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

[2016] AATA 603

Bohnstedt and Secretary, Department of Social Services (Social services second review) [2016] AATA  603 (15 August 2016)

Division	GENERAL DIVISION
File Number	2015/2817
Re	Sven Bohnstedt
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Bernard J McCabe
Date	15 August 2016
Place	Brisbane

The decision under review is set aside and remitted to the decision-maker under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), so the amount of the debt can be recalculated in accordance with the findings made in Bohnstedt and Secretary, Department of Social Services [2016] AATA 599. The decision is otherwise affirmed.

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Deputy President Bernard J McCabe

Catchwords

SOCIAL SECURITY – family tax benefit – repayment of debt – whether applicant owes a debt – whether debt should be written off – whether debt can be waived – severe financial hardship – special circumstances – decision under review set aside – debt to be recalculated

Legislation

A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) ss 95, 96, 97, 101

Cases

Bohnstedt and Secretary, Department of Social Services

[2016] AATA 599

Dranichnikov v Centrelink (2003) ALD 134

REASONS FOR DECISION

Deputy President Bernard J McCabe

15 August 2016

REASONS FOR DECISION

1. These reasons should be read in conjunction with my findings and reasons provided in related proceedings before the Tribunal which addressed the question of Mr Bohnstedt’s liability to repay an amount of family tax benefit (FTB) he received: see Bohnstedt and Secretary, Department of Social Services [2016] AATA 599. I concluded there that Mr Bohnstedt was not entitled to receive FTB during the period 1 January 2013 through 31 December 2013 – but that he was entitled to FTB from 1 January 2014, as he had 35% of the shared care in that calendar year.

2. Mr Bohnstedt received $2742.30 in payments between 1 July 2013 and 19 January 2015. My findings in the related proceedings mean a portion of that amount – so much as was paid between 1 July 2013 and the end of that year – should not have been paid. A debt in respect of that proportional amount is properly raised against the applicant. The next question is whether the Secretary of the Department of Social Services should recover that debt, or part of it.

3. The recovery of debts arising in connection with the FTB is dealt with in Part 4, Division 4 of the A New Tax System (Family Assistance)(Administration) Act 1999 (the Administration Act).

4. I should say at once there no basis shown for writing off the debt under s 95 of the Administration Act. Section 96 permits the Secretary to waive the debt in the circumstances described in (relevantly) ss 97 and 101.

5. Section 97 refers to waiver of a debt where the debt arose as a consequence of administrative error on the part of the Commonwealth and the applicant would experience severe financial hardship in the absence of a waiver. Mr Bohnstedt argued there was an administrative error in this case: he said he did not claim he was entitled to receive the FTB in relation to his youngest son in the period in question. But even if I accept that were so, Mr Bohnstedt has not demonstrated he would experience “severe financial hardship” [emphasis added] if he were required to repay what is likely to be a relatively small amount.

6. That leaves s 101, which refers to waiver of the debt in “special circumstances”. “Special circumstances” are circumstances that are different, or extraordinary, or exceptional which suggest this case should be treated differently to other cases. In other words, I must be satisfied having regard to all the circumstances of the case that it is appropriate to make an exception to the general rule. 

7. The applicant was unable to identify any circumstances that amount to “special circumstances” that would justify an exception being made from the general rule that debts should be recovered. I accept he is under financial pressure, but s 101(b) provides that financial hardship is not enough on its own. I am not satisfied the fact the children were withheld from him in January 2014 is a special circumstance that justifies exercise of the discretion.

   Conclusion

8. The decision under review must be set aside so that the amount of the debt can be recalculated so that it accurately reflects the findings I made in the related proceedings. There is no basis for writing off the recalculated debt under s 95 or waiving the recalculated debt under s 96.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated 15 August 2016

Date of hearing	8 April 2016
Date final submissions received	21 April 2016
Applicant	In person
Advocate for the Respondent	Katherine Whittemore