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

Boyd and Secretary, Department of Social Services (Social services second review) [2022] AATA 484 (21 March 2022)
Division:GENERAL DIVISION
File Number: 2017/7159
Re:Raymond Boyd
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:21 March 2022
Place:Brisbane

The decision under review is affirmed.
................[SGD]........................................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Age Pension debt – whether the Applicant was a homeowner – principal home – assets test – financial hardship rules – ongoing issues with family court orders – rate of Age Pension – where debt fully paid – where no sole administrative error – where no special circumstances – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Dickeson and Secretary, Department of Social Security [1989] AATA 90; (1989) 18 ALD 58
Groth v Secretary, Department of Social Security[1995] FCA 1708; (1995) 40 ALD 541
Hafza v Director-General of Social Security [1985] FCA 164; 60 ALR 674
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084
L v Department of Social Security (1995) 38 ALD 176
Matula and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2009) 115 ALD 45; [2009] AATA 993
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N61; [1981] AATA 57
Re Lumsden and Secretary Department of Social Security (1986) 10 ALN N225
Re Samek and Department of Social Security (1988) 16 ALD 295
Re Stubbs and Secretary Department of Families Community Services [2003] AATA 729
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones(2012) 89 ATR 267; [2012] FCA 639
Secretary, Department of Social Security v Hales [1998] FCA 219
Sekhon v Secretary, Department of Family and Community Services (2003) [2003] FCAFC 190; 76 ALD 105
REASONS FOR DECISION
Member D Mitchell
21 March 2022
INTRODUCTION

Mr Raymond Boyd (the Applicant) is seeking review of the decision of the Respondent to raise and recover an Age Pension debt of $10,243.19 for the period 20 March 2013 to

10 March 2017 (the Debt Period).[1]
[1] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
BACKGROUND
The Applicant has been in receipt of the Age Pension since 22 April 2010. Prior to this he had been receiving the Disability Support Pension (DSP).[2]
[2] Exhibit 1, T Documents, T30, page 226, File notes from Centrelink Mainframe.
The Applicant’s rate of DSP was reduced due to the application of the assets test.[3] On
[3] Exhibit 1, T Documents, T30, page 226, File Notes from Centrelink Mainframe.
[4] Exhibit 1, T Documents, T30, page 226, File Notes from Centrelink Mainframe.
8 July 2009 the Applicant lodged an asset hardship application on the basis that his interest in two properties, the Alawa Street and Hunters Road properties could not be realised as they were the subject of family law proceedings before the then Federal Magistrates Court.[4]
The Applicant was the sole owner of the Alawa Street and Hunters Road properties and held the Jonelle Street property jointly with his former wife.[5] The Respondent at all relevant times considered the Jonelle Street property to be the Applicant’s principal place of residence (and as such it did not form part of the Applicant’s asset pool for assets test purposes).[6]
[5] Exhibit 1, T Documents, T6, pages 34-36, Federal Magistrates Court Orders.
[6] Transcript of 1 June 2021, page 11.
On 21 July 2009, the Respondent rejected the Applicant’s hardship application.[7] The Applicant sought review of that decision. The review process was finalised by the Federal Court, at which time settlement was reached by the parties and the Applicant’s asset hardship application was allowed. The Alawa Street and Hunters Road properties were excluded from the assets test.[8]
[7] Exhibit 1, T Documents, T30, page 226, File Notes from Centrelink Mainframe.
[8] Exhibit 1, T Documents, T30, page 225, File Notes from Centrelink Mainframe and Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 2, paragraphs 6-8.
On 14 July 2010, the Applicant transferred from receipt of DSP to Age Pension.[9]
[9] Exhibit 1, T Documents, T30, page 226, File Notes from Centrelink Mainframe.
On 22 September 2011, the then Federal Magistrates Court made final orders (the Orders) in the family law proceedings between the Applicant and his former wife.[10] Relevantly, the following orders were made:[11]
5. That within thirty (30 days of the date of these Orders, the wife do all acts and things necessary, including signing all necessary documents so as to transfer and assign to the husband all of her right, title and interest in and to the real property situated at [Jonelle Street], more particularly described as [redacted] [(“the Jonelle Street property)].
6. That contemporaneously with the transfer of the [Jonelle Street] property, the husband shall indemnify the wife and keep indemnified the wife against all liabilities relating to the [Jonelle Street] property.
7. That contemporaneously with the transfer of the [Jonelle Street] property, the husband pay to the wife an amount calculated after an accounting of the net assets of the husband and wife, with the total net assets to be distributed so as to affect an overall property settlement distribution of 58% to the wife and 42% to the husband.
8. In the event that the husband is unable to raise the funds for the payment referred to in Order 7 herein:
(a) Order 5 and 6 herein are stayed until the funds in Order 7 herein are available from the sale of property;
(b) Within twenty-five (25) days of the date of these Orders, the husband notify the wife of which property he intends to sell in order to raise the necessary funds;
(c) If necessary, within thirty-five (35) days of the date of these Orders, the husband and the wife do all acts and things and sign all documents necessary to sell the property the husband has nominated in Order 8(b) herein.
[10] Exhibit 1, T Documents, T6, pages 33-36, Federal Magistrates Court Orders.
[11] Exhibit 1, T Documents, T6, pages 33-36, Federal Magistrates Court Orders.
The reasons for judgement provide that to give effect of the property distribution under the Orders, the Applicant must pay his former wife the sum of $60,000 in respect of her interest in the Jonelle Street property or if he was unable to raise that sum he was at liberty to elect which property should be sold and provide an adjustment of 58%:42% in favour of his previous wife.[12]
[12] Exhibit 1, T Documents, T7, page 39, Extracts from Federal Magistrates Court Reasons for Judgement.
A further order made by the then Federal Magistrates Court on 24 November 2011 required the Applicant pay his former wife $10,000 in costs.[13]
[13] Exhibit 1, T Documents, T8, page 41-42, Extract from Federal Magistrates Courts Cost Order.
Consequently, the immediate effect of the Orders of the Federal Magistrates Court was that the Applicant was to pay his former wife $70,000 in respect of her interest in the Jonelle Street property and costs of the litigation.
On 5 April 2012, the Respondent sent a letter to the Applicant advising him that a review of his entitlement to Age Pension under the asset hardship provisions was being undertaken.[14]
[14] Exhibit 1, T Documents, T30, page 232, File Notes from Centrelink Mainframe.
On 4 May 2012, the Respondent found that as the Orders had been made in the family law proceedings:[15]
(a)the Alawa Street and Hunters Road properties were no longer unrealisable assets for the purposes of the assets test;
(b)each property was subject to an encumbrance of $35,000, being the total amount of $70,000 owed by the Applicant under the Orders; and
(c)upon application of the assets test the Applicant’s rate of Age Pension was reduced.
[15] Exhibit 1, T Documents, T30, page 233-234, File Notes from Centrelink Mainframe.
The Centrelink customer notes dated 4 May 2012, recorded the following:[16]
Basically the court order states that the customers’ home property at [Jonelle Street] will be transferred into his name only. In exchange he must pay his ex-wife $60,000 + $10,000 costs. In order to do this he can choose which of the other 2 properties he wishes to sell and use the sale proceeds to pay her the $70,000. I rang the customer on 4/5/12 to clarify what has taken place. Our records how that he moved from [Jonelle Street] in October 2011 but was still a home owner. Did he sell it and pay her out of those proceeds? Customer advise that he has not moved – he is temporarily staying in Brisbane because he is undergoing medical treatment. He returns home whenever he can. So we need to change his address back to [Jonelle Street] and just make the Brisbane address his postal address.
[16] Exhibit 1, T Documents, T30, page 233, File Notes from Centrelink Mainframe.
On 15 February 2013, the Applicant sold the Hunters Road property and received net proceeds of $169,896.38.[17]
[17] Exhibit 1, T Documents, T11, page 61, Online Conveyancing Centre: Settlement Statement.
On 17 July 2013, the Applicant paid the $10,000[18] owed under the cost order and on
[18] Exhibit 1, T Documents, T13, page 68, Bank funds transfer transaction record.
[19] Exhibit 1, T Documents, T14, page 69, Bank funds transfer transaction record.
[20] Exhibit 1, T Documents, T2, page 4, Decision of SSCSD.
6 August 2013, he paid $30,000[19] of the $60,000 owed under the Orders to his former wife.[20] The balance of the payment remains in dispute between the Applicant and his former wife.
The Respondent first became aware of the sale of the Hunters Road property in or around August 2016 following a data-match.[21]
[21] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 4, paragraph 18.
A Centrelink customer note dated 4 October 2016, recorded the following:[22]
Spoke to customer 4/10/2016.
……
[Jonelle Street]
Cst advised that this property was coded as his matrimonial home – they started building a house which has never been finished and no one has ever lived in it – the property is still in both names even though they separated more than 10 years ago – this property and the $127,642 [proceeds from Hunters Street property sale] are still subject to the property settlement.
[22] Exhibit 1, T Documents, T30, page 239, File Notes from Centrelink Mainframe.
On 20 March 2017, the Respondent determined that following the sale of the Hunters Road property on 15 February 2013, the encumbrance against the Alawa Street property could no longer be applied and that the Applicant’s assets included the funds held in his bank accounts and the full value of the Alawa Street property.[23]
[23] Exhibit 1, T Documents, T30, pages 240-242, File Notes from Centrelink Mainframe.
On 23 March 2017, the Respondent decided that the:[24]
(a)Applicant had been overpaid Age Pension in the amount of $10,243.19 during the Debt Period;
(b)overpaid amount was a debt to the Commonwealth; and
(c)debt was to be recovered.
[24] Exhibit 1, T Documents, T31, page 294-295, Correspondence from the Respondent to the Applicant.
The Applicant sought review of that decision and on 9 May 2017, an authorised review officer (ARO) reviewed and affirmed the decision.[25]
[25] Exhibit 1, T Documents, T26, pages 149-158, Decision of the ARO.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 2 November 2017, the SSCSD affirmed the decision.[26]
[26] Exhibit 1, T Documents, T2, pages 3-7, Decision of the SSCSD.
On 4 December 2017, the Applicant sought a second-tier review of the decision by the General Division of this Tribunal.[27]
[27] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
The Tribunal notes that the debt in question has been fully repaid by the Applicant.[28]
[28] Transcript of 1 June 2021, page 4.
On 1 June 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation. The Hearing was adjourned and the Applicant was given an opportunity to provide further evidence and submissions in relation to his family law proceedings. The Respondent was provided with an opportunity to provide written submissions and any further material it intended to rely on in reply.[29]
[29] Direction of the Tribunal dated 1 June 2021.
On 11 and 15 of July 2021, the Applicant provided further evidence and submissions.[30]
[30] Exhibits 21-23, Submissions and evidence filed by the Applicant.
On 10 August 2021, the Respondent provided written submissions in reply to the Applicant’s evidence and issues raised at the initial Hearing.[31]
[31] Exhibit 24, Secretary’s Further Submissions, pages 1-12.
On 20 September 2021, a Telephone Directions Hearing was held to determine whether the Hearing needed to be reconvened. It was agreed that the Hearing be resumed in order to allow both Parties the opportunity to present their respective cases.
The Applicant provided further submissions and evidence on 26 and 27 October 2021.[32]
[32] Exhibits 25 and 26, Submissions and evidence filed by the Applicant.
The Hearing was resumed on 8 November 2021, at which the Applicant, was self-represented, appeared in person and gave evidence under affirmation.[33]
[33] Transcript of 8 November 2021, pages 31-76.
ISSUES
This issues before the Tribunal are:
(a)whether the Applicant was overpaid Age Pension in the amount of $10,243.19 for the period 20 March 2013 to 10 March 2017, and if so
(b)is the amount overpaid a debt due to the Commonwealth, and if so
(c)is that debt recoverable?
In order to determine whether the Applicant was overpaid Age Pension during the Debt Period the Tribunal needs to consider whether or not he was a homeowner during that period and whether the financial hardship rules apply.
THE LAW
The relevant law in assessing this application is found in the
Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act). Following is a summary of the key requirements that relate to the Applicant.
Rate of Pension
The Applicant’s rate of Age Pension is determined by application of the Pension Rate Calculator A at the end of section 1064 of the Act.[34] The maximum basic rate payable varies depending upon a person’s family situation and their income and assets.
[34] Section 55 of the Act.
Section 1118 of the Act sets out certain assets that are to be disregarded in calculating the value of a person’s assets. Relevantly, section 1118(1) of the Act provides that where a person is not a member of couple the value of any right or interest of the person in the person’s principal home that is a right or interest that gives the person reasonable security of tenure in the home and is not a granny flat interest in the home is to be disregarded in calculating the value of their assets.
Section 1121 of the Act provides that the value of a person’s asset may be reduced by the value of any charge or encumbrance over that asset.
Sections 1129 and 1130 of the Act provide the application of financial hardship rules and relevantly provide:
1129 Access to financial hardship rules—pensions
(1) If:
(a) either:
(i) a social security pension is not payable to a person because of the application of an assets test; or
(ii) a person’s social security pension rate is determined by the application of an assets test; and
(b) either:
(i) sections 1108 and 1109 (disposal of income) and 1124A, 1125, 1125A, 1126, 1126AA, 1126AB, 1126AC, 1126AD and 1126E (so far as section 1126E relates to sections 1126AA, 1126AB, 1126AC and 1126AD) (disposal of assets) do not apply to the person; or
(ii) the Secretary determines that the application of those sections to the person should, for the purposes of this section, be disregarded; and
(c) the person, or the person’s partner, has an unrealisable asset; and
(d) the person lodges with the Department, in a form approved by the Secretary, a request that this section apply to the person; and
(e) the Secretary is satisfied that the person would suffer severe financial hardship if this section did not apply to the person;
the Secretary must determine that this section applies to the person.
1130 Application of financial hardship rules—pensions
Value of unrealisable asset to be disregarded
(1) If section 1129 applies to a person, the value of:
(a) any unrealisable asset of the person; and
(b) any unrealisable asset of the person’s partner;
is to be disregarded in working out the person’s social security pension rate.
Deduction from social security pension maximum payment rate
(2) If section 1129 applies to a person, there is to be deducted from the person’s social security pension maximum payment rate an amount equal to the person’s adjusted annual rate of ordinary income.
……..
An unrealisable asset is relevantly defined in sections 11(12) and (13) of the Act:
Unrealisable asset
(12) An asset of a person is an unrealisable asset if:
(a) the person cannot sell or realise the asset; and
(b) the person cannot use the asset as a security for borrowing.
(13) For the purposes of the application of this Act to a social security pension (other than a pension PP (single)), an asset of a person is also an unrealisable asset if:
(a) the person could not reasonably be expected to sell or realise the asset; and
(b) the person could not reasonably be expected to use the asset as a security for borrowing.
Homeowner
Section 11(4) of the Act defines homeowner as follows:
Homeowner
(4) For the purposes of this Act:
(a) a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person’s principal home; and
(ii) the person’s right or interest in the home gives the person reasonable security of tenure in the home; and
………..
The Act does not specifically define the term principal home, as such it takes on its ordinary meaning.
Relevantly, section 11A of the Act, provides the scope of a person’s principal home for the purposes of the assets test.
Principal home
(1) A reference in this Act to the principal home of a person includes a reference to:
(a) if the principal home is a dwelling‑house—the land adjacent to the dwelling‑house to the extent that:
(i) the land is held under the same title document as the land on which the dwelling‑house is located; and
(ii) the private land use test in subsection (3) is satisfied in relation to the land or, if the person is one to whom the extended land use test applies in relation to the land, the extended land use test in subsection (6) is satisfied in relation to the land; or
(b) if the principal home is a flat or home unit—a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.
……..
Private land use test
(3) The private land use test is satisfied in relation to land if:
(a) the area of the land, together with the area of the ground floor of the dwelling‑house, is not more than 2 hectares; and
(b) the land is used primarily for private or domestic purposes in association with the dwelling‑house.
To whom does the extended land use test apply?
(4) The extended land use test applies to a person in relation to land adjacent to the dwelling‑house if:
(a) the person has reached pension age; and
(b) the person is qualified for an age pension or carer payment and that pension or payment is payable to the person; and
(c) the dwelling‑house has been the person’s principal home for 20 years or more continuously.
……..
Extended land use test
(6) The extended land use test is satisfied in relation to land if:
(a) the area of the land, together with the area of the ground floor of the dwelling‑house, is more than 2 hectares; and
(b) the Secretary determines that, given the circumstances of the person to whom the test is applied in relation to the land, the person is making effective use of the land.
(7) In determining whether a person is making effective use of the land, the Secretary is to take into account the following matters:
(a) where the land is located;
(b) the size of the block of land;
(c) the person’s family situation;
(d) the person’s health;
(e) whether the land contains a dwelling‑house occupied by a family member of the person, or a child of a family member of the person, receiving an income support payment;
(f) whether the land is being used to support:
(i) a family member of the person; or
(ii) a child of a family member of the person;
(g) any current commercial use of the land;
(h) any potential commercial use of the land;
(i) whether the person’s capacity to make commercial use of the land is diminished because the person, or the person’s partner, has responsibility for the care of another person;
(j) whether the block of land is an amalgamation of 2 or more blocks and, if so:
(i) when the amalgamation occurred; and
(ii) whether the amalgamation reduced the potential for the land to produce personal income or to support the person;
(k) environmental issues relating to the land;
(l) any other matter that the Secretary considers relevant.
Effect of absences from principal home
(8) A residence of a person is taken to be the person’s principal home during:
(a) if the Secretary is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation—any period during which:
(i) the person is accruing a liability to pay an accommodation charge (or would be accruing such a liability, assuming that no sanctions under Part 7B of the Aged Care Quality and Safety Commission Act 2018 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and
Note 1:    For rent, see subsection 13(2).
Note 2: A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care (Transitional Provisions) Act 1997.
(b) if the Secretary is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation—any period during which:
(i) the person is liable to pay all or some of an accommodation bond by periodic payments (or would be liable to do so, assuming that no sanctions under Part 7B of the Aged Care Quality and Safety Commission Act 2018 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and
(ba) if the Secretary is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation—any period during which:
(i) the person is liable to pay all or some of a daily accommodation payment or a daily accommodation contribution (or would be so liable to do so, assuming that no sanctions under Part 7B of the Aged Care Quality and Safety Commission Act 2018 were currently being imposed on the provider of the care concerned); and
(ii) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and
(c) any period during which the residence is, because of paragraph (a), (b) or (ba), the principal home of the person’s partner.
Note:          This subsection is not meant to imply that a person may have more than one principal home at the same time.
…………
(9) A residence of a person is to be taken to continue to be the person’s principal home during:
(a) any period (not exceeding 12 months or any longer period determined under subsection (9A) or (9B)) during which the person is temporarily absent from the residence; and
(b) if the person is in a care situation or residential care—the period of 2 years beginning when the person started to be in a care situation or residential care; and
(c) any period during which:
(i) the person is in a care situation or residential care; and
(ii) the residence is, or because of paragraph (a) or (b) continues to be, the principal home of the person’s partner; and
(d) if:
(i) the person is in a care situation or residential care; and
(ii) the person’s partner dies while in a care situation or residential care; and
(iii) the person’s partner had been in a care situation or residential care for less than 2 years;
the period of 2 years beginning at the time the person’s partner started to be in a care situation or residential care; and
(e) where:
(i) the person is in a care situation or residential care; and
(ii) the person’s partner dies while not in a care situation or residential care;
the period of 2 years from the partner’s death; and
(f) any period of up to 2 years while the person is absent from the residence and is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary’s opinion is likely to need, that level of care in a private residence for at least 14 consecutive days.
Note:          For in a care situation, see subsection 13(9); for in residential care see subsection 23(4CA).
(9A) For the purposes of paragraph (9)(a), the Secretary may determine, in writing, a period of up to 24 months if:
(a) a person’s principal home is lost or damaged (including, for example, by a natural disaster); and
(b) the loss or damage was not wilfully caused by the person; and
(c) the person is making reasonable attempts, as a result of the loss or damage, to:
(i) rebuild or repair the principal home; or
(ii) sell the principal home in order to purchase or build another residence that is to be the person’s principal home; or
(iii) purchase or build another residence that is to be the person’s principal home; and
(d) the person has made those attempts within a reasonable period after the loss or damage; and
(e) the person has experienced delays beyond his or her control in:
(i) rebuilding, repairing or selling the principal home; or
(ii) purchasing or building the other residence.
(9B) For the purposes of paragraph (9)(a), the Secretary may, in relation to a person and a residence of the person, determine, in writing, a longer period if:
(a) the Secretary is satisfied that the person is temporarily absent from that residence because the person is absent from Australia; and
(b) the Secretary is satisfied that the person’s absence from Australia is temporary; and
(c) the Secretary is satisfied that the person is unable to return to Australia before the end of the following period because of circumstances beyond the person’s control:
(i) the 12 months mentioned in paragraph (9)(a), unless subparagraph (ii) of this paragraph applies;
(ii) if the Secretary has determined a period under subsection (9A) in relation to the person and that residence—that period.
Reasonable security of tenure
(10) If a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.
…………
Debts owed to the Commonwealth

Section 1223(1) of the Act provides that if a person receives a social security payment that they were not entitled to for any reason, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
It is generally expected that debts to the Commonwealth are recovered. This proposition was expressed by French J in relation to debt recovery in Secretary, Department of Social Security v Hales [1998] FCA 219 as:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to received will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.
However, there are circumstances where the recovery of debts is either put on hold for a period of time (written off) or are no longer pursued (waived). Relevant to the Applicant’s age pension debt, the Respondent may write off or waive his age pension debt if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.
Write off or waiver of debts
Section 1236(1) of the Act provides that, subject to section 1236(1A), the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise.
Section 1236(1A) of the Act allows the Respondent to decide to write off a debt only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
Section 1236(1B) of the Act provides that for the purposes of section 1236(1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(b)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(c)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
Section 1236(1C) of the Act provides that for the purposes of section 1236(1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
The term ‘severe financial hardship’ is not defined in the Act. However, it has been considered by the Tribunal in a number of cases.
In Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225, the Tribunal considered that for financial hardship to be established, a person’s entire financial position would need to be materially less than the current rate of pension.
In Re Stubbs and Secretary, Department of Families Community Services [2003] AATA 729, the Tribunal remarked that:
…Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature ….
In L v Department of Social Security (1995) 38 ALD 176, the Tribunal stated:
66. In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write off under subsection 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing in mind the financial means and obligations of the individual concerned. Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation …
Section 1237A of the Act provides that the Respondent 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.
Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (2003) 76 ALD 105 at paragraph [35] stated:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
Section 1237AAD of the Act provides that the Respondent may waive the right to recover all or part of a debt if they are 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, the Administration Act or the 1947 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.
The Act does not provide a definition of special circumstances. However, the general proposition, established by relevant Federal Court decisions, make it clear that ‘special’ means something different from the usual or ordinary.[35]
[35] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545per Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639, at [51]; Boscolo v Secretary, Dept of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, at [37].
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal held at page 3:
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 Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; [1981] AATA 57, the Tribunal stated:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” …., the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … In the exercise of the discretion …., the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the …. Act.
EVIDENCE AND CONTENTIONS
The Tribunal has before it in this matter a large volume of evidence which includes:
·Exhibit 1 – section 37 T Documents (pages 1-298)
·
Exhibit 2 – Secretary’s Statement of Issues, Facts and Contentions dated

17 October 2018
·Exhibit 3 – Centrelink Record Extract
·Exhibits 4 - 15 – Email submissions received from the Applicant providing supporting evidence including but not limited to bank statements, address details, land values, medical certificates and photographs.
·Exhibit 16 – Centrelink Record Extract
·Exhibits 17-23 – Further submission and supporting evidence provided by the Applicant.
·Exhibit 24 – Secretary’s further submissions dated 10 August 2021
·Exhibits 25-26 – Further submissions and supporting evidence provided by the Applicant.
·Transcript of Proceedings – Hearing held on 1 June 2021
·Transcript of Proceedings – Hearing held on 8 November 2021
Applicant’s evidence and contentions
Throughout the Respondent’s review process and the Tribunal process, the Applicant has provided a large volume of documents that relate to the three properties held, his bank account transaction details, employment payslips, mail displaying various addresses, ongoing legal proceedings with his former wife and medical information together with various submissions and other supporting material.[36]
[36] See Exhibits 1, 4-15, 17-23 and 25-26.
The documentary evidence as a whole confirms the Applicant’s transient/nomadic lifestyle, ongoing legal dispute with his former wife and details of the Hunters Road, Alawa Street and Jonelle Street properties. There is no dispute that the Applicant sold the Hunters Road property and received proceeds of $169,896.38 on 15 February 2013[37] and has continued to hold the majority of those proceeds in his bank account. Nor is there any dispute that the Applicant continues to solely hold the Alawa Street property and holds jointly with his former wife the Jonelle Street property.
[37] Exhibit 1, T Documents, T11, page 61, Online Conveyancing Centre: Settlement Statement.
The Applicant’s evidence at Hearing was consistent with his written submissions and supporting documents.
The Applicant gave evidence at both the initial and resumed Hearings under affirmation. The Tribunal considers that he gave open responses to questions asked by both the Tribunal and Respondent and used his best endeavours to put forward his case.
At the initial Hearing the Applicant told the Tribunal that:[38]
[38] Transcript of 1 June 2021, pages 9-14.
·He is happy to have the Alawa Street and Hunters Road properties in the calculation for his pension.
·This matter seems to hinge on him not notifying Centrelink about the sale of the Hunters Road property but that is not right.
I had to travel to Kingaroy to sign the transfer deed for the sale and on that day I went into Centrelink office and I told them that I just signed the papers but I didn’t have the numbers, and the person there said to me, “Well, get back to us when you’ve got the numbers”, and I’ve never had the numbers since. The thing has never been finalised.
·He sold the Hunters Road property but because his former wife is in England, the exchange rates came into play and at that time the exchange rate was the worst possible thing. The exchange rate has gone back to normal and he is about to go back to court.
·When he sold the Hunters Road property, around $169,000 went into his bank account.
·He did inform Centrelink, but he did not have anything concrete to give them, he did not hide the money.
·When Centrelink cut his pension, he went in to see them because he believed that all assets in a dispute before a court are not your property until settlement and he decided to stick to that.
·During the period between 2013 and 2017, he was not living at the Jonelle Street property and he only went there when he had to. He was living on the Bay Islands and all over the place.
·The place was never finished, it doesn’t have a legal certificate of occupancy, it’s not a home, it’s not a dwelling, and there’s no point in me finishing it until this divorce property situation is settled, so I’m stuck in a trap and it’s a really nice trap, and I can’t do anything about it. And all of those papers that I sent you, that I sent to the court were photos of the mail that had been sent to me at the addresses that I’d lived at over that time. And with the bank statements that I sent prior, the bank statements show where I spend my money, and they wouldn’t accept as evidence because I didn’t live at Jonelle Street. So I sent all the mail, copies of the mail addresses that has been sent to all the properties I’d lived at over that time, and all the payslips of the jobs, as many payslips as I had of the jobs that I had to travel to work at, which means I didn’t live at Jonelle Street.
·In 2006 he was sick from cancer and the local Centrelink manager insisted he was a homeowner despite him saying the property was not finished.
·He is not a homeowner according to Social Security Law because the property comes under the extended use category as it is over 2 hectares and he has never lived in it for 20 years consecutively, so he is not a homeowner by law.
On cross examination at the initial Hearing, the Applicant told the Tribunal that:[39]
[39] Transcript of 1 June 2021, pages 17-28.
·
When asked what he says his home address was from about 2013, it was backwards and forwards between Sunbury Street and Birdwood Road and Russell and

Lamb Island. He travelled and did all sorts of things, but his home address was not at Jonelle Street.
·
In 2014 he was on Lamb Island, then 2015, 2016 and part of 2017 he was on

Russell Island and then 2016 and 2017 he was on Lamb Island and during that time nothing happened with the Jonelle Street property, it just sat there and gradually disintegrated.
·He had his mail going everywhere not just to the Jonelle Street property.
·When referred to the Centrelink file note dated 4 May 2012, he said he had a number of different health issues during the time referred to.
·Between 2013 and 2017, he did go back to the Jonelle Street property on occasion and picked up the mail. His neighbours felt sorry for him and collected his mail.
·When referred to a Centrelink note that said “Customer advised that his property was coded as his matrimonial home. They started building a house which has never been finished and no one has ever lived in” and asked if it was true that no one had ever lived in the Jonelle Street Property:
Well, I can’t say that’s true because when I’ve had to go there and I’ve had to do work or I’ve been forced to by the council I’ve stayed in it. I’ve – it’s illegal. There’s no certificate of occupancy for it.
·
His former wife has sought interest because it took 18 months to sell the

Hunters Road property.
The Applicant summarised his contentions in an email submission dated 11 July 2021 as follows:[40]
1. The Applicant contends that the property at [address] is not his principal home pursuant to the requirement sets out in s 11 of the Social Security Act 1991 (Cth) (‘SS Act’). The Applicant makes the following submissions in this regard.
2.    First, the property is not a dwelling for the purposes of s 11(1)(a), nor a flat or home unit for the purposes of s 11(1)(b) of the SS Act because no legal habitation permit has ever been granted because the property in question has never been finished and is still subject to a court decision for final ownership.
3.    Second, the extended land test should not apply because, even if the home is to be considered a dwelling-house, contrary to the submission above, then the property has not been the Applicant’s ‘principal, home for 20 years or more continuously’ as required by criterion (c) for the purposes of s 11A(4).
4.    Third, it is conceded that the extended land use test set out in s 11A(6) of the SS Act may apply to the property or the land in question because it is more than 2 hectares: namely, it is 2.002 hectares, as confirmed by the relevant deed in respect of the property and as required by s 11A(6)(b). However, the Applicant cannot be considered to have been ‘making effective use of the land’ pursuant to s 11A(6)(a) and so the extended land use test will not apply.
5.    Fourth, the reason that Applicant cannot be considered to have been ‘making effective use of the land’ pursuant to s 11A(6)(b) and by reference to the criteria set out in s 11A(7) is because the land does not contain a legal dwelling-house in accordance with s 11(7)(e) of the SS Act.
6.    Fifth, the property was not the Applicant’s principal home pursuant to s 11A(8) of the SS Act because none of the conditions set out in that subsection apply in the Applicant’s circumstances.
7.    Sixth, the property was not the Applicant’s principal home under s 11A(9) of the SS Act because the Applicant was absent from the property not simply ‘temporarily,’ in accordance with ss 11A(9)(a), 11(9A) or 11(9B), but was in fact never established the property as his principal home because he was never there on any permanent basis, as well as for reasons previously outlined.
8.    Seventh, the Applicant has no security of tenure pursuant to s 11A(11) because he does not have a right or interest in the property that ‘gives [him] reasonable security of tenure’ because the property is subject to ongoing legal dispute the final outcome of which has not yet been determined.
[40] Exhibit 21
At the resumed Hearing the Applicant told the Tribunal that:[41]
[41] Transcript of 8 November 2021, pages 35-58.
·He did not agree that a debt arose during the Debt Period.
·Nothing had happened with his property settlement with his former wife since 2014 as her lawyer wanted him to pay interest and had made enforcement threats.
·The Hunters Road and Alawa Street properties were blocks of land.
·The building of the house at the Jonelle Street property commenced before he and his former wife separated. At that time his former wife and their children lived on the property in a caravan. He would do as much work on the house as he could and would then have to go away for work as there was no work in the area.
·They lived on the Jonelle Street property as a family for a couple of years. His family stayed in the caravan when he went away for work and then he would return for a while and restart the building work. It was during that time that his marriage broke down and he and his former wife separated.
·There is a shower and toilet at Jonelle Street, but you cannot get into them because there is stuff everywhere.
·Between 2010 and 2017 he went back to the Jonelle Street property to collect mail and to clear the boundaries and do other things that he needed to do (including clearing noxious grass).
·When he returned to the Jonelle Street property to do those jobs he would stay at a friend’s place, or camping grounds or at the Hunters Road property. He would stay at the Jonelle Street property sometimes and he would sleep in his car or use a tent, he tried not to stay there overnight. The caravan and structure were stacked full of stuff to keep it out of the weather.
·The Jonelle Street property was about 2.5 – 3 hours away from Brisbane.
·The Jonelle Street property has electricity connected that runs a fridge when it is on. He leaves the electricity on in case he needs power tools or things when he is there. It is useful and if he had it cut off, he would have to pay a fee to get it put back on.
·The fridge is inside the house he started to build.
·The house at the Jonelle Street property is not up to lock up stage, there is no soffits, thermal proofing, vermin proofing or cladding and some of the windows are not fixed.
·The certifier could not pass it as a legal residence.
·The house has a roof and the walls are up but are not clad.
·The house is not waterproof.
·When asked how often he was going back to the Jonelle Street property through 2010-2011 and up to 2016-2017, he said he had to go away for work, so he has never spent a full year there ever, even when his family was living there.
·When asked how often he went back to collect his mail and clean up, that whenever the neighbours called him and tell him what had happened he would go back. Sometimes he would not go back for years as there are “not very good memories there”.
·When asked why he still had mail go to the Jonelle Street property, that:
“Well, there’s always something that you don’t know, do you understand what I mean? I can’t predict the future. Someone might want to contact me that I don’t know that they want to contact me, and I can’t give my new address to everybody because I don’t know who everybody is. Do you understand what I’m saying to you? You have to move around a lot to understand. I could live in four different places in a month … And there needs to be a central place where stuff can go, and whether I get it on time or whether it means anything by the time I get it, I still get the message that, you know ….”
·His neighbours would collect his mail when they noticed his mailbox was full, a lot of it got damaged and some stuff got pinched.
·
When asked about the Citizens Party application form he provided as part of

Exhibit 25 and why he put his address as the Jonelle Street property, he did that because he did not know where else he would be.
·The Jonelle Street property address is his voting address, it has power connected and his mail goes there because he does not really have much other options as the time gaps are too long between.
·When put to him that on all of those things he is representing that he lives at the Jonelle Street property, he said it is not the case and he just put it down as a mailing address.
·
During the time between 2013 and 2017, he spent most of the time on the

Bay Islands. He has a friend who he has had a really long relationship with, however they get on each other’s nerves, so it is on and off and on and off, but it is friendly and if they need him, he goes. He was trying to work out how to build a house on the island land because it is very scenic. It is a waterfront block. So he was staying between his friend’s house and the Bay Islands.
·If he could sell the Jonelle Street property, he would have been out of there a long time ago.
·When he stayed on Russell or Lamb Island, he would stay in share accommodation.
·His friend did not go with him when he moved around. They might have come to visit for a night or so.
·When taken to a list of addresses that Centrelink had on file for him, at T29, page 220 of Exhibit 1, that the Birdwood Road property was his mother’s house, he had lived there on and off all of his life and the Sunbury Street property was his long-term partner’s address.
·To be a homeowner the place has to be home and the Jonelle Street property does not qualify as a legal residence. It is not at that stage and he has done that on purpose because he is stuck in the divorce court and he cannot get out of it.
·He would like to finish the Jonelle Street property so that it is not a complete waste of time and when he dies the money goes to his children.
·He provided his bank statements and medical records to show where he spent money and where he was.
·He still has money in the bank from the sale of the Hunters Road property. As he is trying to make it last as long as possible, he only uses that money as a last resort. The money is still sitting there because it is attached to his court case.
·When asked if he thought there were any special circumstances that meant if he had debt it should not be recovered, he replied that to be a homeowner there has to be a home but there is no residence there.
·Section 9A says that it is not a principal residence if you are going to be absent for 2 years unless you ask for an extension and he has never done that.
·When he started building the Jonelle Street property, he was not building it to be a home but to be relocatable and to use it to go into business. He was building it so that you could pick it up with a crane and put it on the back of a truck and move it anywhere. He intended that his family would live in that modular house until he built them a house which he never got started.
·When put to him that during his initial proceedings regarding his rate of DSP the Jonelle Street property was classified so that he was considered to be a homeowner and the hardship provisions were applied taking that into account and asked why he is now stating he is not a homeowner, that he was told he was a homeowner. He did not realise what a homeowner meant, he did not know there were books about what a home was. That:
I figured, once – you’re a homeowner, does your mail go there, does your voting address go there, does this – is it – and I’m looking at this and I’m thinking I don’t know, so I just agreed. I just went along with it, the easy way out, you know….

On cross examination at the resumed Hearing, the Applicant told the Tribunal that:[42]
[42] Transcript of 8 November 2021, pages 58-66.
·The Jonelle Street property has water connected as that is compulsory with the septic system.
·He is still paying for water and electricity at the property.
·The sections completed in the Jonelle Street property are the base and steel framing as he had a licence to build the steel framing. The wiring inside was not finished as it was a step-by-step council approval process. He did most of the power and just got an electrician to connect it. He did the plumbing work, but it was built for a small relocatable thing, so there was not that much work in it.
·He stopped working as a rigger in 2006 when he got cancer. When he worked away, he was fly-in-fly-out as there was no work for him locally and he could get five times the money elsewhere.
·He wanted to try and build on the Alawa Street property which is on a Bay Islands and during that time he was staying between Lamb and Russell Islands.
·He still holds a driver’s licence and his address on the licence is the Jonelle Street property address.
·His son lives in Australia and will eventually take over the Jonelle Street property, that is what his will says. His son lives in Kallangur now and used to live in Caboolture and sometimes he stayed with him.
·He has recovered pretty well health wise, and the main reason he no longer works is for financial reasons and wanting to get the divorce court stuff finalised.
·He paid rent when he stayed with his son or friends and paid for food while he was there. He would help them out while he was there.
·He told Centrelink when he sold the Hunters Road property, he had to go to Kingaroy to sign the transfer documents and on that day, he went to the Centrelink office and told the Centrelink officers he had just sold the property. They wanted to know the figure but he did not know the numbers and still does not have them because of the divorce court.
·At the Centrelink office they asked him for final number on the sale and what his asset were, but the transfer of property never happened.
·When the Hunters Road property settled:
…. the money went into a bank account and was left there …. it wasn’t hidden or buried or anything else. And then they had a data-matching exercise and they came up with a number. And because I couldn’t get out of the divorce court because I expected that once I sold that property according to the orders that the property would be transferred over to me and it would be all over and I would have reached Nirvana, I would have reached the level of heaven because it would be all finished. But it never happened. I keep hoping but hope doesn’t count and because I never got the thing and I still haven’t got the thing ….
In summary the Applicant’s contended that he was not a homeowner as the Jonelle Street property was not his principal home and that his interest in that property, the proceeds from the sale of the Hunters Road property and his interest in the Alawa property were not realisable as they were affected by his ongoing divorce proceedings.
Respondent’s Contentions
At Hearing the Respondent sought to rely on its previously filed Statement of Issues, Facts and Contentions[43] and Further Submissions.[44]
[43] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 1-10.
[44] Exhibit 24, Secretary’s Further Submissions, pages 1-12.
The Respondent contended that the Applicant was a homeowner during the Debt Period and that during the Hearings there was never a clear intention expressed by the Applicant to never return to the Jonelle Street property.[45] The Respondent provided the following contentions in relation to the application of the definition of principal home:[46]
20.The Secretary notes the Applicant's submissions with respect to s 11A are misconceived. The Applicant appears to suggest that as the Jonelle Street property was more than 2 hectares it could not be considered a "principal home".
21.The Secretary submits the correct interpretation of s 11A(1) is that a principal home can include both a dwelling and the land that is adjacent to that dwelling, up to 2 hectares.4 Anything in excess of 2 hectares should be included in the calculation of the Applicant's assets, unless the excess curtilage meets the extended land use test. A rates and water notice dated 29 July 2015 (T18, 74) confirms the property is 2.002Ha. In the circumstances, the Secretary notes any impact the value pertaining to .002ha is negligible.
[45] Transcript of 8 November 2021, page 70.
[46] Exhibit 24, Secretary’s Further Submissions, pages 5-11, paragraphs 20-21.
The Respondent referred the Tribunal to relevant precedents to support their contentions[47] and further sought to rely on the address details held in the Centrelink system during the Debt Period and the Centrelink customer file notes referred to above dated
[47] Exhibit 24, Secretary’s Further Submissions, pages 5-11, paragraphs 22-29.
[48] Exhibit 24, Secretary’s Further Submissions, pages 8-10, paragraphs 24-27.
4 May 2012 and 4 October 2016 as evidence of the Applicant’s link to the Jonelle Street property.[48]
The Respondent contended that the Applicant’s assertion that the unfinished house on the Jonelle Street property had not been given a certificate of occupancy does not preclude it from being classified as a “principal home”, noting that the Applicant conceded during cross-examination that he did stay at the property in any event.[49]
[49] Exhibit 24, Secretary’s Further Submissions, page 10, paragraphs 28-29.
In addition, the Respondent contended that it was the Applicant’s choice not to reside at the Jonelle Street property and submitted that:[50]
[50] Transcript of 8 November 2021, page 68.
·It was a place where a caravan was fixed and his family did live at one point.
·The affection and the connection to the address is still there.
·The Applicant has always lived away from the property, but that was the go-to. He was a rigger up until 2006 and would often work away from the family but that was the sort of connection to the land he had.
·The test does not necessarily look at the dwelling and whether a person is in a home.
·The Applicant gave some evidence that he did stay at the property from time to time.
·There is evidence that the Applicant’s licence, enrolment on the electoral role remain at the address.
·The Applicant’s evidence included that he continues to maintain the electricity and water connections to the property.
·The other addresses that relate to the Applicant appear to relate to properties that were connected to people that he knew, either friends, a long-term partner, his son or his mother.
·The Applicant gave evidence that there is an intention to fix the place but that at the moment divorce proceedings are holding him up from doing so. That is likely to change his financial position and he does not want to do that just in case – however for social security purposes that is not a factor that ought to be taken into consideration.
The Respondent submitted that the Applicant did not cease to be resident at the
[51] Exhibit 24, Secretary’s Further Submissions, 10-11, paragraph 31.
Jonelle Street property merely because he was physically absent for periods. The Respondent contended that the test is whether he retained a continuity of association with the place, together with an intention to return to that place and an attitude that the place remains “home”. The Respondent contended that the file notes and evidence reflect that during the Debt Period the Applicant’s contemporaneous attitude was that the Jonelle Street property remained “home”.[51]
In relation to the Applicant’s propriety interest in the Jonelle Street property, the Respondent contended:[52]
[52] Exhibit 24, Secretary’s Further Submissions, page 11, paragraphs 32-34.
32.The Secretary acknowledges from the additional evidence provided by the Applicant that his mail was variously being sent to the following addresses during the debt period:
a. [Birdwood Road];
b. [Sunbury Street];
c. [Edward Street];
d. [June Parade];
e. [Todman Street].
33.However, the Secretary contends there is no evidence to indicate the Applicant had a proprietary interest in any of the above properties. Nor has the Applicant adduced evidence that he actually lived at any of the above properties by providing rental agreements, or rates notices. In accordance with Instruction 4.6.3.30 of the Social Security Guide, even in circumstances where a social security recipient spends a considerable amount of time in a home they do not own, their principal home remains the property in respect of which they own. Accordingly, the Secretary contends the Jonelle Street property remained the Applicant's principal home. In any event, the Secretary further submits that a postal address is only one of many considerations to be taken into account when determining where a person was residing and the permanency of that occupation.
34.The Secretary notes that while the Jonelle Street property was jointly owned and the subject of property settlement proceedings with his former wife, at no time was the applicant precluded from occupying that residence. The further evidence provided which relates to his Family Law proceedings indicate his former wife has been residing in the United Kingdom since 1996. There is also no evidence the Applicant rented out the Jonelle Street property or was precluded from returning there for any other reason.
The Respondent contended that sections 11A(8) to (9A) of the Act relate to a person who is put into an aged care facility or due to circumstances where the property has been damaged, and reasonable attempts have been made to repair the building, sell the property or purchase another principal place of residence.[53] The Respondent contended that those sections do not apply in the Applicant’s case as he has not moved into an Aged Care facility and his evidence was that he does not want to make attempts to fix the property until his divorce proceedings are over.[54]
[53] Transcript of 8 November 2021, page 69.
[54] Transcript of 8 November 2021, pages 69-70.
The Respondent submitted that the Tribunal should have regard to the fact that the Applicant’s primary argument had at a time when he was going through the asset hardship exemption in which a majority of his assets were exempted for the purposes of receiving the DSP and Age Pension been that the Jonelle Street property was his principal place of residence. The Respondent contended that it is now a situation where as a result of changes to his financial assets it is beneficial for him to say that he is a non-homeowner.[55]
[55] Transcript of 8 November 2021, pages 69-70.
In relation to whether the financial hardship rule applies to the Applicant and whether his assets were subject to a charge or encumbrance, the Respondent contended:[56]
[56] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 6, paragraphs 33-40
33.The applicant appears to assert that his rate of age pension should continue to be assessed under the financial hardship rules. In summary, the applicant's contention is that the "property settlement is not over" due to the ongoing dispute with his former wife and as a result, Allawa Street and the proceeds of sale from Hunter Road should continue to be deemed unrealisable assets.
34.This contention fails for a number of reasons.
35.Firstly, the family law proceedings were finalised on 22 September 2011 upon the making of the Orders. Neither party filed an appeal against the Orders, nor has any proceeding been instituted with respect to compliance with the Orders. Accordingly, the applicant's assets cannot be said to be subject to a pending property settlement and the applicant cannot simply assert that the "property settlement is not over' on account of his failure to comply with the Orders.
36.Secondly, the Orders maintained the applicant's sole interest in Allawa Street and imposed no restriction on its use. The applicant is at liberty to sell or borrow against that property. Accordingly, its value should properly form part of his assets for the purposes of calculating his rate of age pension.
37.Thirdly, the Orders provided that in the event the applicant was unable to raise the funds necessary to pay out his former wife in respect of Jonelle Street, then the applicant was to give notice of which property he intended to sell. These Orders were facilitative and placed no restriction on the proceeds of sale or on their use by the applicant. Accordingly, the funds held in the applicant's bank accounts were at all times available for his use and under his control.
38.The Secretary therefore contends that the applicant's interest in Allawa Street and the funds held in his bank accounts do not fall within the definition of unrealisable assets for the purposes of s 1129(c) of the Act and cannot be excluded from the assets test.
39.Even if the Tribunal were to disagree with that contention, the asset hardship rules will only apply if the Tribunal is also satisfied that the applicant would suffer severe financial hardship. Instruction 1.1.S.120 of the Guide states that a single person is in severe financial hardship if:
a. their readily available funds are equal to or less that the annual maximum basic rate payable to a single person, currently in the amount of $23,823.80; and
b. they cannot reasonably be expected to sell or borrow against assets to improve their financial position.
40.Throughout the debt period, the applicant had readily available funds in his bank accounts in excess of $169,000. Even if the amount claimed by the applicant's former wife were to be excluded, the Secretary contends the applicant cannot be found to be in severe financial hardship. Accordingly, the asset hardship rules do not apply.
The Respondent further contended:[57]
35.The Secretary notes the Final Orders made by the Federal Magistrates Court on 22 September 2011 (Final Orders) provided for the Applicant's former wife to transfer her interest in the Jonelle Street property to the Applicant, after he paid her 58% of the total net assets of the relationship.
36.The Secretary submits that following the sale of Hunter Road, Wilkesdale the Applicant was in a position to discharge his obligations under Order 7 of the Final Orders, and from that time should be deemed as having the capability to realise his interest in the whole of the Jonelle Street property.
37.This is clearly demonstrated by the Applicant's correspondence to Hartley Healy (his former wife's lawyers) on 17 July 2013 where he says "I chose to sell the Wilkesdale property, which raised more than the $130,000 value referred to in the asset pool referred to in the Reasons for Judgement ... " and advises that following the sale of he had transferred the sum of $10,000 being the court ordered costs against him. It is clear from the correspondence between Hartley Healy and the Applicant, that the Applicant was in breach of the Orders, and he refused to execute Order 7 because he disagreed with the valuation of assets following that sale, and quantity of funds he should transfer to his former wife.
[57] Exhibit 24, Secretary’s Further Submissions, page 12, paragraphs 35-37.
The Respondent contended that the Applicant was overpaid Age Pension during the Debt Period and pursuant to section 1223 of the Act the amount of $10,243.19 is a debt due to the Commonwealth.[58] The Respondent relied on the following contentions:[59]
43.The applicant's entitlement to age pension is and was calculated in accordance with the rate calculator found in s 1064 of the Act. Relevantly, his rate of age pension is to be reduced by the total value of his assessable assets.
44.The applicant does not contest the balances recorded by the Department in respect of his bank accounts with Heritage Bank, Bendigo Bank and National Australia Bank throughout the debt period (T2, 5). Accordingly, the Secretary contends these funds are to be included as assessable assets throughout the debt period.
45.The Secretary contends Allawa Street is an assessable asset and its value throughout debt period must be included in the assets test. In or around December 2010, the Australian Valuations Office valued Allawa Street at $175,000 (T30, 240). In or around October 2016, the applicant provided the Department with a rates notice in respect of Allawa Street for the period 1 July 2016 to 30 September 2016 (T30, 240). The valuation of the property in the rates notice is recorded as $107,000 (T20, 76). Accordingly, the value of Allawa Street has been recorded as $175,000 for the period 20 March 2013 to 30 June 2016 and $107,000 for the period 1 July 2016 to 10 March 2017 (T26, 156-157).
46.The Secretary relies on the rate calculations and, on that basis, contends the applicant was overpaid age pension in the amount of $10,243.19 during the period 20 March 2013 to 10 March 2017 (T28, 165-166, T29, 167-219).
[58] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 9, paragraphs 47-48.
[59] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 8, paragraphs 43-46.
The Respondent contended that based on the evidence before the Tribunal there is no basis to support the debt being written off pursuant to section 1236 of the Act or waived pursuant to section 1237A or 1237AAD of the Act and as such the debt is recoverable.[60]
[60] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 9-10, paragraphs 49-55.
CONSIDERATION
The rate of Age Pension is determined by considering a person’s family situation and their income and assets. In this matter, it is not in contention that during the Debt Period the Applicant was single and was not working. It is further not in contention that during the Debt Period the Applicant held assets of which would ordinarily be taken into consideration in calculating his rate of Age Pension. The crux of the issue before the Tribunal is whether or not those assets should be taken into consideration or whether they should be excluded under the financial hardship rules.
The assets in question include the:
·Jonelle Street property – being the former family residence and is owned by the Applicant jointly with his former wife;
·Alawa Street property – being owned solely by the Applicant; and
·proceeds from the sale of the Hunters Road property that were and continue (in part) to be held in the Applicant’s bank account.
The Tribunal understands the Applicant’s contentions to be as follows:
(a)he was not a homeowner during the Debt Period as the Jonelle Street property was not his principal home; and
(b)the assets in question are not realisable as his divorce proceedings with his former wife have not be finalised.
The evidence before the Tribunal is that at all material times the Respondent has considered the Applicant to be a homeowner and that his principal home was the Jonelle Street property. Consequently, for the purposes of the assets test relating to the rate of pension calculations, the Jonelle Street property has been disregarded and the homeowner assets threshold had been used to calculate the Applicant’s rate of Age Pension.
If the Tribunal was to accept the Applicant’s contentions that he was not a homeowner during the Debt Period, the asset threshold used to calculate his rate of Age Pension would increase to the non-homeowner threshold and the Jonelle Street property would then be included in his asset pool (unless excluded under the financial hardship rules).

Section 11(4) of the Act provides that a single person is a homeowner if they have a right or interest in their principal home and that right or interest gives them reasonable security of tenure in the home.
Reasonable security of tenure is defined in section 11A(10) of the Act to be held by a person who has a right or interest in their principal home unless decided otherwise.
Based on the evidence before it, the Tribunal considers that the Applicant has a right or interest in the Jonelle Street property as he jointly owns the property with his former wife. The Tribunal further considers that the Applicant has reasonable security of tenure in the property as given the joint ownership of the property it cannot be sold without his consent, by all accounts his former wife is overseas and there is no evidence that there is anything stopping him from residing permanently or otherwise at the property should he so choose. Further the Orders provide that upon him making the required payment to his former wife, she must transfer her title in the property to him. As such although the Applicant is not in a position to sell the property without the consent and cooperation of his former wife, nonetheless the Tribunal considers he has reasonable security of tenure over it.
The issue then becomes whether the Jonelle Street property was the Applicant’s principal home during the Debt Period.
Section 11A of the Act defines what is considered to be part of a person’s principal home for the assets test. Relevantly, section 11A(1) provides that the principal home of a person includes a reference to a dwelling-house and the land adjacent to it, if that land is on the same title and the private land test is satisfied, or if it is a flat or home unit, a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.
The Applicant contended that the Jonelle Street property cannot be his principal home because no legal habitation permit has ever been granted because the house in question has never been finished and is still subject to a court decision regarding final ownership.
The meaning of principal home has not been defined in the Act and has been considered in a number of Tribunal decisions. In Matula and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 993 (Matula), Senior Member Britton provided at [35]-[38]:
35. The term "principal home" is not defined by the Act. The words "principal" and "home" are ordinary English words and should be given their ordinary meaning in the context in which they appear.
36. The Macquarie Dictionary defines "home" to mean: "a house, or other shelter that is the fixed residence of a person .... 2. a place of one's domestic affections". "Residence" is defined as: "the place, especially the house, in which one resides; dwelling place; dwelling".
37. It is apparent from the use of the modifier "principal" that the Act contemplates that a person may have more than one "home".
38. The indicia which might indicate that a "place" - to use a neutral term - is a "principal home" within the meaning of the Act have been the subject of extensive consideration by this Tribunal.
Section 11A(1) makes reference to a dwelling-house, it is not specific to a house only. As such a garage, caravan or other shelter may also be considered. The Tribunal considers the fact that the house that has been partially built on the Jonelle Street property, is not finished and has not received a final certificate of occupancy does not preclude it from being the Applicant’s principal home.
In relation to criterial for determining what constitutes a home, the Tribunal in Dickeson and Secretary, Department of Social Security [1989] AATA 90; (1989) 18 ALD 58 the Tribunal said at 61-62:
In assessing the criteria of what constitutes a "home" a substantial degree of occupation is persuasive ... whereas conversely occupation by occasional visiting is not ... and living away from the family home in other premises causes the family home to no longer be the principal home ... A "home" is likely to be a place where persons ordinarily eat, morning and night, and where they sleep, and in the case of adults have the characteristics of permanency ... It is a concept of nature and "it is the place where the centre of gravity of one's domestic life is to be found" ... Where one chooses to live is relevant ... and a reference to a "home" requires an affinity to its location and usage by the occupier ... A home need not be a structure of four walls and a roof, but may be constituted by a caravan ... or a campervan ... or a yacht...
[emphasis added - authorities and citations omitted]
In Re Samek and Department of Social Security (1988) 16 ALD 295, the Tribunal considered that the concept of principal home assumes that more than one property can be used as a home and acknowledged that a person’s relationship with the principal home may change over time. The Tribunal provided at 296:
A person who owns a residential property in the city and who is in the habit of living there, but who spends the bulk of his or her time travelling around the country, living in hotels, and pursuing business or recreational activities from those hotels, can still be regarded as retaining the city property as his or her principal home. While the person spends more time in hotels each year than at home, he or she has no proprietary interest in the hotel room and so cannot be regarded as setting up a home which can be regarded as such as to make the city home a secondary one.
[emphasis added]
In Hafza v Director-General of Social Security (1985) 60 ALR 674, Wilcox J considered the meaning of the term “usual place of residence” in the context of the now repealed Social Security Act 1947 (Cth) and provided at 680-681:
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily (see Inland Revenue Commissioners v Lysaght (1928) AC 234 at 248 and Keil v Keil [1947] ViclawRp 56; (1947) VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place (Levene v Inland Revenue Commissioners (1928] UKHL 1; (1928) AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149) together with an intention to return to that place and an attitude that that place remains "home" (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place -... , secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.
[emphasis added]
In Matula the Tribunal was considering whether or not a property continued to be the Applicant’s principal home in circumstances where he had been absent from the property for some 20 months and was consequently residing elsewhere during that period. The Tribunal provided at [43]-[48]:
43. I agree with the argument put for the respondent Secretary that as a general rule, where a person has more than one home, the place where they spend most of their time should be regarded as their "principal home". Nonetheless, in my view time spent in a place will not necessarily trump all other considerations. The weight to be given to this factor will depend on the circumstances of the individual case.
44. Whether Rainville continued to be Mr Matula's principal home is a question of fact to be objectively assessed having regard to all relevant circumstances.
45. In my opinion, the following factors support a finding that the Rainville house remained Mr Matula's principal home throughout the subject period. Firstly, Mr Matula's move to Sydney was of a temporary nature and for an indeterminate period. This is illustrated by the fact that he left behind all but a few of his personal belongings and maintained Rainville as his address for electoral, licensing, insurance and other purposes. Secondly, from the outset Mr Matula was intent upon returning to Rainville, his return being contingent upon the finalisation of the Family Court proceedings or reaching agreement with his wife. Thirdly, it is plain that he had a strong emotional attachment to the Rainville house and surrounding property -witness his comment -"I was prepared to die for it". In contrast, he saw the boarding house simply as a place to base himself until the divorce proceedings were finalised. Fourthly, he maintained an association with the local community despite the challenges of distance, through his membership of the local brigade of the Rural Fire Service and so forth and visits to the property. Fifth, throughout the subject period he contributed to the upkeep of the property and the house, paying 50% of all expenses. Sixth, his proprietary interest in the house remained unchanged.
46. Factors that favour a finding that Rainville was not Mr Matula's principal home include that he was absent from the property for a total period of about twenty months; that throughout that period he was effectively barred from entering the property; and that he spent most of his time during this period in alternative accommodation.
47. In my view, it would be an overly restrictive to view time spent in a place as determinative in all cases. Such an approach fails to recognise that a "home" or "principal home" is something more than a place where a person spends time. Due weight must also be given to intangible considerations such as continuity of association, emotional attachment, intention to return etc: see Hafza.
48. I am not persuaded that the boarding house was Mr Matula's principal home throughout the subject period. While undeniably the place where he spent most of his time the evidence reveals that it was nothing more than a temporary arrangement which provided Mr Matula with a base and shelter while he awaited the outcome of the Family Court proceedings. At all times, Mr Matula intended to return to Rainville, retained his association with the community, and had a deep attachment to the house and surrounding property. Having regard to the unique features of this case I am satisfied that the Rainville house continued to be Mr Matula's principal home throughout the subject period.
[emphasis added]
Consequently, the question of whether or not the Jonelle Street property was the Applicant’s principal home throughout the Debt Period is a question of fact. Whilst the precedents outlined above provide guidance in relation to such assessments, each case must be considered on its own merits, taking into account the facts and circumstances of that particular matter and how the principles apply to them.
The Applicant told the Tribunal that he never saw the Jonelle Street property as home because the house was not finished and while he has stayed on the property during the Debt Period, he only did so when he had to. The Applicant provided in evidence that the Jonelle Street property was where his family had resided for a number of years, albeit not in the house that he commenced building but in a caravan. During that period, he would work away for periods of time and then return and continue the building works. He told the Tribunal that the property has electricity, water and septic connected and that he is responsible for the payment of all associated ongoing costs with the property.
The Applicant also told the Tribunal that he would like to finish fixing up the house so that one day his children could have it and it would not have all been a waste of time. He said he has not done this to date as his divorce proceedings are ongoing. The Applicant also told the Tribunal that the Jonelle Street property is the address he uses on his licence, the electoral role and in general when he needs to provide certainty of his address.
The Tribunal notes the Applicant’s assertions that the Jonelle Street property was not his home and he considers he has never resided there together with the evidence that he has lived at a number of addressed during the Debt Period right up to today. The Tribunal does not consider these factors to be persuasive in finding that the Jonelle Street property was not the Applicant’s principal home during the Debt Period.
In looking at the Applicant’s situation as a whole, it is clear to the Tribunal that even when he was married and living with his family, he often stayed away for long periods of time working. However, the evidence clearly shows he always returned to the Jonelle Street property as his base. There is no evidence before the Tribunal of the Applicant making a home for himself outside of the Jonelle Street property, rather the evidence shows he moved around a lot staying with family, friends or renting rooms. No evidence was provided to indicate that the Applicant entered into lease or other formal agreements that gave him any right or interest in the occupancy of any of the alternative addresses he has provided. There is also no evidence that the Applicant held a proprietary interest in any of the alternative places where he resided. The Applicant’s acknowledgement of his transient lifestyle was provided as a reason as to why he still had mail going to the Jonelle Street property and why he continued to list that address for primary government contact requirements such as on his driver’s licence and the electoral role.
There is no clear evidence before the Tribunal in relation to the frequency, dates or durations of the Applicant’s attendances at the Jonelle Street property, rather his evidence was that he went there when he needed to or if his neighbours called him. By continuing to have the electricity and water connected, the Tribunal considers the Applicant ensured that the property was available as his home or return base at any time. The state of the house itself is immaterial in circumstances where the family previously resided in a caravan, of which the Applicant was unable to remember when that caravan was damaged and no longer liveable, the other structure of which housed the toilet was being used as storage, and where the Applicant gave evidence that he had stayed in the house, in his car or camped from time to time during the Debt Period at the Jonelle Street property.
The Respondent submitted that the Tribunal should have regard to the fact that the Applicant was previously content for the Jonelle Street property to be considered his primary home when he was going through the asset hardship exception process where the majority of his assets were exempted for the purposes of calculating his rate of DSP and Age Pension. The Respondent contended that it was now a situation where, as a result of changes to his financial assets, it is beneficial for him to say that he is a non-homeowner.
The Applicant contended that until the Tribunal process he did not understand the meaning of home and had not understood what it meant for an address to be made your principal home or primary residence.
In looking at the evidence and contentions before the Tribunal as a whole, the Tribunal finds that the Jonelle Street property was the Applicant’s principal home. While his regular absences from the property do weigh against such a finding, the Tribunal agrees with the decision in Matula that this of itself is not definitive. When considering whether the Applicant had a continuity of association with the property, an intention to return to it and an attitude that it remains home, the Tribunal considers that each of these factors have been met. The Applicant has continued to maintain his association with the property by visiting it as required and performing any maintenance tasks required, maintaining it as his primary address, maintaining the connection of utilities and by having the intention or desire to complete the house at some stage.
The Tribunal considers that the Applicant’s regular absence from the Jonelle Street property was consistent with his long-term transient/nomadic lifestyle. It must be taken into consideration circumstances where there is no evidence before the Tribunal that at any time during the Debt Period the Applicant had established another or alternative principal home. This provides insight when considered together with the evidence before the Tribunal outlined above as forming part of how his particular connection with the Jonelle Street property was initially made and continued throughout the Debt Period.
The Tribunal further notes that the Orders provides an option in order to raise the monies the Applicant is required to pay to his former wife to finalise the property division was to sell the Jonelle Street property, however no such intention was raised before the Tribunal, in part demonstrating the Applicant’s reluctance to cut ties with the property.
In considering whether any of the exceptions in section 11A of the Act apply to the classification of the Jonelle Street property as the Applicant’s principal home, the Tribunal does not accept the contentions made by the Applicant.
The Applicant contended that as the property at Jonelle Street is 2.002 hectares, the extended land use test applied and was not met, as such the property could not be considered his primary home.
The argument of the Applicant is not consistent with what the Tribunal considers to be the correct interpretation of sections 11A(3), (4), (6) and (7) of the Act. Those sections apply to extend the scope of a person’s primary home to also include adjoining land up to 2 hectares or more (depending on its effective use) used for primarily private or domestic purposes. These sections do not preclude a property from being a primary home due to the size of the associated land, rather they exclude in some circumstances the volume of land above 2 hectares from being exempted from inclusion in the assets test.
There is no evidence before the Tribunal that the Applicant has used the Jonelle Street Property for any purpose that could be considered to be outside a private or domestic purpose in association with the dwelling-house.
Consequently, given the land size at the Jonelle Street property is only slightly over 2 hectares, the Tribunal finds that sections 11A(3), (4), (6) and (7) of the Act do not preclude the property from being the Applicant’s primary home and it is unlikely to be of significant value so as to change the rate of pension that the Applicant was entitled to receive.
Section 11A(8) of the Act provides for situations where a person has left their principal home for the purpose of going into a care situation, this does not apply in the Applicant’s case.
The Applicant contended that he was absent from the Jonelle Street property not temporarily in accordance with sections 11A(9A) or 11(9B) of the Act. He contended that he had not ever established the property as his principal home because he was never there on any permanent basis.
Relevantly, section 11A(9) of the Act provides that during any period not exceeding 12 months or any longer period determined in accordance with sections (9A) or (9B) which a person is temporarily absent from their principal home, it will not cease being their principal home. Sections 11A(9)(a), (9A) and (9B) respectively of the Act deal with a person’s temporary absences from their principal home due to loss or damage or being absent from Australia.
Based on the evidence before it, the Tribunal considers that these provisions do not apply to the Applicant, firstly, he has not been absent from Australia and secondly, there has been no loss or damage to the property, the failure to complete the house is due to choices he himself has made. Section 11A(9A) of the Act is intended to deal with situations where a person normally resides in a principal home however is absent for short periods of time or where they are unable to reside there due to damage, largely going to circumstances where an alternative residence or principal home are established. As outlined above the Tribunal considers that absences from the property is only one factor and is not determinative in deciding whether the Jonelle Street property was the Applicant’s principal home.

The Tribunal notes that the Applicant did not advance a case in relation to the application of the financial hardship rule other than to state that the assets were unrealisable as they were connected to his family court proceedings with his former wife which had not been concluded. The Tribunal does not accept the Applicant’s contentions in this regard. The Orders were issued in relation to his family law proceedings by the Federal Magistrates Court in September 2011 and are awaiting action from the Applicant in order for them to have final effect. The Tribunal’s reading of the Orders does not indicate that there is a charge over the Alawa Street property or a direction as to how he deals with the proceeds of the Hunters Road property.
The Tribunal agrees with and accepts the contentions provided by the Respondent as outlined in paragraphs 78 and 79 above. Consequently, based on the evidence before it, in particular his interest in the Alawa Street property and funds held in his bank accounts, the Tribunal is not satisfied that the Applicant is experiencing financial hardship.
As the Tribunal has found that during the Debt Period the Applicant was a homeowner and that the financial hardship rules did not apply, it follows that he also received more Age Pension than he was entitled to for that period as the full value of the assets he held were not taken into account. By virtue of section 1223 of the Act the amount of the overpayment is a debt due to the Commonwealth.
The Tribunal notes that no arguments were put forward by the Applicant in relation to the calculation of the debt for the Debt Period, rather his contentions sought to lead to a conclusion that no debt existed. As such the Tribunal has no reason to question the debt calculation and accepts it as being correct.
Having found that a debt exists, the Tribunal must consider whether the debt must be repaid. As set out above it is generally expected that debts to the Commonwealth are recoverable however there are instances in which such recovery is put on hold (written off) or is no longer pursued (waived).
In providing his evidence the Applicant did not make any substantive contentions in relation to write off or waiver of the debt should the Tribunal determine that it existed for the Debt Period.
In circumstances where the debt raised has been fully recovered and based on the information before it, the Tribunal is satisfied that the requirements to write off the debt pursuant to section 1236 of the Act are not applicable to the Applicant.
The Applicant’s evidence in relation to reporting the details of the Hunters Road property to Centrelink was that he had advised them the property was sold and was asked to provide all relevant information but he had not done so. In the Applicant’s view until his family law proceedings are finalised, he will not know the relevant details. In such circumstances the Tribunal finds that the Age Pension debt arose due to the Applicant’s failure to provide relevant information to Centrelink and was not a result of administrative error on the Respondent’s part. As such, the Tribunal finds that the Applicant’s Age pension debt cannot be waived pursuant to section 1237A of the Act.
In considering whether the Applicant’s Age Pension debt should be waived due to special circumstances, the Tribunal has considered the Applicant’s circumstances as a whole and in light of the relevant precedents regarding what constitutes special circumstances set out above. While the Tribunal acknowledges the long and drawn-out family law proceedings that the Applicant has with his former wife, they of themselves do not constitute special circumstances.
The evidence before the Tribunal shows that the Applicant is not in financial hardship, rather he continues to hold the Alawa Street property, his share in the Jonelle Street property and has a sizeable amount of money in the bank from the proceeds of the sale of the Hunters Road property. The Tribunal notes that the Applicant’s view is that he is unable to deal with his properties or the proceeds of the Hunters Road property sale, however beyond that he did not provide any evidence or make submissions that he was in any form of financial hardship or that there were other matters that should be taken into consideration.
The Applicant’s ongoing family law proceedings, the use of the proceeds of the Hunters Road property sale and his ongoing ownership of the Alawa Street property are matters for him, there is no evidence of any clear legal impediments in relation to those assets before the Tribunal, especially given that the Orders were made by the Federal Magistrates Court in 2011.
In such circumstances, the Tribunal finds that the Applicant’s Age Pension debt cannot be waived pursuant to section 1237AAD of the Act.
CONCLUSION
For the purposes of the Act and the calculation of the Applicant’s rate of Age Pension, the Tribunal finds that during the period 20 March 2013 to 10 March 2017, being the Debt Period, he was a homeowner and that the financial hardship ruled did not apply.
Therefore, during the Debt Period, the Applicant’s assets included the funds held in his bank accounts and the full value of the Alawa Street property and as such were required to be taken into consideration in determining the rate of Age Pension he was entitled to receive.
Based on the evidence before the Tribunal, the Tribunal finds that the:
(a)Applicant was paid more than his correct amount of Age Pension for the Debt Period;
(b)Applicant’s Age Pension debt of $10,243.19 was correctly calculated and was a debt owed to the Commonwealth;
(c)Requirements of sections 1236, 1237A and 1237AAD of the Act are not met; and
(d)Applicant’s Age Pension debts are recoverable in full.
Accordingly, the decision under review is affirmed.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...............[SGD].........................................................
Associate
Dated: 21 March 2022

Date of Hearing:
1 June 2021 and 8 November 2021

Applicant:
By telephone on 1 June 2021
In person on 8 November 2021

Solicitors for the Respondent: Ms Jasmine Forsyth
Mills Oakley Lawyers

[2022] AATA 484

21 March 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Appeal

Date of Hearing:	1 June 2021 and 8 November 2021
Applicant:	By telephone on 1 June 2021 In person on 8 November 2021
Solicitors for the Respondent:	Ms Jasmine Forsyth Mills Oakley Lawyers