Adly Tanios and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 580

[2012] AATA 580 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/1011
Re	Adly Tanios
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	30 August 2012
Place	Sydney

The decision under review is affirmed.

..............................[sgd]..........................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - debt - whether money held in bank accounts attributable asset of applicant - whether money held on trust - whether designated private trust - whether controlled trust - whether attributable stakeholder - insufficient basis for decision that less than 100 per cent of money attributable to applicant - whether waiver of debt - whether special circumstances exist - whether debt can be written off - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – ss 117, 1064, 1209E, 1207P, 1207P(1)(a)-(d), 1207V, 1207V(1), 120V(2)(a), 1207X, 1207X(1)(a), 1207X(2)(c), 1207X(2)(d), 1207X(5), 1223(1), 1236, 1237A, 1237AAD, Part 3.18

Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (Cth) - s 6(3)

CASES

Kintominas v Department of Social Security (1991) 30 FCR 475; [1991] FCA 342

Kauter v Hilton (1953) 90 CLR 86
Martin v Martin (1959) 110 CLR 297
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Groth v Secretary, Department of Social Security (1995) 40 ALD 541; [1995] FCA 1708
Secretary Department of Social Security v Hodgson (1992) 37 FCR 32; [1992] FCA 338

Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52

SECONDARY MATERIALS

Heydon J.D., Leeming M.J., Jacobs’ Law of Trusts in Australia, 7th ed, LexisNexis Butterworths, 2006

REASONS FOR DECISION

Senior Member A K Britton

30 August 2012

1. Mr Adly Tanios challenges a decision, made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal (SSAT), to raise and recover a debt said to be owed to the Commonwealth of about $13,500 as a result of overpayment of Disability Support Pension (DSP). The debt arose following Centrelink’s discovery of over $320,000 in Australian bank accounts in Mr Tanios’s name and relates to the period 4 April 2007 to 31 July 2009. The Secretary treated that money as an asset attributable to Mr Tanios and therefore relevant to the assessment of his rate of DSP. Mr Tanios claims that the money at all times has belonged to his sister and that he holds it on trust for her.

2. Whether, as the respondent Secretary contends, Mr Tanios was overpaid DSP, turns on whether the disputed money is an asset of Mr Tanios. If, as claimed by Mr Tanios, a valid trust has been established, it will be necessary to decide if he is an “attributable stakeholder” and, if so, whether it is appropriate to depart from the default position that 100 per cent of the assets of the purported trust is attributable to Mr Tanios (s 1207X(2)(d) of the Social Security Act 1991 (Cth) (the Act)).

   BACKGROUND

3. Mr Tanios was born in Egypt and migrated to Australia in the early 1970s. He moved to China in 1994 where he lived for close to a decade. In 2003, after suffering a series of strokes, he returned to Egypt to be cared for by his family. On his account, when he arrived in Egypt he had no means of support as he was not permitted to take any money out of China. While in Egypt he was extremely ill, “semi-conscious” and in need of nursing care. Throughout that period he stayed with, and was cared for by, his sister, Mrs Aida Tanios.

4. On 26 June 2004, Mr Tanios returned to Australia. Two weeks later, he applied for Newstart Allowance and a few weeks later, DSP. In the six weeks before his return to Australia, just over $320,000 was transferred in three separate transactions to an account with the Commonwealth Bank of Australia in Mr Tanios’s name from an account with the National Bank of Egypt that was also in his name. In these proceedings, Mr Tanios said that when he arrived in Australia, he had attempted to open an account in his sister’s name but was advised by the bank that this was impermissible.

5. A copy of Mr Tanios’s bank book issued by the National Bank of Egypt was tendered in these proceedings. It shows that a number of deposits were made after the issue of the bank book on 5 January 2004. The bank book does not indicate who made the deposits into, or withdrawals from, the account.

6. In November 2007, Centrelink obtained records from the Australian Transaction Reports and Analysis Centre (AUSTRAC), which revealed a number of bank accounts in Mr Tanios’s name that he had not disclosed, totalling over $320,000. In these reasons, I will refer to this money as “the disputed money” and the accounts in which it was held as “the disputed accounts”.

   SOURCE OF DISPUTED MONEY

7. There is no argument that the disputed money now consists, in the main, of the $320,000 transferred from Egypt and the interest earned on that money. In addition, since July 2004, Mr Tanios has made occasional deposits of relatively small amounts into the disputed accounts. These deposits were generally made after the equivalent amount had been deposited into, and withdrawn (or transferred) from, what Mr Tanios describes as his “personal account” ― the account into which his DSP is paid. (See for example, the deposits made to, and withdrawals from, Mr Tanios’s St George account between September 2007 and March 2009, and the $12,500 deposited into Mr Tanios’s Westpac account between April 2006 and August 2007.)

8. Apart from the $6500 received from the administrator of Geneva Finance, Mr Tanios was unable to explain the source of these additional funds. (Some years earlier Mr Tanios had invested about $40,000 with Geneva Finance on behalf of his sister. Most of that money was lost when Geneva Finance went into liquidation. Mr Tanios stated that he feels deeply ashamed for this loss and as a result, did not contact his family for many years.)

   PURPOSE OF THE DISPUTED MONEY

9. In a statement prepared for these proceedings, Mr Tanios stated that he transferred the money into his own bank account in Australia because his sister had asked him “under the power which was established in 1988 with the advice of her solicitor [apparently a Power of Attorney]”. He wrote:

   My sisters said they would come to Australia to look after me (help me to shower, feed me, etc). I told them I don’t have any money because the communist government of China doesn’t allow money to go out of the country … My sisters said ‘who will pay?’ … They collected money from each other and established a bank account for me at the National Bank of Egypt on 30 May 2004. It was not deposited by me, but by them … They said ‘take that money and invest it for us so we have enough money to spend for our immigration and our accommodation in Australia. At that time they did not have an account in Australia…

10. In oral evidence, Mr Tanios claimed that the money in his Egyptian bank account had been deposited by his sister, Aida, and “a lot of other family members”, “everyone”. He claims that he was “semi-conscious” when his sister raised the money and that she used his seal to open the account. Mrs Aida Tanios testified she collected the money from her siblings “to help [her brother] while he was sick”. She said when he refused to take the money, she insisted that he take it and invest it on her behalf.

11. Mrs Tanios said she does not know what proportion of the disputed money each donor gave, but recalled that “a significant sum” came from the sale of a family property owned by her husband. She said that after her siblings gave the money they have had “nothing to do with it”. She claimed that no agreement was in place between herself and her siblings, or her siblings and Mr Tanios; the only was agreement was between herself and Mr Tanios.

12. Mr Tanios and his sister claim that there is no record of their agreement, or the source of the disputed money.

13. A file note made by a Centrelink officer in September 2007, when Mr Tanios was first questioned about an account in his name held with Westpac Bank, recorded that Mr Tanios said that the money belonged to his sister who intended to come to Australia after her daughter completes her university degree. When asked about the $50,000 withdrawn from the account in April 2007, Mr Tanios is recorded to have said that he sent the money to his sister by way of a bank cheque.  A file note made two days later records Mr Tanios as saying that he did not send the money back to his sister but rather had reinvested it on her behalf. He is also recorded to have said that, as the money belonged to his sister, he would not disclose where the money was now held. In these proceedings, Mr Tanios denied saying that he had sent $50,000 in a bank cheque to his sister, but agreed he had refused to disclose what became of that money. 

14. A file note made by a Centrelink officer on 18 September 2009 following a conversation with Mr Tanios, recorded him as saying that he had advised his family, who wanted to emigrate to Australia, that it was a good idea to buy property in Australia rather than rent. When asked why the money was sent from his, not his sister’s account in Egypt, he is recorded to have said that she did not have a bank account. He later said that she did have a bank account but not one in Australia.

    PLAN TO EMIGRATE TO AUSTRALIA

15. Since being contacted by Centrelink about the disputed money, Mr Tanios has consistently claimed that his family intends to emigrate to Australia when his niece (Aida Tanios’s daughter) graduates from University.

16. Tendered in these proceedings was a letter dated 5 August 2010, written to Mr Tanios by his sister, Mrs Aida Tanios:

    … I want to thank you for the trouble you went thru [sic] with me in utilizing the money and would like to tell you that I was happy of the profit you told me about, May God compensate the loss of the money taken from me in 1986 and I also wish to tell you that as soon the children complete their studies I will do immigration to Australia. I also want to tell you if you are tired of the subject of money or if it causes any problems, sent it to my account in Egypt … (letter, translated, 15 August 2010).

17. In an unsigned letter Mr Tanios’s sisters, Aida and Latifa, declared that soon after their children finish their studies “we will be able to come and live with you”. They wrote:

    Again it is necessary to buy the house as this will be for us to live after we arrive to Australia and after you buy it please let us know if the money was enough to cover the cost of buying the house or not.

18. Mrs Tanios testified that she planned to move to Australia with her sister Latifa when their respective children finished their tertiary education. She explained that all but one of her five children have completed their studies, but that some of Latifa’s children are still at school. She later said that she intends to emigrate once her youngest daughter graduates and would not wait for her sister: “it’s up to her”.

19. Mrs Tanios did not resile from her claim that she planned to emigrate when put to her that it seemed implausible given that she is over 60, most of her family including children and grandchildren reside in Egypt, she cannot speak English, has never visited Australia and is financially comfortable in Egypt.

20. In oral evidence Mrs Tanios stated that when she moves to Australia she will use the disputed money to purchase a house where she and her husband and daughter will live ― somewhere near Mr Tanios. On questioning, she said that she would not mind if Mr Tanios wanted to live in the house. Mrs Tanios said she had made an application to emigrate some time ago, but it had lapsed and she understood she would need to make a fresh application.

    USE OF THE DISPUTED MONEY

21. Mr Tanios claims that he has not and never will touch the disputed money – even if he is “dying hungry”. He said that on his sister’s instruction, he had used some money to purchase a mobile phone and pay for his phone bill (for a few months) and “only that”. Mrs Tanios stated that her brother had refused her offer of a mobile phone and payment of phone bills. When asked whether she had authorised him to use the money if the need arose, Mrs Tanios said that it was her understanding that he did not need money.

22. Mrs Tanios stated that she told Mr Tanios to withdraw $500 from her account and send it to her sister (in Egypt). Mr Tanios denied withdrawing any money from his sister’s account, but stated he had sent some of his own money to Egypt as a present for his niece.

    CONTROL OVER THE DISPUTED MONEY

23. According to Mr Tanios, his role is to “maximise the investment for my sisters”. He claims that for this reason, he frequently moved the money between accounts to secure the best rate of interest.

24. He claims that while he is not required to do so, he provides his sister with regular reports about the money by phone. He states that he has “total freedom to do whatever he wants” with the money and does not consult his sister when he changes investments.

25. When asked in these proceedings about the current value of the disputed money, Mr Tanios initially refused to disclose it, saying Centrelink had no business knowing about his sister’s affairs. He later stated that it was about $400,000. Mrs Tanios says she does not know how much is currently held in the disputed accounts.

    POWER OF ATTORNEY

26. In 1988 Mrs Tanios appointed her brother under a power of attorney to act on her behalf and among other things to “deposit and draw money from banks”. Apparently, the trigger for the appointment was to enable Mr Tanios to invest money on his sister’s behalf with Geneva Finance.

    MOVEMENT BETWEEN ACCOUNTS

27. The disputed money was initially transferred into a Commonwealth Bank account in Mr Tanios’s name. In August 2005, he placed just over $305,000 in a term deposit in his name. In March the following year, Mr Tanios invested a further $15,600 in a Westpac term deposit.

28. By April 2007 the amount held in the Westpac term deposits totalled $354,000. On 4 April 2007, Mr Tanios transferred just under $50,000 of that amount into a Westpac account in his name, which he characterises as his “personal” account, and a bank cheque was drawn for the balance in the sum of $305,000. The following day, Mr Tanios withdrew the $50,000 from his personal Westpac savings account and deposited $355,000 into a Commonwealth Bank term deposit account. He deposited a further $8,000 into the Commonwealth Bank account in July 2007.

29. In March 2008 Mr Tanios deposited just over $382,000 with Commonwealth Bank. He withdrew $100,000 in October 2008 and claims that he deposited that amount with Macquarie Bank. In March 2009, he deposited just under $40,000 into a Commonwealth Bank account in his name. When closed by Mr Tanios in April 2009, there was just over $315,000 in that account.

30. In April 2009, Mr Tanios deposited $316,000 into an account with St George Bank. He closed that account on 11 June 2009. The closing balance was just over $318,000. On 7 June 2009, apparently at Mr Tanios’s request, a St George Bank manager wrote that “as mentioned by Mr. Aldy Tanious” the money was held “in trust for his sister” and the correct account title was “Mr Aldy Tanious in Trust for Mrs Alda Mikhall Tanious”.

31. On 14 September 2009, Mr Tanios deposited $320,000 into a Commonwealth Bank account in his name. Fifteen days later, he transferred that money into a term deposit described as “Aida Mikhail Tanios ITF Adly Tanios”. By February 2011, the term deposit had increased to about $360,000 and was held in the name of “Mrs A Tanios”.

32. In a letter dated 3 August 2011 a Commonwealth Bank manager wrote that the term deposit is held in the name of Mrs Aida Mikhail Tanios who lives in Egypt and Mr Tanios has the authority, via power of attorney, to rollover the term deposit on behalf of his sister.

    HAS A VALID TRUST BEEN CREATED?

33. The primary issue to be determined is whether the disputed money is an asset of Mr Tanios. The disputed money will not count towards Mr Tanios’s assets if his sister retains a beneficial interest (Kintominas v Department of Social Security (1991) 30 FCR 475).

34. The authors of Jacobs’ Law of Trusts in Australia (7th ed, LexisNexis Butterworths, 2006), observe that a precise definition of trusts is elusive, if not impossible, and proffer the following description:

    [A trust] exists when the owner of a legal or equitable interest in property is bound by an obligation, recognised by and enforced in equity, to hold that interest for the benefit of others, or for some object or purpose permitted by law. (p.1)

35. For a valid trust to be created, there must be certainty as to intention, subject matter and objects of the trust:

    …the established rule that in order to constitute a trust the intention to do so must be clear and that it must also be clear what property is subject to the trust and reasonably certain who are the beneficiaries: per Dixon CJ, Williams and Fullagar JJ in Kauter v Hilton (1953) 90 CLR 86 at 97.

36. Mr Tanios, as the person asserting the existence of the trust, bears the burden of establishing that a valid trust was intended (Martin v Martin (1959) 110 CLR 297 at 305). The task of determining this question is made difficult because of the inconsistencies in the evidence and the lack of independent evidence. The evidence makes plain that the money was initially intended as a gift for Mr Tanios who, at the time, was unwell and apparently impecunious. On Mrs Tanios’s account, it was for this reason that she initiated a collection among other members of the family and donated some of her money. While there is conflicting evidence about the circumstances surrounding the opening of Mr Tanios’s account with the Egyptian National Bank — he says when this occurred he was unconscious and his sister used his seal to open the account; she says while he was unwell and required assistance, he nonetheless accompanied her to the bank to open the account — the weight of evidence suggests that it was not until the money had been collected and deposited that the alleged refusal of the gift took place. It is unclear from the evidence when this occurred.

37. The evidence reveals that not all of the disputed money was contributed by Mrs Tanios. An indeterminate amount came from other family members and the proportion each sibling contributed is unknown. In addition, since returning to Australia, Mr Tanios has added to the disputed account.

38. Two of the three requirements of a valid trust would appear to be met: certainty as to the subject matter — the disputed money, and, the objects of the trust — the future purchase of a house for Mr Tanios’s sister (or sisters). The more difficult question is whether the evidence supports a finding that after receiving the money as a gift, Mr Tanios made an unambiguous declaration that he holds the money as trustee for his sister, Aida, and in no other capacity. The relevant period for that assessment is before or during the period to which the debt relates: 4 April 2007 to 31 July 2009. As noted, there is no record of Mr Tanios declaring that he holds the disputed money on behalf of his sister. His evidence is to the effect that at all times he considered the money belonged to his sister. In my opinion, given that the money initially at least belonged to Mr Tanios there must be clear evidence that he later made a declaration of his intention to hold the money on trust for his sister. There is no evidence prior to April 2009, when he attempted to open an account in his sister’s name, of Mr Tanios having declared to any third party that he held the money on trust for his sister.

39. Nonetheless, there is some evidence to support the contention that Mr Tanios declared his intention to hold the money on trust for his sister. This includes his sister’s evidence (although unhelpful in identifying when the purported declaration was made) and his conduct of quarantining the disputed money from his personal funds and not using it for his own purposes.

1. I am not satisfied on the evidence before me that Mr Tanios has discharged the burden of establishing that, before or during the period to which the debt relates, he made a declaration of his intention to hold the money on trust for his sister. Mr Tanios’s insistence that the money would be used for her benefit would appear to be motivated in part by his desire to make good the loss she suffered following the failed Geneva Finance investment. Whatever the motivation, it does not, in my opinion, create an interest recognised and enforceable in equity. This is not to say that Mr Tanios does not intend to use the money for the benefit of his sister, but rather that the evidence before me is insufficient to support a finding that a valid trust has been created. His subjective belief about the proper character of the money is insufficient to give rise to a trust relationship.

2. Nor am I persuaded that he is assisted by the existence of the power of attorney. Drawn up 25 years before the disputed money was collected, it does not assist in establishing that Mr Tanios declared his intention to hold the disputed money in trust for his sister.

3. Accordingly, I find that the disputed money is an asset of Mr Tanios and must be taken into account in calculating his rate of DSP. In case I am wrong, I will proceed to consider whether the disputed money is attributable to Mr Tanios under Part 3.18 of the Act. In this discussion I will refer to the purported trust as “the trust”.

   IS THE DISPUTED MONEY ATTRIBUTABLE TO MR TANIOS?

4. Unless otherwise decided, one hundred per cent of the assets of the trust will be attributable to Mr Tanios providing that:

   ·the trust is a designated private trust (s 1207P); and

   ·the trust is a controlled private trust in relation to Mr Tanios (s 1207V); and

   ·Mr Tanios is an attributable stakeholder of the trust (s 1207X).

   A designated private trust?

5. The trust will be a designated private trust unless, among other things it meets each of the three criteria listed in s 1207P(1)(a) or, is a complying superannuation fund, an excluded trust or a First Home Saver Account trust (s 1207P(b)-(d)). The purported trust does not satisfy each of the criteria listed in s 1207P(1)(a), which include that the units in the trust be held by 50 or more persons, nor is it one of the three trusts listed by s 1207P(b)-(d).

6. Therefore, the trust is a “designated private trust” within the meaning of the Act.

   A controlled private trust in relation to Mr Tanios?

7. The purported trust will be a controlled private trust in relation to Mr Tanios if Mr Tanios passes the control or source test (s 1207V(1)). Mr Tanios passes the control test because he is, or purports to be, the trustee of the trust (s 120V(2)(a)). He also passes the “source test” because he has transferred his own money into the trust for no consideration (s 1207V(3)).

8. Accordingly, the purported trust is a controlled private trust in relation to Mr Tanios.

   An attributable stakeholder?

9. Mr Tanios will be an “attributable stakeholder” unless otherwise determined (s 1207X(1)(a)). In making that determination, the Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (Cth) (the Principles) must be applied (ss 1207X(5) and 1209E). Part 2 of the Principles sets out the principles with which the decision-maker must comply in making a determination, under s 1207X(2)(c) of the Act, that an individual is not an attributable stakeholder of the trust. In particular, the decision-maker must consider whether the effect of one or more of the circumstances mentioned in Part 2 of the Principles, in relation to the individual and the trust, provides a sufficient basis on which to determine that he or she is not an attributable stakeholder (s 6(3) of the Principles).

10. The Principles direct that consideration be given to:

    ·circumstances arising from the legal structure of the trust;

    ·circumstances arising from the administrative arrangements of the trust;

    ·whether Mr Tanios  can reasonably be expected to exercise effective control in relation to the trust;

    ·contribution to trust;

    ·past benefit from distribution by trust;

    ·future benefit;

    ·benefit from assets and income of trust;

    ·existing attribution;

    ·other circumstances.

    Circumstances arising from the legal structure of the trust

11. Throughout the relevant period, the arrangement between Mr Tanios and his sister was informal and not recorded. Mr Tanios characterises the structure of the trust as one where he is the trustee of, and his sister holds a beneficial interest in, the disputed money.

    Circumstances arising from the administrative arrangements of the trust

12. The administrative arrangements in relation to the trust are informal. All of the financial institutions that have held the disputed money deal exclusively with Mr Tanios. All of the disputed accounts were held in Mr Tanios’s name until discovered by Centrelink. Although not required to do so, Mr Tanios gives his sister verbal updates about the accounts.

    Contribution to the trust

13. As noted, various members of Mr Tanios’s family, including his sister, contributed unknown amounts into the trust. In addition, a small proportion of the disputed money was voluntarily contributed by Mr Tanios.

    Past benefit from the trust

14. To date, there has been no distribution of either the assets or income of the trust. All income has been reinvested.

    Future benefit from distribution by trust

15. Mr Tanios states that the disputed money will remain untouched until such time as his sister emigrates to Australia, when it will be used to purchase a property. How the money will be used if, as I think is more probable than not, the planned emigration does not eventuate, is unclear. I am unable to accept Mrs Tanios’s claim that if she were to emigrate to Australia her brother would continue to live alone. This seems implausible given Mr Tanios’s modest circumstances — he lives alone in a government flat — and the stated reasons for the planned emigration — to reunite the family and provide care and support for Mr Tanios. It follows that if the planned emigration does eventuate, Mr Tanios is likely to derive some benefit from the trust.

    Benefit from assets and income of trust

16. There is no evidence that Mr Tanios has received any benefit from the trust apart from a small contribution towards his telephone expenses.

    Existing attribution

17. Mr Tanios is not an “attributable stakeholder” for any other entity.

    Other circumstances

18. There are no other circumstances that affect the involvement of Mr Tanios with the trust.

19. While Mr Tanios has, to date, received only a nominal benefit from the trust, he is likely to derive a future benefit. This, together with the fact that he has complete control over how the money is used and has contributed his own funds, leads me to conclude that there is not a sufficient basis to determine that he is not an attributable stakeholder.

    Should Mr Tanios’s asset attribution be less than 100 per cent?

20. As Mr Tanios is an attributable stakeholder, it is necessary to decide whether a percentage lower that 100 per cent of the value of the money should be attributed to him (s 1207X(2)(d)). In making that determination, Part 3 of the Principles (which are identical to those listed in Part 2) must be complied with. For the reasons as discussed above, in my opinion the circumstances in relation to Mr Tanios and the trust do not provide a sufficient basis to determine that his asset attribution should be less than 100 per cent.

    DEBT TO THE COMMONWEALTH

21. The disputed money being an asset of Mr Tanios, or 100 per cent attributable to him as an attributable stakeholder, must be taken into account in the assessment of his rate of DSP (ss 117 and 1064 of the Act). Following the discovery of the disputed accounts, the Secretary recalculated Mr Tanios’s rate of DSP for the period 4 April 2007 to 31 July 2009 (the relevant period) and found that he had received an overpayment in the sum of $13,358. It has not been suggested that that calculation was incorrect. Having examined that calculation and the assumptions on which it is based, I am satisfied that the figure is correct. (The calculation does not take into account the preceding period, i.e. from when Mr Tanios commenced receiving DSP (12 July 2004) to the start of the relevant period (4 April 2007). The reviewable decision is limited to the relevant period and therefore it is not within the scope of this review to consider whether Mr Tanios was also overpaid in that period.)

22. As Mr Tanios was not entitled to the overpayment, it constitutes a debt due to the Commonwealth (s 1223(1) of the Act).

    CAN THE DEBT BE WAIVED?

23. Section 1237AAD of the Act gives the decision-maker the power to waive all or part of a debt if satisfied that “there are special circumstances (other than financial hardship alone) that make it desirable to waive [the debt]”.

24. The term “special circumstances” is contained in a number of provisions of the Act and has been the subject of exhaustive consideration by the Administrative Appeals Tribunal and the Federal Court. The Federal Court has consistently declined to adopt a prescriptive formula: see for example French J in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535. Nonetheless, the Court has emphasised that the term denotes a requirement that there be “something which distinguishes [the claimant’s] case from others, to take it out of the usual or ordinary case”: per Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545. This however is not to be interpreted as a requirement that the claimant’s circumstances be “extremely unusual, uncommon or exceptional”: per Hill J in Secretary Department of Social Security v Hodgson (1992) 37 FCR 32 at 42. Nor is there a requirement that the circumstances be unique to the individual: per Katzmann J in Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52 at 65.

25. Mr Tanios is currently repaying the subject debt at the rate of $15 per fortnight. He has no dependents or debts and lives in government-assisted housing. Within Mr Tanios’s limited means, the loss of $7.50 per week is not insignificant however nothing distinguishes his case from other DSP recipients who also struggle to make ends meet. I am not persuaded that special circumstances are established.

26. The decision-maker must waive the right to recover any proportion of the debt that is “attributable solely to an administrative error made by the Commonwealth” (s 1237A of the Act). The debt was not attributable to an administrative error by the Commonwealth but rather to Mr Tanios’s failure to disclose the disputed accounts to Centrelink. Therefore, the power to waive some or all of the debt cannot be exercised.

    CAN THE DEBT BE WRITTEN OFF?

27. Section 1236 of the Act provides that the decision-maker may write off a debt only if the debt is irrecoverable at law; or the debtor has no capacity to repay the debt; or the debtor’s whereabouts are unknown; or it is not cost effective for the Commonwealth to take action to recover the debt. None of these conditions apply in this case.

    DECISION

28. As I have decided that the debt cannot be waived or written off, I must affirm the decision under review.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

...............................[sgd].........................................

Associate to Senior Member A K Britton

Dated  30 August 2012

Date(s) of hearing	4 May and 25 June 2012
Applicant	In person
Solicitors for the Respondent	Mr H Schuster, Centrelink Program Litigation and Review Branch