37Adjustment of payments of assistance

##### 37 Adjustment of payments of assistance (1) Where an amount of assistance has been paid to an applicant or applicants and the whole or part of the amount should not have been paid, the whole, or that part, as the case may be, of the amount is referred to in this section as an amount overpaid, and the succeeding provisions of this section apply. (2) If further assistance is payable, but not paid, to the applicant or applicants, the Secretary may recover the amount overpaid: (a) where only one amount of assistance is so payable—by deduction from that amount; (b) where 2 or more amounts of assistance are so payable—by deduction of equal amounts from the amounts so payable. (3) So much of the amount overpaid as exceeds the total amount (if any) of further assistance payable, but not paid, to the applicant or applicants is a debt due to the Commonwealth by the applicant, or by the applicants jointly and severally, as the case may be, and may at any time be sued for and recovered in a court of competent jurisdiction by the Secretary suing in his or her official name. (4) Where by virtue of subsection (3) a debt is due by applicants jointly and severally, the Secretary is not entitled to recover amounts that, in the aggregate, exceed the amount of the debt. (5) Without limiting the generality of subsection (1), where: (a) an amount of assistance has been paid to an applicant or applicants on the basis of an amount of the prescribed earnings of the applicant or applicants and the amount of those prescribed earnings is subsequently determined to be a greater amount; and (b) as a result of the determination, the whole or part of the amount of assistance is not payable; then, for the purposes of this section, the whole, or that part, as the case may be, of the amount of assistance shall be treated as if it should not have been paid. (6) Without limiting the generality of subsection (1), where: (a) an amount of assistance has been paid in respect of a dwelling; and (b) either of the following subparagraphs applies: (i) a contract for the purchase of the dwelling was entered into by the applicant or applicants that provided for the payment of the whole or a part of the purchase price by instalments and, before the end of 12 months after the prescribed date in relation to the applicant or applicants, the contract is discharged otherwise than by performance of the contract; (ii) a contract for the purchase of the dwelling that provided for the payment of the whole or a part of the purchase price by instalments was not entered into by the applicant or applicants but any of the circumstances referred to in paragraph 35(2)(a) or (b) occurs; the amount of assistance is to be treated for the purposes of this section as if it should not have been paid. (6A) Without limiting the generality of subsection (1), where: (a) an amount of assistance has been paid to a person or persons in respect of a dwelling; and (b) that person, or at least one of those persons, as the case may be, ceases to be a prescribed person in relation to the dwelling because of a direction under section 5; then, for the purposes of this section, the amount of assistance (whether paid before or after the commencement of this subsection) shall be treated as if it should not have been paid to that person or those persons, as the case may be. (7) Without limiting the generality of subsection (1), where an advance has been paid to an applicant or applicants on account of an amount of assistance and it is subsequently determined that the amount of assistance is not payable or the amount of assistance payable is less than the amount of the advance, then, the amount of the advance, or the amount of the difference, as the case may be, shall, for the purposes of that subsection, be deemed to be an amount of assistance that should not have been paid. (8) Where the whole or part of an amount of assistance that has become payable to an applicant or applicants has not been paid, the Secretary shall pay the whole, or that part, as the case may be, of the amount to the applicant or applicants, as the case may be, by way of a single payment or as otherwise prescribed. (9) An amount of less than $10 is not payable under subsection (8).