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6.7.1.45 Ten per cent Recovery Fee on Debts from False or Non-declaration of Income from Personal Exertion
Overview
A 10% recovery fee will be imposed on a debt incurred when a person has:
when required under a provision of the social security law, to provide information in relation to the person's income from personal exertion.
The 10% debt recovery applies only to persons of working age on a social security benefit (section 23(1)-'social security payment'), DSP, WP, WidB or PPS at the time the debt occurred.
The fee is only applicable to that part of the debt that arose because the person refused or failed to provide information, or knowingly or recklessly provided false or misleading information about their income from personal exertion.
A decision to apply the 10% recovery fee must not be without contacting the person.
Factors to consider
The decision to impose a 10% recovery fee is separate from the decision to raise a debt, and must be considered discretely. However, the decision to apply the recovery fee must be made at the same time the debt is raised and cannot be applied retrospectively.
Income from personal exertion
To determine whether or not misdeclared income is subject to a recovery fee, the decision maker must first determine that it is ordinary income under the Social Security Act 1991. The decision maker should then consider whether the ordinary income is derived from personal exertion.
Income from personal exertion includes any income received as an employee or for any services rendered. This includes income from earnings, salaries, wages, commissions, fees, bonuses, superannuation allowances, retiring allowances and retiring gratuities, allowances and gratuities.
It also includes proceeds of any business activity carried on by the person either alone or as a partner with any other person or profit received from holding an office or from any profit making undertaking or scheme.
It does not include interest, unless the person's business consists of the lending of money, or unless the interest is received in respect of a debt for goods supplied or services rendered by the person in the course of their business. Nor does it include an income amount received as compensation for the person's inability to earn, derive or receive income through personal exertion.
Need for personal contact
Where a debt has been identified for non-declaration or under-declaration of income, the 10% recovery fee must not be applied until the person has been contacted. It must be established, at the contact, if the person had a reasonable excuse for refusing or failing to provide information or whether they knowingly or recklessly provided false or misleading information in relation to their income.
Contact must be made by either telephone or by letter. If a current income support recipient does not reply to a request to contact letter after 21 days, their payment should be suspended. If there is still not contact after a further 14 days, their payment should be cancelled. People who are suspended at the time of the initial contact should be treated as a current recipient, and should not have their payment restored without clarification of their reasonable excuse for refusal or failure to provide income details.
Reasonable excuse for refusing or failing to provide information in relation to the person's income from work
The 10% recovery fee will be applied to a debt that has arisen because a person has refused or failed, without reasonable excuse, to provide information or who has knowingly or recklessly provided false or misleading information in relation to their income from personal exertion.
The term 'reasonable excuse' is discretionary but in basic terms the excuse must be one that would seem plausible and satisfactory to a member of the general public. For example, the refusal or failure must not simply be a deliberate act of non compliance.
When determining if a person has a reasonable excuse for failing to declare income, the person's circumstances must be considered. Factors that may contribute are:
Knowingly or recklessly providing false or misleading information in relation to the person's income from work
The 10% recovery fee will also be applied to a debt when the debt has arisen because a person has knowingly or recklessly provided false or misleading information in relation to their income from personal exertion.
The term knowingly implies a deliberate action, for example where a person who does not want their income support payment to be reduced as a result of their income from employment has made a conscious decision not to declare their income.
The term recklessly implies a careless action where a person could be expected to foresee that the action would have adverse consequences. In most cases it will be appropriate to give recipients a warning the first time they mistakenly provide false or misleading information about their income from work. However, in most cases, a person who has previously had an over payment for providing incorrect information about earnings, would know the consequences of providing incorrect information they may be taken to be recklessly giving false or misleading information.
Example 1: Jo couldn't remember how much she got paid from her casual job and she misplaced her pay slip. She guessed the income amount when she declared it. Centrelink later found out that Jo had been overpaid because the reported income was below the amount she had been paid. Jo was contacted to discuss the circumstances of the mis-declaration. Because this was the first time Jo misreported income resulting in a recoverable debt, no fee was imposed, Jo was warned that providing false information in relation to her income in future may result in a 10% recovery fee being applied. This warning HAS to be recorded online. If Jo had previously been warned, it may have been appropriate to impose the 10% recovery fee for recklessly providing false or misleading information in relation to her income.
Example 2: Raoul has 2 weeks work and is due to lodge his form after the first week. He lodges his form but because he hasn't yet been paid he does not advise Centrelink that he is working. Raoul thinks that it will be okay to tell Centrelink on his next form when his work will be finished and he has been paid. Records show that Raoul has not misdeclared his income on any previous occasion. As it appears that Raoul did not understand the requirement to declare his earnings when first earned, derived or received the recovery fee should not be applied but he should be reminded of his obligations to let Centrelink know when he is working.
It is important to remember that there will be some instances where a person may appear to have knowingly or recklessly provided false or misleading information about their income from personal exertion, but because of personal factors, they cannot be held accountable for this.
Example: a person with an intellectual or leaning disability may previously been warned about the requirements for correctly reporting income, but may continue to report their income incorrectly. In normal circumstances this could be considered knowing or reckless behaviour. However a decision maker would need to consider whether this person fully understood their reporting requirements. If the person did not, then the recovery fee could not be imposed.
Amount of the 10% recovery fee
The fee applies only to that part of the debt that arose because the person refused for failed to provide information, or provided false or misleading information about their income from personal exertion. The fee must be rounded down to the nearest 5 cents.
In cases of multiple income streams and/or partner income, the following process should be applied:
Step 1: Calculate the amount of the person's debt, call this Amount A.
Step 2: Calculate the debt amount (if any) that would have arisen if there had been no income from personal exertion, call this
Step 3: Subtract Amount B from Amount A. The result is the amount of the debt attributable to personal exertion, and to which the 10% fee should apply.
Example 1: Mary has some income from share dividends and one-off earnings. She deliberately under-declared both amounts. Centrelink later found out that Mary had been overpaid because she had not declared her income correctly and a debt was raised for the entire over payment arising from both acts of under-declaration. Mary previously had one-off earnings that she had not declared and was advised that she was required to declare all income she earns. Because she had previously been advised of the need to declare her income correctly it would be appropriate to apply the 10% recovery fee to Mary's debt. The amount (if any) that Mary would have been overpaid based on her share dividends alone is subtracted from the total debt amount. The difference is the amount attributable to Mary's personal income and the amount on which the 10% recovery fee should be calculated.
Example 2: John earned money washing car windscreens. His partner, Devinda, also earned money picking apples. Devinda also receives PP. Centrelink discovered that Devinda had earnt more money that she had declared which means that she has been overpaid. It is determined that Devinda knowingly misdeclared her income. The 10% recovery fee should be applied to Devinda's debt. John included the same information about Devinda's income on hid form. Even though John also under-declared Devinda's income he does not incur a penalty. The 10% recovery fee is not applied to John because his debt is not the result of income from his personal exertion. The amount (if any) that Devinda would have been overpaid, based on John's income alone is subtracted from the total debt amount. The 10% recovery fee is applied to the difference.
Act reference: SSAct section 1228B Overpayments arising under other Acts and Schemes
Policy reference: SS Guide 3.1.13.90 Reasonable Excuse
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Last reviewed: 4 December 2006
