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

Austin and Secretary, Department of Social Services (Social services second review) [2023] AATA 2302 (1 August 2023)
Division:GENERAL DIVISION
File Number:2022/3860
Re:Julie Austin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:1 August 2023
Place:Perth

The Reviewable Decision, being the decision of an authorised review officer dated 23 November 2021, as affirmed by the AAT1 on 7 April 2022, is set aside and is substituted with a new decision that the debts are to be waived in full under s 43F of the Student AssistanceAct 1973 (Cth).
.................[Sgd].................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – ABSTUDY and ABSTUDY Coronavirus Supplement – whether the Applicant was overpaid – decision to raise and recover debt – whether a debt to the Commonwealth – whether the debt should be recovered – whether recovery of all or part of the debt should be waived or written off – whether debt attributable to sole administrative error of the Commonwealth – whether there are special circumstances that make it desirable to waive the debt – special circumstances established – Reviewable Decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) – 1237A(1), 1237AAD
Student Assistance Act 1973 (Cth) s 39, 40, 43, 43B, 43F, 43F(a)(i), 43F(a)(ii), 43F(c), 48, 48(1)
Student Assistance Regulations 2003 (Cth) reg 6(1), reg 6(2), sch 1
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and Director-General of Social Security (1984) 6 ALD 1
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Callaghan and Secretary, Department of Social Security [1996] AATA 413
Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Dranichnikov v Centrelink (2003) 75 ALD 134
Eatock and Secretary, Department of Family and Community Services [2002] AATA 1015
Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72
Secretary, Department of Family and Community Services v Sekhon (2003) 73 ALD 41
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267
Ward and Secretary, Department of Family and Community Services [2000] AATA 212
SECONDARY MATERIALS
Department of Social Services, Study and Compliance Branch, ABSTUDY Policy Manual (last updated 25 August 2021)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
1 August 2023
OVERVIEW

Ms Austin commenced a Bachelor of Counselling with a private education institution on 5 November 2018, finishing on 13 October 2021. For the duration of her studies, she received ABSTUDY payments. She also received an associated ABSTUDY coronavirus supplement (CVS).
Prior to her studies commencing, Ms Austin had completed a customer declaration form advising Centrelink that she would commence those studies on a full-time basis (R2, annex A).
During her studies Ms Austin was sent 11 notices, pursuant to s 48 of the Student Assistance Act 1973 (Cth) (the Act), advising her that if her circumstances changed, she needed to tell Centrelink within 14 days (for example, T7/45).
In July 2021, Centrelink commenced a random sample survey on the Applicant’s record (T48/203). Centrelink unsuccessfully attempted to contact the Applicant to interview her as part of the random sample survey (T25/102). They subsequently had some difficulties attempting to obtain a copy of her academic transcript which was not provided until October 2021.
On 25 October 2021, Centrelink assessed the information regarding Ms Austin’s study load (her academic transcript and the course structure from the education institution) and determined that she was not a full-time student between semester three of 2020 (8 November 2020) and semester two of 2021 (12 October 2021) (T48/223).
On 25 October 2021, Centrelink raised an ABSTUDY debt of $14,697.19 for the period 9 November 2020 to 12 October 2021 based on Ms Austin having an insufficient study load during that period. A debt of $2,300 was also raised for the CVS because the entitlement to that subsidy was dependent on eligibility for ABSTUDY (T48/226). An officer from Centrelink telephoned Ms Austin that day to advise her of the debts. During that conversation Ms Austin requested a review of that decision (T48/225).
On 23 November 2021, an authorised review officer (ARO) of Centrelink decided not to change the decision to raise and recover the debts (T43).
On 24 November 2021, Ms Austin sought review in the Social Services & Child Support Division (AAT1) of this Tribunal. However, on 7 April 2022 the AAT1 affirmed the ARO’s decision (T2).
Thus, the Reviewable Decision currently before me is the ARO decision dated 23 November 2021, as affirmed by the AAT1 on 7 April 2022.
On 14 May 2022, Ms Austin applied to the General Division of the Tribunal (AAT2) seeking review of the Reviewable Decision.
ISSUES
The issues for my determination are:
(a)whether the Applicant has an ABSTUDY debt of $14,697.19 and a CVS debt of $2,300; and
(b)if so, whether the debts should be recovered in full, or whether recovery of all or part of the debt should be waived or written off.
THE HEARING
I heard the application by Microsoft Teams on 22 June 2023. I made directions at that hearing for the Secretary to clarify the origin of two reports concerning Ms Austin’s study load. That clarification was provided on 28 June 2013 and Ms Austin responded to it on 5 July.
Ms Austin appeared distressed by the hearing and the appeals process leading up to it. Ms Austin told me that she had also been a victim of the unlawful Robo-debt scheme which had caused her considerable distress. She described her mental health was being detrimentally impacted. She also described experiencing financial hardship and said that she was sitting in the cold because she could not afford heating.
Ms Austin has experienced significant physical health issues after having a fall on 13 March 2020 which she described as a “violent fall” and was reluctant to discuss. Consequently, she has not been able to find a job in her field of study for which she accrued these debts. Ms Austin is seeing a psychologist for ongoing mental health issues, and she has a mental health plan.
Given my concern that the hearing was distressing to Ms Austin, I asked the Secretary’s representative, Ms Vetter, to limit the questions to those being the most essential to put to Ms Austin to reduce her distress and to proceed more expeditiously with the hearing. I am thankful to Ms Vetter for adapting to this request during the hearing. Although Ms Vetter may not have been able to ask as many detailed questions as she would have liked, given Ms Austin’s reluctance to answer questions or to elaborate further on the information she had already offered, I am doubtful that any answers given by Ms Austin would have provided any further elaboration.
I put the following documents into evidence during the hearing:
(a)page 13 and 14 of a report of Dr John Hayes, consultant rheumatologist (Exhibit A1);
(b)letter from the Applicant to the Tribunal dated 8 November 2022 (Exhibit A2);
(c)letter from Dr Kaye Laurie dated 6 October 2022 (Exhibit A3);
(d)section 37 Documents (T Documents), labelled T1-T49, comprising pages 1-277 (Exhibit R1); and
(e)annexures to the Respondent’s Statement of Facts, Issues and Contentions dated 5 January 2023 (Exhibit R2).
LEGISLATIVE OVERVIEW
The Act contains the qualification criteria for ABSTUDY (Part 2).
The Act also provides for the recovery of debts if ABSTUDY has been overpaid (Part 6). If ABSTUDY has been overpaid, the amount overpaid becomes a debt to the Commonwealth (s 39 of the Act).
The Act provides that the debt must be repaid (s 40). The Act also provides for the non-recovery of debts by write-off (s 43), and for the debt to be waived in certain circumstances including if the debt arose from sole administrative error (s 43B) or if there are special circumstances (other than financial hardship alone) that make it desirable to waive (s 43F).
The Act also provides that a recipient must notify the Department of a “prescribed event” within 14 days of the happening of the event (s 48(1)).
The Student Assistance Regulations 2003 (Cth) (the Regulations) prescribe events for the purpose of s 48 of the Act. Such an event includes if an ABSTUDY payee discontinues full-time study (reg 6(1) and (2); schedule 1). I note the Regulations were the relevant regulations in force at the time that the debts were raised, and notices were given to the Applicant pursuant to those Regulations.
The relevant ABSTUDY Policy Manual (the Manual), which was effective from 25 August 2021, provided that, in addition to meeting the primary eligibility criteria for ABSTUDY, the recipient must be studying full-time which includes an amount defined by the institution as a full-time course of study or an average of 20 contact hours per week (11.7 of the Manual).
For the temporary period 27 April 2020 to 31 March 2021, an additional amount called the “Coronavirus Supplement” was added to a person’s fortnightly ABSTUDY payment. To receive the CVS the person had to be eligible to receive ABSTUDY (109.2 of the Manual).
DID THE APPLICANT INCUR AN ABSTUDY DEBT AND A CVS DEBT?
The course information provided by the institution where Ms Austin was undertaking her studies sets out the structure of a full-time study load to be undertaken over three years. Specifically, in the first two years a student is required to study eight subjects (48 credit points) per year. In the final year a student is required to study six subjects (40 credit points) (T43/173).
Ms Austin was completing her studies over three semesters (instead of two). Based on the course information, this meant that a full-time load required her to complete at least two units per semester. However, between semester three of 2020 and semester two of 2021, she was only enrolled in one unit in each semester. These units were (T2/24):
·Semester three, 2020: Counselling and Mental Health (six credit points; 12 hours per week);
·Semester one, 2021: Grief Counselling (six credit points; 12 hours per week); and
·Semester two, 2021: Counselling Practicum II (eight credit points; 18 hours per week).
I appreciate that Ms Austin completed the course in the three-year period because several subjects were credited to her as part of recognition of prior learning (T2/23). That is to her personal credit, but unfortunately those units do not contribute to the calculation of full-time study. Similarly, I accept Ms Austin’s evidence that the actual weekly hours she undertook exceeded those specified by the institution, and that she was living regionally and had to undertake substantial travel time to complete her Counselling Practicum unit which was very difficult for her. However, the calculation of full-time study in the Manual does not allow for additional self-directed study time to be factored into the calculation of full-time study.
Unfortunately for Ms Austin, she was not undertaking a full-time study load in the relevant semesters, which meant that she was not eligible to receive ABSTUDY. This means that the amount overpaid, $14,697.19, is a debt to the Commonwealth. Also, because entitlement to the payment of the CVS is dependent on eligibility to receive ABSTUDY, Ms Austin also was not eligible to receive it. That means that the amount of CVS, $2,300 is also a debt to the Commonwealth.
SHOULD THE DEBT BE RECOVERED?
In Secretary, Department of Social Security v Hales (1998) 82 FCR 154, 155 (Hales) French J (as he then was) noted that the taxpayer expects the repayment of social security benefits received by a person if they were not entitled to them:
From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
However, as his Honour identified in the above passage, to prevent hardship, the Act balances the requirement to repay an overpayment debt with the possibility that the debt may be waived or written off in certain circumstances. As noted above, these include waiver for sole administrative error and special circumstances. I will now consider whether any of these circumstances apply to Ms Austin.
Sole administrative error
Section 43B of the Act provides, in part, that, “the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.”
In Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173 at [39]–[40] (Gerhardt), Deputy President Forgie stated that “solely” in the context of a debt being attributable solely to the Commonwealth’s administrative error should be given its “ordinary meaning”. Deputy President Forgie stated, at [40]:
… Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth’s administrative error. 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 (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error. Whether it is or is not attributable in that situation to the Commonwealth’s administrative error will be a question of fact.
In Secretary, Department of Family and Community Services v Sekhon (2003) 73 ALD 41, 47 at [41], Wilcox J explained that:
However, it seems to me, the tribunal failed to consider the significance of the inclusion, in s 1237A(1), of the word “solely”. For the subsection to have effect, the “proportion” of the debt — in this case, it is common ground, that would be the whole of it — must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.
In Ward and Secretary, Department of Family and Community Services [2000] AATA 212, Deputy President Forgie referred to her decision in Gerhardt, and clarified the meaning of sole administrative error in the context of s 1237A(1) of the Social Security Act 1991 (Cth) (Social Security Act) (at [47]):
… 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 (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error.
The Applicant’s debt cannot, however, be waived under 43B of the Act because there was no error on the part of the Commonwealth. It was not solely attributable to an administrative error made by the Commonwealth. Centrelink sent the Applicant 11 notices under s 48 of the Act between 16 November 2020 and 14 September 2021 which, amongst other things, advised the Applicant that she had to notify Centrelink if she was no longer studying full-time or if there were any changes to her study load. If there was an error, it was made by Ms Austin who mistakenly believed she was eligible. She also believed that her institution, whom she asked to provide Centrelink with information about her study load each semester, was correctly reporting to Centrelink and that there were no issues.
In summary, I find that the debt cannot be waived for sole administrative error because it was not due to any error on the part of Centrelink.
Special circumstances
Section 43F of the Act provides for waiver if there are special circumstances. Specifically, the section provides:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act; 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.
(My emphasis.)
Knowingly
The word “knowingly” has been considered in the context of s 1237AAD of the Social Security Act, which has similar wording to s 43F of the Act. It was considered by Deputy President Forgie in Callaghan and Secretary, Department of Social Security [1996] AATA 413 (Callaghan) at [48] who stated:
There is nothing in section 1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
In a later decision, Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72 (Jonauskas) at [73], Deputy President Forgie clarified that “knowingly” (again in the context of s 1237AAD of the Social Security Act) “is a deliberate choice and means actual knowledge”.
In Eatock and Secretary, Department of Family and Community Services [2002] AATA 1015, Member Griffin applied the reasoning of Deputy President Forgie in Callaghan and Jonauskas to s 43F of the Act. At [34], Member Griffin stated: “It seems to me that section 43F … should be read in the same way and that the issue is the actual knowledge of the Applicant.”
The Secretary conceded that “there is presently no evidence that the Applicant knowingly made a false statement or representation to Services Australia, accepting that the Applicant may not have been aware that she was not undertaking a full-time study load” (Respondent’s Statement of Facts, Issues and Contentions, para [93]). Based on the evidence before me, and that of Ms Austin at the hearing, I agree that she did not knowingly make a false statement contrary to s 43F(a)(i) of the Act. Rather, the question is whether she knew that her study load had changed but failed to advise Centrelink. Thus, the question is whether she knowingly failed or omitted to comply with a provision of the Act contrary to s 43F(a)(ii) of the Act.

I accept Ms Austin’s evidence she did not knowingly do anything wrong. She followed the advice from her institution, and thought she was complying with her reporting obligations by getting letters from the institution each semester about her enrolment for Centrelink. That is, she thought Centrelink was being kept fully informed of her study load. I also accept that Ms Austin thought she was doing a full-time load. This was due to the hours per week that she was actually spending on study and finishing her degree in the three-year timeframe, which was the time that a person undertaking full-time study would complete the degree in. I therefore find that she did not knowingly fail to comply with the Act.
Special circumstances
I now turn to special circumstances. Much of the caselaw concerns s 1237AAD of the Social Security Act. However, given the substantial similarity between that provision and s 43F of the Act, the commentary on the meaning of “special circumstances” in the Social Security Act is, in my view, equally applicable to s 43F of the Act.
Deputy President Forgie noted in Gerhardt, at [47] that to be “special circumstances” the circumstances must be such that “it is unreasonable, unjust or inappropriate to recover the amount”, despite the person having received a payment that they were not entitled to.
In Davy and Secretary, Department of Employment and Workplace Relations (2007)

94 ALD 693 (Davy), 715-716 at [80], Deputy President Forgie similarly referred to the need to consider the applicant’s individual circumstances against the administration of the social security system where other persons who have received payments would have been required to repay them:
The “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. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement ... The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
The case law and Tribunal decisions also refer to the difficulty in precisely defining “special circumstances”. However, a common observation is that special circumstances will be “unusual, uncommon or exceptional”. For example, in Beadle and Director-General of Social Security (1984) 6 ALD 1 (Beadle), 3, the Tribunal stated:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 (Groth), 545, Kiefel J (as she then was) explained that special circumstances would be such as to distinguish an applicant’s situation from “the usual or ordinary case”:
The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case ... and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary…
In Hales, at 162, French J also commented on the need for a flexible definition and the need to carefully consider the individual facts of each case:
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.
In Angelakos v Secretary, Department of Employment and Workplace Relations (2007)

100 ALD 9 (Angelakos), 17-18 at [33], Besanko J also emphasised the importance of flexibility when identifying special circumstances. Besanko J referred to the circumstances having to be “unusual or uncommon” (rather than “exceptional”) to distinguish the case from the ordinary or usual:
… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word “exceptional” is emphasised. It was not the intention of parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words “unusual” or “uncommon” are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 (Boscolo), 536 at [18], French J stated that special circumstances required “something unusual or different”:
The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245 at 261-262; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term “special” was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
(Emphasis added.)
In Dranichnikov v Centrelink (2003) 75 ALD 134 (Dranichnikov), 148 at [65]-[66] the Full Court of the Federal Court referred to the circumstances having to be “exceptional or unusual” such that they “distinguish the case in consideration from the usual case”:
The decision-maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates “special circumstances”, as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the secretary appears to be the decision of the first instance judge in Beadle v Directory-General of Social Security (1985) 7 ALD 670; 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154; 51 ALD 695; 153 ALR 259. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision-maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words “unusual, uncommon or exceptional” come was not actually affirmed by the Full Court.
To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision-maker apparently averted. Other cases which have considered analogous words such as “special reasons” has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187; 70 ALR 185 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.
(Emphasis added.)
In Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267, 274 at [51], Jacobson J provided a succinct summary of the authorities:
The effect of the authorities is that the phrase “special circumstances”, although lacking in precision, is sufficiently understood as including events or things that render the operation of the statue in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists. Moreover, the circumstances of the case are not confined to matters that are external to the operation of the statutory scheme…
Ms Austin had a sudden and life-changing accident on 13 March 2020 (A1), approximately six months into her studies (A2). This accident resulted in significant health issues including ongoing chronic pain, loss of mobility and depression (A2). She was diagnosed with chronic pain syndrome with features of central sensitisation, which is also described as post-traumatic fibromyalgia syndrome. A consultant rheumatologist has stated that “her long-term prognosis remains very guarded” (A1). The Applicant’s general practitioner stated in a letter dated 6 October 2022 that Ms Austin had engaged with physiotherapy and tried a number of analgesics without success. The general practitioner further stated that, “[h]er pain has a profound impact on her mobility and ability to drive” and has impacted her ability to work (A3). The evidence suggests to me that Ms Austin experienced a sudden accident which resulted in injuries of an unforeseeable nature. It is not foreseeable that a fall would result in ongoing pain syndrome and fibromyalgia. Her inability and discomfort at discussing the incident at the hearing suggested to me that she is experiencing trauma because of the accident. As I noted above, she has a mental health plan, and is under the care of a psychologist. A letter dated 26 June 2023 from her psychologist confirms she is suffering from anxiety, depression, and post-traumatic stress disorder. I find that these circumstances are sufficiently unusual, uncommon, or exceptional (Beadle, Angelakos), to distinguish Ms Austin’s situation and take her case out of the ordinary (Boscolo, Dranichnikov) and in her circumstances it would be unfair, unintended or unjust to require her to repay the debt (Groth).
Is it more appropriate to waive than to write off the debt or part of the debt?
Finally, I am also required to consider, pursuant to s 43F(c) of the Act whether it would be more appropriate to waive than to write off the debt. Writing off a debt means that recovery of the debt will be delayed to a future date. Section 43 of the Act allows the Secretary to write off a debt on behalf of the Commonwealth.
In Ms Austin’s circumstances, I do not think delaying payment of the debt, or a part of the debt, to a future date is appropriate. I accept the evidence from Ms Austin’s general practitioner that her injuries have impacted her ability to work which has adversely impacted her finances. I accept the opinion of the consultant rheumatologist that her long-term prognosis remains very guarded. At the hearing Ms Austin described herself as living below the poverty line, that she is struggling with her medical conditions and has not had any paid work since graduating. Thus, I am uncertain as to when, if at all, her health will improve and if she will be able to work in the future.
Ms Austin is currently receiving Jobseeker payments and has applied for a Disability Support Pension. The Respondent submitted that Ms Austin has capacity to repay the debt because $20 per fortnight is being deducted from her fortnightly payments. With respect, I do not think that was a reasonable submission. This is because, by my calculation, with this deduction, it will take Ms Austin over 30 years to repay the debt. I do not think that demonstrates a capacity to repay the debt.
In summary, I find that it is more appropriate to waive the debt in full.
CONCLUSION
In summary, and for the reasons outlined above, I have found that:
(a)Ms Austin incurred debts for the overpayment of ABSTUDY and CVS;
(b)however, the debts should not be recovered because there are special circumstances that make it desirable to waive the debts in full.
DECISION
The Reviewable Decision, being the decision of an authorised review officer dated 23 November 2021, as affirmed by the AAT1 on 7 April 2022, is set aside and is substituted with a new decision that the debts are to be waived in full under s 43F of the Act.

I certify that the preceding 58 (fifty - eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..................[Sgd]....................................................
Associate
Dated: 1 August 2023

Date of hearing:

Date final submissions received:

22 June 2023

5 July 2023

Representative for the Applicant: Self-represented

Representative for the Respondent:

Ms J Vetter, HWL Ebsworth Lawyers

[2023] AATA 2302

1 August 2023

Key Legal Topics

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Statutory Interpretation

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