A determination to write off a debt must be made in writing under section 206(1)(b) of the VEA. A decision to write off a debt means that any recovery action ceases. Such a decision is made where circumstances make debt recovery not favourable or legally practicable. A write off does not extinguish the debt and it may be pursued at a later date should the debtor’s circumstances become more favourable.
In order to defer the recovery of all or part of a debt on behalf of the Commonwealth, the Commission or a delegate of the Commission must make a determination in writing under section 206(1)(b) of the VEA. The debt continues to be legally recoverable but recovery action will not occur for the period of deferment.
Deferral is justified in a number of situations, including where:
When a person becomes bankrupt, management of their assets and debts passes to the Official Receiver in Bankruptcy or Trustee. The person’s assets may be used to repay debts. The bankruptcy of a client affects DVA’s methods of recovery. Any debt incurred before the date of the bankruptcy is subject to restrictions on its recovery under the Bankruptcy Act 1966.
Where the preferred methods are not available a number of alternatives are permitted, including:
In the event that a client with an overpayment has either not entered into an arrangement to repay or has entered into an arrangement and has failed to repay an amount, the VEA provides for financial penalties to apply to the overpayment amount, including interest and administrative charges.
Section 205AAB sets out when a client is liable to pay interest on a debt. Section 205AAB applies to a person who:
DVA allows the following methods of recovery with regards to VEA debts in order of preference:
Recovery of an overpayment in a one off lump sum is obviously the most efficient and economical method for the Commonwealth.
Section 206(2) of the VEA places a time limit on the recovery of overpayments by way of court proceedings. DVA has six years, from the first day on which an officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt, to commence court proceedings for recovery of overpayments. If court proceedings have not been commenced within this six year period, DVA cannot recover a debt through court proceedings.
If an overpayment has not been wholly repaid or waived, the delegate must send the client a letter that complies with s 205AAA of the VEA.
The recovery notice must contain the following information:
It is important that the individual circumstances of the client and the reasons and circumstances surrounding the overpayment are not assumed. In most cases it will be distressing for the client to discover that they have been overpaid and that they may/will be the subject of recovery action. Delegates should be aware of this and handle overpayment cases in a sensitive manner.
In this chapter -
