the debtor of the payment or payments which give rise to the debt. The issue of good faith is, for the purpose of the section, to be determined when the debtor commences to exercise control over the payment by retaining it. It is at this time that the recipient must act with the requisite good faith. A lack of good faith does not mean that the recipient of the payment must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive and retain the payment when or she receives the payment and decides to exercise control over it by retaining it._"

Where the payment is made to a financial institution and a person is unaware of the time of its actual receipt, he or she cannot avoid the requirement of good faith. A person to whom payment is made through a third party can be in no better position than a person to whom payment is made directly (paragraphs 42 and 43).

60. His Honour went on to develop the notion of "good faith" in the context of s. 1237A(1):

"41. A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists. Although said in a different context, the observations of Lord Blackburn in Jones v Gordon (1877) 2 App Cas 616 at 629 are apposite. His Lordship said:

'...If he was (if I may use the phrase) honestly blundering and careless, and so took a bill of exchange or a bank-note when he ought not to have taken it, still he would be entitled to recover. But if the facts and circumstances are such that the jury, or whoever has to try the question, came to the conclusion that he was not honestly blundering and careless, but that he must have had a suspicion that there was something wrong, and that he refrained from asking questions, not because he was an honest blunderer or a stupid man, but because he thought in his own secret mind - I suspect there is something wrong, and if I ask questions and make farther inquiry, it will no longer be my suspecting it, but my knowing it, and then I shall not be able to recover - I think that is dishonesty. I think, my Lords, that that is established, not only by good sense and reason, but the authority of the cases themselves.'"

61. In this case, I have already found that the first payment was made by the Department to Mr Jonauskas on 7 August, 1997. That is the day that he received it. Whether or not he knew that it had actually been paid into his bank account on that day, at that time, and certainly by the time he came to withdraw any of it, he had received the Department's letter of 22 July, 1997. As I find later, Mr Jonauskas did not know that there could be an error in the amount of Age Pension that he was paid and he did not know because he did not read the back of the letter requiring him to notify the Department if there were an error in his combined income. His not knowing is not, however, sufficient for me to find that he received the payment in good faith. He had reason to know that there might be an error and that reason was in the letter. He knew that he had been required to give details of his income and that of his wife and it was reasonable to expect that the amount of the income would have some effect upon the amount of the Age Pension. The words at the top of the Income and Investments form he signed on 7 July, 1997 told him that the "... information asked for on this form is needed to decide whether the Department can grant your claim, or will be used to calculate your rate of payment." (T documents, page 24) I accept that Mr Jonauskas had difficulty reading English and that he suffered giddiness and ill health after his fall almost two years before he lodged his claim. Even taking those matters into account, I find that he did not care about any information in the letter other than the amount of pension he would be paid. He was careless as to whether it contained any other information that needed to engage his attention. In circumstances in which the information as to his obligations was given to him but he did not make any attempt to find out what they were let alone fulfil them, I do not find that he received the payments in good faith. Consequently, no part of the debt can be waived pursuant to s. 1237A(1).

62. The second waiver provision of relevance in this case is s. 1237AAD which provides:

"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 ... ; 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."

63. Each of the three limbs of the section must be satisfied before the debt may be waived. In relation to the first, Mr Walsh submitted that the word "knowingly" should be read as including a person's reckless indifference to becoming informed. In this case, he said, Mr Jonauskas failed to read the backs of the letters he received and was reckless as to whether or not they contained information that he needed to know and so whether he needed to take any steps in relation to that information. He relied upon the High Court's judgements in Cameron v Holt [1980] HCA 5; (1980) 142 CLR 342 (Barwick CJ, Stephen, Mason, Murphy and Aickin JJ) and a decision of the Tribunal in Saunders and Secretary, Department of Family and Community Services (unreported, [1999] AATA 952, 15 December, 1999, Senior Member Kiosoglous).

64. The High Court in Cameron v Holt was concerned with a complaint made by an officer of DSS that Mr Holt had, on three occasions and contrary to s. 138(1)(d) of the Social Services Act 1947, presented a document that was false in a material particular. At first instance, the magistrate had convicted Mr Holt even though he found that he did not have a guilty mind. The magistrate had found that the offence was one of strict liability and did not require that to be an element of the offence. In separate judgements, each of the Justices concluded that the Full Court of the Supreme Court of South Australia (Holt v Cameron (1979) 22 SASR 321, King CJ, Mitchell and Legoe JJ) had been correct in finding that "... to convict of the offence in question, an accused must be shown either to have known of the falsity of the relevant statement or to have made it with reckless indifference. ..." (Stephen J at page 347).

65. The High Court was concerned with a criminal offence in which Parliament had not specified whether any mental element was required. It applied well settled principles that:

"... there is a presumption - in my opinion, a strong presumption - that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence. This presumption can only be displaced if the language of the statute read along with its subject matter requires the conclusion that the legislature intended that such guilty intent should not form part of the prescription of the offence: Lim Chin Aik v The Queen [1963] AC 160, at p 173, affirming the expression of Wright in Sherras v De Rutzen [1895] 1 QB 918, at p 921; see also Sweet v Parsley [1970] AC at pp 162, per Lord Diplock ..." (page 346, per Barwick CJ)

66. Section 1237AAD does not create a criminal offence but determines one of the circumstances in which the administrative action of waiver of a debt may be undertaken. The presumptions that are applicable in the interpretation of a criminal offence do not necessarily lend themselves to the interpretation of provisions regulating administrative action. A "guilty mind" of the sort that may be generally be presumed to be part of a criminal offence, may not necessarily be present at all in provisions regulating administrative action. An example of that arises in s. 81(5) where, in determining the date of effect of a determination, it is irrelevant to consider whether a person's contravention of a provision of the Act must be made knowingly or unknowingly or innocently or fraudulently. All that is relevant is to determine that there has been such a determination (see paragraphs 50-51 above).

67. Mr Walsh drew my attention to the Tribunal's decision in Re Saunders and Secretary, Department of Family and Community Services (unreported, [1999] AATA 952, 15 December, 1999, per Senior Member Kiosoglous). After reviewing other authorities in the Tribunal (Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996-97) 45 ALD 435, Deputy President Forgie; Re Morgan and Secretary, Department of Family and Community Services, unreported, [1999] AATA 390, 8 June, 1999, Associate Professor Hotop, then Senior Member; and Re Armitage and Secretary, Department of Family and Community Services [1999] AATA 700, 17 September, 1999, Dr Christie (Member)), Senior Member Kiosoglous concluded:

"Following these decisions, in this Tribunal's opinion, the interpretation to be given the phrase 'knowingly failing' requires a standard of conscious, deliberate failure to comply with a provision of the Act. Inadvertent or unintentional failure does not constitute 'knowingly', even when an applicant knows he needs to notify. It is a civil standard of proof where 'knowingly' is a conscious and deliberate choice (Re Morgan) and also can include recklessness to the consequence of failing to comply with a provision of the Act." (paragraph 22)

68. Although I am reluctant to disagree with a colleague and have only respect for Senior Member Kiosoglous, I must do so on this occasion and maintain the position I adopted in Re Callaghan when I said:

"(48) There is nothing in s 1237AAD which suggests that the word 'knowingly' should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission." (page 445)

69. I reached that conclusion after considering the discussion of "knowledge" by Matheson J in Hooi v Brophy (1984) 52 ALR 710; 3 IPR 16. He referred at pp. 712-713, to a discussion of "knowledge" by Devlin J (as he then was) in Taylor's Central Garages (Extra) Ltd v Roper [1951] WN (Eng) 383 at 385:

"...'There are, I think, three degrees of knowledge which it may be relevant to consider in cases of this sort. The first is actual knowledge, and, of course, the justices may find it because they infer from it the nature of the act that was done, for no man can prove the state of another man's mind; and they may find it, of course, even if the defendant gives evidence to the contrary. They may disbelieve him, and think that that was his state of mind. They may feel that the evidence falls short of that, and, if they do, they have then to consider what might be described as knowledge of the second degree: they have to consider then whether what the defendant was doing was, as it has been called, shutting his eyes to an obvious means of knowledge. Various expressions have been used to describe that state of mind. I do not think it necessary to look further, certainly not in cases of this type, than the expression used by Lord Hewart CJ, in a case under this section. Evans v Dell (1937) 53 TLR 310 at 313: "... the respondent deliberately refrained 'from making inquiries', the results of which he might not 'care to have'."

'The third sort of knowledge is what is generally known in the law as constructive knowledge. It is what is encompassed by the words 'ought to have known' in the phrase 'know or ought to have known'. It does not mean actual knowledge at all: it means that the defendant had in effect the means of knowledge.' (my emphasis)" (page 385)

70. It seems to me that it is the first type of knowledge, actual knowledge, that it is meant by the reference to "knowingly" in s. 1237AAD. From an examination of the remaining provisions of the Act as they were in force at the time the delegate's decision was made on 9 April, 1999 and the SSAT's decision was made on 13 September, 1999, it seems to me that the Parliament has quite deliberately distinguished between "knowingly" and "recklessly". It has done so in the context of offences under the Act and I refer, for example, to s. 1344(1), which provides that a person must not "knowingly or recklessly make a false or misleading statement" in connection with his or her or with another's claim for, among other matters, a social security payment. Other examples are found in ss. 1345 and 1346. With effect from 20 March, 2000, the substance of these provisions is now found in ss. 212, 213 and 214 of the Social Security (Administration) Act 1999 ("Administration Act").

71. Section 1347, however, refers only to "knowingly" when it provides:

(a) payment of a social security payment under this Act or of fares allowance; or

(b) payment of an instalment of a social security payment under this Act;

for which the person is not eligible, or which is:

72. Similarly, s. 1348 refers both to "knowingly" and, in a different context, to "knowingly and recklessly" when it provides:

(a) payment of a social security payment under this Act or of fares allowance; or

(b) payment of an instalment of a social security payment under this Act; or

(c) a false or misleading statement made knowingly or recklessly; or

Sections 1347 and 1348 are now found in ss. 215 and 216 of the Administration Act.

73. In the context of the Act, it is clear that Parliament is aware of the "three degrees of knowledge" and has deliberately distinguished between the first two. It has also distinguished the first two from constructive knowledge and examples of that are found in ss. 1358A and 1358B of the Act (ss. 229-232 of the Administration

Act). In view of that, it seems to me that its use of "knowingly" in s. 1237AAD is a deliberate choice and means actual knowledge. That is not to say that recklessness is irrelevant in s. 1237AAD for it is relevant in determining, together with other matters, whether or not there are special circumstances

74. In this case, I find that Mr Jonauskas did not knowingly fail or omit to comply with the requirements of s. 68. He did not do so as he did not know that he was required to do so.

75. That brings me to consider whether there are special circumstances other than financial hardship alone which make it desirable to waive the debt. Whether circumstances amount to special circumstances depends upon the purpose for which the particular power was given. As the Full Court of the Federal Court said in Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ) it is not "... possible to lay down precise limits or precise rules." (page 228)

76. As Ms Cruse and Ms Lee submitted, Mr Jonauskas waited for almost a year after his 65th birthday before he applied for an Age Pension. He did not apply for any form of pension, benefit or allowance after his accident in 1995. As he could not work, Mr Jonauskas relied on his own resources in those two years. He did not apply for a pension, benefit or allowance, he said, because he expected that he would be able to go back to work. His position is understandable. Whether a person is well-advised to forego pension entitlements would be a matter on which different people have different views. To some, Mr Jonauskas' reasons would be valid while others would think that the amount that they might receive in pension entitlements does not justify their having to report their financial details to Centrelink. Yet others would think that neither reason is sensible and that any entitlement should be claimed. The point is that Mr Jonauskas' understandable views do not make his circumstances special.

77. They are not the only circumstances that must be taken into account. On the basis of the medical evidence and of that of Mr and Mrs Jonauskas, I find that Mr Jonauskas suffered serious injuries in his fall on 14 September, 1995. Those injuries have left him with difficulty in movement, giddiness accompanied by deafness and tinnitus in the right ear together with a feeling of fullness in that ear. Medications such as Stemetil can cause him to suffer from drowsiness and confusion. He suffers from some memory loss. On top of this, Mr Jonauskas has some difficulty in reading English in that he may need to resort to a dictionary at times. Mr and Mrs Jonauskas said that their only current income is from their Age Pensions. In view of their expenses, I am satisfied that a requirement that they repay the debt would mean that they face some financial hardship although the extent of that hardship would depend in part upon the amount withheld from their pensions each fortnight to repay the debt.

78. Also relevant are the circumstances in which Mr Jonauskas came to fail or omit to comply with his obligation to notify the Department that it had not correctly stated his combined income. Having heard his evidence, I am satisfied that he took no interest in the letter of 22 July, 1997 other than to look at the amount he would be paid. He made no effort to read the rest of the information on the front of it. Had he done so, his attention would have been directed to the back of the letter. He did not turn the letter over. Mr Jonauskas did not ask anyone else to check the letter for him to make sure that he understood its contents. He did not respond to the invitation on the front of the letter to get in touch with the Department if he wanted to know more. The telephone number and office hours were printed at the top of that front page. I am satisfied that he was careless as to whether the letter contained information as to matters he was required to deal with. Perhaps that was because he expected the Department to put the correct information into the computer but, for all that, he was still careless as to whether it had.

79. I am not satisfied that Mr Jonauskas' circumstances are special. Many people who are on the Age Pension suffer from ill health and have difficulties in managing their affairs because of it. Many have some degree of difficulty in reading letters whether because of lack of English or because of problems caused by ill health. This does not justify their being careless or reckless about the manner in which they manage their affairs. They may seek assistance from family members although they are not obliged to. There are avenues of assistance available to them and one of those is to telephone the Department, and now Centrelink, for assistance and guidance as to a person's obligations. People who have difficulties and have the capacity to understand their difficulties use those avenues or at least make some attempt to. Mr Jonauskas neither used them nor made any attempt to do so. I am satisfied that he had the capacity to understand his situation. He also had the capacity to understand any obligations that he might have known he was under but, by making no attempt to read the letter of 22 July, 1997 (or subsequent letters) chose not to know about them. In view of this, I have concluded that there are no special circumstances making it desirable to waive the debt.

1. set aside the decision of the Social Security Appeals Tribunal dated 13 September, 1999; and

2. substitute a decision that a debt of $6,917.30 for the period 10 July, 1997 to 1 April, 1999 be raised and recovered from the applicant.

I certify that the eighty preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

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