18.104.22.168 Debts arising from a multiple payment
Where a person has claimed and/or received multiple income support payments or supplements, it is necessary to determine which one of the several payments, if any, should be retained and which should be raised as a debt.
SSAct section 1223 specifies that a debt to the Commonwealth is incurred where a payment 'was made as a result of a contravention of the social security law, a false statement or a misrepresentation'. If a person receives a payment under these circumstances, that person is not eligible for the payment and a debt to the Commonwealth will be incurred.
Where a legally recoverable debt can be raised, it shall be, and prosecution sought where appropriate. All payments affected by the provision of misleading, false or fraudulent information will be raised as a debt.
It is important to note that multiple payments may also arise in circumstances other than the provision of misleading, false or fraudulent information.
It is also important to note that on rare occasions, people may provide a name that is different from their birth-name and that there may not be a deliberate intention to defraud or to misrepresent through the use of the alternate name.
SS(Admin)Act section 80 provides authorisation for the Secretary (or delegate) to suspend or cancel payment if they are satisfied that the payment has been made to a person who is not qualified for that payment. Subsequent to this decision, a debt can then be raised under the SSAct section 1223 where appropriate.
Social security law is beneficial law
Social security law is beneficial legislation. It is designed to assist disadvantaged Australians. Court rulings have stipulated that social security law should be construed in order to give the fullest relief to recipients where the meaning of its language allows.
In practical terms, this means that it is to provide a benefit for a person who has made a legitimate claim for assistance for which they have a legal entitlement. An underlying principle therefore is that a person should be able to claim the most beneficial payment available to them, given they meet all eligibility criteria.
In the situation of a multiple payment, where the payment does not arise from the provision of misleading, false, fraudulent information or misrepresentation, the least beneficial eligible payment should be ceased and the amount that has been paid to the person for this type of payment should be raised as a debt.
Example: A person has simultaneously received JSP and DSP through an error where fraudulent activity has not occurred. The least beneficial payment, JSP, will be ceased, and a debt raised for the amounts of JSP received simultaneously with the payment of DSP.
Multiple payments due to misleading, false, or fraudulent information
In the case of a multiple payment arising from the provision of misleading, false, fraudulent information, or misrepresentation, any payment received under these circumstances will constitute a debt to the Commonwealth and prosecution may be sought.
In very limited circumstances, provision of a false name may not impact on the recipient's eligible receipt of a payment (see 22.214.171.124) where their name would not affect their eligibility for the payment had they provided their birth-name instead.
These cases outline where an individual had provided an alternate name, however the alternate name could not be considered to be a false statement or a false representation and that the individual was perfectly entitled to provide the alternate name. From the above AAT decisions, case law is settled that a person may assume and use any name, provided its use is not calculated to deceive or to cause pecuniary loss and that there is no intention to defraud.
If the initial payment claim is legitimate and eligibility upheld, then any further or additional payment sought through the provision of misleading, false, or fraudulent information is deemed to be ineligible. In this case the additional payment will cease, a debt raised and prosecution may be sought.
Example: A person has received JSP and later simultaneously receives DSP due to claiming through a false identity. The additional payment (DSP) will cease, a debt raised for DSP and prosecution may be sought. It is not relevant for the purposes of determining a debt whether the person used their correct or legitimate identity for the first payment.
Once the use of an incorrect or false identity is discovered, the person's correct and legitimate identity must be recorded.
General criteria for raising a debt under multiple payments
- Where a person has received multiple payments of the same payment type (e.g. JSP), no false information was provided and that person has and continues to meet the eligibility criteria, a debt will be raised for all but one of the payments.
- Where a person has received multiple payments and is not entitled to retain any payment, such as where the level of assets and/or income or other criteria would have prevented a payment, all payments will cease, debts raised and a prosecution may be sought.
- Where a false statement was provided in order to qualify for a payment, e.g. if false records or another person's medical records were used to obtain DSP, any and all payments should be raised as a debt and recovered accordingly. A prosecution may be sought.
- For activity or participation tested payments (e.g. JSP, YA (job seeker), PPS) and participation or activity requirements have not been met, all payments made should be raised as a debt and recovered accordingly.
- Where a false name has been provided for a payment and there is no intention to defraud, and that person has and continues to meet the eligibility criteria, a debt will not be raised.
- Where a false name has been provided for a payment and the person applies for another payment where there is an intention to defraud, and that person has and continues to meet the eligibility criteria for the first payment, a debt will be raised for the second payment and prosecution sought.
- Where a false identity has been provided for one or more payments and that person has not met the eligibility criteria, a debt will be raised for all payments. If there is evidence that the false identity was created in order to defraud, prosecution may be sought.