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SOCIAL SECURITY ACT 1991 - SECT 1223

Debts arising from lack of qualification, overpayment etc.

             (1)  Subject to this section, if:

                     (a)  a social security payment is made; and

                     (b)  a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

       (1AA)  If a social security payment is made to, or as directed or authorised by, the person who is entitled to obtain the benefit of the payment, subsection (1) does not apply to any other person who afterwards obtains the benefit of the payment unless the other person obtained the benefit because of a mistake made by the first person in connection with the giving of the direction or authorisation.

       (1AB)  Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:

                     (a)  the payment was made to the person by mistake as a result of a computer error or an administrative error;

                     (b)  the person for whose benefit the payment was intended to be made was not qualified to receive the payment;

                     (c)  the payment was not payable;

                     (d)  the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;

                     (e)  the payment was made in purported compliance with a direction or authority given by the person who was entitled to obtain the benefit of the payment but the direction or authority had been revoked or withdrawn before the payment was made;

                      (f)  the payment was intended to be made for the benefit of someone else who died before the payment was made.

       (1AC)  If a social security payment was made by mistake as a result of a computer error or an administrative error, subsection (1) applies:

                     (a)  whether or not the payment was made under a determination that had effect at the time when the payment was made; and

                     (b)  whether or not a determination in relation to the payment could be made after that time with effect from and including that time.

       (1AD)  Subsection (1AC) does not apply if the social security payment was made when it should not have been made because of the occurrence of an event or a change in circumstances where the event or change had not been notified to the Secretary but no valid requirement for notification had been made under the social security law.

        (1AE)  If subsection (1AC) applies in respect of a social security payment:

                     (a)  Divisions 8, 9 and 10 of Part 3 of the Social Security (Administration) Act 1999 are to be disregarded; and

                     (b)  any determination made under section 79 or 80 of that Act to correct the error in the payment takes effect from the date stated in the determination; and

                     (c)  the date so stated may be a date earlier than the date on which the determination is made.

       (1AA)  Except in the circumstances referred to in subsection (1AB), subsection (1) does not apply to a payment made under subsection 47(2) or 51(2) of the Administration Act.

       (1AB)  Subsection (1) applies to a payment made to a person under subsection 47(2) or 51(2) of the Administration Act if the person is released from gaol or psychiatric confinement on a day after the day that is the person's expected release day for the purposes of section 35 of the Administration Act.

Some carer payment overpayments are not debts

          (1B)  If:

                     (a)  an amount has been paid to a person (the carer ) by way of carer payment because the carer was providing care for a care receiver or care receivers (as defined in subsection 197(1)); and

                     (b)  the amount was paid on the basis that the carer was qualified for carer payment when the carer was not qualified:

                              (i)  because an estimate of the income of the care receiver or any of the care receivers was an underestimate; or

                             (ii)  because an assessment or amended assessment of the income of the care receiver or any of the care receivers had been amended as described in paragraph 198B(2)(b), (c) or (d); or

                            (iii)  because of the occurrence, or the likelihood of the occurrence, of an event in respect of which the Department had not been informed in accordance with a requirement in a notice under section 70 of the Administration Act;

the amount is not a debt due to the Commonwealth.

Some carer payment overpayments are debts if carer knew about care receiver's affairs

          (1C)  Despite subsection (1B), an amount described in subsection (1B) is a debt due to the Commonwealth if it was reasonable for the carer to know that:

                     (a)  the estimate of the income was incorrect; or

                     (b)  the assessment or amended assessment had been amended; or

                     (c)  the Department should have been informed in respect of the event in accordance with the requirement in the notice;

as the case requires.

Some parenting payment overpayments are not debts

             (2)  If:

                     (a)  an amount has been paid to a person by way of parenting payment; and

                     (b)  the person is someone to whom paragraph 500(1)(ca) applies; and

                     (c)  the amount was paid on the basis that the person was qualified for parenting payment when the person was not qualified only because the person failed to meet one or more participation requirements that applied to the person under section 500A;

the amount is not a debt due to the Commonwealth.

Amount calculated using non-income/assets tested add-on amount--no add-on amount payable

             (7)  If:

                     (a)  an amount has been paid to a person by way of social security payment; and

                     (b)  when the amount was calculated:

                              (i)  an amount of remote area allowance was added to the rate of the person's social security payment when no such amount should have been added; or

                            (ia)  the rate of the person's social security benefit payment was increased by an amount of language, literacy and numeracy supplement when that rate should not have been so increased; or

                             (ii)  if the person was receiving a job search allowance--the rate of the person's job search allowance was increased by an amount of job search training supplement when that rate should not have been so increased; or

                            (iii)  if the person was receiving a parenting payment or newstart allowance--the rate of the person's parenting payment or newstart allowance was increased by an amount of training supplement when that rate should not have been so increased; or

                            (iv)  if the person was receiving disability support pension, parenting payment, youth allowance or jobseeker payment--the rate of the person's disability support pension, parenting payment, youth allowance or jobseeker payment was increased by an approved program of work supplement when that rate should not have been so increased; or

                             (v)  if the person was receiving a parenting payment, youth allowance or newstart allowance--the rate of the person's parenting payment, youth allowance or newstart allowance was increased by an amount of National Green Jobs Corps supplement when that rate should not have been so increased;

each of the following amounts is a debt due to the Commonwealth:

                     (c)  the amount of remote area allowance;

                    (ca)  the amount of language, literacy and numeracy supplement;

                     (e)  the amount of training supplement;

                      (f)  the amount of approved program of work supplement;

                     (g)  the amount of National Green Jobs Corps supplement.

Some parenting payment supplements are not debts

          (7A)  Despite subsection (7), if:

                     (a)  an amount has been paid to a person by way of parenting payment; and

                     (b)  the person is someone to whom paragraph 500(1)(ca) applies; and

                     (c)  when the amount was calculated, the rate of the person's parenting payment was increased by an amount (a supplement amount ) of any of the following:

                              (i)  approved program of work supplement;

                             (ii)  training supplement;

                            (iii)  National Green Jobs Corps supplement; and

                     (d)  the amount of parenting payment was paid on the basis that the person was qualified for parenting payment when the person was not qualified only because the person failed to meet one or more participation requirements that applied to the person under section 500A;

the supplement amount is not a debt due to the Commonwealth.

Amount calculated using incorrect non-income/assets tested add-on amount--add-on amount payable

             (8)  If:

                     (a)  an amount (the received amount ) has been paid to a person by way of social security payment; and

                     (b)  when the received amount was calculated:

                              (i)  an amount of remote area allowance was added to the rate of the person's social security payment that was greater than the amount that should have been added; or

                             (ii)  if the person was receiving a job search allowance--the rate of the person's job search allowance was increased by an amount of job search training supplement that was greater than the amount by which it should have been so increased; or

                            (iii)  if the person was receiving a newstart allowance--the rate of the person's newstart allowance was increased by an amount of newstart training allowance that was greater than the amount by which it should have been so increased;

                            the difference between the received amount and the amount of social security payment that would have been paid to the person if the amount had been calculated by using the correct amount of remote area allowance, job search training supplement or newstart training supplement (as the case may be) is a debt due to the Commonwealth.

             (9)  In this section, unless the contrary intention appears, a reference to a social security payment includes a reference to a part of a social security payment.



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