Case: Re Huynh and Secretary, Department of Social Security (1994) 34 ALD 694
Outcome: approved
In Varhegyi , the applicant was overpaid an Austudy payment after he failed to inform the Department that he was no longer a full-time student. After Centrelink sought to recover the debt, the applicant argued that the debt should be waived on the basis that special circumstances existed. Again, it was argued that a notional entitlement should be considered. Deputy President Forgie said, at [35]-[37]: 35. Ms Riley raised the concept of "notional entitlement" as one that is relevant and that has found favour in a number of Tribunal decisions in the context of waiving a debt. In Re Huynh and Secretary, Department of Social Security [(1994) 34 ALD 694] the tribunal accepted that: "... where there exists a notional entitlement to another payment under the Act, an applicant is entitled to have this entitlement taken into consideration when the question of waiver is being considered. However, the tribunal is further of the view that in determining whether a nominal entitlement should be offset against an overpayment, the facts which led to the overpayment are important. That is, if the overpayment was fraudulently obtained, this would weigh heavily against the fact there did exist a nominal entitlement to moneys." [(1994) 34 ALD 694 at 713] In Re Dobbie and Secretary, Department of Social Security [AATA, No 8661, 23 April 1993, unreported] the tribunal found that the applicant had a "notional entitlement" to age pension, and waived 50% of the overpayment of widow's pension: "... the applicant had an entitlement to a rate of age pension during the relevant period having regard to the "married" income tests. In other words, if the true state of affairs had been disclosed the applicant would have been paid age pension during the relevant period in excess of $20,000. As the applicant had an entitlement to a rate of age pension that fact should not be ignored despite the fact that she had received public money to which she was not entitled ... On the other hand, good administration of the social security system relies in large measure on the honesty of claimants in their dealings with the department. It follows in our opinion that an applicant who, notwithstanding a notional entitlement to a pension, misrepresents her position faces the prospect of having to accept the consequences of her actions."[AATA, No 8661, 23 April 1993, unreported] 36. After these decisions were made, the waiver provisions of the Act were amended with effect from 1 January 1996, introducing specific waiver provisions where there is a notional entitlement to parenting allowance or family allowance.[ Social Security Act 1991 (Cth), s 1237AAC] Eligibility for these allowances is not dependent on a person's satisfying an activity test in order to be eligible for the payment as is the case for Austudy or newstart Allowance.[ Re Secretary, Department of Family and Community Services and Radmilovich [2002] AATA 779 ; (2002) 70 ALD 218 at 232; [2002] AATA 779] The effect of these amendments on "notional entitlement" was recently addressed by Deputy President Jarvis in Re Schulze and Secretary, Department of Family and Community Services ... 37. I agree with Deputy President Jarvis. There is no room to introduce a concept of notional entitlement in that of special circumstances in s. 1237AAD(1) of the Act.