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

[2022] AATA 3824

Andersen and Secretary, Department of Social Services (Social services second review) [2022] AATA 3824 (31 October 2022)

Division:GENERAL DIVISION

File Number:          2020/7100

Re:Dan Juul Andersen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Dr L Bygrave, Member

Date:31 October 2022

Place:Sydney

The decision under review is affirmed.

...........................[SGD]..................................

Dr L Bygrave, Member

Catchwords

SOCIAL SECURITY – Age Pension – overpayment of Age Pension – income assessment – assessment of Applicant’s Danish Old Age Pension – social security agreement between Australia and Denmark – personal allowance – whether debt can be waived or written off – no sole administrative error – no special circumstances – decision under review affirmed

Legislation
Social Security Act 1991 (Cth) ss 8, 1064, 1064-E1, 1223, 1236, 1237A, 1237AAD
Social Security (Administration Act) 1999 (Cth) ss 68, 72
Social Security (International Agreements) Act 1999 – Schedule 12 – Denmark

Cases

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Dranichnikov v Centrelink [2003] FCAFC 133

Secondary Materials

Social Security Guide released 29 September 2022

A guide to Australian Government payments 1 January–19 March 2019

REASONS FOR DECISION

Dr L Bygrave, Member

31 October 2022

Introduction

1. Mr Dan Juul Andersen is 79 years old. He is a citizen of Denmark who resided and was employed in Australia from 1980 to 2018. Mr Andersen ceased employment in Australia on 30 June 2018 and was paid Age Pension from 1 July 2018. He departed Australia on 19 November 2018 and, since this date, he has resided in Denmark.

2. On 31 January 2020, the Department of Human Services (Centrelink) (now named Services Australia) decided Mr Andersen was overpaid Age Pension in the amount of $6,432.69 for the period from 1 January 2019 to 13 August 2019 because ‘income from the 2019 rate of Danish Old Age Pension was not taken into account when assessing [his] payment rate’ of Age Pension.[1] An authorised review officer of Services Australia affirmed this decision on 11 May 2020.

   [1] Exhibit T-T15, page 96.

3. Mr Andersen sought review and, on 20 October 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) affirmed this decision.

4. On 16 November 2020, Mr Andersen made an application for review to the General Division of the Tribunal.

5. The matter was heard by the Tribunal in Sydney on 29 September 2022. Mr Andersen attended the hearing and gave oral evidence by videoconference from Denmark.

   relevant legislation

6. The statutory provisions relevant to this matter are set out in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and Schedule 12 to the Social Security (International Agreements) Act 1999 (Cth) (the Danish Agreement).

7. The rate of Age Pension paid to a person is calculated in accordance with section 1064 of the Act and is affected by factors including their income and assets, and whether they are single or a member of a couple.

8. Relevant to this matter, section 1064-E1 of the Act sets out how to calculate the effect of a person’s ordinary income on their payment rate. The income limit for Mr Andersen to be paid Age Pension, as a single person as at 1 January 2019, was $2,004.60 per fortnight.[2]

   [2] A guide to Australian Government payments, 1 January–19 March 2019: see Historical versions of A guide to Australian Government payments - Services Australia.

9. Section 8 of the Act defines ‘income’ as meaning ‘an income amount earned, derived or received by the person for the person’s own use or benefit … by any means; and … from any source (whether within or outside Australia)’.

10. Part 5.2 provides for amounts recoverable under the Act: section 1223 sets out that a debt arising from overpayment of a social security payment is a debt due to the Commonwealth. Provisions to write off a debt are set out in section 1236, and provisions to waive a debt are set out in sections 1237A and 1237AAD of the Act.

11. The Administration Act sets out the statutory reporting obligations of a person in receipt of a social security payment. Section 68 of the Administration Act states that the Secretary may give a written notice to a person that requires them to inform the Department if a specified event or change of circumstances occurs that may affect their payment. Section 72 of the Administration Act outlines the provisions for a notice under section 68, including that it must be in writing and must specify how the person is to give the information to the Department.

12. Article 8 of the Danish Agreement is titled ‘Calculation of Australian Benefit’; clause 3 states:

    Where an Australian benefit is payable, whether by virtue of this Agreement or otherwise, to a person who is residing in Denmark, Australia shall disregard, when assessing the income of that person, any personal allowance paid to that person under the Social Pensions Act of Denmark, and any other payments of a similar nature as mutually determined from time to time in letters exchanged between the Ministers respectively administering the legislation of Australia and Denmark.

13. The Social Security Guide (the Guide), which provides policy guidance on interpreting the Act, further states:

    Exempt payments

    Article 8 of the Agreement with Denmark provides that the following Danish benefits be exempt from the income test applied to Australian benefits:

    ·     any personal allowance paid to a person residing in Denmark under the Social Pensions Act of Denmark, and

    ·     any other payments of a similar nature as mutually determined by both parties (nil to date).[3]

    [3] Social Security Guide released 29 September 2022, section 10.13.8.60.

    issues

14. The issues for determination by the Tribunal are:

    ·whether Mr Andersen’s Danish Old Age Pension has been correctly assessed in accordance with the Danish Agreement;

    ·whether Mr Andersen has an Age Pension debt in the amount of $6,432.69 for the period from 1 January 2019 to 13 August 2019; and

    ·if so, whether there are any grounds to write off or waive all or part of Mr Andersen’s debt.

    evidence

15. Documents before the Tribunal provide the following chronology of relevant events.

    ·On 2 May 2018, Mr Andersen lodged the following documents at Centrelink:

    oa claim for Age Pension in which he declared he is a citizen of Denmark and commenced living in Australia in 1980;[4]

    [4] Exhibit ST-ST1.

    oan ‘Income and Assets’ Centrelink form that set out his employment hours, assets, savings and superannuation;[5]

    [5] Exhibit ST-ST1.

    oan application for ‘Old-Age Pension’ under the ‘Agreement on Social Security Between the Kingdom of Denmark and Australia’ in which he stated he was currently employed for 38+ hours per week and his date of retirement would be 30 June 2018.[6]

    [6] Exhibit ST-ST4.

    ·On 8 August 2018, Centrelink sent a letter to Mr Andersen that stated:

    Thank you for sending us your application for Old Age/Seniority Pension from Denmark. Your claim papers were forwarded to that country on 8 August 2018.

    If you are receiving an Australian payment and you are advised of the outcome of your foreign pension claim or you start to receive payments (whichever happens first), you must contact Centrelink International Services within 14 days (28 days if residing outside Australia).

    If you are granted the foreign pension:

    o   your Australian payment(s) will be reassessed and may be reduced when your foreign pension begins; and

    o   if you receive back payments, you may need to repay some of your Australian payment(s).

    Centrelink International Services is generally not kept informed of the progress of your claim...[7]

    [7] Exhibit ST-ST5, page 327.

    ·On 4 September 2018, Centrelink sent a letter to Mr Andersen that advised he was granted Age Pension from 1 July 2018. This letter set out Mr Andersen’s regular amount of Age Pension payment and supplement payments, his annual income information used for calculating his regular payment, and stated:

    What you must tell us

    You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you…

    Income: Your … gross income changes. Changes means your income starts, stops, recommences or amounts vary. Gross income includes, but is not limited to:

    o   Pensions and annuities:  … pensions from other countries.[8] [emphasis in original]

    [8] Exhibit ST-ST7, page 331.

    ·On 23 October 2018, a Centrelink record stated Udbetaling Danmark[9] had advised on 19 October 2018 that Mr Andersen is ‘entitled to 9.750 [sic] DKK [Danish Krone] per month as from 1 July 2018’ but Mr Andersen had ‘received nothing – no letter/no money’.[10]

    [9] Udbetaling Danmark is the authority responsible for the collection, disbursement and control of public benefits in Denmark.

    [10] Exhibit T-T25, page 132.

    ·On 9 November 2018, Centrelink records stated Mr Andersen had contacted Centrelink to advise he had not received any notification from Denmark about his pension, and he will be travelling to Denmark on 20 November 2018 and intends to return between 1 January 2019–19 February 2019.[11]

    [11] Exhibit T-T25, pages 133-136.

    ·On 21 February 2019, a Centrelink record stated that Mr Andersen had contacted Centrelink to advise ‘he will be living in Denmark for at least the next 4 years’ and request all mail be sent to his address in Denmark.[12]

    [12] Exhibit T-T25, page 144.

    ·On 28 June 2019, Centrelink wrote to Mr Andersen at his address on record in Denmark about his Danish Old Age Pension and requested he provide ‘details of the arrears (back pay) of Danish Old Age Pension [he] received’, the ‘date the arrears (back pay) were paid’, the ‘gross amount (before any deductions) of the arrears (back pay) in Danish Krone’, the ‘2019 gross monthly rate of [his] Danish Old Age Pension’, and a copy of ‘a pension notice from Udbetaling showing the rate paid for 2019’.[13]

    [13] Exhibit T-T8.

    ·On 9 August 2019, Centrelink wrote to Mr Andersen stating that a reply to the Centrelink letter dated 28 June 2019 had not been received. Centrelink repeated the request for information and further requested Mr Andersen provide his ‘“Pensionsmeddelelse – folkepension” dated January 2019’ as this notice ‘shows all components of [his] pension’.[14]

    [14] Exhibit T-T9.

    ·On 14 August 2019, Mr Andersen emailed Centrelink with information he had handwritten on a copy of the Centrelink letter dated 28 June 2019. Mr Andersen attached:

    oa ‘Forskudsopgorelse’ statement in the Danish language from ‘skat.dk’[15] that listed his yearly pension payments; and

    [15] SKAT was the (then) tax authority of Denmark.

    oa single page document ‘side 2 of 5’ in the Danish language that set out his monthly pension payments.[16]

    [16] Exhibit T-T10.

    ·On 14 October 2019, Centrelink wrote to Mr Andersen in relation to his Danish Old Age Pension to request additional information, including a copy of the ‘Pensionsmeddelelse – folkepension’ he received when he was first paid his Danish Old Age Pension and whether he receives the ‘“Livsvarigt ventetillaeg”… as a monthly payment…or lump sum’.[17]

    [17] Exhibit T-T11.

    ·On 13 December 2019, Udbetaling Danmark wrote to Centrelink International Services in English and enclosed a copy of Mr Andersen’s ‘Pensionsmeddelelse – folkepension’ in the Danish language. The letter stated ‘a livsvarigt ventetellaeg was being paid to Mr Andersen’ but ‘we do not know how long’ this payment will continue.[18] The copy of Mr Andersen’s Pensionsmeddelelse – folkepension dated February 2019 included amounts for:

    [18] Exhibit T-T12, page 67.

    o‘Grundbelob’ (the Danish state pension basic amount);

    o‘Pensionstillaeg’ (translates to ‘pension supplement’);

    o‘Livsvarigt ventetillaeg’ (translates to ‘life-long waiting supplement’); and

    o‘Skat’ (translates to ‘tax’).

    There was no amount for or mention of a ‘personligt tillage’ (translates to ‘personal allowance’) paid to Mr Andersen in this Pensionsmeddelelse – folkepension.[19]

    [19] Exhibit T-T12.

    ·On 1 May 2020, Mr Andersen provided a statement to Centrelink that he was granted the ‘Danish State Pension’ in February 2019 and received the ‘ATP (Danish Labour Market Supplementary Pension) for the year 2018’.[20] He stated he received the following:

    [20] Exhibit T-T20, page 109.

    Amount, type and frequency of pension

    February + April 2019

    Danish State Pension Basic Amount      DKK 5,852 per month

    Pension SupplementDKK 6,404 per month

    Life-long Waiting Supplement     DKK 8,457 per month

    – Tax   DKK 6,208 per month

    Danish State Pension after tax    DKK 14,505 per month

    July + August 2019

    Danish State Pension Basic Amount  DKK 5,852 per month

    Pension SupplementDKK 6,404 per month

    Life-long Waiting Supplement   DKK 8,457 per month

    – Tax   DKK 7,456 per month

    Danish State Pension after tax    DKK 13,257 per month

    ATP      DKK 11,376 per year

    Coordinated foreign pension       DKK 55,000 per year

    Details on changed pension rates…

    Supplementary Pension Benefit (‘aeldecheck’) for January 2019

    DKK 16,280

    Regulation of personal additional percentage allowance for January 2019

    DKK 11,077

    Regulation of Pension July 2019  DKK 6,731[21]

    [21] Exhibit T-T20, pages 109-110.

    ·Services Australia wrote to Udbetaling Danmark seeking clarification in relation to the Danish allowances, personligt tillage and livsvarigt ventetillaeg, and whether these payments were ‘exempt payments’ under the Danish Agreement. Udbetaling Danmark advised Services Australia in writing on 4 November 2020:

    It is correct that personligt tillage is exempted from the calculation of the Australian pension cf. art. 8.3 in the mutual agreement between Denmark and Australia regarding Social Security.

    Regarding livsvarigt ventetillaeg I can inform that it is an allowance the pensioner is eligible for when the pensioner has postponed the pay out of the old age pension. To be eligible for the allowance the person shall have had earnings for at least 750 hours of personal work per year.

    The allowance will increase concurrently with the time the pensioner postpones the payment of the old age pension. The allowance is calculated as a percentage which is added to the pensioners state pension, when the pensioner request [sic] to have the old age pension paid out.

    If the pensioner have [sic] earned a waiting percentage after 1 July 2018, the pensioner can select how the waiting allowance is to be paid out. The pensioner can choose between:

    o   A life-long waiting supplement to the state pension

    o   A 10-year waiting supplement to the state pension

    o   A one-off supplement to the basic amount and a 10-year waiting supplement to the pension supplement.

    If the waiting percentage is earned before 1 July 2018 it is added as a life-long waiting supplement to the state pension.

    I am not aware of whether there has [sic] been any decisions between the ministers responsible for this area in respectively Denmark and Australia cf. art. 8.3 regarding an exemption of livsvarigt tillage.[22]

    [22] Exhibit R1.

16. Mr Andersen provided emails to the Tribunal dated 19 February 2021, 19 July 2021, 26 July 2021 and 26 May 2022. On 19 February 2021, he explained the Danish Pension is made up of ‘several elements’ based on money pertaining to his 22 years employment in Denmark between the age of 15 to 37 years, and wrote:

    ·Grundbelob / base pension is available to everyone, regardless of their assets and other income.

    ·Pension tillaeg / pension supplement is given to people without any other income.

    ·Livslangt ventetillaeg is ‘a personal add on’ and ‘bonus for working beyond the retirement age’ and depends on how many additional years the person worked.

    ·Ældrecheck is a hardship payment that is assessed and paid once a year to ‘persons in hardship’.

    ·Mediecheck: people in Denmark pay a licence for owning a television or personal computer or smartphone and this payment assists people who are ‘less fortunate’.

    ·ATP is a fund where the employer and employee pay a percentage to the fund during the person’s working life.[23]

    [23] Exhibit A1.

17. Mr Anderson wrote there is a ‘significant difference in [the] cost of living’ between Denmark and Australia with housing, rent, utilities, heating, insurances, car registration, petrol, food and clothing much more expensive in Denmark.[24] He contended that the Danish Agreement should consider the cost of living, as his Danish Pension based on 22 years employment only allows him ‘basic living, month to month, no saving, no spending of any kind’.[25] He wrote that Udbetaling Danmark does not understand the situation and he was advised the ‘pension tillage is exempt from the calculation’ and the ‘livslangt ventetillaeg [is] … a personal add on … [and] should not be counted’.[26] He listed all the personal and actual monthly pension payments he received in Danish krone converted to Australian dollars, which totalled approximately AUD$5,013 per month.[27]

    [24] Exhibit A1.

    [25] Exhibit A1.

    [26] Exhibit A1.

    [27] Exhibit A1.

18. In an email dated 19 July 2021, Mr Andersen stated he had been granted a ‘PERSONAL BONUS [livslangt ventetillaeg] for not claiming a pension [in Denmark] for 10 years’ and he had been informed by Udbetaling Danmark that this payment would not affect his Australian Age Pension.[28] [emphasis in original]

    [28] Exhibit A2.

19. Mr Andersen stated in an email on 26 July 2021 that he would be receiving 24,000 DKK per month if he had spent the whole of his working life to the age of 75 years in Denmark; however, he only receives a part pension of approximately 14,000 DKK per month because he lived and worked in Australia for 38 years.[29]

    [29] Exhibit A3.

20. At the Tribunal hearing, Mr Andersen said that he believed the livslangt ventetillaeg payment should be considered a personal allowance because it is based on his personal circumstances of working ten years beyond the pension age. Mr Andersen said he was ‘verbally told by Danish authorities’ that this ‘pension bonus’ is a personal allowance but accepted that he has never received this information in writing. He said his pension is paid to his account monthly (except for the supplementary pension benefit, regulation of personal additional percentage allowance and regulation of pension that are paid annually) and he receives a statement from the Danish government (Udbetaling Danmark) once a year.

21. Mr Andersen accepted that he must have received the letter from Centrelink dated 28 June 2019 as he provided a response on 14 August 2019. He said that ‘everything’ has been ‘very confusing’, and he has had ‘many’ phone calls with Centrelink and Danish authorities.

22. Mr Andersen confirmed the total amount of Danish Old Age Pension is higher than what he would receive in Australia and conceded the amount he receives is more than the income limit for Age Pension. However, he said that the cost of living in Denmark is significantly higher than in Australia and believes that he should receive a pension for working and paying taxes in Australia for 38 years.  

23. Mr Andersen told the Tribunal that he rents a farmhouse in the countryside in Denmark as he cannot afford the rent to live in a town or city; he receives rent assistance and his total pension payments from the Danish government are approximately 16,000 DKK per month (after tax). He said that he previously owned land (in a low-lying area of Denmark) but sold this land in January 2020 for 100,000 DKK and used this money to buy himself a new car.

    Issue 1: Has Mr Andersen’s Danish Old Age Pension been correctly assessed in accordance with the Danish Agreement?

24. The Danish Agreement provides that, for the purpose of assessing income in relation to an Australian pension, Australia will disregard ‘any personal allowance’ paid to a person residing in Denmark under the Social Pensions Act of Denmark and ‘any other payments of a similar nature as mutually determined’ by both Australia and Denmark. The Guide states  that there are currently no other payments of a similar nature that are exempt from the income test for the Australian Age Pension. This has also been confirmed in writing by Udbetaling Danmark.

1. I have had regard to both the copy of Mr Andersen’s Pensionsmeddelelse – folkepension provided by Udbetaling Danmark on 13 December 2019 and Mr Andersen’s statement to Centrelink on 1 May 2020 listing the payments he receives from the Danish Government: based on these documents, I am satisfied that Mr Andersen does not receive payment for any personligt tillage (personal allowance).

2. I have also considered Mr Andersen’s submission that his livsvarigt ventetillaeg (life-long waiting supplement) should be exempt from the income test for Age Pension because he receives this allowance due to his personal circumstances of working ten years beyond the pension age and he has been told by Danish authorities that this payment is a ‘personal bonus’. For the following reasons, I cannot accept Mr Andersen’s submission.

3. Firstly, there is no documentary evidence before the Tribunal that a livsvarigt ventetillaeg (life-long waiting supplement) is an exempt allowance under the Danish Agreement. I find the language used in the Danish Agreement is specific and states only that any ‘personal allowance’ (personligt tillage) is exempt from the income test for Age Pension. I consider that – if it was intended for the livsvarigt ventetillaeg, pensionstillaeg or other payment to be exempt from the income test for Age Pension – this would be stated in clause 3 of Article 8 of the Danish Agreement. By way of comparison, I note clause 9 of Article 5 in the Danish Agreement lists a range of payments (regarding other circumstances) including ‘pensions supplement’, ‘personal allowance’, ‘outside assistance allowance’ and ‘constant attendance allowance’.

4. Secondly, while Mr Andersen said he has been verbally told by Danish authorities that livsvarigt ventetillaeg is an exempt allowance under the Danish Agreement, this is not supported by any documentation. The only written advice from Udbetaling Danmark, which is dated 4 November 2020, declared that they were unaware of ‘any decisions between … Denmark and Australia … regarding an exemption of livsvarigt tillage’.

5. I therefore find none of the payments Mr Andersen received from the Danish Government from 1 January 2019 are a ‘personal allowance’ within the meaning of clause 3 of Article 8 of the Danish Agreement. For this reason, I am satisfied that:

   ·Mr Andersen’s Danish Old Age Pension payments were correctly assessed by Services Australia in accordance with the Danish Agreement; and

   ·the total amount of Mr Andersen’s Danish Old Age Pension is considered income for the purpose of assessing his eligibility for and rate of Age Pension.

   Issue 2: Does Mr Andersen have an Age Pension debt in the amount of $6,432.69 for the period from 1 January 2019 to 13 August 2019?

6. I am satisfied that, on the basis of Mr Andersen’s receipt of Danish Old Age Pension, he was above the income limit ($2,004.60 per fortnight) to be eligible to be paid Age Pension from 1 January 2019. I note this is consistent with Mr Andersen’s own list of pension payments that totalled AUD$5,013 per month (AUD$2,313.69 per fortnight) in 2019.

7. Based on the evidence before the Tribunal, I am satisfied Mr Andersen was overpaid Age Pension in the amount of $6,432.69 for the period from 1 January 2019 to 13 August 2019.[30] I find the amount of $6,432.69 is a debt to the Commonwealth in accordance with section 1223 of the Act.

   [30] Exhibit T-T27, pages 181-186, 188.

   Issue 3: Are there are any grounds for writing off or waiving all or part of Mr Andersen’s debt?

8. As a general rule, a person must repay a debt to the Commonwealth. However, in certain situations, the requirement to repay a debt may be written off, which means that repayment of the debt is postponed for a definite or indefinite period, or waived, meaning that the debt does not need to be repaid.

9. Section 1236 of the Act stipulates the circumstances for Mr Andersen’s debt to be written off: subsection 1236(1A) states that a debt may be written off if it is irrecoverable at law; or the person has no capacity to repay it; or the person’s whereabouts are unknown; or it is not cost-effective to try and recover the debt.

10. There is no evidence before the Tribunal to show any of these circumstances exist and therefore, I find that Mr Andersen’s debt should not be written off.

11. Section 1237A of the Act states that a debt can be waived if the overpayment is attributable solely to administrative error by the Commonwealth and the person received the payments in good faith.

12. I am satisfied that Mr Andersen’s debt for the period from 1 January 2019 to 13 August 2019 arose because he received income in the form of the Danish Old Age Pension and, during this period, Services Australia was unaware of the total amount of payments Mr Andersen was receiving. I am satisfied that, pursuant to sections 68 and 72 of the Administration Act, Mr Andersen received letters from Centrelink dated 8 August 2018 and 4 September 2018 that told him he must inform Centrelink (within 14 days or 28 days if he is outside Australia) about changes to his ‘income’, which included a pension from another country. Centrelink also sent Mr Andersen letters dated 28 June 2019, 9 August 2019 and 14 October 2019 requesting him to provide documents and information about his Danish Old Age Pension. However, it was not until Udbetaling Danmark wrote to Centrelink International Services on 13 December 2019, enclosing a copy of Mr Andersen’s Pensionsmeddelelse – folkepension, that Services Australia received all the information required to assess Mr Andersen’s entitlement to Age Pension.

13. Considering the documents before the Tribunal, I find no evidence to show Mr Andersen’s Age Pension debt in the amount of $6,432.69 for the period from 1 January 2019 to 13 August 2019 arose due to any administrative error by Services Australia; therefore, the debt cannot be waived pursuant to section 1237A of the Act.

14. Section 1237AAD of the Act provides that all or part of a debt may be waived in ‘special circumstances’. This waiver can only apply where:

    ·the debt did not result wholly or partly from a person ‘making a false statement or false representation’ or failing to comply with a provision of the Act; and

    ·there are circumstances ‘other than financial hardship alone’ that are deemed ‘special’ and make it desirable to waive the debt; and

    ·it is more appropriate to waive rather than write off the debt.

15. The term ‘special circumstances’ is not defined in the legislation; however, decisions by the Tribunal and the Federal Court have considered the issue of special circumstances on many occasions. In each case, the particular circumstances of the situation were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. Therefore, any consideration of special circumstances requires deliberation as to whether there are circumstances in the particular case that suggest an exception should be made and the usual rule should not apply: see, for example, Dranichnikov v Centrelink [2003] FCAFC 133 at [65]-[66]; see also Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33].

16. I further note that a debt can only be waived by reason of special circumstances where there are circumstances in addition to financial hardship; this means that financial hardship on its own is not sufficient to make a finding of special circumstances.

17. I accept Mr Andersen’s submissions at the Tribunal hearing that the process of ascertaining whether any of the payments for his Danish Old Age Pension are exempt from being assessed as income for the purpose of Age Pension has been ‘confusing’. However, I am satisfied that the correspondence from Services Australia shows Mr Andersen was asked to provide information and documents from the Danish authorities in 2018 and 2019, and this was not provided in full until Centrelink International Services received the letter from Udbetaling Danmark dated 13 December 2019. I do not find this situation comprises circumstances that are unusual or unjust.

18. Mr Andersen confirmed at the Tribunal hearing that he continues to receive the Danish Old Age Pension and live in Denmark. While he said he finds the cost of living in Denmark higher than in Australia, he is able to rent a home in the countryside, pay for his living expenses and has no other debt. I note he currently has no saleable assets as he sold the land he owned in January 2020 and used this money to purchase a car. He told the Tribunal he has no assets or money in Australia.

19. I do not find these circumstances of Mr Andersen are to a level that the usual rule should not apply or that it would be unreasonable for Services Australia to recover his debt. Therefore, I am satisfied there are no special circumstances that support waiving Mr Andersen’s Age Pension debt pursuant to section 1237AAD of the Act.

20. For these reasons, I find no grounds to write off or waive Mr Andersen’s Age Pension debt.

    Decision

21. The decision under review is affirmed.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...........................[SGD]..............................

Associate

Dated: 31 October 2022

Date(s) of hearing:	29 September 2022.
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, [Services Australia]