Abboud and Secretary, Department of Social Services (Social services second review) - [2024] AATA 3049

Abboud and Secretary, Department of Social Services (Social services second review) [2024] AATA 3049 (23 August 2024)
Division:GENERAL DIVISION
File Number(s): 2022/7399
Re:Elisabeth Abboud
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:23 August 2024
Place:Sydney

The decision under review is affirmed.
........................[SGD]................................................
Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – parenting payment (single) - whether a member of a couple – whether debt owing to the Commonwealth – whether debt should be waived or written off – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act1999 (Cth).
CASES
Beadle and the Director-General of Social Security (1984) 6 ALD 1
Boskoski v Secretary, Department of Social Services [2014] AATA 915
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
Skinner and Secretary, Department of Social Services [2015] AATA 569
REASONS FOR DECISION
Senior Member A Poljak
23 August 2024

Elisabeth Abboud, the applicant, married Tannous Abboud on 19 July 2012. The applicant and Mr Abboud have three children together, born on 9 April 2013, 27 November 2014, and 6 July 2019. The applicant and Mr Abboud are still currently married to each other.
From 26 August 2013 to 29 October 2019, and from 23 March 2020 to 24 January 2022 (together the ‘relevant period’), the applicant received parenting payment single (PPS) on the basis that she was single and not a member of a couple. The applicant has not received any social security payments after 24 January 2022.
On 10 February 2022, Services Australia (Agency) decided to raise and recover from the applicant a PPS debt of $19,970.77 for the period 1 July 2016 to 30 June 2017 (original decision) on the basis that the applicant was a member of a couple with Mr Abboud and their combined income had not been correctly considered.
On 18 February 2022, the applicant requested an internal review of the original decision, stating that she had separated from Mr Abboud in 2014 and re-partnered with him in 2019.
On 22 March 2022, an authorised review officer (ARO) of the Agency affirmed the original decision.
The applicant sought review of the ARO decision by the Social Services & Child Support Division of the Administrative Appeals Tribunal (SSCSD).
On 28 June 2022, the SSCSD set aside the decision of the ARO that the applicant had a PPS debt of $19,970.77 for the period 1 July 2016 to 30 June 2017, and in substitution, decided that:
a)    The applicant has been a member of a couple with Mr Abboud since 19 July 2012.
b)    The applicant’s PPS debt is to be recalculated on this basis; and
c)    the debt is to be repaid.
On 20 October 2022, the Agency implemented the decision of the SSCSD by recalculating the applicant’s PPS debts as set out below (totalling $123,284.00):
a)    $39,765.32 from 26 August 2013 to 30 June 2016 (a new debt);
b)    $19,790.77 from 1 July 2016 to 30 June 2017 (no change);
c)    $31,703.49 from 1 July 2017 to 21 October 2019 (a new debt);
d)    $32,024.42 from 23 March 2020 to 25 January 2022 (a new debt).
The decision under review is the SSCSD’s decision made on 28 June 2022 and may include the Agency’s decision made on 20 October 2022 to recalculate the applicant’s PPS debts.
Issues
The issues for determination in these proceedings are:
a)    whether the applicant was a member of a couple in a marriage relationship with Mr Abboud during the relevant period;
b)    if so, is there any special reason not to treat the applicant as a member of a couple with Mr Abboud;
c)    whether the applicant was paid PPS in excess of her entitlement from 19 July 2012, taking into consideration her combined income with Mr Abboud; and
d)    if so:
(i)whether any overpayment(s) are debt(s) to the Commonwealth, and
(ii)whether the whole or any part of the debt(s):
A.should be written off;
B.waived on the basis that the debt(s) are attributable solely to administrative error made by the Commonwealth; or
C.waived on the basis of special circumstances.
A secondary issue is the correct quantum of the applicant’s debt liability.
RELEVANT LEGISLATIVE PROVISIONS
Subsection 4(2) of the Social Security Act 1991 (Cth) (SS Act) provides that a person is a member of a couple for the purposes of the Act if the person is legally married to another person and is not, living separately and apart from the other person on a permanent or indefinite basis; or all of the conditions in subsection 4(2)(b) are met.
‘Partner’ is defined to mean in relation to a person who is a member of a couple and means the other member of the couple. The term ‘member of a couple’ has the meaning given by subsections 4(2), 4(3), 4(3A), 4(6) and 4(6A).
Relevantly, in forming an opinion about the relationship between two people, the Secretary is to have regard to all the circumstances of the relationship including the following matters, pursuant to subsection 4(3) of the Act:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iv)any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
I the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
I the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iv)whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
When deciding whether a person is in a relationship, I must have regard to the interpersonal relationship as a whole, not limited by the factors listed in subsection 4(3). The decision-maker must specifically consider the ‘total picture of the relationship created by all of those factors’; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
Whilst all aspects of the relationship must be considered, differently structured relationships may satisfy different criteria set out in subsection 4(3). As the Tribunal observed in Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789 at [16]:
People must be free to structure their domestic relationships as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view that the applicant is in fact a member of a couple.
Deputy President J W Constance said in Boskoski v Secretary, Department of Social Services [2014] AATA 915 at [63]:
In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However, the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
THE APPLICANT’S RELATIONSHIP STATUS
Nature of Household
There is conflicting evidence about the applicant’s and Mr Abboud’s living arrangements.
a)    Records held by the Agency show the applicant’s residential address as a Yoogali Street property from 23 May 2013. The Yoogali Street property is Mr Abboud’s parent’s house.
b)    The records show Mr Abboud’s residential address as:
(i)A Pitt Street property from 1 March 2006 to 28 February 2017 (the Pitt Street property was sold on 5 June 2012);
(ii)A Maxwell Street property in Penrith from 1 March 2017 to 11 February 2022; and
(iii)The Yoogali Street property from 12 February 2022 to present.
c)    Mr Abboud rented out the whole of the property Maxwell Street property, being the granny flat and the main house, for a commercial rent, to arms’ length tenants, in 2020/2021 and 2021/2022.
d)    On 26 August 2013, the applicant stated in her PPS claim form that Mr Abboud resided at the Yoogali Street property, while she resided at a Northern Road property with her parents.
e)    On 9 August 2013, 27 March 2017 and 6 August 2018, the applicant completed incoming passenger forms which recorded her address as the Yoogali Street property.
f)     The birth certificates for each of the applicant’s children (born in 2013, 2014 and 2019) record her and Mr Abboud’s address as the Yoogali Street property.
g)    On 9 August 2013 and 17 October 2013, Mr Abboud completed incoming passenger forms which recorded his address as the Pitt Street property however, the Pitt Street property was sold by “ABBOUD” on 5 June 2012, with settlement occurring on 6 July 2012.
h)    Mr Abboud’s individual tax returns for the financial years ending 2013 to 2014 record his residential address as the Pitt Street property, although, as noted, the Pitt Street property had been sold on 6 July 2012,
i)   Mr Abboud’s individual tax returns for the financial years ending 2015 to 2022 record his residential address as the Yoogali Street property.
j)   Records produced by NRMA Insurance indicate as at 11 February 2015, the vehicle owned by Mr Abboud was at the Yoogali Street property.
k)    The company extract for TNZ Contracting P/L records Mr Abboud’s address on 17 August 2015 as the Pitt Street property, even though it had been sold on 6 July 2012.
l)   Mr Abboud updated his address with ASIC on 7 June 2022, to the Yoogali Street property.
m)   On 9 May 2016, 27 March 2017, 11 April 2017 and 3 August 2017, Mr Abboud completed incoming passenger forms which recorded his address as the Yoogali Street property.
n)    On 23 April 2018, 6 August 2018 and 2 November 2022, Mr Abboud completed incoming passenger forms which recorded his address as the Maxwell Street property.
o)    The applicant has said that she resided at an Atlantic Place property from time to time. The Atlantic Place property is owned by Mr Abboud’s brother. On 3 November 2021, the applicant informed the Agency there were five adults and her three children whilst she was at the Atlantic Place property, but declined to provide further details and on 20 March 2021, the applicant stated that she resided at the Atlantic Place property with her three children and her brother-in-law and that she had ‘made an error in the [a]pplication’.
p)    At hearing, the applicant initially stated that Mr Abboud currently resided with her at the Yoogali Street property. However, later stated that they did not live together, and Mr Abboud lived in a room at an unknown address in Penrith.
Generally, notwithstanding inconsistent information from Ms Abboud about when and where she shared accommodation with Mr Abboud, the preponderance of the evidence as outlined above is that they resided together for most if not all of the relevant period. Additionally:
a)    There is no evidence of the applicant paying for her own living expenses including rent or mortgage payments.
b)    Mr Abboud recorded the applicant as his emergency contact on 6 August 2018 and 2 November 2022.
c)    The applicant and Mr Abboud’s travelled internationally together in March 2017 and July 2018 with their two children. This demonstrates joint responsibility for providing care and support for their children and joint living arrangements.
Overall, this factor favours findings that the applicant and Mr Abboud have been members of a couple in a marriage relationship since 19 July 2012 to date; and have not been living separately and apart from each other on a permanent or indefinite basis from 19 July 2012 to date.
Financial Aspects
There is no evidence that the applicant and Mr Abboud are joint registered proprietors of real estate or other major assets, liabilities, or bank accounts. However, Mr Abboud does own a Maxwell Street Property which purchased for $670,000 on 15 January 2018. As the applicant is married to Mr Abboud, she would likely have some equitable interest in the property.
Further, the applicant demonstrates that applicant and Mr Abboud pooled their financial resources in order to look after each other’s welfare and the welfare of their children. Relevant aspects of the evidence are as follows:
a)    As of February 2015, Mr Abboud was recorded as the owner of a 2013 Lexus. The applicant and Mr Abboud opened a joint car insurance policy with NRMA in respect of this vehicle on 11 February 2015 and cancelled the policy within the cooling off period. The applicant subsequently opened a separate comprehensive car insurance policy in respect of the same vehicle with Auto & General Insurance Company in her sole name. This policy with Auto & General Insurance Company was held by the applicant from 13 February 2015 to 26 May 2019, suggesting she had the use of the 2013 Lexus vehicle. At hearing, the applicant confirmed that this was her car.
b)    From 9 December 2019 to 9 December 2022, the applicant was the registered owner of a 2016 Mercedes Benz vehicle. The insurance policy lists the risk address as the Yoogali Steet property.
c)    The applicant’s bank statements for CBA show various credits received from a CBA account which she acknowledged belongs to Mr Abboud. It appears that some of these funds transferred in 2018 were to pay for travel expenses. The applicant and Mr Abboud subsequently travelled overseas together with their children from 31 July 2018 to 6 August 2018.
d)    The applicant’s bank statements show various credits deposited by Mr Abboud, albeit sometimes small amounts, some substantial. The transfers included transactions recorded as ‘bills’ and ‘kids’. These transactions are contrary to the applicant’s statements to the SSCSD that Mr Abboud provided her with no financial support; and her claims that Mr Abboud ‘at no time provided support or care for [her] children’. There is no evidence that the applicant earned an income through employment, nor that Mr Abboud paid child support to the applicant with respect to their children under an agreement. While residing at the Yoogali Street Property with her children, there is no evidence of her paying living expenses in the form of rent or board, nor is there evidence of her routinely contributing to the household for other expenses such as utilities. While the applicant claims to have purchased groceries for herself and the children, these is no evidence of frequency or quantum. She said she cooked and did the washing for her children. Overall, the living arrangements and finances of the applicant are indicative of the pooling of finances between the couple with respect to their children.
On 1 April 2017, the applicant was appointed as a joint director of TNZ Contracting P/L. On 3 November 2021, the applicant advised that she was unaware of her involvement and the accountant had made a mistake. The accountant was her accountant as well as Mr Abboud’s accountant. Subsequently, Mr Abboud lodged a Form 492 (Request for correction) requesting the cancellation of the applicant as a director from 1 April 2017, on the basis of a ‘clerical error which caused the error in director appointment’. The company extract for TNZ Contracting P/L as of 24 November 2022 does not list Ms Abboud as a current or former director of TNZ Contracting P/L.
The applicant and Mr Abboud have shared the same post office box number as their mailing address since at least 26 February 2015. The mailing address has been actively used during the relevant period and they had access to each other’s postal correspondence during that period.
Overall, this factor favours findings that the applicant and Mr Abboud have been members of a couple in a marriage relationship since 19 July 2012 to date; and have not been living separately and apart from each other on a permanent or indefinite basis from 19 July 2012 to date.
Sexual Relationship
Although the nature of a sexual relationship is not determinative as to whether two people are in a member of a couple relationship, the applicant and Mr Abboud had three children together, born on 9 April 2013, 27 November 2014, and 6 July 2019. This demonstrates a sexual relationship between the applicant and Mr Abboud during the relevant period.
Social Aspects
The applicant held herself out to be married or in a marriage-like relationship with Mr Abboud. Such examples are:
a)    The applicant informed the Australian Taxation Officer that Mr Abboud was her spouse for the full financial year in her 2016/17 income tax return.
b)    The applicant and Mr Abboud are both listed on their children’s birth certificates. Although I do note that the applicant stated Mr Abboud was not present for the birth of their first two children.
c)    Mr Abboud recorded the applicant as his emergency contact on 17 October 2013, 9 May 2016, 11 April /2017, 3 August 2017, 6 August 2018 and 2 November 2022.
d)    The applicant and Mr Abboud planned and travelled together overseas in March 2017.
The applicant’s evidence is that the family holidays together were for the benefit of their children. This does not explain why the incoming passenger cards recorded matching addresses with Mr Abboud (in respect of the March 2017 travel), or why she was recorded as Mr Abboud’s emergency contact (in respect of the July/August 2018 travel).
The applicant has provided inconsistent statements about whether other people were aware of her purported separation from Mr Abboud. She told the SSCSD that she kept her separation quiet and found it embarrassing; saying that her mother did not know; she then changed her answer and said her mother did know they had problems and did know they had separated.
There is no evidence from Mr Abboud, or any family member to support the proposition that the applicant and Mr Abboud were living separately and apart on a permanent or indefinite basis, during the relevant period.
On balance, the objective and contemporaneous evidence demonstrates that the applicant held herself out as being married and in a relationship with Mr Abboud during the relevant period.
Nature of Commitment
The applicant and Mr Abboud were married to each other on 19 July 2012. They have remained so during the relevant period, and they are still currently married to each other.
The defining feature of the applicant’s case in these proceedings is that she must have been living separately and apart from Mr Abboud on a permanent or indefinite basis if the Tribunal is to find that she was not a member of a couple during the relevant period. This is a higher bar compared to the de facto test in subparagraph 4(2)(b)(iii) of the SS Act.
The applicant’s perception of her relationship with Mr Abboud is relevant to whether they were members of a couple within the meaning of paragraph 4(2)(a), but her perception is not determinative.

The totality of the objective evidence demonstrates a mutuality of commitment between the applicant and Mr Abboud to remain married since 19 July 2012 and to have a family. The applicant and Mr Abboud have been, during and after the relevant period, married to each other since 19 July 2012. The length of the marriage is significant and there is no evidence that indicates that either herself or Mr Abboud had any intention to divorce during the purported periods of separation.
I also note that the applicant has provided inconsistent statements regarding the date of the separation from Mr Abboud that she claims occurred. She stated that the separation occurred on 1 October 2012 in her initial PPS claim and No Longer Partnered form; in her subsequent PPS claim, and in written submissions. The applicant told the SSCSD that the separation occurred around April 2013 and then told the Agency that she had separated in 2014. In a Verification of Relationship Status form completed by the applicant’s best friend in 2019 it was stated that the applicant ‘hasn’t been with her partner for 5 year[s] but has been trying to work it out’.
The applicant has purportedly re-partnered with Mr Abboud since early 2022, just after the relevant period finished.
There is insufficient objective and contemporaneous evidence for the Tribunal to be satisfied that any periods of separation between the applicant and Mr Abboud during the relevant period were either indefinite or permanent. As such the Tribunal finds that the applicant and Mr Abboud have been members of a couple in a marriage relationship since 19 July 2012 to date; and have not been living separately and apart from each other on a permanent or indefinite basis from 19 July 2012 to date.
OVERVIEW
The applicant and Mr Abboud benefited from pooling their resources and responsibilities during the relevant period. This was despite difficulties encountered in their marital relationship. It is accepted that there was some unhappiness in the marriage, and that there was a period of separation between 1 October 2012 and sometime before 26 August 2013. However, I am not convinced that these periods of separation were either indefinite or permanent.
As such, the applicant was overpaid PPS during the relevant period because she was a ‘member of a couple’ in a marriage relationship with Mr Abboud within the meaning of paragraph 4(2)(a) of the SS Act, having regard to the criteria in subsection 4(3) of the SS Act.
While the applicant was partnered with Mr Abboud, she was paid parenting payment at the single rate and her combined income (including Mr Abboud’s self-employment income) had not been considered. Accordingly, the resulting overpayment constitutes a debt to the Commonwealth that is recoverable.
THE DEBT
Subsection 1223(1) of the Act provides that when a social security payment is made and a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit, the amount of the payment is a debt due to the Commonwealth.
Based on the calculations provided by the respondent I am satisfied that the total amount of the overpayment received by the applicant in respect of the relevant period is $123,284.00. She owes this amount to the Commonwealth.
Can the Debt Be Waived or Written Off?
Section 1236 of the Act set out circumstances in which a debt may be written off. There is no evidence that the applicant’s debt is irrecoverable at law or that she has no capacity to repay the debt given that her whereabouts are known.
Subsection 1237A(1) of the Act provides:
Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
For the debt to be waived under section 1237A of the Act, it must be found that the debt was caused solely by administrative error; see Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 at [35]. There is no evidence of administrative error leading to the existence of the debt in this case. The Respondent acted upon the information given to it by the applicant. Accordingly, the debt should not be waived pursuant to section 1237A of the Act.
Section 1237AAD of the Act provides:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Each of the three limbs of the section must be satisfied before the debt may be waived.
Despite the Department sending the applicant numerous letters about her reporting obligations, the applicant failed to disclose that she was a member of a couple with Mr Abboud during the relevant period as required by subsection 68(2) of the Social Security (Administration) Act1999 (Cth).
In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, Deputy President Forgie said at [48]:
There is nothing in s 1237AAD which suggests that the word ‘knowingly’ should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
During the relevant period, the applicant knowingly made false representations, resulting from her failure to disclose her correct relationship and financial status.
That brings me to consider whether there are special circumstances other than financial hardship alone which make it desirable to waive the debt. Special circumstances are not defined in the Act however the Tribunal is provided some guidance by several Federal Court and Administrative Appeals Tribunal cases. In the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 at [3]:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special. (emphasis added)
There is nothing in the circumstances described by the applicant, which are unusual or uncommon and would warrant the exercise of the discretion to waive all or part of the applicant debt. Accordingly, I am not satisfied that the applicant’s circumstances are sufficiently special to warrant exercising the discretion to waive all part of the debt under section 1237AAD of the Act.
It is in the public interest that the applicant’s debt is repaid. In Skinner and Secretary, Department of Social Services [2015] AATA 569 the Tribunal said at [48]:
It is important to recognise the need to ensure the integrity of the social security system and the public interest. This means that those recipients who have received monies to which they are not entitled, are generally expected to repay those monies unless the repayment is in the specific circumstances unjust, unreasonable or inappropriate.
The applicant has not advanced a sound reason as to why the debt should not be repaid.
Neither part nor all of the debt should be written off or waived.
DECISION
The decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................
Associate
Dated: 23 August 2024

Date(s) of hearing: 22-23 February and 24 May 2024

Counsel for the Applicant:
Mr S Stanton

Solicitor for the Applicant: Mr N Raj, Niren Raj Law

Solicitor for the Respondent: Dr S Thompson, Sparke Helmore Lawyers

Date(s) of hearing:	22-23 February and 24 May 2024
Counsel for the Applicant:	Mr S Stanton
Solicitor for the Applicant:	Mr N Raj, Niren Raj Law
Solicitor for the Respondent:	Dr S Thompson, Sparke Helmore Lawyers