Brooks; Secretary, Department of Social Services and (Social services second review) - [2023] AATA 3629

Brooks; Secretary, Department of Social Services and (Social services second review) [2023] AATA 3629 (9 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0127
Re:Secretary, Department of Social Services
APPLICANT

AndDavid Brooks
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:9 November 2023
Place:Canberra

Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution that:
a.Mr Brooks has a debt in the amount of $80,619.10 in relation to the Carer Payment; and
b.there is no basis for the debt to be written off or waived.

........................[SGD]....................................
Member W Frost
Catchwords
SOCIAL SECURITY – alleged debt – carer payment – irrecoverable at law – special circumstances – sole administrative error – no write off or waiver of debt – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 ss 43, 37
Social Security Act 1991 ss 1237, 1237AA, 1237AAD
Social Security (Administration) Act 1999 s 43
Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Act 2003
Cases
Barnes and Secretary, Department of Social Services [2014] AATA 786
Beadle and Director-General of Social Security (1984) 6 ALD 1
Centkowska and Secretary, Department of Social Services [2016] AATA 342
Close and Secretary, Department of Social Services [2021] AATA 4678
Coral Ann Moss and Secretary, Department of Social Security [1995] AATA 242
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov and Centrelink [2003] FCAFC 133
Feneley and Secretary, Department of Family and Community Services [2003] AATA 496
Gerhardt and Department of Employment, Education and Training [1996] AATA 173
GGGD and Secretary, Department of Social Services [2020] AATA 802
Ghanem and Secretary, Department of Social Services [2022] AATA 160
Groves and Secretary, Department of Family and Community Services [2005] AATA 235
Klaverstyn and Secretary, Department of Family and Community Services [2003] AATA 71
Lyons and Secretary, Department of Family and Community Services and Anor [2007] AATA 1095
Moir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 48
Phelps and Department of Family and Community Services [2000] AATA 638
Re Lumsden and Secretary Department of Social Security [1986] AATA 228
Rosser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 475
Saab and Secretary, Department of Social Services [2021] AATA 2766
Secretary, Department of Education, Employment and Workplace Relations and Brookes [2008] AATA 501
Secretary, Department of Family and Community Services and Birgden [2003] AATA 67
Secretary, Department of Social Security v Coralie Hales (1998) 82 FCR 154
Secretary, Department of Social Services and Vella [2021] AATA 4051
Secretary, Department of Social Services and Waqar [2020] AATA 1493
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Stafford and Secretary, Department of Social Services [2018] AATA 2764
Stafford and Secretary, Department of Social Services [2018] AATA 2746
Tabije and Secretary, Department of Social Services [2014] AATA 778
Ward and Secretary, Department of Family and Community Services [2000] AATA 212
YKBJ and Secretary, Department of Social Services [2015] AATA 65
REASONS FOR DECISION
Member W Frost
9 November 2023
INTRODUCTION

This decision concerns the overpayment of the Carer Payment, totalling more than $80,000, to the Respondent, Mr David Brooks. The Applicant, the Secretary of the Department of Social Services, applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for review of a decision made by its Social Services and Child Support Division (AAT1).
The AAT1 set aside a decision made by an Authorised Review Officer (ARO), which found that Mr Brooks had a Carer Payment debt of $81,008.65 for the period from 20 October 2018 to 11 January 2022. The AAT1 set aside the ARO decision and substituted it with a decision that the debt be waived due to it being attributable solely to an administrative error made by the Commonwealth, pursuant to section 1237A of the Social Security Act 1991 (Act).
The Tribunal has considered all documents filed in this proceeding, including those lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the parties’ written and verbal submissions and evidence given at the Tribunal hearing. For the following reasons, the Tribunal has decided to set aside the AAT1 decision and to make a decision in substitution that Mr Brooks has a Carer Payment debt in the amount of $80,619.10 and there is no basis for the debt to be written off or waived.
ISSUES
The issues for determination by the Tribunal were:
(a)whether Mr Brooks was overpaid Carer Payment in the amount of $80,619.10 during the period from 24 October 2018 to 11 January 2022; and
(b)if so, whether that overpaid amount is a debt owing to the Commonwealth; and
(c)if so, whether all or part of the debt should be written off or waived.
BACKGROUND
Mr Brooks’ two children were both born in 2000.
In June 2015, Mr Brooks was granted the Carer Payment effective from 18 May 2015 for the care he provided to one of his children.[1] The notice from the Agency dated 9 June 2015 relevantly stated that information used to calculate Mr Brooks’ regular payment was his annual income of $68.58.[2] Under the heading, ‘Important Information’, the notice stated that Mr Brooks ‘can still receive Carer Payment for [one of his children] if you are doing paid or voluntary work, studying or training for up to 25 hours a week (including travel time to and from these activities)’.[3] Under the heading, ‘What you must tell us’, the notice relevantly stated that:[4]
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one) or the person(s) you care for.
This request is an information notice given under social security law.
…
·Income: Your or your partner’s gross income changes. Changes means your income starts, stops, recommences or amounts vary. Gross income includes, but is not limited to:
- Earnings: Employment income; if you voluntarily salary sacrifice earnings into a superannuation fund; paid leave such as annual, long service or sick leave, sick or accident insurance; or commissions, director’s fees and non-cash fringe benefits from your employer. [emphasis in original]
[1] Exhibit 1, pages 167-169.
[2] Ibid., page 167.
[3] Ibid.
[4] Ibid., page 168.
On 11 September 2018, Mr Brooks advised Centrelink (now known as Services Australia and referred to here as the Agency) that he was seeking supported accommodation for his children.[5] As a result, Mr Brooks acknowledged to the Agency that his children would no longer be in his care and he would no longer receive Carer Payment or Carer Allowance.[6] The service officer from the Agency informed Mr Brooks that this would happen once his care changed and Mr Brooks should advise when this occurred. The service officer further noted that Carer Allowance would be cancelled, but that Carer Payment may be payable for up to 14 weeks. Mr Brooks noted this change would be a transition and that he would be supporting his children even though they would be living elsewhere. In this regard, the Agency advised Mr Brooks that he could still receive Carer Payment if he was providing ‘constant care in the transition period’, even though they were living apart and that a separate form would need to be completed.[7]
[5] Exhibit 3.
[6] Ibid.
[7] Exhibit 3.
On 13 September 2018, the Agency sent Mr Brooks a notice regarding his fortnightly Carer Payment, which totalled $588.10, and listed his annual income as being $64.76.[8]
[8] Exhibit 1, pages 468-469.
On 5 October 2018, Mr Brooks lodged with the Agency a completed a form entitled ‘Carer Allowance Questionnaire – Carer not living with the person for whom care is being provided’ in relation to each of his children.[9] These forms stated that, starting from 20 October 2018, an independent organisation also provided personal care for Mr Brooks’ children and that he provided 24 hours of care for two days per week to each of his children in relation to various activities.[10]
[9] Exhibit 1, pages 50-59. See also Exhibit 2, page 534.
[10] Ibid.
On 10 October 2018, Mr Brooks accepted an offer of employment from a surveying company on a permanent full-time basis working 40 hours per week at an hourly rate of $40 per hour.[11]
[11] Exhibit 2, pages 535-541.
On 11 October 2018, the Agency sent Mr Brooks a notice regarding his fortnightly Carer Payment, which totalled $586.00, and listed his annual income as being $64.76.[12]
[12] Exhibit 1, pages 478-479.
On 19 October 2018, Mr Brooks commenced the relevant employment.[13] The company’s fortnightly paysheet, ending 23 October 2018, lists Mr Brooks as having worked on 19, 22 and 23 October 2018.[14]
[13] Exhibit 2, page 597.
[14] Ibid.
On 25 October 2018, the Agency sent Mr Brooks a notice regarding his fortnightly Carer Payment, which totalled $470.90 from 8 November 2018, and listed his annual income as being $64.76.[15] Under the heading, ‘Important Information’, and in relation to a debt repayment amount deducted from this payment, the notice stated that: ‘Your repayment amount may vary if there is a change in your circumstances (e.g. your income changes)’.[16] The notice also relevantly stated, under the heading ‘What you must tell us’, that:[17]
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one) or the person(s) you care for.
This request is an information notice given under social security law.
…
·Income: Your or your partner’s gross income changes. Changes means your income starts, stops, recommences or amounts vary. Gross income includes, but is not limited to:
- Earnings: Employment income...
·Start or stop work: Including unpaid or voluntary work, any form of profession, trade, business or self-employment. [emphasis in original]
[15] Exhibit 1, pages 485-487.
[16] Ibid., page 485.
[17] Ibid., page 486.
On 31 October 2018, the Agency sent Mr Brooks a notice regarding his fortnightly Carer Payment, which totalled $786.20 from 8 November 2018, and listed his annual income as being $64.76.[18]
[18] Ibid., pages 488-489.
On 11 August 2019, the Agency sent Mr Brooks a statement regarding his Carer Payment, which listed his regular fortnightly rate of payment from 15 August 2019 as being $794.70.[19] This document relevantly stated that:[20]
Please check the information on this statement carefully. If the details on this statement are correct there is no need for you to contact us. If your circumstances have changed please contact us within 14 days. This request is an information notice given under social security law…
Rate of payment – Your future rate of payment may change depending on the amount of your earnings, other income or assets… Note that all the information in this statement is from records we hold as at the issue date of the statement.
…
Note: Your Carer Payment is currently paid under the income test.
…
Earnings information – You need to tell us your earnings before tax and other deductions such as salary sacrifice. The amount must be for work performed in the Centrelink fortnight prior to notification and only the amount earned in the Centrelink fortnight, this may be different from your salary pay fortnight. [emphasis in original]
[19] Ibid., pages 491-493.
[20] Ibid., pages 491-492.
On 11 August 2019, Mr Brooks updated his address and accommodation details online with the Agency.[21]
[21] Exhibit 1, page 104.
On 19 May 2020, the Agency sent Mr Brooks a notice regarding his Carer Payment, which entailed an immediate payment for 6 May 2020 to 19 May 2020 in the amount of $811.40, a payment from 20 May 2020 to 2 June 2020 in the amount of $857.52, and a regular fortnightly payment from 18 June 2020 in the amount of $944.30.[22] The notice also relevantly listed Mr Brooks’ annual income as being ‘$9.25’, which it said was ‘used for calculating your regular payment’.[23] Under the heading, ‘Important Information’, the notice stated that: ‘Your repayment amount may vary if there is a change in your circumstances (e.g. your income changes)’.[24] The notice also relevantly stated, under the heading ‘What you must tell us’, that:[25]
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one) or the person(s) you care for.
This request is an information notice given under social security law.
…
·Income: Your or your partner’s gross income changes. Changes means your income starts, stops, recommences or amounts vary. Gross income includes, but is not limited to:
- Earnings: Employment income...
·Start or stop work: Including unpaid or voluntary work, any form of profession, trade, business or self-employment. [emphasis in original]
[22] Ibid., pages 495-497.
[23] Ibid., page 495.
[24] Ibid., page 495.
[25] Ibid., page 496.
On 21 July 2020, a service officer of the Agency contacted Mr Brooks in relation to his Carer Allowance and the forms he provided on 5 October 2018.[26] The service officer asked Mr Brooks whether he was only providing care two days per week.[27] Mr Brooks advised that may have been the intention but he does ‘things’ for his children ‘almost every day’ and confirmed he was providing care on a daily basis and it was a rare day that he did not provide care.[28] Mr Brooks further advised that during the week he assisted his children for one to two hours in the evening and for up to four hours each day on the weekends.[29]
[26] Exhibit 3. See also Exhibit 1, pages 50-59.
[27] Ibid.
[28] Ibid.
[29] Ibid.
On 20 April 2021, Mr Brooks updated his address and accommodation details online with the Agency.[30]
[30] Exhibit 1, page 108.
On 4 January 2022, the Agency issued a notice to Mr Brooks cancelling his Carer Payment effective from 1 January 2022, on the basis that his children’s income and asset details had not been provided.[31]
[31] Exhibit 1, pages 501-502.
On 4 January 2022, Mr Brooks provided the Agency with the required income and assets information in relation to his child, resulting in the restoration of his Carer Payment effective from 1 January 2022 at the rate of $967.50.[32] The notice also relevantly listed Mr Brooks’ annual income as being ‘$9.25’, which it said was ‘used for calculating your regular payment’.[33] The notice also stated, under the heading ‘What you must tell us’, that:[34]
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one) or the person(s) you care for.
This request is an information notice given under social security law.
…
·Income: Your or your partner’s gross income changes. Changes means your income starts, stops, recommences or amounts vary. Gross income includes, but is not limited to:
- Earnings: Employment income...
·Start or stop work: Including unpaid or voluntary work, any form of profession, trade, business or self-employment. [emphasis in original]
[32] Exhibit 1, pages 110 and 503-505.
[33] Ibid., page 503.
[34] Ibid., page 504.
On 10 January 2022, the Agency sent Mr Brooks a letter containing a ‘Reporting Statement’ ‘to report your employment income and other changes in circumstances on your reporting days’, the first fortnightly reporting day being 24 January 2022 for the period from 12 to 25 January 2022.[35] The Reporting Statement noted that it was ‘an information notice given under social security law’ and that Mr Brooks had ‘an obligation to provide us with all the information that is relevant to your payment’.[36] Under the heading ‘What you must tell us each reporting period’, the notice relevantly stated that:[37]
·If any circumstances have changed (see the list on the back of this page for details)
·If you were employed:
·The business where you worked.
·The gross employment income amount you were paid in the reporting period that relates to the day you need to report. The amount reported must be the amount paid before tax and other deductions such as salary sacrifice.
·The number of hours you worked. [emphasis in original]
[35] Ibid., pages 506-509.
[36] Ibid., page 508.
[37] Ibid., page 508.
Additionally, under the heading, ‘Changes you must tell us about’, the notice dated 10 January 2022 relevantly stated that:[38]
[38] Ibid., page 509.
You must tell us if you have or are likely to have any of the following changes in circumstances. You must tell us about any changes on your reporting day immediately following the change…
If you do not tell us about changes, you could have a debt. If you have a debt, you may have to pay all or some of the money back. If you do not tell us about employment income you have been paid, or if you provide false or misleading information about income, you may also have to pay a recovery fee.
Employment
·start, stop, recommence or change work in any form of profession, trade, business or self-employment
·income from employment changes (the gross amount paid goes up or down)
To help us pay you the right amount you should bring your payslips with you. [emphasis in original]
On 31 January 2022, Mr Brooks asked the Agency why he was ‘now being asked to report my income fortnightly’, and further stated that: [39]
Centrelink has stopped my 27^th January payment wanting my fortnightly income report. WHY???? Nothing has changed with my circumstance as being a Carer. Please remove the fortnightly report requirement.
[39] Exhibit 1, pages 60-61.
On 1 February 2022, Mr Brooks again asked the Agency why he was required to report his fortnightly income.[40] The service officer for the Agency informed Mr Brooks that if a carer is working then they are required to report their income. Mr Brooks said that he ‘must have had an exemption’, he enquired whether this was a ‘new rule’, and said ‘this is all new to me’.[41]
[40] Exhibit 3.
[41] Ibid.
On 23 February 2022, it was recorded that Mr Brooks advised the Agency that he had been working for the last two years and thought he no longer required Carer Payment because he was earning $80,000 annually.[42] The service officer from the Agency requested Mr Brooks provide all payslips since he had been working while receiving Carer Payment.[43]
[42] Exhibit 1, page 111.
[43] Ibid.
On 26 February 2022, Mr Brooks provided a payslip to the Agency for the fortnight ending 22 February 2022, together with a letter which relevantly stated that:[44]
When I changed from full-time care (24/7) to part-time and found employment, I went into the Bathurst Centrelink office and gave to the Centrelink customer staff officer my new employment…details, my anticipated salary and TFN.
Approximately once a year I receive a telephone call from Centrelink enquiring of my care hours for my sone and my employment.
I am unaware until January of this year of any change to the commitment between Centrelink & myself.
[44] Exhibit 1, pages 62-64.
On 23 May 2022, the Agency cancelled Mr Brooks’ Carer Payment on the basis that he spent ‘more than 25 hours a week away from care to undertake employment, voluntary work, study or training’.[45]
[45] Exhibit 1, pages 510-511.
On 24 May 2022, the Agency raised a debt against Mr Brooks for the Carer Payment in the amount of $81,008.65 for the period from 20 October 2018 to 11 January 2022.[46] The notice from the Agency to Mr Brooks stated that:[47]
We have reviewed your payments and found that we have paid you too much.
This has happened because: you were employed full-time, these payments should not have been made to you. You have been overpaid $81,008.66. We are, therefore required to recover this amount.
[46] Exhibit 1, pages 65-68.
[47] Ibid., page 65.

On 7 June 2022, Mr Brooks requested a review of the Agency’s decision to raise the Carer Payment debt.[48]
[48] Ibid., pages 69-72.
On 3 August 2022, an ARO affirmed the decision to raise and recover Mr Brooks’ Carer Payment debt.[49]
[49] Ibid., pages 73-75.
On 30 August 2022, Mr Brooks applied to the AAT1 for review of the ARO decision.[50]
[50] Ibid., pages 81-92.
On 29 November 2022, the AAT1 set aside the ARO’s decision and in substitution, decided that the whole of the debt must be waived pursuant to section 1237A of the Act.[51]
[51] Ibid., pages 7-10.
On 9 January 2023, the Secretary lodged an application to this Tribunal for review of the AAT1 decision.[52]
LEGISLATION
[52] Ibid., pages 1-6.
Carer Payment
Section 210 of the Act states that a person’s Carer Payment rate is ‘worked out using Pension Rate Calculator A at the end of section 1064’. Pursuant to section 1064 of the Act, the rate of Carer Payment is ‘worked out by dividing the annual rate calculated according to this Rate Calculator by 364’. Step 5 requires the application of ‘the ordinary income test using MODULE E below to work out the income reduction’. That Module E, at points 1064-E1 to 1064E-11, calculates the effect of a person’s ordinary income on their maximum payment rate. Note 2 of Module E relevantly provides that the application of the ordinary income test is affected by provisions concerning the general concept of ordinary income.
Income
Subsection 8(1) of the Act defines ‘ordinary income’ to mean ‘income that is not a maintenance income or an exempt lump sum’. Under that provision, ‘income’, in relation to a person, means an amount that is ‘earned, derived or received’ by the person for the person’s own use or benefit. An ‘income amount’ means valuable consideration, personal earnings, moneys or profits (whether of a capital nature or not).
‘Employment income’ is relevantly defined under subsection 8(1A) of the Act to mean ‘ordinary income’ of a person ‘that is for remunerative work’ undertaken by the person ‘as an employee in an employer/employee relationship’ and includes salary and wages.
Pursuant to section 1072 in Part 3.10 of the Act, a reference to a person’s ‘ordinary income’ for a period is a reference to the person’s ‘gross ordinary income’ from all sources for the period.
Pre-amendment provisions
Sections 1073B and 1073C of the Act were inserted by the Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Act 2003. The date of commencement was 20 September 2003. Accordingly, the provisions cited below were in force when Mr Brooks commenced relevant employment on 19 October 2018.
Section 1073B of the Act provided that if:
(a) a person is receiving a social security pension or a social security benefit; and
(b) the person's rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and
(c) the person has not reached pension age; and
(d) the person earns, derives or receives, or is taken, either by virtue of the operation of section 1073A or any other provision of this Act, to earn, derive or receive, employment income during the whole or a part of a particular instalment period of the person;
the person is taken to earn, derive or receive, on each day in that instalment period, an amount of employment income worked out by dividing the total amount of the employment income referred to in paragraph (d) by the number of days in the period.
As a result of subsection 1073B(1)(d) of the Act, and in a manner that is consistent with the definition of ‘ordinary income’ in section 8 of the Act, this provision relevantly applied once the Secretary (or here the Tribunal) was satisfied that a person had ‘earned, derived or received’ an amount of employment income during the whole or a part of a particular instalment period (or was taken to have done so by another provision of the Act). That is, once employment income was ‘earned, derived or received’ in a particular instalment period, section 1073B of the Act operated to deem the person to have ‘earned, derived or received’ an amount of employment income on each day in that instalment period, worked out by dividing the total amount of employment income by the number of days in the instalment period.
Section 1073C of the Act provided that:
If, in accordance with the operation of section 1073B, a person is taken to earn, derive or receive a particular amount of employment income on each day in an instalment period:
(a) the rate of the person’s employment income on a fortnightly basis for that day may be worked out by multiplying that amount by 14; and
(b) the rate of the person’s employment income on a yearly basis for that day may be worked out by multiplying that amount by 364.
Subsection 1073C(b) of the Act relevantly provided that if, in accordance with the operation of section 1073B, a person was taken to have ‘earned, derived or received’ a particular amount of employment income on each day in an instalment period then the rate of a person’s employment income on a yearly basis for that day could be worked out by multiplying that amount by 364. This provision has particular relevance in the context of the Carer Payment, where the relevant income test requires the Secretary (or here the Tribunal) to work out the amount of Mr Brooks’ ordinary income on a yearly basis.
Post-amendment provisions
Since 7 December 2020, the current section 1073A of the Act provides as follows:
(1) This section applies if:
(a) a person is receiving a social security pension or a social security benefit; and
(b) the person’s rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and
(c) one or more amounts of employment income, each of which is in respect of a particular period or periods (each period is an employment period), are paid in an instalment period of the person to or for the benefit of the person by the same employer.
…
(2) The person is taken to have received the employment income over a period (the assessment period) that consists of the number of days that is equal to the sum of the number of days in each employment period, where the assessment period begins on the first day of the instalment period in which the amounts of employment income are paid.
Example: On 3 June a person is paid $756 employment income for work the person performed in the period beginning on 9 May and ending at the end of 29 May. The number of days in the employment period is 21.
Assume the instalment period begins on 1 June. The person is taken to have received the $756 over the period beginning on 1 June and ending at the end of 21 June (a period of 21 days).
(3) Subject to subsection (4), for each day in the assessment period, the person is taken to have received an amount of employment income worked out by dividing the total amount of the employment income covered by paragraph (1)(c) by the number of days in the assessment period.
Example: To continue the example in subsection (2), the person is taken to have received $36 ($756/21) on each of the days in the period beginning on 1 June and ending at the end of 21 June.
(4) If the person is taken, under subsection (3), to have received employment income (the attributed employment income) during a part, but not the whole, of a particular instalment period, the person is taken to receive on each day in that instalment period an amount of employment income worked out by dividing the total amount of the attributed employment income by the number of days in the instalment period.
Example: To continue the example in subsection (2), for the instalment period beginning on 15 June and ending at the end of 28 June the person is taken, under subsection (3), to have received employment income during a part of that instalment period (15 June to 21 June). The person is taken to have received $252 ($36 x 7).
Under subsection (4), the person is taken to receive on each day in that instalment period an amount of employment income of $18 ($252/14).
Interpretation
(5) This section applies in relation to an amount of employment income paid on a day in an instalment period, whether or not the amount is received on that day.
(6) In applying subsection (2) in relation to one or more amounts of employment income paid by a particular employer in an instalment period, in working out the sum of the number of days in each employment period, if a day in an employment period overlaps with a day in another employment period, that day must only be counted once.
The current section 1073C relevantly provides that if a person is taken to receive a particular amount of employment income on each day in an instalment period, the rate of the person’s employment income on a yearly basis for that day may be worked out by multiplying that amount by 364. The income attribution provisions detailed above operate by reference to the concept of an instalment period. The phrase ‘instalment period’ has at all relevant times been defined in section 23 of the Act to mean, in relation to a person, a period that is determined under section 43 of the Social Security (Administration) Act 1999 (Administration Act) to be an instalment period of the person.
At all relevant times, subsection 43(1) of the Administration Act provided that a social security periodic payment was to be paid in arrears and by instalments relating to such periods (not exceeding 14 days) as the Secretary determined. Subsection 43(3) of the Administration Act provided that:
the amount that is to be paid to a person as an instalment of a social security periodic payment in relation to a period is the total of the amounts of the social security periodic payment (calculated by reference to the daily rate of payment applicable to each day) payable to the person for days in that period on which the social security periodic payment was payable to the person.
Subsection 43(6) provided that each of the periods determined under subsection 43(1) was an instalment period in relation to the social security periodic payment.
The cumulative effect of the aforementioned provisions is that Mr Brooks’ gross fortnightly employment income must be applied to the ordinary income test in Module E of section 1064 of the Act in order to determine his rate of Carer Payment.
As at 24 October 2018, being the commencement of the relevant debt period, a single Carer Payment recipient could receive a part pension if their income was less than $2,004.60 per fortnight and receive a full pension if their income was up to $172 per fortnight.[53]
[53] accessed on 30 October 2023.
Creation of a debt
Subsection 68(2) of the Administration Act relevantly states:
The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following:
(a) inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment…
Section 66A of the Administration Act also requires a social security recipient to inform the Agency if ‘an event or change of circumstances’ occurs that might affect the payment of a social security payment, within 14 days after the day on which the event or change occurs.
Subsection 1223(1) of the Act provides that if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
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.
Write off
Section 1236 of the Act relevantly provides that:
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and 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.
(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
(1C) For the purposes of paragraph (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.
Waiver
Section 1237 of the Act relevantly provides that, on behalf of the Commonwealth, the Secretary may waive the Commonwealth’s right to receive the whole or a part of a debt from a debtor ‘only in the circumstances’ described in sections 1237A and 1237AAD of the Act.
Administrative error
Subsection 1237A(1) of the Act provides that the Secretary ‘must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt’. The Note to this provision states that it ‘does not allow a waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor)’.
Special circumstances
Section 1237AAD of the Act states that the Secretary may waive the right to recover all or part of a debt if 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.
Tribunal’s jurisdiction
For completeness, the Tribunal notes that under section 179 of the Administration Act, an application may be made to the Tribunal for review of a decision of the AAT1 made under subsection 43(1) of the AAT Act. As previously mentioned in this decision, the AAT1 made a decision pursuant to subsection 43(1) of the AAT Act. This Tribunal therefore has jurisdiction in relation to the application made by the Secretary for review of the AAT1 decision.
CONTENTIONS
The Secretary
The Secretary contended that the AAT1 had erred in its decision and requested the Tribunal set aside that decision and in substitution decide that:
(a)Mr Brooks has a Carer Payment debt of $80,619.10 in relation to the period from 24 October 2018 to 11 January 2022, because he failed to advise the Agency of his employment income throughout the debt period and it was not taken into account when calculating that social security payment; and
(b)the debt is a debt owing to the Commonwealth; and
(c)there is no basis for this debt to be written off or waived.
Mr Brooks
Mr Brooks did not dispute that he received and was overpaid Carer Payment during the relevant period, from 24 October 2018 to 11 January 2022. However, Mr Brooks contended that the Agency had failed to record his employment details and income when he attended a Centrelink office in October 2018 and, due to this sole administrative error, the debt should be waived. Mr Brooks submitted that he acted in good faith, did not knowingly misreport or fail to report his income and sought a write off or waiver of the debts due to financial hardship, compassionate grounds and the sole administrative error of the Commonwealth. Accordingly, Mr Brooks requested the Tribunal affirm the AAT1 decision.
EVIDENCE
The Tribunal has considered the written statements of Mr Brooks dated 27 May 2023 and 6 October 2023.[54] Mr Brooks adhered to those statements and also gave evidence at the Tribunal hearing.
[54] Exhibit 2, pages 522-552 and Exhibit 4.
Mr Brooks told the Tribunal that he had been unaware of the ‘25 hour limit and the income limit’ in relation to the Carer Payment. He had spoken to Centrelink on numerous occasions and made ‘full disclosure’ regarding his prospective employment in 2018. Mr Brooks told the Tribunal he was, at that time, asked to return with evidence of employment when it was secured. He said this occurred. Mr Brooks said he went in to Centrelink and provided his offer of employment document, which contained his hours and pay. He acknowledged that his rate of pay increased over time. However, Mr Brooks said, Centrelink had ‘all the information upfront’ and he had ‘a number of phone calls subsequent to check on myself’, but not all of these had been recorded by Centrelink.
Mr Brooks told the Tribunal that Centrelink had made ‘a number of errors’ and he believed they had ‘everything required’, because he was providing a lot of care and the Carer Payment was applied towards his children. He did not think at any time that anything was ‘amiss’.
By way of cross-examination, Mr Brooks told the Tribunal that his children have high care needs and 24 hour supported care. They are participants in the National Disability Insurance Scheme (NDIS). However, between June 2015 and October 2018, Mr Brooks was their full-time carer. In October 2018, Mr Brooks’ children moved into a supported living arrangement and, on 10 October 2018, Mr Brooks accepted an offer of employment to work for a company as a registered surveyor.
Mr Brooks was referred to a notice from the Agency dated 9 June 2015, regarding the granting to him of Carer Payment effective from 18 May 2015.[55] He confirmed the residential address to which the notice was sent was correct. Mr Brooks was also referred in the notice to the annual income of $68.58 used to calculate his Carer Payment, the section headed ‘Important Information’, the statement that he could still receive that payment if he was working up to 25 hours a week and the requirement to inform the Agency of any listed changes within 14 days.[56] Mr Brooks told the Tribunal that he probably would have ‘skimmed’ the letter upon its receipt. He agreed that he was aware from June 2015, when he was granted Carer Payment, that he needed to inform Centrelink if he commenced working and, ‘in a general form’ of the requirement to disclose any changes to any income.
[55] Exhibit 1, pages 167-169.
[56] Ibid.
Mr Brooks was referred to the transcript of a telephone call he had with the Agency on 11 September 2018.[57] He accepted that at no point in this call did he inform the officer that he was intending to start work or to look for work. Mr Brooks told the Tribunal he would take the Secretary’s representative’s ‘word for it’. He later said he accepted that he did not during this call ‘mention work’, but its purpose was to inform the Agency that the children were moving out of his care and into supported accommodation.
[57] Exhibit 3.
Mr Brooks told the Tribunal that, ‘going by the Centrelink records’, he presumed that his attendance at a Centrelink office was on one of the dates his Centrelink record was accessed in October 2018. It was put to Mr Brooks that there is no other evidence that he provided a copy of his employment documents to Centrelink at that time. He told the Tribunal this was his whole contention: that Centrelink have not been ‘following through on information that was given to them’. Mr Brooks referred to a ‘two minute access to my file’ on one of the dates in October 2018. He further told the Tribunal that he recalled handing his employment forms to Centrelink, they were taken and he presumed they were going to be scanned into its system.

Mr Brooks was taken to a notice from the Agency dated 25 October 2018.[58] He agreed that this was after he contended he attended on Centrelink to provide his employment details. The notice listed his annual income used to calculate Carer Payment as being $64.76.[59] Mr Brooks was asked whether, as at 25 October 2018, the information was incorrect. He told the Tribunal that he ‘probably hadn’t even received my first payslip’, although he agreed it was ‘probably incorrect’. Mr Brooks said he would not have read the notice ‘too well’ when he received it and did not accept that he would have read it ‘fully’.
[58] Exhibit 1, pages 485-487.
[59] Ibid., page 485.
Mr Brooks agreed his evidence was that, just prior to receiving this notice, he had informed Centrelink about his employment income and earlier in October 2018 he had provided the Carer Questionnaire forms. It was then put to Mr Brooks that he would therefore have been interested to see how his Carer Payment would change after he had advised Centrelink of these changes to his circumstances. Mr Brooks referred to him being advised in a telephone call with the Agency that there was a ‘transition period’ of a number of weeks or months and so, ‘if you hand over everything you’re asked for, you’ve given them the information, you anticipate that it’s all been processed’.
Mr Brooks was referred to the Agency’s notices dated 13 September 2018 and 11 August 2019, which listed his fortnightly Carer Payment amount as being $588.10 and $794.70, respectively.[60] He agreed that, between September 2018 and August 2019, the rate of his Carer Payment increased. It was put to Mr Brooks that this was well after 14 weeks since he commenced employment and he was asked whether the continuation and increase in his Carer Payment after this time rang an alarm bell. Mr Brooks said it did not and referred to this being around the time he received a telephone call, which he said was either not recorded or not identified by the Agency, where he discussed ‘what I was doing’ and ‘thought that was a check to see whether I was fully entitled’. He conceded that he ‘glanced at’ the Agency’s notices and noted that the Secretary did not require him to report fortnightly. Mr Brooks said he gave the Agency ‘every piece of information as they required’ and he expected it to be ‘professional’.
[60] Exhibit 1, pages 468 and 491.
Mr Brooks agreed that his fortnightly employment income was not always the same and he did not contact the Agency to inform it of these fluctuations in employment. Mr Brooks also accepted, regardless of whether he read the notices in detail, that he received notices from the Agency regarding his reporting obligations.
The Secretary’s representative referred to Mr Brooks’ recollection of discussing with the Agency caring for his children after work and to a file note of the Agency from 11 August 2019.[61] Mr Brooks was asked whether he accepted that there was nothing in the file note recording that he told the Centrelink officer that he was working. Mr Brooks told the Tribunal that he had ‘quite a long discussion’ regarding the care of his children and they discussed him providing care ‘after work’. Mr Brooks contended that this file note and those from July 2020 were incorrect and referred to the latter being inconsistent with the transcript of that telephone call. As a result, Mr Brooks was taken to the transcript from 21 July 2020.[62] He accepted that the transcript does not record him telling the Centrelink officer that he was working.
[61] Exhibit 1, page 104.
[62] Exhibit 3.
Mr Brooks was also referred to the transcript of a telephone call he had with the Agency on 1 February 2022.[63] He agreed being told during this call that he needed to report his employment income. It was also put to Mr Brooks that he did not tell the officer that he had already informed Centrelink of his employment. He told the Tribunal that, ‘if the question’s not brought up, I don’t answer it’; he was ‘answering their questions’. Mr Brooks said ‘all this was totally new and out of the blue’, ‘separate to my understanding of what the situation was’, and ‘everything up to that point had been in good faith with Centrelink’. Mr Brooks said that, in 2016 or 2017, Centrelink established a process whereby he was not required to report fortnightly because he was a full-time carer for a parent and his children. He further stated that Centrelink was ‘fully aware of my situation’ in October 2018, because he had lodged the Carer Allowance Questionnaire for his children and he presumed ‘their protocol was correct’.
[63] Exhibit 3.
It was put to Mr Brooks that, up until the telephone call on 1 February 2022, he had never told Centrelink that he was working. He disagreed and told the Tribunal that he took his offer of employment in to Centrelink and an officer accepted it. He left the office thinking it ‘would be fully actioned’. Mr Brooks accepted that in the July 2020 telephone call he did not discuss work when he informed them he was caring for his children in the evenings. Mr Brooks’ recollection was that when he received telephone calls from the Agency he referred to work and caring for the children, and said that a recording of a telephone call from 11 August 2019, in which he fully disclosed his working situation, has not been found by the Agency.
Mr Brooks told the Tribunal that he is currently working for a mining company on a two-week-on-two-week-off roster, with the principal place of work being Adelaide and he returns home by flight to regional NSW. He said that a statement recording his gross income for the 2020/21 financial year as being over $150,000 would ‘probably be right’.[64] Mr Brooks also agreed that his net income is well over $100,000.[65]
[64] Exhibit 2, page 664.
[65] Exhibit 4.
Mr Brooks’ Statement of Financial Circumstances provided for this proceeding listed deductions of $1,500 per month for flights to his place of employment in Adelaide. Mr Brooks also listed $400 expenditure per month on electricity, which he confirmed was accurate. He also spends $145 per month on telecommunications, including a mobile telephone, landline and internet connection. Mr Brooks gives approximately $180 to charity each month and recently gave an additional amount of $1,500 towards one particular charitable cause. He told the Tribunal that he has to pay his mortgage, utilities, credit card debt, flights to work, car expenses and general expenditure for his children. He agreed that ‘a lot if it is discretionary’, such as charitable donations, but he would not cut this expenditure and will ‘do what I need to do’ for his children.
Mr Brooks told the Tribunal that his children are NDIS participants and receive ‘24/7 care’ and participate in ‘day programs’ three or four mornings each week. They have two carers when he is away and one when he is present. They receive a Disability Support Pension (DSP) which pays their mortgage.
CONSIDERATION
Was Mr Brooks overpaid Carer Payment?
There was no dispute between the parties that, between 24 October 2018 and 11 January 2022, a period of over three years, Mr Brooks was overpaid Carer Payment. Mr Brooks’ payslip and employment information details the employment income he earned during the relevant period from 24 October 2018 and 11 January 2022, which income was not taken into account when calculating his entitlement to, and rate of, Carer Payment.[66] As a result, Mr Brooks’ rate of Carer Payment was calculated based on incorrect information. The level of Mr Brooks’ employment income was such that he had no entitlement to any amount of Carer Payment during the period from 24 October 2018 to 11 January 2022. Based on all of the available evidence, pursuant to subsection 1223(1) of the Act, the Tribunal finds that Carer Payment was received by Mr Brooks when he was not entitled for any reason to obtain that benefit from 24 October 2018 to 11 January 2022 and the overpayment is a debt due to the Commonwealth.
[66] Exhibit 2, pages 597-705.
What is the amount of the debt?
The Tribunal has considered the available evidence to determine when Mr Brooks’ employment income was, pursuant to the Act, ‘earned, derived or received’ during the relevant time from 24 October 2018 to 11 January 2022. The Tribunal is satisfied that the Carer Payment debt amount of $80,619.10 is correct, based on the best available evidence of Mr Brooks’ employment income and the calculations made in accordance with the aforementioned legislative provisions applicable during the relevant time.[67]
[67] Exhibit 2, pages 706-739.
For the period from 19 October 2018 to 6 December 2020, Mr Brooks’ employment income was assessed using his daily earnings in each instalment period. Mr Brooks’ employer provided timesheets confirming the specific days he worked, the number of hours and the applicable hourly rate, such that the Tribunal is satisfied about the days Mr Brooks earned that income. In addition, for the period from 7 December 2020 to 11 January 2022, Mr Brooks’ employment income was recognised in accordance with the employment income attribution rules following the abovementioned amendments to the Act.
Accordingly, the Tribunal is satisfied that Mr Brooks was overpaid Carer Payment in the amount of $80,619.10 for the period from 24 October 2018 to 11 January 2022.
Should the debt be recovered?
In Secretary, Department of Social Security v Coralie Hales (1998) 82 FCR 154 at 155, Justice French (as he then was) espoused the principle that the ‘taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned’. His Honour continued as follows:
However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
Write off
As set out above in these reasons, subsection 1236(1A) of the Act provides that the Secretary (or here the Tribunal), may on behalf of the Commonwealth decide to write off a debt for a period of time. However, a debt may only be written off if the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown, or it is not cost effective for the Commonwealth to pursue action to recover the debt.
Subsection 1236(1B) of the Act sets out the circumstances when a debt is irrecoverable at law. Subsection 1236(1C) of the Act relevantly provides that if a debt is recoverable by means of deductions from a social security payment, the person is taken to have capacity to repay the debt unless recovery would cause ‘severe financial hardship’.
The meaning of ‘severe financial hardship’ has been considered in a number of Tribunal decisions.[68] In Feneley and Secretary, Department of Family and Community Services [2003] AATA 496 (Feneley) at [36], the Tribunal stated that:
Severe financial hardship is not defined in the Act. However, the meaning of the term, while not implying destitution goes beyond straightened financial circumstances and imports a need for the particular circumstances of a person to include suffering of a severe or extreme nature.
[68] Re Lumsden and Secretary Department of Social Security [1986] AATA 228; Secretary, Department of Family and Community Services and Birgden [2003] AATA 67; and Klaverstyn and Secretary, Department of Family and Community Services [2003] AATA 71.
The Tribunal finds that Mr Brooks’ debt is not irrecoverable at law. The evidence before the Tribunal does not establish that Mr Brooks is unable to repay the debt. Mr Brooks is employed and has had an annual taxable income of over $120,000 since the 2019/20 financial year.[69] There was no evidence that any of the circumstances set out in subsection 1236(1B) were applicable. As set out above, subsection 1236(1C) of the Act relevantly provides that if a debt is recoverable by means of deductions from a social security payment, the person is taken to have capacity to repay the debt. Mr Brooks is not presently in receipt of any income support payments. Mr Brooks would likely be able to negotiate with the Agency the rate of recovery of the debt and enter into a payment plan to repay the debt in instalments over time. Accordingly, based on the available evidence before the Tribunal, while acknowledging that repayment of the debt will put Mr Brooks under financial strain, the recovery of the debt would not cause him ‘severe financial hardship’, as it is understood pursuant to Feneley and other Tribunal decisions mentioned above, and it is cost effective for the Agency to recover the debt.
[69] Exhibit 2, pages 637 and 664 and Exhibit 1, page 112.
The Tribunal is therefore not satisfied that there are grounds to write off the debt. In this regard, the Tribunal finds that the debt cannot be written off under section 1236 of the Act because the debt is not irrecoverable at law; Mr Brooks has capacity to repay the debt; his whereabouts are known and repayment of the debt would not result in him experiencing ‘severe financial hardship’.
Waiver
Sole administrative error
Under subsection 1237A(1) of the Act, the Secretary (or here the Tribunal), must waive the right to recover a debt that is ‘attributable solely to an administrative error made by the Commonwealth’ if the debtor received the payments the subject of the debt in good faith.
In Gerhardt and Department of Employment, Education and Training [1996] AATA 173 the Tribunal stated at [36] that the word ‘solely’ was to be given its ordinary meaning, being ‘only’ and ‘to the exclusion of all else’. To this end, the duty to waive a debt does not extend to those debts attributable to errors or other factors independent of any administrative error made by the Commonwealth.
In this regard, the Tribunal in Ward and Secretary, Department of Family and Community Services [2000] AATA 212 at [47], referring to the Federal Court’s judgment in Gerhardt v Secretary, Department of Employment, Education and Training [1997] FCA 815, said ‘solely’ in subsection 1237A(1) of the Act:
… means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error.
Additionally, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at [35]-[37], the Full Federal Court of Australia said of ‘solely’ in subsection 1237A(1) of the Act:
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 …
This is the meaning of the phrase which the primary judge purported to adopt and apply. He drew attention to the fact that the decision to issue the notice was a discretionary decision. This necessarily means that there was more involved in that decision than merely identifying that the pre-conditions for making it had been met. Although there was no evidence before either the Tribunal or the primary judge identifying the reasons for that discretionary decision, nevertheless the primary judge was correct to conclude that ‘the giving of the notice was not itself an administrative error’, or at least there was no evidence that it was. Implicit within this conclusion is an acceptance by the primary judge not only that the legal pre-conditions for the issue of the notice were present, but also that there was no administrative error in respect of the policy considerations involved in that discretionary decision …
Further, it is inappropriate to use a ‘but for’ test to determine a sole cause. A ‘but for’ test is a test to determine a case – it is not a test for determining the sole cause: see the comparison drawn by Callinan J between the ‘but for’ test and ‘solely caused’ in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 192 ALR 1 at 51-52 [210]. Indeed, even as a test to determine a cause, it is too broad for some purposes such as to establish causation in tort: see Gummow and Kirby JJ in Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449 at 501 [211].
The Tribunal finds that the debt cannot be solely attributed to any error made by the Commonwealth. The Tribunal is satisfied that the reason for the debt was because the Agency was not advised of changes to Mr Brooks’ employment and employment income for the purposes of calculating his entitlement to Carer Payment.
From the time Mr Brooks commenced receiving Carer Payment in 2015, he was sent notices under subsection 68(2) of the Administration Act stating that the amount of his Carer Payment was calculated based on his reported annual income of amounts less than $100 and advising him that he was required to advise of any changes, including in relation to securing employment or the earning of income. For example, on 25 October 2018, at the commencement of the relevant period, the Agency sent Mr Brooks a letter relevantly stating that the information used to calculate his regular payment was an annual income of $64.76 and that any changes to his income or commencement of work must be reported within 14 days.[70] Another notice issued by the Agency in August 2019 relevantly required Mr Brooks to ‘tell us your earnings before tax and other deductions’ and noted that his rate of Carer Payment ‘may change depending on the amount of your earnings’.[71] In May 2020, the Agency issued another notice which stated that Mr Brooks’ Carer Payment was calculated using an annual income of $9.25.[72] As set out above, Mr Brooks’ actual annual income was significantly higher than these amounts.[73]
[70] Exhibit 1, pages 485-487.
[71] Exhibit 1, pages 491-492.
[72] Ibid., page 495.
[73] Exhibit 2, pages 619, 637 and 664 and Exhibit 1, page 112
Despite these notices, there was no independent corroborating evidence that Mr Brooks informed the Agency that he had commenced employment or the amount of the associated employment income. As a result, Mr Brooks continued to receive Carer Payment between 24 October 2018 and 11 January 2022 when he was not entitled to this social security payment.
In October 2018, Mr Brooks was sent a notice regarding his obligation to report changes to his circumstances.[74] Despite Mr Brooks beginning work with a new employer in that same month, there was no independent evidence before the Tribunal that the Agency was advised about his change of circumstances, including his fortnightly income amounts.
[74] Exhibit 1, pages 485-487.
Mr Brooks contended that he advised the Agency of his employment, his hours and pay rate in October 2018, but conceded that he never advised the Agency of any changes to his employment income throughout the debt period from late 2018 to early 2022.
Mr Brooks submitted that, on either 12, 20 or 24 October 2018, he attended a Centrelink office and handed over his offer of employment which listed his hours and pay rate.[75] This submission was largely based on the Agency’s Customer Record Access Monitor (CRAM) report, which showed his record was accessed on these dates.[76] However, there was no corroborating evidence that Mr Brooks attended Centrelink or advised of his employment or employment income on these dates. The Agency had no record of any file notes being made in relation to Mr Brooks on these dates and there were no documents scanned to his file maintained by the Agency on any of these dates. Moreover, there was no evidence the access to Mr Brooks’ record in the CRAM report related to him advising of his employment or income. The Secretary submitted, and the Tribunal accepts based on its own reading of these records, that the Employment Income Summary screen was not accessed on any of these dates. In the absence of this screen being accessed, the Tribunal is satisfied that the Agency was not advised of Mr Brooks’ employment or income on those dates. In this regard, based on the available evidence, the Tribunal does not accept that Mr Brooks informed the Agency of his employment or income in 2018 or at any time until 2022.
[75] Exhibit 2, page 524.
[76] Exhibit 1, pages 96-97.

Furthermore, even if Mr Brooks did advise the Agency of his employment on these dates (which the Tribunal has found is not established on the evidence), as set out above, Mr Brooks was sent a notice on 25 October 2018, being soon after his apparent disclosure on 12, 20 or 24 October 2018, which notice showed his Carer Payment was being calculated based on an annual income of $64.76.[77] This notice required Mr Brooks to correct any incorrect details set out in that notice. However, there was no evidence that Mr Brooks contacted the Agency to address the incorrect annual income in the various notices sent to him by the Agency. Additionally, Mr Brooks conceded that he did not inform the Agency of his changes in income throughout the relevant period, as required pursuant to the notices Mr Brooks confirmed he received from the Agency. The Tribunal is satisfied that this failure alone would amount to Mr Brooks being at least partly responsible for the overpayment to him of Carer Payment and therefore make the debt not ‘attributable solely’ to an administrative error made by the Commonwealth.
[77] Exhibit 1, pages 485-487.
Mr Brooks also contended that, in telephone calls with the Agency on 11 August 2019 and 21 July 2020, he discussed providing care to his children after work and that it was inconceivable his employment was not disclosed during these calls.[78] However, there is no corroborating evidence that this occurred. To this end, the Agency’s file note disclosed that the contact on 11 August 2019 related to Mr Brooks updating his address and accommodation details online and not by telephone.[79] Additionally, in the transcript of the call recording of 21 July 2020, while Mr Brooks referred to providing care to his children in the evenings during the week, he did not disclose to the Agency that he was employed or the amount of his employment income.[80]
[78] Exhibit 2, page 524.
[79] Exhibit 1, pages 104-105.
[80] Exhibit 3.
The Tribunal is satisfied that the Carer Payment debt arose due to Mr Brooks’ failure to advise the Agency that he had commenced employment and his failure to advise of his employment income or any changes to his employment income as required under subsections 66A(2) and 68(2) of the Administration Act. There was no corroborating evidence before the Tribunal of the Agency being advised of Mr Brooks’ employment and employment income until 2022. On 10 January 2022, Mr Brooks was required to report fortnightly regarding any change in circumstances, such as employment and income.[81] On 1 February 2022, Mr Brooks telephoned the Agency because he was ‘supposed to be getting a carers payment, but it hasn’t come through’.[82] He further stated that ‘you don’t have to report for the Carers Pension’.[83] When Mr Brooks was then informed by the Agency’s officer that he was required to report his earnings because he worked, the following exchange occurred:[84]
Mr Brooks: Oh. Okay. Well, up until just before this happened, I must have had an exemption to – from that.
Officer: No. Nobody gets an exemption from that…
Mr Brooks: Oh. Okay. All right. Um. Okay. All that’s new to –
…
Mr Brooks: …Is this a new rule?
Officer: No.
…
Mr Brooks: …this is all new to me. I presume I go onto Centrelink, somehow, to report?
[81] Exhibit 1, pages 506-509.
[82] Exhibit 3.
[83] Ibid.
[84] Ibid.
In the Tribunal’s view, the above exchange undermines Mr Brooks’ contention that in 2018 he had informed the Agency of his employment and prospective income. The transcript of the call in February 2022 indicates that Mr Brooks thought that he was exempt from reporting his income, or that this was a new rule, and that he then sought confirmation about how this reporting should be done. If, as Mr Brooks submitted to the Tribunal, he had informed the Agency in 2018 of his employment, the Tribunal considers that he would have made such reference in his correspondence with the Agency when his entitlement to Carer Payment was being scrutinised by the Agency. There was no evidence before the Tribunal that this occurred. It was only following this call with the Agency that Mr Brooks referred to having informed it in 2018 of his employment.
Moreover, it was Mr Brooks’ responsibility to read all of the Agency’s notices carefully and advise the Agency if he commenced employment or if his income changed. In this regard, it is well established that there is no responsibility on the Agency to ‘police’ the behaviour of social security recipients to ensure that they are being paid the correct entitlements.[85] Mr Brooks was sent information notices advising him of the obligation to inform the Agency of changes to his circumstances that could affect the calculation of his Carer Payment. Mr Brooks acknowledged to the Tribunal that he received these notices. Mr Brooks failed to comply with his reporting obligations over a substantial period of time, which led to the accumulation of the Carer Payment debt. The onus to read such notices and update the Agency lay with Mr Brooks.[86]
[85] See Saab and Secretary, Department of Social Services [2021] AATA 2766 at [66]; Groves and Secretary, Department of Family and Community Services [2005] AATA 235; Phelps and Department of Family and Community Services [2000] AATA 638; Lyons and Secretary, Department of Family and Community Services and Anor [2007] AATA 1095; Coral Ann Moss and Secretary, Department of Social Security [1995] AATA 242; Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746; GGGD and Secretary, Department of Social Services [2020] AATA 802 at [79]-[85]; Moir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 48 at [79].
[86] See Secretary, Department of Social Services and Vella [2021] AATA 4051 at [70].
In Barnes and Secretary, Department of Social Services [2014] AATA 786, the Tribunal stated at [44]-[50] that:
Sole administrative error does not require that Centrelink made no mistakes, but that the debtor made no contribution to the error…Ms Barnes seems to have treated the information notices, whether she did not read them, read them cursorily or read then carefully, with blithe disregard. After Centrelink began to send them out in September 2010 Ms Barnes became a contributor to the error.
Ms Barnes’s argument treats the receipt of Centrelink benefits as a form of ‘set and forget’ arrangements in which the onus of calculating and delivering benefits was entirely on Centrelink’s shoulders. That is not how the social security system operates: it is a system of mutual entitlements and obligations. A person may establish that they have entitlements, but the entitlements come with obligations, central among which is the obligation to keep Centrelink informed. Ms Barnes did not do so – indeed she seems to have made no effort at all to do so – and the overpayment is the result of that inactivity.
I find therefore that the error was not the sole administrative error of Centrelink from the time of the first information notice…
For these reasons, the Tribunal finds that Mr Brooks’ failure to inform the Agency of his employment and income was the cause of the overpayment of the Carer Payment and the Tribunal is therefore not satisfied that any part of the debt is ‘attributable solely’ to any administrative error made by the Agency on behalf of the Commonwealth. In this regard, the Tribunal has regularly found that there can be no sole administrative error on the part of the Commonwealth in circumstances where a person has failed to comply with their notice obligations.[87]
[87] See, for example, Stafford and Secretary, Department of Social Services [2018] AATA 2764 at [78]; Ghanem and Secretary, Department of Social Services [2022] AATA 160 at [41]-[42]; and Close and Secretary, Department of Social Services [2021] AATA 4678 at [25] and [31].
The Tribunal is satisfied that the debts are attributable to Mr Brooks’ failure to report changes to the Agency regarding his employment and employment income. Mr Brooks failed to comply with his obligation to keep the Agency informed of his circumstances and comply with section 66A and subsection 68(2) of the Administration Act. In those circumstances, the Tribunal does not accept that the debt is attributable ‘solely’ to any administrative error made by the Agency. The Tribunal notes that earlier Tribunal decisions have found accordingly in similar circumstances.[88]
[88] Secretary, Department of Education, Employment and Workplace Relations and Brookes [2008] AATA 501 at [12]-[14]; Rosser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 475 at [32]-[33]; Tabije and Secretary, Department of Social Services [2014] AATA 778 at [62]-[64]; Barnes and Secretary, Department of Social Services [2014] AATA 786 at [48]; YKBJ and Secretary, Department of Social Services [2015] AATA 65 at [48]-[51]; Centkowska and Secretary, Department of Social Services (Social services second review) [2016] AATA 342 at [25]-[28]; and Secretary, Department of Social Services and Waqar [2020] AATA 1493 at [37] and [40]-[42].
As set out above in these reasons, the AAT1 found that Mr Brooks’ debt was attributable solely to administrative error by the Agency.[89] This was based on the AAT1 being satisfied that, because Mr Brooks had filed a Carer Allowance Questionnaire for each of his children on 5 October 2018, this corroborated his testimony that he also informed the Agency of his employment at this time. For the reasons set out above in this decision, the Tribunal is not so satisfied. In addition, while the Agency’s file note from the interaction on 5 October 2018 refers to the lodgement of these questionnaires, there is no recording of any other information having been provided by Mr Brooks, including in relation to his prospective employment. Furthermore, the Tribunal is not satisfied that a Child Support decision on 30 October 2018 corroborated Mr Brooks’ evidence that in 2018 he informed the Agency of his employment. It merely evidences the making of that child support decision based on the relevant percentage of care of the children, not Mr Brooks’ employment arrangements, and Mr Brooks’ written correspondence from 5 October 2018 to that agency also did not disclose his impending employment.[90] Accordingly, the Tribunal respectfully disagrees with the AAT1 finding that, as at 5 October 2018, the Agency was aware that Mr Brooks’ Carer Payment should have been cancelled and it failed to act through administrative oversight solely attributable to the Commonwealth. The Tribunal considers that such a finding is not sustainable upon consideration of all of the available evidence.
[89] Exhibit 1, pages 7-10.
[90] Exhibit 2, page 534.
As a result of the above findings, the Tribunal is satisfied that the debt cannot be waived under section 1237A of the Act, because the debt is not ‘attributable solely’ to an administrative error made by the Commonwealth.
As previously set out in this decision, section 1237A of the Act, providing for waiver of a debt due to sole administrative error, also requires that the person received the relevant payment that gave rise to the debt in ‘good faith’. Based on the Tribunal’s above finding that no part of the debt is attributable solely to an administrative error made by the Commonwealth, there is no requirement to consider whether Mr Brooks received the payments in good faith and the Tribunal makes no findings in that regard.
Special circumstances
As set out above in this decision, pursuant to section 1237AAD of the Act, the Secretary (or here the Tribunal), may waive the right to recover all or part of a debt if satisfied of the following cumulative elements: the debt did not result from the debtor ‘knowingly’ making a false statement or ‘failing or omitting to comply’ with a provision of the Act; and there are ‘special circumstances (other than financial hardship alone) that make it desirable to waive’; and it is ‘more appropriate to waive than to write off the debt or part of the debt’.
The term ‘special circumstances’ is not defined in the Act. However, it was considered by the Tribunal in Beadle and Director-General of Social Security (1984) 6 ALD 1 at [12] to mean circumstances that are ‘unusual, uncommon or exceptional’. Although the circumstances need not be unique, they ‘must have a particular quality of unusualness that permits them to be described as special’ and be ‘markedly different from the usual run of cases’.[91] In this regard, the Tribunal in Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 (Davy) at [80], stated that the provision ‘necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system’. Furthermore, in Dranichnikov and Centrelink [2003] FCAFC 133 at [66], the Full Federal Court stated that ‘[t]o some extent the question whether there were special circumstances must depend on how it came about that the error occurred’.[92]
[91] Beadle and Director-General of Social Security (1984) 6 ALD 1
[92] The term ‘special circumstances’ has been considered in numerous other proceedings, including: Groth and Secretary Department of Social Security (1995) FCA 1708; Re Ivovic and Director General of Social Services (1981) 3 ALN N95; and Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25.
Based on the evidence before the Tribunal, it is not satisfied that Mr Brooks’ circumstances are sufficiently ‘unusual, uncommon or exceptional’ or otherwise ‘special’ to warrant exercise of the discretion in section 1237AAD of the Act to waive all or part of the debt.
Mr Brooks’ two adult children are NDIS participants and it was said that they receive constant care, together with the DSP. Mr Brooks is not in receipt of a social security payment. He is employed and earns a net annual income of more than $100,000. While he has substantial everyday expenses, such as a mortgage, utility bills and the cost of flights to his work base, Mr Brooks also makes generous donations to charitable causes and acknowledged that he has some discretionary expenditure. For completeness, and noting that financial hardship alone is not sufficient to meet the test of ‘special circumstances’, based on the available evidence, the Tribunal is satisfied that Mr Brooks is in a better financial position than recipients of social security payments, primarily because his present employment income means that he is not in receipt of any such payments.
The Tribunal acknowledges that repayment of the Carer Payment debt, even in instalments over a long period of time, adds another financial burden upon Mr Brooks. It is accepted by the Tribunal that this will have an impact on him and his children. However, in totality, and compared to the circumstances of people in receipt of, or reliant on, income support payments, the Tribunal is not satisfied that Mr Brooks’ circumstances are distinguishable to the extent that they could be considered ‘special’, enlivening waiver of all or part of the debt under the Act. Having considered Mr Brooks’ circumstances and submissions, the Tribunal is not satisfied that his circumstances would make it unfair, unreasonable or unjust for the debt to be recovered by the Commonwealth.
The requisite elements in section 1237AAD of the Act are cumulative, such that each of the three limbs must be satisfied to enliven the discretion to waive all or part of a debt. The Tribunal has found that one of those limbs has not been met, being the requirement that there are ‘special circumstances’ that make it desirable to waive the debt. Accordingly, the Tribunal is not required to consider the two other limbs in section 1237AAD, one being whether Mr Brooks ‘knowingly’ made a false statement or representation or failed or omitted to comply with a provision of the Act. As a result, the Tribunal does not make any findings in relation to those particular matters.
For the above reasons, the Tribunal finds that the debt owed by Mr Brooks should not be waived pursuant to section 1237AAD of the Act.
CONCLUSION & DECISION
The Tribunal has found that, from 20 October 2018 to 11 January 2022, Mr Brooks was overpaid Carer Payment in the amount of $80,619.10, which debt is owing to the Commonwealth. The Tribunal is not satisfied that the debt should either be written off or waived under the Act. In accordance with Davy, the Tribunal is satisfied that there is no injustice in requiring Mr Brooks to repay monies of which he has had the benefit but not the entitlement.[93]
[93] At [80].
Accordingly, pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution that:
(a)Mr Brooks has a debt in the amount of $80,619.10 in relation to the Carer Payment; and
(b)there is no basis for the debt to be written off or waived.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

.....................[SGD]...................................................
Associate
Dated: 9 November 2023

Date of hearing: 27 October 2023

Date final submissions received:

25 September 2023

Solicitor-Advocate for Applicant:

Mr Matthew Sheedy, Sparke Helmore Lawyers

Respondent:
In person

Date of hearing:	27 October 2023
Date final submissions received:	25 September 2023
Solicitor-Advocate for Applicant:	Mr Matthew Sheedy, Sparke Helmore Lawyers
Respondent:	In person