Overpayments (Claims) – Guiding principles

Scope

Overpayments can happen for various reasons. The quicker an overpayment is identified, the simpler it is to resolve the matter. Under section 114 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), Comcare is authorised to recover overpayments.

Under section 114 of the SRC Act, an amount is recoverable by Comcare if:

• an amount of compensation under the SRC Act has been paid to a person in consequence of a false or misleading statement or representation or in consequence of a failure or omission to comply with a provision of the SRC Act;
• an amount of compensation that has been paid to a person under the SRC Act should not have been paid; or
• a person is liable to pay an amount to Comcare under the SRC Act.

Unless Comcare waives or writes off an overpayment, Comcare will recover the overpayment from the person, by either:

• deducting the recoverable amount from future benefits payable under the SRC Act to that person under a mutually agreed repayment schedule or
• initiating court proceedings in a court of competent jurisdiction.

Guiding principles

These guiding principles underpin the way Comcare will approach overpayments.

Active management

It is important that any overpayment is actively managed when identified to minimise the overall amount outstanding and prevent further overpayments from occurring.

Repayment schedule

Comcare’s preference is to come to a mutually agreeable repayment schedule based on your circumstances. This schedule will balance the need to repay the debt as soon as practical with the need to maintain a reasonable level of income based on your circumstances.

Waivers and write offs

Comcare will require repayment of any overpayment unless certain circumstance exist. If these circumstances exist Comcare will consider waiving or writing off a debt in part or in whole. When advising you of an overpayment, Comcare will provide you with information about how to request a waiver or write off and the circumstances Comcare will consider when making a decision to waive or write off a debt.

• Waiver - If Comcare waives its rights to recover, this is a permanent bar to recovery of the overpayment, the overpayment effectively ceases to exist.
• Write off - If Comcare writes off a debt, this means an administrative decision has been made that, in the circumstances, there is no point in trying to recover the overpayment. In law, however, the overpayment still exists and may later be pursued.

Initiating a waiver or write off

Waivers and write offs can be initiated by you and can only be considered under the following circumstances:

1. Received in good faith – You did not know, and could not reasonably be expected to know, that you were not entitled to the payment or that it had been made in error.
2. Financial hardship – An assessment of your financial circumstances.
3. Exceptional circumstances – You have unusual, uncommon or special circumstances that are considered exceptional.
4. Administrative error – Comcare made an error, and that the overpayment arose solely because of Comcare’s error.
5. Jurisdictional error – Comcare made an error of law when interpreting and applying the relevant legislation.
6. Irrecoverable at law – The overpayment cannot be recovered.

If you have requested a waiver or write off, it will be considered promptly, and the outcome will be communicated to you.

There are instances where Comcare will identify a requirement to raise a waiver on your behalf. These instances are varied but usually occur when information from third parties is corrected later or Comcare has not acted on information in a timely manner.  In these instances, Comcare must consider waivers and write offs under the same circumstance as if you made the request. The outcome of any Comcare-initiated waivers will be communicated to you.

Failure to engage with Comcare

Comcare will not initiate a waiver of its own volition where you, having been advised of your responsibilities under the scheme, and subsequently fail to provide relevant advice to Comcare resulting in an overpayment to you. When you make no effort to engage with Comcare to enter into an agreement or fail to honour an agreement, Comcare will take a much firmer position and will use the full extent of the law to recover the overpayment. This may involve initiating court proceedings or recovery from future benefits payable by Comcare from a mutual agreement.

Fraud

If the evidence suggests you may have committed fraud, then it may be referred to the Commonwealth Director of Public Prosecutions for possible criminal proceedings. Matters involving fraud or deception will generally not be subject to waivers or write offs.

Who is responsible for identifying the overpayment?

In most instances an overpayment would be identified by either Comcare, an employer, a service provider or yourself. Each party should take proactive steps to identify any potential or actual errors as quickly as possible.

If you believe you have been overpaid, or your circumstances have changed, you should contact Comcare as soon as possible. Comcare Claims Service Officers are to work through any queries or questions.

In most instances an overpayment can be recovered easily and without distress.

Contact

• For general enquiries please contact Comcare’s Call Centre on 1300 366 979 between 8:30 am and 5.00 pm ACT Local Time Monday to Friday.
• If you are unable to access the 1300 number, call 02 6276 0333.
• To contact Comcare from outside Australia you need to use your country’s international dialling code. After the international dialling code, dial Australia’s country code (61), then use the area code (2) and then dial 6276 0333.

Interpreter services

Comcare offers interpreter services in a number of languages. If you need an interpreter to speak with us or to help translate information on this website, call the Translation and Interpreting Service (TIS National) on 131 450.