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SSAct section 1223 involves a number of complex issues of interpretation and application that are discussed below.
SSAct section 1223 describes some categories of debts recoverable under the SSAct and 1947 Act.
Certain provisions of section 1223, operate to define overpayments that are NOT recoverable under the SSAct including:
Act reference: SSAct section 1223 Debts arising from lack of qualification, overpayment etc.
The current version of section 1223 does not apply where the recipient has an 'accrued right' to have the substantive issues of the matter decided under the provisions of the 1947 Act or under earlier provisions of the SSAct. An accrued right may arise where a case was already under review at the time of the legislative change.
SSAct section 1223(1) requires that it must be the 'recipient' who is not qualified for the social security payment or to whom the payment is not payable.
There is no definition of recipient in the SSAct (except in respect of FTB, at section 6AA). The definition of 'receiving' in SSAct section 23 suggests a connection with payability. In everyday usage, a recipient is simply defined as 'someone who receives'.
Therefore, the word recipient in the SSAct means 'the person in relation to whom the payment was made'. In some cases, this will be the person who is the subject of the payment. In other cases, it will be the actual claimant.
This interpretation leads to difficulties in determining how a debt arises in relation to some nominee payments and some payments made in error to the wrong person. Cases involving such circumstances should be referred to the relevant helpdesk for specific advice on whether a recoverable debt exists.
Under SSAct section 1223(1) a debt arises where the recipient is not qualified for the payment OR where the payment is not payable to the recipient.
Section 1223(1) reflects the division of the concept of entitlement into the related notions of qualification and payability.
By virtue of the continuing effect of a determination that a social security payment is payable, the mere loss of qualification for a payment does not automatically result in the payment becoming NOT payable. There must be a subsequent determination that the payment is not payable before it ceases to be payable.
Act reference: SSAct section 1223(1) Recipient not qualified for payment and amount not payable
SSAct section 1223(1) requires that the social security payment must have been paid to 'a person'.
Where payment has continued in error following the death of the recipient, arguably payment has not been made to a person. In addition, it is unclear at what point payment in respect of a deceased recipient becomes not payable.
Despite this, payments made to a deceased recipient are recoverable under SSAct section 1223(1) on the basis that the recipient has ceased to be qualified for the payment. However, under no circumstances should a garnishee notice be issued against the estate of a deceased recipient.
Act reference: SSAct section 1223(1) Recipient not qualified for payment and amount not payable
In most circumstances, the debt will be due by the person to whom the payment was made.
However, in some circumstances, it may be more appropriate to recover the payment from a third party.
At present, SSAct section 1223(1) does not explicitly provide for recovery from a third party.
The AAT has held that debts must be repaid, even where the amount was wrongly appropriated by a third party.
Act reference: SSAct section 1223(1) Recipient not qualified for payment and amount not payable
Policy reference: SS Guide 6.7.2.50 Debt Recovery by Garnishee Notice
SSact section 1223(5)(b) uses the term 'the correct amount' to refer to the amount of social security payment that should have been paid to the recipient under the SSAct. Therefore, the correct amount is the amount that should have been paid had the recipient's circumstances been known.
This phrase also appears in SSAct section 1233(3).
SSAct section 1223(5)(b) provides that there will be a debt if, the amount had not been correctly calculated or, 'for any other reason', the received amount is greater than the correct amount.
This provision applies whenever a person is paid a greater rate than should have been paid, regardless of the reason the greater rate was paid.
Act reference: SSAct section 1223(5) Incorrectly paid amount
SSAct section 1223(5) operates subject to the date of effect of determination provisions that appear in the SS(Admin)Act, as listed below.
An adverse determination (a decision to cancel, suspend or to reduce the rate of the recipient's payment) may be backdated in certain circumstances. These circumstances are set out in the date of effect of adverse determination provisions in the SS(Admin)Act and include where:
Where none of these circumstances exist, an adverse determination must take effect from the ACTUAL date the determination was made. The determination cannot be backdated to an earlier date.
Act reference: SSAct section 1223(5) Incorrectly paid amount
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Determinations |
SS(Admin)Act reference |
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Determination relating to claims |
section 107 |
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Determinations under section 78 or 85 |
section 108 to 114 |
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Determinations under section 89 |
section 115 to 116 |
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Date of effect of adverse determinations relating to social security payments |
section 117 to 120 |
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Date of effect of adverse determinations relating to concession cards |
section 121 to 122 |
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Continuing effect of determinations |
section 123 |
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Last reviewed: 5 November 2007
