Adam and Secretary, Department of Social Services (Social services second review)

Adam and Secretary, Department of Social Services (Social services second review) [2015] AATA 727 (18 September 2015)

Division

GENERAL DIVISION

File Number

2014/5659

Re

Akhtar Adam

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Deputy President Dr Christopher Kendall

Date 18 September 2015

Place Perth
The decision under review is affirmed.
.............................[sgd]................................
Deputy President Dr Christopher Kendall
CATCHWORDS
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – schoolkids bonus – whether overpayment – whether applicant and wife “members of a couple” while geographically separated during Relevant Period – whether applicant otherwise providing care for child – whether debt owed to the Commonwealth – whether debt can be waived or written off – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – sections 21, 22, 25, 35UA
Social Security Act 1991 – section 4
Social Security Administration Act 1999 – sections 95, 97 and 101
CASES
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Sekhon v Secretary Department of Family and Community Services (2003) 132 FCR 126
Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Locke and Secretary, Department of Social Services [2014] AATA 904
Randall and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 922
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
SECONDARY MATERIALS
Family Assistance Guide – section 1.1.C.90
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
18 September 2015
INTRODUCTION

Mr Akhtar Adam is married to Mrs Akhtar Rakhsinda (referred to as “Mrs Akhtar” throughout this decision). They have three children – two sons and a daughter, Hina. Hina was born on 4 November 1995.
Mr Adam was in receipt of family tax benefit (“FTB”) for Hina.
On 9 January 2013, Mr Adam was paid “schoolkids bonus” of $410 for Hina.
On 25 January 2013, Mrs Akhtar lodged a claim with Centrelink for FTB in relation to Hina.
On her claim for FTB, Mrs Akhtar advised Centrelink that she had separated from her husband, Mr Adam, on 1 September 2011 (T7 at 34 and 39). At the date of her claim, Mrs Akhtar lived in Melbourne. Hina lived with her in Melbourne (T1 at 6). Mr Adam had relocated to Perth.
Mr Adam updated his address with Centrelink to an address in Perth with effect from 14 September 2011 (T22 at 135).
On 8 February 2013, Centrelink wrote to Mr Adam seeking further information to determine his FTB entitlements (T8 at 82).
On 1 November 2013, Mr Adam verbally advised Centrelink that Hina had not been in his care since 1 September 2012 (T24 at 302).
On 19 November 2013, Centrelink wrote to Mr Adam in relation to his FTB entitlements for the 2012-2013 financial year (T9 at 85).
Centrelink advised Mr Adam that he had been paid $5,382.76, but was only entitled to $1,893.48. The letter advised Mr Adam that he had been overpaid $3,489.28 and was, accordingly, required to repay $3,489.28 for the FTB he had received (T9 at 85).
On 27 December 2013, Centrelink again wrote to Mr Adam and advised him that he had been paid schoolkids bonus on 9 January 2013 but that he was not entitled to this payment because, based on the evidence before Centrelink, he had not had care of his child since 1 September 2012. Centrelink sought to recover $410 in schoolkids bonus paid to Mr Adam (T10 at 88).
On 3 January 2014, Mr Adam sought an internal review of the decisions made on 19 November 2013 (in relation to his FTB payments) and 27 December 2013 (in relation to the schoolkids bonus) (T24 and 305).
As explained by the Secretary, Department of Social Services (the “Secretary”) in its Statement of Facts, Issues and Contentions dated 10 April 2015, on 3 January 2014, Mr Adam and Mrs Akhtar signed a joint statement that provided as follows:
I have family tax benefit overpayments which was paid to me from September 2012 to February 2013. This was going to joint account and my wife was using the money for daughter expenses.
We give this statement that we have received family tax benefit for our family and my wife Rakhshinda is claiming through this statement.
On 10 April 2014 and 7 May 2014, Mr Adam's debt was recalculated (T13 at 91; T15 at 98).
On 15 May 2014, an authorised review officer (“ARO”) found that Mr Adam had been overpaid FTB and schoolkids bonus and that the correct amount of the FTB debt was $3,489.28 (the “ARO decision”) (T16 at 101).
In her Reasons for Decision, the ARO wrote as follows (T16 at 103):
On 21 January 2013, your wife claimed Family Tax Benefit for Hina. She said that you had separated on 1 September 2012; you moved to Perth and she remained in Melbourne. Hina remained in her care.
You said that you had some family problems and you were not aware that you were separated or that your wife had claimed Family Tax Benefit. You said that you agree that Hina was living with your wife in Melbourne but you believe that you were still entitled to receive Family Tax Benefit for Hina as the money went into a joint bank account that was accessed by your wife. I acknowledge your family difficulties, and I understand that you have since reconciled with your wife. You are living as a family again and you have claimed Family Tax Benefit for Hina.
However, for the period that you were separated from your wife and Hina was in her care you were not entitled to be paid Family Tax Benefit. When there is no formal care arrangement in place for a child, to work out who is caring for the child we look at who the child is living with and the level of care each parent is providing. I appreciate that as Hina's father you were involved in looking after her well-being including providing financially for her, however, I have found day to day care for Hina was provided by her mother with whom she was living.
On 24 July 2014, Mr Adam sought a review of the ARO Decision by the Social Security Appeals Tribunal (“SSAT”) (T1 at 5).
On 4 September 2014, the SSAT set aside the ARO decision and found:
·     Mr Adam had been overpaid FTB, the amount to be calculated by Centrelink, in the period 1 September 2011 to 21 January 2013, because he did not have the care of a FTB child (Hina) throughout the relevant period;
·     Mr Adam had been overpaid schoolkids bonus of $410 on 9 January 2013; and
·     both overpayments are debts to be recovered from Mr Adam.
The SSAT decision varied the ARO Decision to raise and recover a debt based on overpayment of FTB and schoolkids bonus in the period from 1 September 2012 to 21 January 2013. The SSAT found that the relevant period was 1 September 2011 (not 2012) to 21 January 2013 (the day Mr Adam’s FTB was cancelled).
ISSUES
This matter requires the Tribunal to determine:
·whether Mr Adam has been overpaid FTB and schoolkids bonus in the period from 1 September 2011 to 21 January 2013;
·if so, whether any overpayment is a debt to the Commonwealth; and
·if so, whether the debt should be waived or written off.
As explained by the Secretary before this Tribunal, consideration of whether Mr Adam has been overpaid FTB and schoolkids bonus requires consideration of whether he and Mrs Akhtar were members of a couple during the period 1 September 2011 to 21 January 2013.
The Secretary contended (and the Tribunal agrees) that if Mr Adam and Mrs Akhtar are found to have been a couple, Mr Adam can claim FTB and the schoolkids bonus.
If, however, Mr Adam and Mrs Akhtar are not found to have been a couple during the relevant period, the Tribunal will then need to examine whether Mr Adam was otherwise providing care for his daughter Hina during the relevant period.
THE RELEVANT PERIOD
The Tribunal agrees with the SSAT that, for the purposes of this application, the Relevant Period is 1 September 2011 (the day Mrs Akhtar advised Centrelink that she had separated from her husband) to 21 January 2013 (the date at which Mr Adam’s FTB was cancelled).
In relation to this issue, the Tribunal notes Mrs Akhtar’s statement on her Centrelink form that she had separated from her husband on 1 September 2011 and Mr Adam’s statement to Centrelink that he had moved to Perth in September 2011.
Like the SSAT, the Tribunal rejects the original Centrelink finding that the Relevant Period is from 1 September 2012. The use of that date appears to have been a typographical error that was not remedied early on.
RELEVANT LEGISLATION
Eligibility for FTB
The relevant legislation regarding eligibility for FTB is set out in the A New Tax System (Family Assistance) Act 1999 (the “Family Assistance Act”).
Section 21 of the Family Assistance Act provides that an individual is eligible for FTB in ordinary circumstances if the individual has at least 1 FTB child, is an Australian resident, and if the individual's rate of FTB would be greater than nil.
Section 22 of the Family Assistance Act sets out when an individual is an FTB child of another individual and relevantly provides:
22 When an individual is an FTB child of another individual
(1) An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
(2) An individual is an FTB child of the adult if:
(a)      the individual is aged under 16; and
(b)      the individual is in the adult's care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
Individual aged 16-17
(3) An individual is an FTB child of the adult if:
(a)the individual has turned 16 but is aged under 18; and
(b)the individual is in the adult's care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c); and
(e)the individual is a senior secondary school child.
…
Legal responsibility for the individual
(5)   The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
Percentage of care at least 35%
(7)(sic) If an individual's percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual's care on that day.
Note:If an individual's percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).
Whether Mr Adam and Mrs Akhtar were members of a couple during the relevant period
During the relevant period, Hina was living with her mother, Mrs Akhtar, in Melbourne. At no time during this period did Hina live with her father, Mr Adam, in Perth.
The Secretary contended before this Tribunal that if Mr Adam and Mrs Akhtar were members of a couple during the relevant period, Mr Adam can be viewed as providing care for Hina, notwithstanding that Hina was not living with him in Perth during this period.
The Tribunal agrees.
For the purposes of the Family Assistance Act, the expression “member of a couple” is given the same meaning as that used in the Social Security Act 1991 (the “Social Security Act”): section 3 of the Family Assistance Act.
“Member of a couple” is defined in section 4 of the Social Security Act 1991, which provides:
Member of a couple—general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
…
Member of a couple—criteria for forming opinion about relationship
…
(3)       In forming an opinion about the relationship between 2 people for the
purposes of paragraph (2)(a)... the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
…
(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
(iii)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;
(c)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;
(e)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
(iii)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.
ANALYSIS
Throughout the Relevant Period, Mr Adam and Mrs Akhtar were legally married. This is not in dispute.
As such, the primary question for this Tribunal to consider is whether, in the period from 1 September 2011 to 21 January 2013, Mr Adam and Mrs Akhtar were living “separately and apart on a permanent or indefinite basis”.
The section 4(3) factors outlined above are relevant to determining the answer to this question. These are to be considered on the basis of the circumstances that existed during the Relevant Period, as opposed to the present circumstances.
The evidence shows that Mr Adam and Mrs Akhtar now live with Hina in Perth. However, the Secretary contended before this Tribunal that there is insufficient evidence available at present for the Tribunal to conclusively determine whether Mr Adam and Mrs Akhtar were a couple during the Relevant Period.
Mr Adam gave evidence before the SSAT, as did Mrs Akhtar. Mr Adam’s evidence was summarised by the SSAT as follows:
19.The Tribunal first considered the factors as described in subsection 4(3) of the SS Act. Mr Adam’s evidence to the Tribunal is that nothing in his relationship with his wife changed from 1 September 2012. Mr Adam said: he supported the family financially; he returned to Melbourne to visit the family every 3 months or as finances allowed; he stayed at the family home when in Melbourne; he spoke regularly with his wife and children by telephone between visits; his family and friends believed them to still be married – just geographically apart for work reasons; he left Melbourne with only a suitcase of clothes – furniture and other belongings would be transported to Perth with his family once he was employed and settled; and he continued to contribute to their joint bank account. There was no contrary evidence presented to the Tribunal to demonstrate that the fundamental factors, as provided for by subsection 4(3) of the SS Act, of Mr Adam’s relationship with Mrs Rakhsinda[1] were significantly changed from 1 September 2012. At face value, if Mr Adam’s evidence is accepted, it appears that their marriage continued uninterrupted and that Mr Adam travelled to Perth, and remained in Perth, without detriment to his marital relationship with Mrs Rakhsinda.
[1] For reasons that are not entirely clear, the SSAT refers to Mrs Akhtar as Mrs Rakhsinda. This Tribunal was asked to refer to her as Mrs Akhtar.
It is clear on the evidence that the main hurdle faced by Mr Adam before the SSAT in relation to proving that he and Mrs Akhtar were a couple during the Relevant Period was the information Mrs Akhtar filed with Centrelink when she lodged a separate claim (her own claim) for FTB on 25 January 2013.
As summarised by the SSAT, in this claim form (T7 at 34), Mrs Akhtar stated that:
·     she separated from Mr Adam on 1 September 2011 (question 15);
·     she did not give permission for Mr Adam to discuss her payments with Centrelink (question 16);
·     she was aware that Mr Adam was already in receipt of FTB for Hina (question 19);
·     she wanted the payments paid into an account held only in her name (question 32);
·     she had supporting documents to support the change in care (question 126);
·     Hina does not spend any time with anyone other than herself (question 143);
·     the current care arrangement for Hina commenced on 1 September 2011 (question 145);
·     she anticipated Hina remaining in Melbourne at Hallam Senior College until December 2013 (question 137);
·     she was the one entitled to apply for a child support assessment (question 161);
·     she had only just found out about child support (question 163);
·     she does not have a partner (question 203); and
·     she would like her FTB paid fortnightly (questions 222, 223 and 224).
In analysing this evidence, the SSAT found as follows:
21.The Tribunal also noted that Mrs Rakhsinda had contact with a Centrelink social worker on the day she lodged her FTB claim (25 January 2013). The Centrelink record for this contact states, in part:
“SW int re customer has separated from ptnr 01/09/2012. Cust was not aware that she was still ptnr’ed on CLK and was not aware of FTB pmts being received by her ex-ptnr for daughter Hina. Cust has had 100% care of her daughter since 01/09/2012 as husband had moved to WA and has been there since … DAN SC SWO has had contact with Hina for UTLAH assmt … and can confirm parents separated … as was verified with MH SWO Dandenong Hospital and WAYSS youth worker”.
22.The evidence contained in the Centrelink file is, in the Tribunal’s opinion, supportive of a conclusion that Mr Adam was living separately and apart from Mrs Rakhsinda in the relevant period, and thus was presented to both Mr Adam and Mrs Rakhsinda for comment.
23.Mr Adam was evasive in his responses to direct questions asked by the Tribunal but explained that his wife suffered a heart condition and was ‘in and out’ of hospital at the time her claim was lodged. His wife was very confused and his eldest son, to whom he no longer speaks because of his actions, forced his wife into making the claim and manipulating her into making the statements she did on her claim form.
24.Mrs Rakhsinda supported Mr Adam’s evidence, reiterating that she was unwell at the time her FTB claim was lodged, but was similarly evasive and unconvincing when asked direct questions by the Tribunal.
25.Neither Mr Adam nor Mrs Rakhsinda could adequately or satisfactorily, in the Tribunal’s opinion, explain Mrs Rakhsinda’s statements from her claim form (as outlined in paragraph 18 of these reasons for decision), nor the independent collaboration by health professionals working with the family, of their marital separation. The Tribunal rejects Mr Adam’s evidence that his son is responsible for Mrs Rakhsinda’s FTB claim in January 2013 and, in the absence of any medical evidence, that Mrs Rakhsinda was so unwell and confused at that time that she was unaware of her actions, incompetent and provided misleading or incorrect details on her claim form.
26.Given:
(a)     the documented evidence of the Centrelink social worker supporting a finding that Mr Adam and Mrs Rakhsinda were separated during the relevant period;
(b)     both Mr Adam’s and Mrs Rakhsinda’s reluctance to comment directly on the details of their relationship during the relevant period;
(c)     neither Mr Adam nor Mrs Rakhsinda could, to the Tribunal’s satisfaction, explain Mrs Rakhsinda’s motivation for lodging an FTB claim in January 2013 if she and Mr Adam were not separated;
(d)     neither Mr Adam nor Mrs Rakhsinda could, to the Tribunal’s satisfaction, explain the detail in Mrs Rakhsinda’s answers to questions on the FTB claim form;
(e)     Mr Adam’s FTB was cancelled from 21 January 2013 as a result of Mrs Rakhsinda’s FTB claim – Mr Adam did not contact Centrelink to discuss the cancellation of his payments, nor did Mr Adam satisfactorily explain, in the Tribunal’s opinion, his failure to address the cancellation if it had been made in error; and
(f)     that now reconciled, the motivation to present a united explanation to the Tribunal is considerable for both Mr Adam and Mrs Rakhsinda;
the Tribunal does not accept Mr Adam’s evidence and finds that Mr Adam and Mrs Rakhsinda were living separately and apart on an indefinite basis during the relevant period.

In evidence before this Tribunal, Mr Akhtar repeated much of what he had said to the SSAT. He explained that although he had moved to Perth to find employment and although he and Mrs Akhtar had been geographically separated during the Relevant Period, he and his wife were still a committed couple. When asked why Mrs Akhtar had indicated on her Centrelink form that they were separated, Mr Adam explained that his son, with whom he had a poor relationship, had completed the form. Mr Adam seemed to suggest that his son had either misunderstood the meaning of the term “separation” or had fabricated the facts.
Mr Adam was unrepresented before this Tribunal. Mrs Akhtar did not appear and no evidence from her was provided to the Tribunal. Mr Adam explained that his wife suffered from ill health and was too unwell to give verbal evidence. Hina was also not called as a witness. Mr Adam explained that his daughter also suffered health issues and, as such, was too unwell to assist the Tribunal. Mr Adam’s sons were also not called as witnesses. Mr Adam explained that both men lived and worked in Melbourne. No explanation was provided as to why Mr Adam’s sons could not appear via video link from Melbourne but it appears that Mr Adam now has a poor relationship with his sons and was thus reluctant to seek assistance from them.
The Tribunal can only work with the evidence it has before it. While Mr Adam is not, of course, required to lead any evidence, it is fair to say that Mr Adam did not do much to help the Tribunal in relation to the type of evidence that might have assisted the Tribunal in determining whether Mr Adam and Mrs Akhtar were a couple during the Relevant Period. This is despite the Tribunal outlining for him what type of evidence might assist him in supporting his argument and providing him more time within which to gather and present evidence that might assist the Tribunal.
In analysing the evidence before it in light of the factors described in in subsection 4(3) of the Social Security Act, the Tribunal notes the comments of French J (as he then was) in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546. At paragraph [46], French J said:
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.    Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2.    Must have regard to each of:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other.
3.    In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4.    Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5.    Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a)financial cooperation;
(b)cohabitation;
(c)a sexual relationship;
(d)cooperative household arrangements;
(e)mutual commitment.
The Tribunal highlights the evidence before it in relation to each of the section 4(3) factors as follows.
Financial Aspects of the Relationship
In considering the financial aspects of the relationship during the Relevant Period, the Tribunal must consider:
·     whether Mr Adam and Mrs Akhtar had joint ownership of any real estate or other major assets and whether they had any joint liabilities;
·     any significant pooling of financial resources;
·     any legal obligations that Mr Adam and Mrs Akhtar may have owed in relation to each other; and
·     the basis on which Mr Adam and Mrs Akhtar shared day to day expenses.
The Secretary noted in its Statement of Facts, Issues and Contentions dated 10 April 2015 that the following information or evidence had been provided to the SSAT and Centrelink prior to the hearing of this matter by this Tribunal:
·     Mr Adam told the SSAT that the FTB he received was paid into a joint bank account that he and Mrs Akhtar shared (T1 at 6);
·     the SSAT decision also suggests that Mr Adam said he continued to contribute to the joint bank account (T1 at 8), but it is unclear from the SSAT decision whether this contribution went beyond the FTB payments;
·     Mr Adam told the SSAT that he supported his family financially (T1 at 8), but the SSAT decision does not refer to any details; and
·     Mrs Akhtar indicated in her FTB claim form that she wanted FTB payments paid into an account held solely in her name.
It is clear that the SSAT had limited evidence before it in relation to the financial aspects of Mr Adam’s relationship with Mrs Akhtar. The information it did have did not demonstrate an ongoing financial commitment during the Relevant Period.
In hearings before this Tribunal, Mr Adam was given an opportunity to provide any additional financial information he had to the Secretary so that the Secretary might re-evaluate the nature of his and Mrs Akhtar’s financial relationship.
Mr Adam did so and that information was summarised by the Secretary in written Supplementary Submissions dated 26 August 2015.
The Supplementary Submissions note that there are two main financial aspects of the relationship that tend to support a conclusion that Mr Adam and Mrs Akhtar were a couple during the Relevant Period.
The first of these is that Mr Adam and Mrs Akhtar held a joint bank account.
The second of these is that Mrs Akhtar was the sole beneficiary of Mr Adam's superannuation account throughout the period.
In relation to the joint bank account, Mr Adam provided this Tribunal with statements for the joint bank account throughout the Relevant Period. This information was not before the SSAT.
A review of these bank statements suggests that there had been some pooling of financial resources during the Relevant Period, albeit limited.
In relation to this issue, the Secretary summarised the new evidence before it as follows:
Mr Adam and Mrs Akhtar both contributed to the account, with deposits including FTB payable to Mr Adam, a pension payable to Mrs Akhtar and payments to each of Mr Adam and Mrs Akhtar from a New Zealand pension.
The main expenses paid from the account appear to include rent and utility bills for the property in Victoria in which Mrs Akhtar was living and the property in Perth in which Mr Adam was living.
Mr Adam’s evidence at the hearing and to the SSAT was that he also contributed extra money to this bank account when he could afford to do so. The bank statements support this, at least for a period of 6-8 weeks in September to October 2012, with transactions supporting Mr Adam’s oral evidence including a $400 cash deposit made in Perth on 12 September 2012, a transfer of $500 from netbank on 29 October 2012 and a transfer of $1,000 from netbank on 30 October 2012.
During other periods, Mr Adam has transferred money from the joint account to his account, including $5,000 on 2 February 2012, $2,600 on 23 February 2012, with $2,000 being transferred back to the joint account 3 days later, and $300 on 27 April 2012.
There are various other transactions made in Western Australia throughout the relevant period and a few transactions based in Victoria.
There is a transfer of $1,300 to a netbank account ending in the numbers 5540 on 26 November 2012. In her claim for FTB, Mrs Akhtar requested that her FTB be paid into a bank account in her sole name. At T7, p42, the account number has been redacted for privacy reasons. However, a review of the original record confirms that the account number provided by Mrs Akhtar ended in the numbers 5540.
The last time Mrs Akhtar’s pension was paid to the joint account was on 14 November 2012 and the last time Mrs Akhtar’s New Zealand pension was paid to the joint account was 15 November 2012.
On 17 October 2012, Mr Adam’s FTB was cancelled for failure to return a form (T4, p26) and FTB therefore ceased to be paid to the joint account.
On 22 October 2012, Mr Adam travelled to Victoria for a period of 5 days after not having been there for 6 months.
On 19 November 2012, Mr Adam again travelled to Victoria, this time for a period of 4 days.
After this, Mrs Akhtar’s Centrelink pension and New Zealand pension ceased to be paid to the joint account.
On 26 November 2012, a transfer of $1,300 was made to an account that appears to be Mrs Akhtar’s account.
On 11 January 2013, Mr Adam’s FTB payments were restored and arrears of $1,724.34 were paid. On the same day, an amount of $2,000 was transferred to Mr Adam’s account.
On 21 January 2013, an amount of $2,000 was returned from Mr Adam’s account to the joint account, and was then paid to the account that appears to be Mrs Akhtar’s account, and an amount of $400 was paid to Mr Adam’s account.
In relation to Mr Adam’s superannuation fund, the Secretary advised as follows:
Mr Adam’s oral evidence that Mrs Akhtar was the sole beneficiary or his superannuation account is supported by the documents he has provided, which show that at 30 June 2012 and at 30 June 2013, Mrs Akhtar was the sole beneficiary of his account.
The Secretary argued that although the above factors support a conclusion that Mr Adam was a member of a couple, they need to be balanced against other factors that tend to suggest that Mr Adam was not a member of a couple. In that regard, the Secretary noted:
Aside from the one joint bank account, there is no evidence to suggest that Mr Adam and Mrs Akhtar owned any joint assets or shared any joint liabilities during the relevant period.
Mr Adam gave evidence that he purchased a real property in Perth in 2012 in his sole name and that the mortgage is also in his sole name.
Mr Adam also gave evidence that he had a bank account in his sole name throughout the relevant period. Although he was directed to provide copies of statements, he has not done so.
Mr Adam gave evidence that he did not believe that Mrs Akhtar had any other bank account throughout the relevant period. However, as she indicated on her FTB claim form that she wanted FTB paid into a bank account in her sole name, and from the observations made above in relation to the joint account bank statements, it appears that Mrs Akhtar had her own bank account from at least November 2012.
…
Although they held a joint bank account that indicates some pooling of financial resources, and although Mrs Akhtar was the beneficiary of Mr Adam’s superannuation account throughout, the Secretary contends that this is outweighed by the lack of joint assets and liabilities, particularly with Mr Adam purchasing a property in his sole name during the relevant period, and the lack of legal obligations owed to one another. In relation to the sharing of day to day expenses, the evidence shows that the joint bank account to which both Mr Adam and Mrs Akhtar contributed was used to pay rent and utilities bills for 2 properties, and a few other expenses, such as Mr Adam’s flights and a few miscellaneous expenses. Mr Adam’s oral evidence was that other expenses of Mrs Akhtar’s, such as groceries, were paid from contributions from their sons, and that he had his own bank account.
Mr Adam has also pointed to leaving his car in Melbourne as an indicator that he continued to be a member of a couple with Mrs Akhtar during the relevant period and has provided a certificate of registration as evidence in relation to his car. However, the Secretary contends that the evidence in relation to a car does not assist one way or the other in determining whether Mr Adam was a member of a couple. For completeness, the Secretary notes that there is no indication whether or not the car insurance account was paid, and there is a handwritten annotation on the certificate of registration with a figure that is half the amount of the total bill and no explanation provided.
Nature of the Household
In considering the nature of the household, the Tribunal is required to consider:
·     any joint responsibility for providing care or support to children;
·     the living arrangements of Mr Adam and Mrs Akhtar; and
·     the basis on which responsibility for housework is distributed.
The Secretary noted in its Statement of Facts that the following information or evidence had been provided during the review stages for the hearing of this matter:
·     Mrs Akhtar remained living in Melbourne while Mr Adam moved to Perth to look for work;
·     Mr Adam told the SSAT that he returned to Melbourne every 3 months or as finances allowed and that he stayed at the family home when in Melbourne (T1 at 8); and
·     Mr Adam told the Tribunal he spoke regularly with his wife and children between visits (T1 8).
In hearings before this Tribunal, Mr Adam was given an opportunity to provide any additional information he had to the Secretary so that the Secretary might re-evaluate the nature of Mr Adam’s and Mrs Akhtar’s household.
Mr Adam did so and that information was summarised by the Secretary in its Supplementary Submissions dated 26 August 2015. Those submissions noted as follows:
The evidence available tends to suggest that for the vast majority of the relevant period, Mr Adam and Mrs Akhtar were living in separate households. At its best, the travel documents provided by Mr Adam could be the basis for an inference that he was in Victoria for:
·     a period of 1 month from 10 March 2012 to 9 April 2012;
·     a period of 5 days from 22 October 2012 to 27 October 2012; and
·     a period of 4 days from 19 November 2012 to 23 November 2012.
This totals less than 6 weeks in a period of more than 16 months. Mr Adam also gave oral evidence that neither Mrs Akhtar nor Hina visited him in Perth during the relevant period.
Mr Adam gave evidence that he was in Perth for work reasons, and that he maintained weekly contact with his family when he was not with them. The Tribunal directed that Mr Adam provide telephone records to confirm this, but Mr Adam has not provided any such records. The only evidence from any telephone network provider provided by Mr Adam is a tax invoice from Telstra issued on 17 August 2011 for the period until 13 August 2011, which is prior to the relevant period in this matter.
Mr Adam’s oral evidence was that when he stayed in Melbourne, he stayed in the family home with Mrs Akhtar and that they shared all areas of the house including a bedroom. He also gave evidence that he did some of the outside chores, and that Mrs Akhtar did most of the indoor chores.
During the relevant period, Mr Adam and Mrs Akhtar had only one child (Hina) who was still a minor. Mr Adam gave evidence that he continued to care for Hina during this time and that both he and Mrs Akhtar provided emotional support and guidance for Hina and shared responsibility for making decisions in relation to Hina. Mrs Akhtar provided most of the day to day care in terms of providing meals and making appointments for Hina. The Secretary acknowledges that Mr Adam and Mrs Akhtar had some joint responsibility for Hina during this time, although Mrs Akhtar appears to have provided the bulk of the day to day care, given that Hina was living with her. Mr Adam and Mrs Akhtar also have 2 adult sons, although Mr Adam gave evidence to suggest that his relationship with his sons was strained.
The Secretary acknowledges that the household arrangements described by Mr Adam when he was in Melbourne tend to support a conclusion that he was a member of a couple. However, this needs to be balanced against evidence that Mr Adam and Mrs Akhtar maintained separate households and that they appear to have spent less than 10% of their time in the same state throughout the relevant period.
Social Aspects of the Relationship
In considering the social aspects of the relationship, the Tribunal is required to consider:
·whether Mr Adam and Mrs Akhtar held themselves out to be married;
·the assessment of friends and regular associates of Mr Adam and Mrs Akhtar about the nature of their relationship; and
·the basis on which Mr Adam and Mrs Akhtar made plans for, or engaged in, joint social activities.
The Secretary noted in its Statement of Facts that the following information or evidence had been provided during the review stages for the hearing of this matter:
·     Mr Adam told the SSAT that family and friends considered that he and Mrs Akhtar remained married, just geographically separated for work reasons (T1 at 6);
·     Mr Adam represented to Centrelink on 20 October 2011 that he was partnered (T24 at 298);
·     Mrs Akhtar indicated in her FTB claim form that she had been separated from Mr Adam since 1 September 2011 and that she did not currently have a partner (T7 at 39); and
·     on 25 January 2013, Mrs Akhtar had a conversation with a Centrelink social worker during which she represented that she was separated (T25 at 321).
In hearings before this Tribunal, Mr Adam was asked to provide any further evidence he had in relation to the social aspects of his relationship with Mrs Akhtar.
The Secretary summarised Mr Adam’s response and commented as follows:
Mr Adam has given oral evidence that he believes family and friends see him and Mrs Akhtar as a couple and believed that they continued to be a couple throughout the relevant period. He also gave evidence that when they are in the same place, they sometimes go to community events and functions together, but that Mrs Akhtar does not generally go out much. These factors, along with Mr Adam’s representation to Centrelink on 20 October 2011 that he was a member of a couple, tend to indicate that Mr Adam and Mrs Akhtar remained members of a couple throughout the relevant period.
However, the Secretary contends that representations made by Mrs Akhtar and Hina cannot be overlooked. Centrelink records at T25, p321 suggest that Mrs Akhtar and Hina have both represented to Centrelink that Mrs Akhtar and Mr Adam were separated (T25, p321). When this was put to Mr Adam at the hearing, his answer tended to suggest that the notion that he and Mrs Akhtar were separated came from his son, who completed the FTB form (in which it was also suggested that Mrs Akhtar was separated) and who did not get along with Mr Adam, and that Hina and Mrs Akhtar both had health issues.
Mrs Akhtar was not available to give evidence. She did, however, give some evidence before the SSAT. While it is not clear from reading the SSAT decision what questions were put to Mrs Akhtar, the SSAT at [25] (T1, p9) refused, in the absence of medical evidence, to make a finding that Mrs Akhtar was so unwell and confused at the time of her FTB claim form that she was unaware of her actions, incompetent, or provided misleading and incorrect information on her claim form.
No family or friends of Mr Adam were called to give oral evidence, nor were there any witness statements or statutory declarations filed by family and friends. There is no obligation on Mr Adam to provide such statements or third party evidence, and he has indicated a reluctance to bring other people into this.
However, the Secretary contends that Mr Adam’s evidence should be treated with caution in circumstances where he has chosen not to call any third party to give evidence and where it appears that up to 3 members of Mr Adam’s family (Mrs Akhtar, Hina and, on the basis of Mr Adam’s evidence that his son completed the FTB form, Mr Adam’s son) may be seen as potentially having made representations that Mr Adam and Mrs Akhtar were not members of a couple during the relevant period.
The Secretary contends that in the circumstances and without any corroborating evidence to support Mr Adam’s oral evidence, the social aspects of the relationship should not support a finding that Mr Adam and Mrs Akhtar were members of a couple during the relevant period.
Any Sexual Relationship

It does not appear that this question was put to Mr Adam before the SSAT.
When asked before this Tribunal whether he and Mrs Akhtar had a sexual relationship, Mr Adam replied that he and his wife had a sexual relationship during the Relevant Period.
In its Supplementary Submissions, the Secretary contended that this tends to favour the conclusion that Mr Adam and Mrs Akhtar were members of a couple during the Relevant Period.
Nature of the Commitment
In considering the nature of the relationship, the Tribunal is required to have regard to:
·     the length of the relationship;
·     the nature of any companionship and emotional support that Mr Adam and Mrs Akhtar provide to each other;
·     whether Mr Adam and Mrs Akhtar consider that the relationship is likely to continue indefinitely; and
·     whether Mr Adam and Mrs Akhtar see the relationship as a marriage-like relationship.
The Tribunal notes that Mrs Akhtar indicated on her claim for FTB that she and Mr Adam were married on 6 September 1989 (T7 at 39). This means that, at the start of the Relevant Period, Mr Adam and Mrs Akhtar had been married for 22 years.
Mr Adam told the SSAT that he moved to Perth in September 2011 to look for work, but he left the family home only for work purposes and remained married to Mrs Akhtar (T1 at 6). He repeated this evidence before this Tribunal.
Mr Adam further said before the SSAT that his geographical separation from Mrs Akhtar was never indicative of a marriage separation (T1 at 6). He further said that he left Melbourne with only a suitcase of clothes and that his furniture and other belongings would be transported to Perth with his family once he was employed and settled (T1 at 8).
Before this Tribunal, Mr Adam repeated that he had always intended for his wife and family to join him in Perth. They have now done so, albeit outside of the Relevant Period.
Mr Adam also told the ARO that he did not consider himself to be separated (T16 at 103).
In its Supplementary Submissions to the Tribunal, the Secretary commented as follows:
It is not disputed that Mr Adam and Mrs Akhtar have had a long relationship and are now cohabiting again. When considering the nature of the commitment, it is relevant to consider the nature of the commitment during the relevant period and not at present. Mr Adam has maintained throughout the various review stages of this matter that he believes that he was a member of a couple throughout the relevant period. As mentioned above, Mrs Akhtar has indicated to Centrelink (at least at the end of the relevant period) that she sees herself as having been separated from Mr Adam from 1 September 2011. Mrs Akhtar was not available to give evidence at the hearing, so the only evidence from her is the evidence that she provided to Centrelink in her FTB claim form and the interview that she had with a social worker on 25 January 2013.
While it can be said that Mr Adam considered the marriage to continue and that it would continue indefinitely, there is no evidence from which the Tribunal can conclude that Mrs Akhtar shared this view.
Mr Adam was asked at hearing about the emotional care and support that he provided for Mrs Akhtar, particularly when she was unwell in hospital. Mr Adam said that he may have visited her in hospital while he was in Melbourne but did not make any trips to Melbourne especially to see her while she was in hospital. He said that he would have phoned her if he was not in Melbourne at the time. Mr Adam was directed to provide documentary evidence of visitor logs while Mrs Akhtar was in hospital and telephone statements detailing calls made. Neither of these has been provided.
Were Mr Adam and Mrs Akhtar a Couple During the Relevant Period?
Like the SSAT, this Tribunal can only rely on the evidence it has before it. Unfortunately for Mr Adam, the evidence before this Tribunal was not in his favour. While it is certainly the case that Mr Adam was not required to present any evidence to the Tribunal, by choosing not to present evidence that could clearly have assisted the Tribunal, the Tribunal was left with little evidence with which to find that Mr Adam and his wife were a couple during the Relevant Period.
By way of example, the Tribunal indicated to Mr Adam that the following evidence, arguably easily obtained, would have been of considerable assistance to the Tribunal:
·evidence from members of his community of friends that he and Mrs Akhtar socialised as a couple during the Relevant Period;
·evidence from hospital staff that Mr Adam visited Mrs Akhtar in the hospital while she was ill;
·complete phone records that indicated that the couple spoke on a regular basis during the Relevant Period;
·financial records that demonstrated who paid for food, household and daily expenses during the Relevant Period.
As noted above, Mrs Akhtar did not appear before this Tribunal. Nor did any of Mr Adam’s children. It is not entirely clear why this was the case, given that Mrs Akhtar did appear before the SSAT. Mr Adam indicated that his wife was unwell, as was his daughter. No medical evidence was provided to verify that this was the case. Had she appeared, Mrs Akhtar could have assisted the Tribunal with the provision of evidence central to the determination the Tribunal needs to make. Evidence of this sort from Mr Adam’s children would also have greatly assisted the Tribunal.
Although given an opportunity to do so, Mr Adam chose not to provide any further written submissions after receiving the Secretary’s Supplementary Submissions. He did provide evidence that he had purchased a computer in Perth, which he said was intended for his daughter. Unfortunately, there was no evidence that his daughter actually received it. It is this sort of “connectivity” that is missing in this matter. Mr Adam gave verbal evidence that he did a lot for his wife and family but there is little evidence to show that what he says he did actually happened.
Without that sort of information and without evidence from those who could support Mr Adam’s assertions, the Tribunal is only left with the following evidence:
·Mrs Akhtar indicated in her FTB claim form that she considered herself to be “separated” from 1 September 2011;
·both Mrs Akhtar and her daughter, Hina, advised Centrelink, verbally, that Mr Adam and Mrs Akhtar were separated during the Relevant Period;
·Mrs Akhtar had her own bank account during the Relevant Period and specifically asked that all FTB payments in relation to her daughter be made to her;
·there is no evidence before the Tribunal that Mrs Akhtar did not understand what she was saying when she spoke to a Centrelink officer, that the form had been completed by her son without any understanding from her in relation to what was being said and what the consequences of her statements would be or that she signed the form under duress or in manipulative circumstances;
·despite holding a joint bank account, limited pooling of any joint resources occurred;
·there is no evidence that Mr Adam and Mrs Akhtar held joint assets or shared any joint liabilities during the Relevant Period.
On balance, the Tribunal finds that the financial aspects of the relationship between Mr Adam and Mrs Akhtar do not support a conclusion that Mr Adam and Mrs Akhtar were members of a couple during the Relevant Period.
In examining the nature of the household, the evidence before the Tribunal shows that during the Relevant Period (a period of 16 months), Mr Adam and Mrs Akhtar spent less than 6 weeks together in Melbourne. Mrs Akhtar never visited Mr Adam in Perth. Nor did her daughter Hina. There is also insufficient reliable evidence to determine whether Mr Adam provided emotional support to Hina during this time and limited reliable evidence to demonstrate that Mr Adam provided Hina with day to day care.
On balance, the Tribunal finds that the evidence in relation to the nature of the household does not support a conclusion that Mr Adam and Mrs Akhtar were members of a couple during the Relevant Period.
In examining the social aspects of the relationship, although Mr Adam claimed that he and his wife socialised with friends during the Relevant Period, Mr Adam’s statements (unsupported by statements from friends) need to be balanced with Mrs Akhtar’s clear statements to Centrelink that she and her husband were separated, statements made by Hina to Centrelink that her mother and father were separated and the actions of Mr Adam’s son (in helping his mother complete the relevant Centrelink forms) which support the view that he too thought that his parents were separated.
On balance, the Tribunal finds that the evidence in relation to the social aspects of the relationship does not support a conclusion that Mr Adam and Mrs Akhtar were members of a couple during the Relevant Period.
In relation to the nature of their commitment to each other, the very limited evidence before this Tribunal demonstrates that, although Mr Adam and Mrs Akhtar had been married for 22 years when she declared them to be separated, and although the couple are now living together again in Western Australia, during the Relevant Period there is no evidence that supports the conclusion that Mrs Akhtar saw herself as still partnered with and committed to Mr Adam. Her statements to Centrelink indicate the opposite. As this Tribunal was not given any evidence that would make it doubt the reliability of those statements and the statements of her children, the evidence in the Centrelink forms is persuasive.
On balance, the Tribunal finds that Mr Adam and Mrs Akhtar were not a couple during the Relevant Period.
Was Mr Adam Otherwise Providing Care to Hina?
The Tribunal also finds that there is no evidence that Mr Adam was otherwise providing care to his daughter Hina during the Relevant Period.
The term “care” is not defined in the Family Assistance Act, but there are policies to assist decision-makers in determining whether a child is in the care of another person. The policy in relation to family assistance is contained in the Family Assistance Guide (the “Guide”).
Section 1.1.C.90 of the Guide explains the meaning of the term “care” for FTB purposes. The section relevantly states:
Care generally includes physical care; however, the importance of physical care decreases as the child ... becomes older. ...
Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child.
Some examples of care include:
·having control of the child, including making major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities;
·having major daily responsibility for caring for the child and making the major decisions (e.g. meal preparation, hygiene, transport, discipline, emotional and moral support and guidance);
·bearing the costs of the child's daily life (e.g. food, accommodation, transport, clothing, schools fees, health and dental care etc.);
·making arrangements related to the child's needs (e.g. appointments at school or with doctors or dentists and accompanying them on those appointments); and/or
·being the main person for the day care, school, or college to contact in emergencies.
When assessing levels of 'care' consideration of the full circumstances of each case must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.
The Tribunal agrees with the Secretary that for Hina to be an FTB child of Mr Adam, he would need to provide at least 35% care of Hina (see section 25 of the Family Assistance Act).
As explained by the Secretary to the Tribunal, Mr Adam has suggested that he provided care for Hina during the Relevant Period as a father would by providing emotional support and assisting her with subject selection and, together with Mrs Akhtar, making decisions about Hina including her health, education, discipline, recreational and social activities. He acknowledged that most of the day to day care was provided by Mrs Akhtar. He also said that he was the emergency contact for Hina’s school.
Unfortunately, there is no concrete evidence before the Tribunal to support many of these statements.
Mr Adam also said in his evidence before the Tribunal that he cared for Hina because he paid the rent and utilities to support the family.
The Secretary contended that this evidence should be treated with caution and does not appear to be accurate upon review of the bank statements.
The Tribunal agrees. As correctly outlined by the Secretary, the bank statements reveal that contributions to the joint account came primarily from Mrs Akhtar’s Centrelink pension, Mr Adam’s FTB, and the pensions that each of Mrs Akhtar and Mr Adam received from New Zealand. The joint account appears to have been used to pay rent and utilities for both Mr Adam’s residence in Western Australia and Mrs Akhtar’s residence in Victoria. Although Mr Adam may have contributed some money to the family’s rent and utilities in Victoria (although there is limited documentary evidence to support this claim), it cannot be said that he alone paid the rent and utilities used to support Hina or that he paid even the fair majority of those expenses.
The evidence that is available shows that Mr Adam only saw his daughter for six weeks during a 16 month period and that most of the day to day care for Hina was undertaken by Mrs Akhtar in Melbourne. There is limited financial evidence demonstrating that Mr Adam paid, by way of example, for Hina’s food, school fees, clothes, telephone bills, computer or internet access and very limited evidence that Hina received any emotional support from Mr Adam during the Relevant Period.
The Tribunal agrees with the Secretary’s contention that in circumstances in which Hina resided with Mrs Akhtar 100% of the time, Mrs Akhtar provided most of the daily meals and day to day care and where Mr Adam has not made any significant financial contribution above and beyond that made by Mrs Akhtar, it cannot be found that Mr Adam was otherwise providing care for his daughter during the Relevant Period. Hina was not an FTB child of Mr Adam.
In the circumstances, as Mr Adam and Mrs Akhtar are not found to have been living as a couple during the Relevant Period and as the evidence does not demonstrate that he was otherwise providing care for Hina, Mr Adam does not qualify for FTB.
Eligibility for Schoolkids Bonus
Section 35UA of the Family Assistance Act provides that an individual is eligible for schoolkids bonus on a bonus test day if there is a determination in place that the individual is eligible for FTB, the rate of FTB would be greater than nil and the rate was worked out taking into account one or more FTB children who are relevant schoolkids bonus children.
The Tribunal has found that Mr Adam was not eligible for FTB. As such, it follows that he was not eligible for schoolkids bonus.
Whether Mr Adam Has Been Overpaid FTB and Schoolkids Bonus
The Tribunal has found that Mr Adam was not eligible for FTB payments during the Relevant Period. He has therefore been overpaid FTB.
As Mr Adam was not eligible for FTB, it follows that the schoolkids bonus payment of $410 that he received on 9 January 2013 was also an overpayment.
Can Mr Adam’s debt to the Commonwealth be Waived?
Provisions of the Social Security Administration Act 1999 (the “Administration Act”) allow debts owed to the Commonwealth to be waived in certain circumstances. Specifically, they can be waived:
· if the debt was due solely to an administrative error on the part of the Commonwealth (section 97); and
· if “special circumstances” permit waiver to occur (section 101).
Further, the debt can be written off if the debt is irrecoverable, the debtor has no ability to pay, the debtor’s whereabouts are unknown or it is not cost effective for the Commonwealth to take action to recover the debt (section 95).
Waiver of Debt Arising from Administrative Error on Part of Commonwealth
Section 97 of the Administration Act reads:
(1)The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2)       The Secretary must waive the administrative error proportion of a debt if:
(a)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b)the person would suffer severe financial hardship if it were not waived.
(3)       The Secretary must waive the administrative error proportion of a debt if:
(a)the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and
(b)       the debt is raised after the end of:
(i)the debtor’s next income year after the one in which the eligibility period or event occurs; or
(ii)the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
(4)For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.
The Tribunal has found that Mr Adam owes a debt to the Commonwealth.
The Tribunal further finds that there is no evidence that this debt arose solely as a result of any administrative error on the part of the Commonwealth.
The phrase “attributable solely to an administrative error” has been considered extensively by the courts and by this Tribunal.
In Sekhon v Secretary Department of Family and Community Services (2003) 132 FCR 126 at [35], Selway J said:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error ...
In Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212, the Tribunal said:
This means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (ie they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error.
While it is clear that Centrelink made some sort of administrative error in calculating the date at which Mr Adam and his wife separated and while it is clear that this may have had an impact on how much debt was owed by Mr Adam, the debt as a whole cannot be said to have arisen solely as a result of this or any other error on the part of the Commonwealth. Mr Adam’s debt arose generally because he received money he should not have received once he and his wife separated. Nothing Centrelink did resulted in Mr Adam thinking he was exempt from the relevant legislation or that a debt would not accrue or that he was in fact part of a couple when he was not. The legislation is clear that in relation to FTB and schoolkids bonus, a debt accrues once someone is no longer a member of a couple and a child is no longer an FTB child of that person.

Because the debt in the present case cannot be said to have arisen solely as a result of administrative error of the Commonwealth, the debt cannot be waived pursuant to section 97 of the Administration Act.
Waiver due to Special Circumstances
Section 101 of the Administration 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 the family assistance law; 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.
The term “knowingly” is not defined in the Administration Act. In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 DP Forgie explained as follows:
[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. The 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.
There is no evidence before the Tribunal that Mr Adam knowingly made false statements or knowingly failed to comply with a provision of the family assistance law. The Tribunal has no reason to believe that Mr Adam acted deceitfully in relation to this matter.
However, the Tribunal also finds that there are no special circumstances that would allow the Secretary to waive the debt in question.
The Act does not define what is meant by the term “special circumstances”. There is, however, a considerable body of case law to assist the Tribunal in relation to this issue.
In that regard, the Tribunal notes the summary of this case law provided by Senior Member Walsh in Locke and Secretary, Department of Social Services [2014] AATA 904, wherein the Tribunal stated (at [41]):
In summary, it has been held for circumstances to constitute “special circumstances” … they must be circumstances which are “unusual, uncommon or exceptional”, be “markedly different from the usual run of cases”, “special” or “out of the ordinary” and they include “events which would render the (strict application of the rule in question) unfair or inappropriate”: see for example, Re Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD at 3 per Toohey J; Beadle and Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ; Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at [545] per Kiefel J and Dranichnikov v Centrelink [2003] FCAFC 133; [2003] 75 ALD 134 at [66] per Hill J. Circumstances might be “special” although they apply to more than one person or class of persons, provided they are not of universal application (for example, they are a common or universal characteristic of social security recipients): see Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 441; (2010) 185 FCR 52 at [65].
In Randall and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 922, the Tribunal stated that the circumstances do not have to be unique to the applicant as long as they are not a common or universal characteristic of social security recipients.
The Tribunal also notes the decision in Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114, wherein Deputy President Forgie stated (at [80]):
… “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances … that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.
In Davy, there being no injustice or unfairness to the applicant that was not “visited, or potentially visited, upon all other recipients of social security payments”, the Tribunal was not satisfied that it was desirable to waive the debt under the Act.
The Tribunal finds that there is nothing in the evidence before the Tribunal that would indicate that there is anything different in Mr Adam’s circumstances that amount to “special circumstances”. What occurred in relation to Mr Adam can and does occur to many social security recipients. While reimbursing this debt will undoubtedly cause some financial hardship to Mr Adam and Mrs Akhtar, their situation is, in that regard, akin to many others who have received payments that should not have been received. It is thus not appropriate for the debt to be waived pursuant to section 101 of the Administration Act.
Writing off the debt
Section 95 of the Administration Act allows the Secretary to write off a debt for a stated period or otherwise if one or more of the following circumstances apply:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
The Tribunal finds that none of the above circumstances apply to Mr Adam. It is thus not appropriate for his debt to be written off.
FINDINGS
The Tribunal finds as follows:
(a)Mr Adam received FTB during the period 1 September 2011 to 21 January 2013.
(b)Mr Adam received a schoolkids bonus payment on 9 January 2013.
(c)Mr Adam and Mrs Akhtar were not living as a couple during the Relevant Period.
(d)Mr Adam was not otherwise providing care for his daughter Hina.
(e)In the circumstances, Mr Adam was not entitled to either FTB or the schoolkids bonus.
(f)Mr Adam thus owes a debt to the Commonwealth.
(g)Sections 97, 101 and 95 of the Administration Act, which allow a debt owed to the Commonwealth to be either waived or written off, do not, on the evidence, apply to Mr Adam
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

..............[sgd D Brodie].....................................
Administrative Assistant
Dated 18 September 2015

Date of hearing

22 July 2015

Applicant In person (unrepresented)

Representative of the Respondent Ms A Ladhams

Solicitor for the Respondent Australian Government Solicitor

[2015] AATA 727

18 September 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness

Remedies

Division	GENERAL DIVISION
File Number	2014/5659
Re	Akhtar Adam
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Deputy President Dr Christopher Kendall
Date	18 September 2015
Place	Perth

Date of hearing	22 July 2015
Applicant	In person (unrepresented)
Representative of the Respondent	Ms A Ladhams
Solicitor for the Respondent	Australian Government Solicitor