Butler and Secretary, Department of Social Services (Social services second review)
[2024] AATA 1387
•4 June 2024
Butler and Secretary, Department of Social Services (Social services second review) [2024] AATA 1387 (4 June 2024)
Division:GENERAL DIVISION
File Number(s): 2022/4816
Re:Janice Butler
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:4 June 2024
Place:Sydney
Pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Reviewable Decision is varied such that the Second Debt owed by the Applicant to the Commonwealth is in the amount of $12,592.44 for the debt period 6 August 2014 to 20 June 2017, and the interest charge imposed on the Second Debt is varied accordingly. The Reviewable Decision is affirmed in relation to the First and Third Debts and the interest charge imposed on the First Debt.
.....................[sgd]...................................................
Senior Member Dr Linda Kirk
CATCHWORDS
SOCIAL SECURITY – application of ordinary income test, partner’s income, proceeds from sale of assets, investment returns, personal loans – failure to disclosed change in circumstances – combined assets – overpayment of entitlements – multiple debts due to commonwealth – “Special circumstances,” “severe financial hardship”, “capacity to pay”, “administrative error”, “good faith”- no reason to waive debt – applicant actions/inaction the cause of debt, personal responsibility – turning ‘a blind eye’ to what was apparent – variation of interest charge – Decision Affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration Act) 1999 (Cth)
Student Assistance Act 1973 (Cth)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) FCA 25
Beadle v Director-General of Social Security (1985) 60 ALR 1225
Beadle v Director-General of Social Security (1985) 7 ALD 670
Beadle v the Director-General of Social Security (1984) 6 ALD 1
Bullivant and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 674
Davy and Secretary, Department of Employment and Workplace Relations (2007) AATA 1114
Dranichnikov v Centrelink (2003) FCAFC 133
GGGD and Secretary, Department of Social Services [2020] AATA 802
Godfrey and Secretary, Department of Social Services [2023] AATA 1817
Groth v Secretary, Department of Social Security (1995) FCA 1708
Hammelswang and Secretary, Department of Social Services [2015] AATA 905.
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 192 ALR 1
Ivovic and Director-General of Social Services (1981) 3 ALN N95
Jazazievska v Secretary, Department of Family and Community Services [2000] FCA 1484
Judd and Secretary, Department of Social Services [2022] AATA 727
L and Secretary, Department of Social Security (1995) 38 ALD 176 (1995) 38 ALD 176 (13 June 1995)
Lyall and Secretary, Department of Social Services (Social services second review) [2023] AATA 3356 (17 October 2023)
Massoud and Secretary, Department of Social Services [2017] AATA 1366
Moir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 48
Panacci v Secretary, Department of Employment and Workplace Relations [2008] AATA 30.
Purches and Secretary, Department of Family and Community Services [2005] AATA 267
Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225
Scott Andrew Gerhardt and Kerrie Leanne Gerhardt and Department Employment, Education and Training [1996] AATA 173 (17 May 1996)
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince [1997] 152 ALR 127
Secretary, Department of Social Services v Hales (1998) 82 FCR 154
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 (3 September 2003)
Spence and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 25
Stafford and Secretary, Department of Social Services [2018] AATA 2746
Strange and Secretary, Department of Employment & Workplace Relations (2006) AATA 239
Stubbs and Secretary, Department of Family and Community Services [2003] AATA 729 (1 August 2003)
Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449
SECONDARY MATERIALS
Guide to Social Policy Law
REASONS FOR DECISION
Senior Member Dr Linda Kirk
4 June 2024
BACKGROUND
On 16 May 2014, Janice Butler (‘the Applicant’) was granted the aged pension (‘AP’).
On 28 February 2020, Centrelink (‘the Agency’) made the following decisions (‘the Debt decisions’):
1)to raise an AP debt against the Applicant in the amount of $46,355.47 for the period 1 July 2014 to 19 November 2019. This debt was raised because assets and income (excluding the wages of Peter Butler (‘the Applicant’s husband’)) from Murison Holdings Pty Ltd (‘Murison’) had not been taken into account when AP payments were made to the Applicant during this period (‘the First Debt’).[1]
2)to raise an AP debt of $27,121.64 for the period 25 June 2014 to 29 June 2017 because the correct amount of the Applicant’s husband’s company wages from Murison had not been taken into account when AP payments were made to the Applicant during this period (‘the Second Debt’);[2] and
3)to raise an AP debt of $2,231.50 for the period 15 July 2019 to 25 February 2020 due to deemed income from the Applicant’s bank balances following settlement of the sale of the family home (‘the Beecroft property’) had not been taken into account when AP payments were made to the Applicant during this period (‘the Third Debt’).[3]
[1] T18, 250-2; T26, 366.
[2] T19, 253-5.
[3] T20, 256-8.
On 27 April 2020, the Applicant sought review of the Debt decisions.[4] On 29 May 2020, the Applicant withdrew her request for review of the Debt decisions.[5]
[4]T29, 428; T37, 852.
[5] T29, 432.
On 17 December 2021, the Applicant lodged an application for review of the Debt decisions with the Social Services and Child Support Division of the Administrative Appeals Tribunal (‘AAT1’).[6] This resulted in the resumption of an internal review by an Authorised Review Officer of the Agency (‘the ARO’).
[6] T24, 353-9.
On 4 January 2022, the ARO varied the Debt decisions by reducing the total debt from $75,688.61 to $75,362.46 (‘the ARO Decision’). In doing so, the ARO affirmed the First and Third debts but reduced the Second debt to $26,795.49 for the period 1 August 2014 to 29 June 2017.[7]
[7] T26, 363-9.
On 11 April 2022, AAT1 affirmed the ARO Decision (‘the Reviewable Decision’).[8]
[8]T2, 3-9.
On 9 June 2022, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[9]
[9]T1, 1-2.
On 14 June 2022, the Tribunal issued notice advising of the Applicant’s application including an extension of time application to lodge an application for a review. The Tribunal granted an extension of time on 27 June 2022.
The matter was heard by the Tribunal at a hearing conducted via Microsoft Teams on 3 April 2024. The Applicant and her husband gave evidence and were cross-examined at the hearing.
LEGISLATIVE FRAMEWORK
The relevant legislation and policy are contained in:
·Social Security Act 1991 (Cth) (‘the Act’);
·Social Security (Administration Act) 1999 (Cth) (‘the Administration Act’); and
·Guide to Social Policy Law (‘the Guide’).
Claim for Age Pension and Pension Bonus
Section 16 of the Administration Act provides that a person makes a claim for a social security payment by lodging a written claim in accordance with a form approved by the Respondent.
In accordance with section 17 of the Administration Act, a claim for Pension Bonus (‘PB’) must be lodged at the same time as a claim for AP:
17 Special requirements regarding claims for pension bonus
(1) A claim for pension bonus must be:
(a)attached to a proper claim made by the person for age pension and lodged together with that claim for age pension; or
(b) made in accordance with an invitation under subsection (3); or
(c)the subject of a determination under subsection (5).
(2) A claim for pension bonus may be made even though it is not certain whether the person will start to receive an age pension at or after the time when the person makes the claim. The claim has effect as a claim that is contingent on the person receiving an age pension.
Rate of Age Pension
The rate of the age pension is determined in accordance with section 1064 of the Act using the Pension Rate Calculator. Under this rate calculator, the income test, known as the ‘ordinary income test’, (Module E) and the ‘assets test’ (Module G) affect the rate of the relevant pension payment. Where two people are members of a couple, they are treated as pooling their income and sharing it on a 50/50 basis (section 1064-A2 of the Act). Therefore, the combined ordinary incomes of the person and their partner are taken into account when working out the rate of the person’s AP payment (section 1064-E2 of the Act).
Ordinary income
Section 1072 of the Act provides a general meaning for the term ‘ordinary income’:
1072 General meaning of ordinary income
A reference in this Act 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 calculated without any reduction, other than a reduction under Division 1A.
Note 1: For ordinary income see subsection 8(1)
Subsection 8(1) of the Act provides the following definitions:
income, in relation to a person, means:
(a) an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
income amount means:
(a) valuable consideration; or
(b) personal earnings; or
(c) moneys; or
(d) profits;
(whether of a capital nature or not).
Employment income attribution
‘Employment income’ is relevantly defined under subsection 8(1A), which provides:
(1A) A reference in this Act to employment income, in relation to a person, is a reference to ordinary income of the person:
(a) that is earned, derived or received, or that is taken to have been earned, derived or received, by the person from remunerative work undertaken by the person as an employee in an employer/employee relationship; and
(b) that includes, but is not limited to:
(i) salary, wages, commissions and employment-related fringe benefits that are so earned, derived or received or taken to have been so earned, derived or received; and
(ii) if the person is engaged on a continuing basis in that employer/employee relationship--a leave payment to the person;
…
Subsection 1073B(1) of the Act (in force during the relevant debt period) provided
1073B Daily attribution of employment income
(1) 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
(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.…”
Section 1073C (as it was in force during the relevant debt period) provided:
1073C Fortnightly or yearly expression of attributed employment income
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.
Sections 1073A, 1073B, and 1073C operate by reference to the concept of an instalment period. The phrase “instalment period” is defined in section 23 of the Act to mean, in relation to a person, a period that is determined under section 43 of the 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) provided:
… 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.
Change of circumstances
Subsection 66A(2) of the Administration Act requires a person who is being paid a social security payment to advise the Agency within 14 days of an event or change of circumstances that might affect the payment of that social security payment:
66A General requirement to inform of a change of circumstances etc.
…
Person receiving a social security payment or holding a concession card
(2) If:
(a) either:
(i) a social security payment (other than utilities allowance or energy supplement under Part 2.25B of the 1991 Act) is being paid to a person; or
(ii) a person holds a concession card; and
(b) an event or change of circumstances occurs that might affect the payment of that social security payment or the person’s qualification for the concession card;
the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.[10]
[10]Social Security (Administration) Act 1999 (Cth) s 66A(2)(a)(i) differs for each Debt.
Raising of debts
Under subsection 100(1) of the Administration Act, if a person who is given a notice under subsection 68(2) is required to advise the Agency of an event or change of circumstances but fails to do so, and as a result of that event or change of circumstances their rate of payment reduces, their social security payment becomes payable at a reduced rate on the day on which the event or change of circumstances occurs.
100 Automatic rate reduction—recipient not complying with subsection 68(2) notice
(1) Subject to subsection (2), if:
(a) a person who is receiving a social security payment is given a notice under subsection 68(2); and
(b) the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and
(c) the event or change of circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change of circumstances, the rate of the social security payment is to be reduced;
the social security payment becomes payable to the person at the reduced rate on the day on which the event or change of circumstances occurs.
Section 1223(1) of the Act provides that if a social security payment is made, and the person who obtains the benefit of that payment was not for any reason entitled to that benefit, then the amount of the payment becomes a ‘debt’, due to the Commonwealth.
1223Debts arising from lack of qualification, overpayment etc.
(1) Subject to this section, 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 of debt
Section 1236 of the Act gives the Secretary the power to write-off the debt for a stated period when one or more of the pre-requisites in subsection 1236(1A) are met.
1236Secretary may write off debt
(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:
(a) the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed;
(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(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.
(2)A decision made under subsection (1) takes effect:
(a) if no day is specified in the decision--on the day on which the decision is made; or
(b) if a day is specified in the decision--on the day so specified (whether that day is before, after or on the day on which the decision is made).
(3)Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.
Waiver of debt arising from administrative error
Section 1237A of the Act requires the Secretary to waive the right to recover the proportion of the debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received the payments in good faith:
1237AWaiver of debt arising from error
Administrative error
(1) Subject to subsection (1A), 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.
Note: Subsection (1) does not allow 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).
Waiver of debt due to ‘special circumstances’:
Section 1237AAD of the Act allows for all or part of the debt to be waived in special circumstances and states as follows:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of the debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or 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.
Interest charges
Section 1229A of the Act provides for when a person is liable to pay an interest charge:
1229A Interest charge—no repayment arrangement in effect
(1) If:
(a) a notice is given to a person under subsection 1229(1) in relation to a debt; and
(b) an amount (the unpaid amount) of the debt remains unpaid at the end of the day (the due day) on which the debt is due to be paid; and
(c) at the end of the due day, there is no arrangement in effect under section 1234 in relation to the debt;
then the person is liable to pay, by way of penalty, interest charge, worked out under subsection (3), for each day in the period described in subsection (2).
(2) The period starts at the beginning of the day after the due day and ends at the end of the earlier of the following days:
(a)the last day at the end of which any of the following remains unpaid:
(i) the unpaid amount;
(ii)interest charge on any of the unpaid amount;
(b)the day before the first day, after the due day, on which the person makes a payment under an arrangement under section 1234 in relation to the debt.
(3) The interest charge for a day in the period described in subsection (2) is worked out by multiplying the interest charge rate for that day by the sum of so much of the following amounts as remains unpaid:
(a)the unpaid amount;
(b)the interest charge from previous days.
Section 1229C of the Act provides that an interest charge under section 1229A for a day is a debt which is due and payable to the Commonwealth at the end of that day.
Sections 1229E and 1229F provide general and specific exemptions from interest charges. Section 1229E provides that a person is not liable to pay an interest charge if one of a number of circumstances apply, including if a person is receiving a social security payment. Subsection 1229F(1) confers a discretion on the Secretary to determine that an interest charge is not payable. Subsection 1229F(2) provides that such a determination may (without limiting the scope of the discretion) be made if the Secretary is satisfied that the person has a reasonable excuse for failing to enter into a payment arrangement under section 1234 of the Act.
ISSUES FOR DETERMINATION
The issues for determination are as follows:
(1)Whether the Applicant was paid AP in excess of her entitlement for the relevant debt periods and, if so, whether these the overpayments constitute a debt to the Commonwealth?
(2)Whether any debt owed to the Commonwealth is recoverable in part or in full?
(3)Whether the interest charges applied to the Debts were correctly imposed?
EVIDENCE BEFORE THE TRIBUNAL
By letter dated 3 June 2013, the Agency notified the Applicant that she was registered as a member of the Pension Bonus Scheme, with that registration commencing from 17 June 2009. It advised the Applicant that the AP and PB must be claimed at the same time.[11] During cross-examination at the hearing, the Applicant was referred to this letter. She said she did not recall receiving the letter and she had ‘never seen [it] before’.[12]
[11] T37, 812-3.
[12] Transcript of proceedings, 3 April 2024 (‘Transcript’), 21.
On 25 February 2014, the Agency sent a Request for Information to the Applicant. She replied to this request by the due date of 11 March 2014.[13]
[13] T28, 383 [1(a)].
On 14 March 2014, the Agency sent a letter to the Applicant inviting her to put in a claim for PB and advised she had only 13 weeks to respond with a claim.[14]
[14]T28, 383 [1(b)].
On 17 April 2014, the Applicant and her husband attended the Hornsby office of the Agency. Her husband lodged a joint claim form (‘Form SA002’) for AP and PB, with the Applicant also claiming AP on the same form.[15] In response to Question 6 “[i]s your partner also claiming Age Pension?”, the Applicant’s husband marked ‘X’ in the “Yes” box.[16] Question 34 of the claim form asked into which account the Applicant wanted her payment to be made, noting that in Question 35 she should ‘[o]nly give details if you are also claiming Age Pension on this form’. The Applicant advised that she wanted her AP paid into her St George Bank account (account number XXXXX 6731) (‘the St George account’).[17] In answer to Question 96, which asked whether PB was claimed, the Applicant and her husband answered “Yes”.[18] The Applicant and her husband also completed an Income and Assets form (SA369), providing details of their income and assets,[19] and documentary evidence of their financial investments.[20] The Applicant’s husband answered “Yes” to the question asking if he and/or the Applicant were claiming AP.[21]
[15] T4, 29-70; T29, 392.
[16] T4, 30.
[17] T4, 36.
[18] T4, 47.
[19] T4, 53-70.
[20] T4, 71-7.
[21] T4, 56.
The evidence of the Applicant and her husband is that neither of them ever intended to apply for AP. When they went to the Agency office on 17 April 2014 it was for the ‘sole purpose’ of claiming PB.[22] The Applicant’s husband told the Tribunal that they were ‘tutored by the manager to fill in the forms’ and he said that ‘unless [they] filled in these forms, the Pension Bonus application wouldn’t be looked at’.[23] He agreed that he was unable to point to any documentary evidence to support his claim that they were ‘tutored’ to complete the forms, even though they did not want to apply for AP.[24]
[22] Transcript, 9, 19; T28, 387 [1(c)].
[23] Transcript, 10.
[24] Transcript, 11.
The Applicant told the Tribunal that she did not fill out the Form and it was not her handwriting. Her husband filled it in for her and she signed it. She was told by Agency staff that if she did not fill in the form then her husband’s application would not proceed, and she ‘complied with their request’.[25]
[25] Transcript, 24, 25.
The Applicant’s evidence is that because she and her husband ‘perceived some ambiguity in the heading’, they wrote a note on page 1 of Form SA002 form ‘stating that this application was NOT for the purposed of claiming an Aged pension’.[26] Neither of them ‘had agreed to these documents to be used in this fashion’.[27]
[26] T28, 383 [1(c)].
[27] T28, 385 [2(a)].
On 30 April 2014, the Agency sent a letter to the Applicant’s husband requesting further information. He responded to this letter on 6 May 2014 with further details as requested for his ‘PBS claim’ and ‘noted that [the Applicant] had not requested to be included in the PBS claim as she had not worked for many years’.[28]
[28] T28, 383 [1(d)].
On 15 May 2014, a decision was made to grant AP to the Applicant and her husband from 17 April 2014.[29] The Applicant’s registration for PB was rejected.
[29] T37, 818-20; T30, 457-8.
On 16 May 2014, a letter was sent to the Applicant’s postal address recorded with the Agency (PO Box 394, Beecroft NSW 2119) (‘the Applicant’s postal address’) advising her that she had been granted AP from 17 April 2014. It stated that the Agency had used her combined annual income of $39,957.75 to pay AP at the rate of $320.09 per fortnight.[30] The letter under the heading ‘What you must tell us’ stated that ‘You must tell us within 14 days’ … ‘[if] Your or your partner’s gross income changes’, pursuant to subsection 68(2) of the Administration Act. It listed the following examples of matters which the Applicant was required to report:[31]
[30] T37, 818-20.
[31] T37, 819.
·her and her husband’s gross income changes;
·employment income;
·any business involvement;
·pensions and annuities;
·income received from any other income sources;
·changes of $2,000 or more to her and/or her husband’s combined financial investments;
·changes of $1,000 or more to her and her husband’s assets;
·change in residential or postal address;
·sale of the family home or move to new premises;
·changes to account where her payments were being sent to; and
·starting or stopping work.
The evidence of the Applicant and her husband is that she never received this letter.[32] Their evidence is that, as a consequence of an incorrect email address being entered by Agency staff, both Electronic Messaging and Online Letter Subscriptions were ‘ended’. As a result, ‘all mail [from the Agency] stopped from 14 May 2014 until after 29 August 2014’.[33]
[32] Transcript, 16, 27.
[33]Applicant’s Response to the Secretary’s Statement of Facts, Issues and Contentions [3].
In her oral evidence, the Applicant stated that she was unaware that she was receiving AP payments, and she did not know that she had applied for AP. She was not made aware that she was being paid AP until November 2019 when she received a ‘random call’ from an Agency officer who said he wished to discuss her pension, to which she replied, ‘I’m not aware of receiving a pension’.[34] After this, she ‘didn’t hear another word from [the Agency]’. She ‘just ignored the whole thing’ because she thought that her husband’s application ‘must be being processed’. After the phone call, they discovered that there was money in the St George account.[35] She told the Tribunal that she had not been receiving bank statements for the St George account because it is a savings account and ‘they don’t send any’ and she ‘had no reason to look in it’.[36] She has not ‘kept track on [sic] any of the accounts since 2015’.[37]
[34] Transcript, 20, 25.
[35] Transcript, 20.
[36] Transcript, 26.
[37] Transcript, 26.
The Applicant was asked whether she agreed that she did not tell the Agency about changes to her husband’s income, to which she replied ‘No, why should I’? She said she was not in touch with the Agency, and it was not in touch with her.[38] She said she was unaware that it was a requirement that she inform the Agency when they sold their family home.[39]
[38] Transcript, 28.
[39] Transcript, 28.
The first AP payment was paid into the Applicant’s husband’s account on 25 June 2014. The Applicant also received an AP payment for the same amount into her St George account ‘but because she infrequently looked at the particular account, she was not aware’.[40]
[40] T28, 384 [1(k)].
During cross-examination, the Applicant’s husband was asked when he became aware that he had been granted the AP. He said that he realised in early July when he received his June statement from the bank. He rang the Agency on 4 July 2014 and said, ‘Please stop paying this pension’. He had not heard at this point whether he had been granted PB.[41] He told the Tribunal that he did not ask that AP payments for the Applicant also cease because he did not know that she was also receiving AP.[42] It did not occur to him that the Applicant may also have been granted AP because at the time he was starting a new contract with a major project, and he was working long hours and ‘seriously didn’t think about it too much’.[43] As the Applicant ‘did not receive or anticipate receiving income that year she did not look at her bank account’.[44]
[41] Transcript, 11.
[42] Transcript, 11.
[43] Transcript, 12.
[44] T28, 384 [1(k)].
On 3 June 2014, the Applicant’s husband registered his company, Murison.[45] He was the sole director and secretary of the company. He held 1 A class shares with the Applicant owning 1 B class shares.[46]
[45] T15, 240.
[46]T15, 241-2.
On 6 June 2014, the Agency notified the Applicant by letter of the cancellation of her AP because she had not provided additional documents to prove her identity.[47] The Applicant’s evidence is neither she nor her husband received this letter.[48]
[47]T37, 821-2.
[48] T28, 384 [1(i)].
The Agency’s notes record that on 13 June 2014, the Applicant’s husband contacted the Agency and he advised that the Applicant had already provided her proof of identity.[49] The Applicant’s husband’s evidence is that the purpose of this phone call was to inquire about whether he and his wife had been approved for PB.[50]
[49]T29, 396.
[50] Transcript, 18.
The Agency’s notes record that on 26 June 2014, the Applicant contacted the Agency regarding the cancellation of her AP.[51]
[51] T29, 397.
By letter dated 27 June 2014, the Agency notified the Applicant of the reinstatement of her AP from 6 June 2014.[52] The Applicant told the Tribunal that she ‘never received’ this notification, and it was the ‘first time’ she had seen it.[53]
[52] T29, 397; T37, 823-4.
[53] Transcript, 29; T28 [1(j)].
On 4 July 2014, the Applicant’s husband contacted the Agency. The purpose of this call was to request that it ‘stop all payments of his AP’. He informed the Agency officer that he had started an IT consultant company (Murison).[54] Despite this call, he continued to be paid AP.[55]
[54] T30, 474.
[55] Applicant’s Response to the Secretary’s Statement of Facts, Issues and Contentions [3].
The Agency issued a notice pursuant to subsection 63(2) of the Administration Act requesting the Applicant’s husband to complete a profit and loss statement (form) for projection of his income.[56] The business income was updated as $0. An income statement was issued to the Applicant’s husband, which did not list any business income.[57]
[56] T38, 857; T30, 475.
[57] T38, 858-9.
On 13 August 2014, the Agency issued a rate notice to the Applicant’s husband advising that his AP was being calculated based on a combined annual income of $732.84.[58]
[58]T38, 860-1.
On 17 September 2014, the Agency issued a notice to the Applicant about the changes to the assessment of superannuation account-based income streams.[59] The notice reminded the Applicant that she was required to tell the Agency about changes to her financial situation as soon as possible. The Applicant was referred to this notice during cross-examination, and she told the Tribunal that she had ‘never seen that document before’.[60]
[59] T37, 827-8.
[60] Transcript, 29.
On 3 May 2015, the Applicant’s husband again requested the Agency cease his AP payments stating that he had reported a change of circumstances ‘many months ago’.[61]
[61] T30, 487.
On 19 May 2015, the Agency issued a Profit and Loss Statement form to be completed by the Applicant’s husband.[62]
[62] T30, 488; T38, 862-3.
On 18 June 2015, the Applicant’s husband returned the Profit and Loss Statement form with incomplete details.[63]
[63] T5, 79-82.
On 13 July 2015, the Applicant’s husband advised the Agency that a new sole trading business (Murison) started that day, with nil annual assessed income. He supplied a MOD F form and a profit and loss statement as verification.[64]
[64] T30, 489.
On 17 October 2015, the Agency requested that the Applicant’s husband provide his 2015 tax return and a profit and loss statement.[65]
[65] T30, 490; T38, 864-5.
On 27 October 2015, the Agency received a letter from the Applicant’s husband addressing the Agency’s request for his 2015 personal tax return, the profit and loss statement form, his request to stop being paid AP, and details about Murison. He advised that Murison had no income for the 2014 financial year, that 2015 was the first full year that it operated, and that the necessary financial reports had been submitted to the ATO.[66]
[66] T6, 84.
On 28 October 2015, the Applicant’s husband provided the Agency with a Notice of Assessment for the year ended 30 June 2015 and his 2014/2015 tax return declaring taxable income of $105,579 from Murison.[67]
[67] T7, 85-94.
On 25 November 2015, the Agency issued a notice advising of the suspension of the Applicant’s husband’s AP as he had not provided a complete reply to the Agency’s request for information made on 27 October 2015, in particular the requested profit and loss statement.[68]
[68] T30, 492; T38, 866-7.
On 10 December 2015, the Agency issued a notice requesting the Applicant’s husband’s payslips from Murison, profit and loss statement, and tax return be provided to the Agency.[69] On the same date, the Agency confirmed that the Applicant’s husband’s AP had been ‘temporarily suspended.’[70]
[69] T38, 868-9.
[70] T28, 384 [1(m)].
On 23 December 2015, the Applicant’s husband wrote to the Agency acknowledging receipt of the Agency’s letter of 10 December 2015 that confirmed the suspension of his AP. He advised that he had previously requested that his AP payments be suspended from July 2014, and requested that he be advised of the overpayment of AP to him for the period 1 July 2014 to the date of his AP being suspended. There was no reference to the Applicant’s AP.[71]
[71] T8, 95-6.
On 7 January 2016, the Agency wrote to the Applicant’s husband again requesting his payslips from Murison.[72]
[72] T38, 870-1.
On 25 January 2016, the Agency received correspondence from the Applicant’s husband’s accountant advising:[73]
·the Applicant’s husband had not been employed during the whole of the 2014 financial year;
·the Applicant’s husband had received an IT consulting contract that commenced on 1 July 2014;
·that from 1 July 2014 the Applicant’s husband’s AP should have ceased to be payable;
·Murison commenced operating on 1 July 2014 after being incorporated on 3 June 2014;
·Murison received its first payment in July 2014;
·Murison paid a salary to the Applicant’s husband amounting to a total of $105,632 for the 2015 financial year; and
·the last payment was made in early January 2016. Both the contract and income of Murison to the Applicant’s husband had ceased. There were no payslips issued for the period 1 January 2014 to 31 December 2015. The accountant provided copies of Murison’s 2014/2015 company tax return as well as the depreciation schedule for 2014/2015 year.
[73] T9, 97-105.
On 3 March 2016, the Agency contacted the Applicant’s husband and requested a profit and loss statement and balance sheet as well as a Module PC (Private Company) form to be completed.[74]
[74] T30, 495.
On 24 March 2016, the Agency received the Applicant’s husband’s Private Company form, profit and loss statement for 2014/2015 year, balance sheet for year ended 30 June 2015, company tax return for 2015, and his 2015 individual tax return.[75]
[75] T10, 106-39.
On 10 June 2016, the Agency requested the Applicant’s husband provide details of his exact earnings per week from Murison.[76] The Agency was advised by the Applicant’s husband’s accountant that the Applicant’s husband had no income from January 2016 and there were no payslips available.[77]
[76] T38, 872-4.
[77] T30, 498; T31, 509.
In June 2016, an Agency officer attributed 100% of Murison’s income and assets to the Applicant’s husband with date of effect from 22 September 2015 using the 2014/2015 financial year details.[78]
[78] T31, 509.
On 26 June 2017, the Agency issued a notice to the Applicant advising of the payment of one-off Energy Assistance Payment paid into her St George account. This was payable because the Applicant was in receipt of AP.[79]
[79] T37, 829.
From 30 June 2017, the Applicant’s entitlement to AP was assessed under the income test despite the Applicant’s combined assets being above the asset cut-off limit for entitlement for AP as a result of a loan of $707,704 made by the Applicant’s husband to Murison.
On 5 April 2019, the Agency issued a notice advising the Applicant of recent beneficial changes to AP regarding a new rate of AP and other benefits payable to AP recipients.[80]
[80] T38, 830-1.
On 15 July 2019, the Applicant and her husband sold the Beecroft property for $2,330,000 with the settlement amount being $1,353,383.[81] The Applicant did not notify the Agency of the change of address, sale of property, or change in savings.
[81] T26, 364; T29, 420.
On 23 July and 29 July 2019, the Applicant loaned $50,000 to another party.[82]
[82] T26, 364.
On 4 November 2019, the Agency contacted the Applicant regarding a Random Sample Review and arranged an interview on 7 November 2019.[83]
[83]T29, 401; T37, 832-3.
On 7 November 2019, the Random Sample Review interview took place with the Applicant and her husband present.[84] The Applicant had been requested to complete the review questionnaire relating to her and her husband’s circumstances,[85] which was lodged on the same day with supporting documentation.[86] The questionnaire and supporting documentation included the following relevant information:
·bank account statements and an email from a solicitor dated 15 July 2019 showing a balance of $1,353,383.56 paid to the Applicant and her husband representing proceeds from the sale of the Beecroft property;[87] and
·the Applicant’s address was updated to Chapman Avenue, Beecroft with the previous postal address remaining unchanged.[88]
[84] T29, 401.
[85] T22, 273-337.
[86] T11, 140-74.
[87] T29, 401-2.
[88] T11, 142.
The Random Sample Review identified that the Applicant’s husband’s AP had been suspended for four years. He had not worked in IT Consulting and Project Management for Murison or received any income since August 2016, however he had continued to complete company and individual tax returns. Murison had not been de-registered as it was continuing to run as a family investment.
On 7 November 2019, the Applicant’s husband was advised by the Agency to lodge an AP claim.[89] The Agency also advised the Applicant that future correspondence from the Agency would be available online instead of through the mail,[90] and that she had registered for self-service via the MyGov website.[91]
[89] T29, 402.
[90] T37, 834.
[91] T37, 835-6.
On 8 November 2019, the Agency wrote to the Applicant requesting identity documents, her and her husband’s individual tax returns from 2015 to 2019, company tax returns, depreciation schedules, profit and loss statements, and balance sheets from 2015 to 2019.[92]
[92] T37, 837-9.
On 15 November 2019, the Agency received financial documents from the Applicant in response to its request for information dated 8 November 2019.[93]
[93] T13, 175-88.
On 19 November 2019, the Agency contacted the Applicant’s husband who gave his permission to contact his accountant.[94] The accountant advised that the Applicant’s husband contributed $800,000 into Murison, which then invested the funds into his son’s business, Cloud 9 Estate Ltd (‘Cloud 9’), which imports Australian and New Zealand wine through the company to sell. The Applicant’s husband borrowed funds from the bank in 2017 that were secured against their home.[95]
[94] T29, 404.
[95] T29, 404.
On 26 November 2019, the Agency received a completed questionnaire and copies of financial documents from the Applicant’s husband’s accountant. The questionnaire had been issued to the accountant on 19 November 2019.[96]
[96] T14, 190-238.
On 29 November 2019, a Complex Assessments Officer (‘CAO’) spoke with the Applicant’s accountant, who confirmed that the Applicant and her husband were shareholders of Murison which was set up in June 2014 and registered as a condition of the Applicant’s husband receiving an IT consulting employment contract, and it received the contract income from 1 July 2014.[97] The original contract period was extended until 16 December 2014 with an additional IT consulting contract for a short period of time occurring sometime in the 2018 financial year. Murison had no IT consulting contract income since 1 July 2018. The Applicant’s husband was the only person who received wages from Murison. It was still trading at the time of this discussion, and it had been receiving ‘interest’ income from its investment in Cloud 9 since the 2017 financial year.
[97] T31, 511-14.
On 2 December 2019, the CAO completed his assessment.[98] Murison was attributed jointly to the Applicant and her husband from 3 June 2014 (the date the company was registered). Its income commenced on 1 July 2014 (the start date of the Applicant’s husband’s IT consulting employment contract). Murison paid wages to the Applicant’s husband as follows:
·2015 – $105,632.00
·2016 – $52,025.29
·2017 – $20,697.28 (paid up to 31 December 2017)
·2018 – $0
·2019 – $5,946.00
[98] T29, 411.
On 3 December 2019, the Agency issued a notice to the Applicant advising her of the cancellation of rent assistance that was being paid with her AP.[99]
[99] T37, 840-2.
On 20 December 2019, the Agency issued a rate notice to the Applicant setting out her rate of AP and information about her assets and income being used to calculate her rate of AP.[100]
[100] T37, 843-5.
On 23 December 2019, the Agency spoke to the Applicant’s husband about his possible entitlement to AP. He advised that the Applicant’s superannuation ceased on or about September 2019 and he would provide documentation.[101] A copy of this documentation was received that day.[102]
[101] T29, 402.
[102] T16, 243-4.
On 30 January 2020, the Applicant’s husband wrote to the Agency providing his accountant’s letter dated 19 January 2015 and another undated letter.[103]
[103] T17, 245-9.
On 28 February 2020, the Agency received the Random Sample Survey completed by the Applicant regarding her and her husband’s circumstances and copies of a number of financial documents.[104] Following receipt of new details from the Applicant on 28 February 2020, the Agency raised the three debts against the Applicant.
[104] T21, 259-349.
First Debt
The First Debt was raised based on the following assessable income from Murison and the Applicant’s husband’s assets from 1 July 2014 to 19 November 2019 as assessed by the CAO on 2 December 2019:[105]
[105] T29, 405.
Period Income Amount Assessable Income Assessable Assets Income or
Asset Test1/7/14 – 30/6/15 $22,403 $22,403 N/A Income 1/7/15 – 30/6/16 $14,388 $14,388 N/A Income 1/7/16 – 30/6/17 $17,231 $14,231 N/A until 29/6/17 Income (until 29/6/17) From 30/6/17 N/A N/A $857,904 (includes
$707,704 loan to company and other assets $150,000)
Asset (from 30/6/17) From 30/6/18 N/A N/A $838,884 (includes
$688,683 loan to company and other assets $150,201
Asset From 30/6/19 N/A N/A $819,402 (includes
$683,575 loan to company and other assets $135,827
Asset
From 1 July 2014 to 29 July 2017, the Applicant’s AP was assessed under the income test and from 30 June 2017 under the assets test.
According to Murison’s balance sheet for 2016/2017 year, it received a loan of $707,704 from the Applicant’s husband which had not been disclosed to the Agency, despite it being an assessable asset pursuant to section 1122 of the Act. The Applicant’s combined assets (including the value of the loan by the Applicant’s husband) as at 30 June 2017 of $857,904, was above the asset cut-off of $821,500 (for homeowner couple) for entitlement to AP. From 1 July 2018, the Applicant was entitled to a reduced rate of AP since her combined assets of $838,884 were below the cut-off threshold of $848,000.
For the period 1 July 2014 to 19 November 2019, the Applicant received $93,111.36 in AP payments. Based on her combined income and assets, she was entitled to receive $46,755.89. She was therefore overpaid AP in the amount $46,355.47 due to attributed company income and deemed income from her husband’s loan to Murison.
Second Debt
The Second Debt arose as a consequence of the Applicant’s husband’s income from Murison. This Debt was originally raised based on wages paid to the Applicant’s husband from Murison from 1 July 2014 to 29 June 2017 which were not reported by the Applicant to the Agency. The Agency (both at first instance and upon review by the ARO), assessed the Applicant’s husband’s employment income based solely on his tax returns and those of Murison. The ARO determined that, from 1 August 2014 to 30 June 2015, the Applicant’s income precluded payment of AP.
For the 2014/2015 income year, Murison had a total income of $185,579 ($15,464 per month). In his individual tax return for the 2014/2015 income year, the Applicant’s husband’s reported that he was paid wages by Murison in the amount of $105,632.[106]
[106] T10, 132.
From 1 July 2015, the Applicant was entitled to a reduced rate of AP based on her husband’s 2015/2016 income of $52,025 (as reported in Murison’s tax return for the 2015/2016 income year),[107] 2015/2016 business income of $14,388, and deemed income from investments of $2,164 per annum, totalling $68,577.
[107] T14, 231.
On 24 July 2023, a delegate of the Respondent issued the Applicant’s husband’s accountant a notice under section 196 of the Administration Act requiring the provision of information regarding the wages paid by Murison to the Applicant’s husband between 25 June 2014 and 29 June 2017.[108] He provided a response on 9 August 2023 advising that he was not in possession of any payslips, and that the Applicant’s husband withdrew salaries from Murison ‘on an irregular basis’.[109]
[108] ST1, 1.
[109] ST2, 3.
On 24 August 2023 a delegate of the Respondent issued a section 196 notice to Westpac Banking Corporation (‘Westpac’) requiring the production of all bank statements and transaction histories relating to accounts in the name of the Applicant’s husband and Murison.[110] Following production of the bank statements by Westpac on 15 September 2023 (‘the Westpac bank statements’),[111] the Respondent recalculated the Second Debt to $12,593.44 and changed the relevant debt period to 6 August 2014 to 20 June 2017.[112]
[110] ST3, 7.
[111] ST4, 10-886.
[112] RSFIC [120]; Annexure A.
Third debt
The Third Debt arose following the sale by the Applicant and her husband of the Beecroft property on 15 July 2019 for $2,330,000 with a settlement amount of $1,353,383.
For the period 15 July 2019 to 25 February 2020, the Applicant was paid AP in the amount of $6,734.62. Based on her combined income and assets the Applicant was entitled to AP of $4,503.12 and therefore she was overpaid $2,231.50 during this period.
At the AAT1 hearing, the Applicant did not dispute the debts.[113] At the Tribunal hearing the Applicant’s husband accepted that the Applicant owed debts to the Commonwealth but took issue with the ‘method of calculation [sic] that are used in determining the amount that’s owing’ and ‘the lack of any policy within [the Agency] … to cover this situation’.[114]
[113] AAT1 decision [18].
[114] Transcript, 31.
Interest charges
Interest charges[115] have been applied by the Respondent to the Debts as follows:[116]
·$2,334.70 (First debt)
·$1,248.82 (Second debt).
[115]As at 18 October 2023 the date of the RSFIC.
[116] RSFIC [125].
Cessation of AP payments
The Applicant and her husband are no longer in receipt of AP as their payments were cancelled due to the value of their assets. The last payment was made on 30 December 2021.[117]
[117] RSFIC [139].
Current financial position
The Applicant’s husband told AAT1 that the AP incorrectly paid to the Applicant is held in a separate bank account and they have $500,000 in two long term deposit accounts.[118] At the Tribunal hearing, the Applicant’s husband confirmed that the AP payments the Applicant received continue to be held in a separate bank account,[119] and that the amount in the term deposit accounts has reduced by approximately $150,000.[120] He was asked whether repayment of the Applicant’s debt would result in financial hardship, to which he replied ‘being a retired person, without any major income, every penny counts’.[121]
[118]T2, 8.
[119] Transcript, 8.
[120] Transcript, 8.
[121] Transcript, 9.
Applicant’s health
The Applicant’s evidence is that in January 2015 her health was severely affected by a herniated disc surgery resulting in ongoing severe nerve pain. She has also undergone multiple operations for a broken wrist. In January 2018 she developed wet macular degeneration in both eyes, requiring treatment every five weeks.[122]
[122]T28, 387.
At the hearing, the Applicant told the Tribunal that she is ‘in severe spinal pain, nerve pain’ and she has ‘all sorts of diseases’ and is ‘now considered a chronic disease patient’. She takes ‘many medications’ and has had operations which have not been successful.[123]
SUBMISSIONS
[123] Transcript, 26.
Applicant
The Applicant contends that the Debt decisions should be waived for administrative error because:
§she should not have been paid AP because she had never been ‘identified’ by the Agency;
§she and her husband never intended to claim AP;
§she never received notices from the Agency; and
§her husband sought cancellation of his AP and the Agency should have followed up this request with her.
In a document prepared for the AAT1 hearing, the Applicant’s husband provided the following summary of the Applicant’s submissions:
a.[A]s the initial action by Centrelink in initiating an Age Pension for [the Applicant] was caused solely by an internal unauthorised action … it would appear that Centrelink is at sole fault.
b.At another level, Centrelink had all the information necessary to undertake a corrective calculation for [the Applicant’s] Aged pension throughout the entire period and did nothing. The Reviewing Officer’s report shows this. What was stopping Centrelink from revising its assessment back in 2014? Or 2015? Or 2016?
c.When my Aged Pension was finally stopped in Dec 2015 (refer page 284) why wasn’t [the Applicant’s] pension payment automatically assessed at the same time?
d.At all times [the Applicant] and I had responded to the various requests for information to the best of our ability and in good faith.
e.The ongoing effort to address the enquiries by Centrelink since 7th November 2019 has caused [the Applicant] unnecessary severe distress.
Respondent
The Applicant received payments of AP in excess of her entitlement, which are debts due to the Commonwealth.[124]
[124] RSFIC [68(a)-(b)].
The Applicant has the capacity to repay the Debts. There is no evidence of financial suffering of a severe or extreme nature, and accordingly, it is inappropriate to write off the debt under subsection 1236(1) of the Act. There are no other circumstances mentioned in subsection 1236(1A) that are relevant to the Applicant, which means it is inappropriate to write off the Debts under section 1236 of the Act.[125]
[125] RSFIC [167].
The Respondent accepts that there were administrative errors made by the Agency in relation to the Applicant’s AP. The Debts did not however arise solely due administrative error made by the Commonwealth. The Applicant contributed to the Debts by:[126]
·failing to contact the Agency to correct inaccurate information identified on the notices sent to her in relation to her AP;
·failing to advise the Agency of her husband’s income;
·failing to advise the Agency of the sale of the Beecroft property; and
·failing to advise the Agency of her husband’s loan of $707,704 to Murison.
[126]RSFIC [142].
The Debts cannot be waived for sole administrative error under section 1237A of the Act in circumstances where the Applicant failed to notify the Agency of changes in her and her husband’s circumstances during the relevant periods as required by the notices issued to her under subsection 68(2) and section 66A of the Administration Act, and the payments were not received in good faith.[127]
[127] RSFIC [68(c)], [143].
There are no special circumstances that make it desirable to waive recovery of the Debts under section 1237AAD of the Act. Even if there were special circumstances, the Tribunal should exercise its discretion to not waive recovery in circumstances where the Applicant has retained the monies paid to her and she is in a position to repay the Debts at any time.[128]
[128] RSFIC [68(d)].
The interest charges which have been applied to the Debts were correctly imposed under section 1229A.[129] The Applicant was given notices under subsection 1229(1) in relation to the Debts.[130] There is no evidence that the Applicant has entered into a repayment arrangement under section 1234 of the Act.[131]
[129] RSFIC [131].
[130] T18-T20.
[131]RSFIC [131].
None of the exemptions under section 1229E can apply to the Applicant as she is not receiving a social security payment or family tax benefit, nor any other payments provided for under subsection 1229E(1).[132] No exemption under section 1229F should apply in circumstances where there is no evidence that the Applicant had a reasonable excuse for failing to enter into a repayment arrangement. The evidence suggests that the AP overpaid to the Applicant remains in a bank account accessible to the Applicant, which means that she clearly has financial capacity to repay the Debts. There are no exceptional circumstances which would warrant exempting the Applicant from the operation from the interest charge provisions.[133]
[132]RSFIC [132].
[133]RSFIC [132].
CONSIDERATION AND REASONS
There is an expectation that public monies that are paid as social security payments to individuals who are not entitled to those payments will be recovered. In Secretary, Department of Social Services v Hales,[134] Justice French (as he then was), explained the public policy intent underpinning section 1223 as follows:[135]
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 in the circumstances of the persons concerned.
[134][1998] FCA 219; (1998) 82 FCR 154.
[135]at 155.
As the Applicant is a member of a couple, subsection 1064(4) of the Act requires both her and her husband’s income and assets to be taken into account when applying the ordinary income and asset tests, which also affect the rate of the Applicant’s AP payment.
1)Was the Applicant paid AP in excess of her entitlement?
Section 17 of the Act relevantly requires AP and PB to be claimed at the same time. When the Applicant and her husband completed and signed Form SA002, which is a combined form for PB and AP, they made a claim for AP whether they had intended to or not. Their claimed intention to not apply for AP when completing the Form, and the notation they claim they made on the Form, does not change the fact that when they completed and signed the Form, they applied for both AP and PB. The Tribunal is satisfied that the Applicant made an application for AP on 17 April 2014.
The Applicant’s application for AP was granted on 15 May 2014 effective from 17 April 2014.[136]
[136] T29, 392; T30, 457-8.
The Applicant was required to, but did not, notify the Agency about changes in her and her husband’s circumstances pursuant to the notices sent to her under subsection 68(2) of the Administration Act.[137] She failed to notify the Agency of her husband’s involvement in Murison, the employment income he received, the sale of the Beecroft property, and the investing of the proceeds from the sale of the property in Cloud 9.
[137] The Agency records show notices sent to the Applicant’s postal address on 16 May 2014 (T37, 818-20); 6 June 2014 (T37, 821-2); 27 June 2014 (T37, 823-4); 26 June 2017 (T37, 829); 5 April 2019 (T37, 830-1).
As outlined in [92] above, the First Debt was raised based on the assessable income from Murison and the Applicant’s husband’s assets attributed to the Applicant during the period from 1 July 2014 to 19 November 2019. Based on her combined income and assets, she was entitled to receive AP in the sum of $46,755.89. During this period, the Applicant received $93,111.36 in AP payments. The Tribunal is satisfied the Applicant was overpaid AP in the amount $46,355.47 during this debt period.
As outlined in [96] above, the Second Debt was raised as a consequence of the attribution to the Applicant of her husband’s income from Murison (‘Murison income’). This Debt was originally calculated as $27,121.64 based on wages paid to the Applicant’s husband from Murison from 25 June 2014 to 29 June 2017 which were not reported by the Applicant to the Agency. Following production of the Westpac bank statements, the Respondent recalculated the Second Debt to $12,593.44 and changed the relevant debt period to 6 August 2014 to 20 June 2017.[138]
[138] RSFIC [20] and Annexure A.
The Westpac bank statements before the Tribunal do not establish the precise days on which the Applicant’s husband earned the Murison income. However, they do demonstrate the dates on which the Applicant’s husband received this income. The Respondent contends that the Tribunal should take the approach of recognising the income at the point on which it was first received by the Applicant’s husband (by reference to the payment date established by the bank statements). This approach to debt calculation was accepted by the Tribunal in Judd and Secretary, Department of Social Services (‘Judd’).[139]
[139][2022] AATA 727.
The importance of determining when a person has ‘earned, derived or received’ an amount of employment income was considered by Senior Member Millar in Lyall and Secretary, Department of Social Services (Social services second review) (‘Lyall’).[140] The Senior Member explained the importance of the calculation of a person’s debt with reference to the instalment period where income has been determined to be ‘earned, derived or received’:[141]
Income is earned when the person completes a unit of work for which payment is due, and for casual workers this may be the hours or days worked. It is derived when the person has a present legal entitlement to the income. Income is received when it is actually received or capable of being accessed by the person.
Where a person has casual income from employment and earns more in one instalment period and less in another, this can result in different rates of payment in different instalment periods. Of considerable importance is identifying when the income was earned, derived or received as this will determine the instalment period to which income is attributed.
If income has been correctly attributed to a single instalment period, as it has in the recalculations in his case, the question then arises of whether it has been correctly attributed according to when it was earned, derived or received.
A different rate of payment can result if the day or days on which income is actually earned is used to calculate the rate. This is because if income is earned, for example, for three days in one week and four days the next week and these weeks fall in different Centrelink instalment periods, it potentially results in a higher rate in both instalment periods than if it is attributed in a single instalment period when the income was received…”
[140] [2023] AATA 3356 (17 October 2023).
[141] Ibid at [19] - [28]; [31] - [33]; see also Judd and Secretary, Department of Social Services (Social services second review) [2022] AATA 727 (11 April 2022).
The Tribunal adopts the approach previously taken by it to debt calculation in Judd and Lyall, namely recognising the income at the point it was received by the Applicant’s husband with reference to to the payment date recorded in the Westpac bank statements. It is therefore satisfied that during the period 6 August 2014 to 20 June 2017 the Applicant received AP payments of $12,593.44 in excess of her entitlement.
As outlined in [101] above, the Third Debt arose following the sale by the Applicant and her husband of the Beecroft property on 15 July 2019 for $2,330,000 with a settlement amount of $1,353,383 which she did not report to the Agency. For the period 15 July 2019 to 25 February 2020, the Applicant was paid AP in the amount of $6,734.62. Based on her combined income and assets, the Tribunal is satisfied that the Applicant was entitled to AP of $4,503.12. She was therefore overpaid AP in an amount of $2,231.50 during this period.
Subsection 1223(1) of the Act states that for debts arising from overpayment (where a social security payment has been made to a person who obtains the benefit of a payment they were not entitled to), the amount of that payment is a debt due to the Commonwealth (arising from when the person obtains the benefit of the payment).
The Tribunal has found the Applicant was in receipt of AP which she was not eligible to receive during the relevant debt periods. It finds the three Debts are legally recoverable debts due to the Commonwealth pursuant to subsection 1223(1) of the Act.
2)Are any of the three Debts recoverable in part or in full?
The Act provides for circumstances where the recovery of outstanding debts to the Commonwealth can be either written off or waived. The Tribunal has considered whether sections 1236, 1237A, or 1237AAD of the Act are enlivened in the Applicant’s circumstances and finds, for the reasons that follow, that they are not.
a) Debt write-off
The Tribunal has considered whether all or part of the debts should be written off under section 1236 of the Act on the basis that one or more of the pre-requisites in section 1236(1A) are satisfied. Subsection 1236(1A)(b) provides that the Secretary may decide to write off a debt if the debtor has no capacity to repay the debt. If a debt is recoverable by means of deductions from the debtor’s social security payment, the debtor is taken to have the capacity to repay the debt unless recovery by deductions would result in the debtor being in severe financial hardship.
The term ‘severe financial hardship’ is not defined in the Act. In Re Lumsden and Secretary, Department of Social Security,[142] the Tribunal found that for this to be satisfied a person’s entire financial position would need to be materially less than the current rate of pension.
[142](1986) 10 ALN N225.
In Re Stubbs and Secretary, Department of Families and Community Services,[143] the Tribunal observed:[144]
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.
[143][2003] AATA 729 (1 August 2003).
[144]at [20].
In L and Secretary, Department of Social Security,[145] the then President of the Tribunal found:[146]
[M]atters 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?
[145][1995] AATA 159; (1995) 38 ALD 176 (13 June 1995).
[146]at [66].
The Applicant’s evidence is that the AP overpayments are in a bank account from which she can withdraw the debt amounts, and she also has access to a large sum of money held in term deposits. There is no evidence that she would experience severe financial hardship if the three Debts to the Commonwealth were recovered.
Based on the evidence before it, the Tribunal is satisfied that the Debts are recoverable at law, that the Applicant has the capacity to repay the debt, her whereabouts are known, and there is no evidence to suggest it is not cost effective for the Commonwealth to take action to recover the Debts.
The Tribunal finds that the Applicant’s three Debts to the Commonwealth cannot be written off pursuant to section 1236 of the Act.
b) Waiver of debts arising from administrative error
The Applicant claims that the three debts should be waived as they arose due to an administrative error by the Commonwealth because she only wanted to claim PB and never intended to apply for AP when she signed the Form SA002 on 17 April 2014.
Section 1237A of the Act requires the Commonwealth to waive the right to recover a debt if it is attributable solely to administrative error by the Commonwealth and the person who has received the payment has received it in ‘good faith’.
The meaning of the word ‘solely’ was discussed in Scott Andrew Gerhardt and Kerrie Leanne Gerhardt and Department Employment, Education and Training,[147] where the Tribunal stated:[148]
There is nothing… which indicates that any meaning should be given to “solely” other than its ordinary meaning. Applying those ordinary meanings to the subsection mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth’s administrative error. The Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error. Whether it is or is not attributable in that situation to the Commonwealth’s administrative error will be a question of fact.
[147][1996] AATA 173 (17 May 1996).
[148] at [40].
The concept of sole administrative error was also considered by the Full Federal Court in Sekhon v Secretary, Department of Family and Community Services:[149]
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].
[149] [2003] FCAFC 190 at [35]-[37], [43].
As outlined in [120] above, the Applicant completed and signed Form SA002, and thereby made an application for both PB and AP on 17 April 2014. The Tribunal accepts that the Applicant was unaware that she was applying for AP when she signed the Form SA002 after being instructed to do so by her husband. However, her mistaken belief that she was only applying for PB, is itself an error which contributed to the three Debts she incurred as a consequence of overpayment of AP in excess of her entitlement. The Applicant’s failure to check her St George statements for a period of more than five years further contributed to the accumulation of the Debts.
The Applicant was required to, but did not, notify the Agency about a change in her and her husband’s circumstances pursuant to the notices sent to her under subsection 68(2) of the Administration Act.[150] These failures led to the Applicant being overpaid AP. The Tribunal has consistently found that where a person has failed to comply with their notification obligations imposed on them through notices issued by the Agency, the debt that arises is not solely attributable to an error made by the Commonwealth.[151]
[150] See the notices sent to her postal address on 16 May 2014 (T37, 818-20); 6 June 2014 (T37, 821-2); 27 June 2014 (T37, 823-4); 26 June 2017 (T37, 829); 5 April 2019 (T37, 830-1).
[151] See for example GGGD and Secretary, Department of Social Services [2020] AATA 802; Stafford and Secretary, Department of Social Services [2018] AATA 2746; Moir and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 48; and Godfrey and Secretary, Department of Social Services [2023] AATA 1817.
The Applicant’s evidence is that she did not receive any correspondence from the Respondent during the period from 14 May to 29 August 2014 due to the use by Agency staff of an incorrect email address. However, the Agency notes record that the Applicant contacted it during this period on 26 June 2014 regarding the cancellation of her AP on 6 June 2014. The Applicant must have received notification of this cancellation prompting her to contact the Agency. There is no record that she informed Agency staff that she was unaware she was receiving AP, which contributed to the incurring of the Debts due to her being paid AP in excess of her entitlement.
On the evidence before it, the Tribunal is satisfied that the Debts raised against the Applicant were not solely due to an administrative error made by the Commonwealth. It therefore finds that the Debts cannot be waived under section 1237A of the Act.
As the Tribunal has found that the Debts raised against the Applicant were not due solely to an administrative error made by the Commonwealth, it need not consider whether the overpayments which gave rise to the Debts were received in ‘good faith’. However, for completeness it has considered the evidence and finds, for the reasons that follow, that the overpayments were not received by the Applicant in good faith.
The meaning of the term ‘good faith’ in the context of the receipt of income support payments was explained by Finn J in Secretary, Department of Education, Employment, Training and Youth Affairs v Prince.[152] While the case dealt with payments of Austudy, the Court considered provisions in the Student Assistance Act 1973 (Cth) which were very similarly worded to those in the Act. Finn J discussed the meaning of receiving a payment in ‘good faith’ and noted:[153]
For my own part, I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received – ie is not entitled to use the moneys received as his or her own – that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith….
[152] [1997] 152 ALR 127.
[153]at [130].
In Jazazievska v Secretary, Department of Family and Community Services,[154] Cooper J observed that a person who ‘turns a blind eye’ to circumstances which would raise doubt as to a person’s entitlement to receive a social security payment does not act in ‘good faith’:[155]
A person does not act in good faith where a person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable enquiries we doubt exists.
[154][2000] FCA 1484.
[155]at [41].
In Panacci v Secretary, Department of Employment and Workplace Relations,[156] the Tribunal explained:[157]
An absence of good faith does not amount to fraudulent conduct on the part of the recipient of a benefit but it does mean that the recipient acts without an honestly held belief of entitlement to receive and retain the payment. The state of mind of the recipient must be examined and the test of good faith is entirely subjective.
[156][2008] AATA 30.
[157]at [25].
The Applicant claims that her AP was paid to her St George account which she rarely checked, and as a consequence she did not notice she was being paid AP.[158] The Tribunal notes that the Applicant nominated the St George account for the receipt of her AP at the time of claiming AP and PB in April 2014. It was her responsibility to keep track of payments made into this nominated bank account.
[158] T2, 6.
The evidence before the Tribunal is that both the Applicant and her husband contacted the Agency on several occasions during June 2014 and spoke to Agency officers in relation to the provision of her identity documents for the purposes of AP. Following the cancellation of her AP on 6 June 2014 the Applicant contacted the Agency on 26 June 2014 following which her AP was reinstated. Even if the Tribunal accepts the Applicant’s evidence that she was unaware she was being paid AP, she would have known that her husband was receiving AP payments, and that he contacted the Agency multiple times from early July 2014 asking that these payments cease. In these circumstances, the Tribunal finds that it is not plausible that the Applicant would not have been made aware that she may also be receiving AP payments and therefore checked her St George account. That she did not do so supports a finding that she ‘turned a blind eye’ to what should have been apparent, namely that she also was being paid AP.
On the evidence before it and for the stated reasons, the Tribunal finds that the AP payments were not received by the Applicant in good faith, and accordingly the Debts cannot be waived under section 1237A of the Act.
c) Waiver of debt due to ‘special circumstances’
The Tribunal notes that the Applicant has not specifically raised waiver of the Debts for ‘special circumstances’ under section 1237AAD, however the Tribunal has nevertheless considered whether the section is engaged in the Applicant’s circumstances.
In Re Beadle and Director-General of Social Security (‘Re Beadle’),[159] the Tribunal stated:[160]
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 describe the special.
(emphasis added)
[159][1984] AATA 176 (28 May 1984); (1984) 6 ALD 1.
[160] at [12].
In Beadle v Director-General of Social Security (1985) 7 ALD 670, Toohey J stated that ‘the qualifying adjective looks to circumstances that are unusual, uncommon or exceptional’.
The Full Court of the Federal Court in Beadle v Director-General of Social Security,[161] did not endorse the view expressed by the Tribunal in Re Beadle that to constitute special circumstances, they must be ‘unusual, uncommon or exceptional’. Instead, the Full Court held that it was not possible to lay down precise limits or precise rules, but it was a matter for the Director-General bearing in mind the purpose for which the power was given.[162] However, it was in broad agreement with the approach of the Tribunal and was in agreement with its conclusion.[163]
[161](1985) 60 ALR 1225.
[162]at [228].
[163]at [230].
In Groth v Secretary, Department of Social Security,[164] the Federal Court observed:[165]
The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss…. It is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary…
[164](1995) FCA 1708.
[165] at [12].
In Ivovic and Director-General of Social Services,[166] the Tribunal found that the decision-maker must ‘... be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise appropriate’.
[166](1981) 3 ALN N95.
In Dranichnikov v Centrelink,[167] the Full Court, in deciding what circumstances might be special, explained that the Tribunal needs to identify those ‘circumstances which distinguish one’s case from the usual case’. There will be a requirement that the circumstances are such that takes the applicant’s case out of the ordinary.
[167](2003) FCAFC 133.
In Angelakos v Secretary, Department of Employment and Workplace Relations,[168] the Federal Court concluded that there must be something that distinguishes the case from the ordinary or usual cases. Justice Besanko stated:[169]
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word 'exceptional' is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
[168](2007) FCA 25.
[169]at [33].
In Davy and Secretary, Department of Employment and Workplace Relations,[170] Deputy President Forgie considered what amounts to ‘special circumstances’ under section 1237AAD. She stated:[171]
[S]pecial circumstances’ are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances…that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it…He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement…The system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
[170][2007] AATA 1114.
[171]at [80].
In Strange and Secretary, Department of Employment & Workplace Relations,[172] the Tribunal observed:[173]
The fact is that all income support recipients are under some form of financial disadvantage, or health disadvantage, or economic disadvantage. So that is the common base line to all Centrelink customers, and really, when you look at the intent and meaning of special circumstances waiver, you have to have somebody whose circumstances are quite bad compared to other income support recipients before we can properly activate the waiver rules.
I think that is consistent with what is required when you look at the proper meaning and intent of section 1237AAD. In other words, simply being in receipt of a Centrelink payment is not a criterion of entitlement to waiver, and indeed, it is not an express element of waiver, in terms of the legislation in section 1237AAD.
[172][2006] AATA 239.
[173]at [54]-[55].
On the evidence before the Tribunal and for the reasons that follow, the Tribunal finds that the Debts should not be waived under section 1237AAD of the Act, as there is no evidence to indicate that the Applicant’s circumstances in their totality are distinguishable from the ordinary or usual case such that they could be considered ‘special circumstances’.
The Applicant’s evidence is that she has experienced ill health since 2015 and has undergone surgeries for her herniated disc and broken wrist as well as having ongoing severe nerve pain. She also developed wet macular degeneration in both eyes in January 2018.[174] The Tribunal is not satisfied that these medical conditions amount to ‘special circumstances’ that would warrant the waiving of the Debts. The Tribunal has previously found that even considerable injury, pain, and medication does not amount to ‘special circumstances’.[175] It is not uncommon or unusual for a person of pension age to have medical conditions. The Tribunal also finds, having considered the general administration of the social security system, that there is no injustice in requiring the Applicant to repay the money of which she has had the benefit but not the entitlement.
[174] T28, 387.
[175] See for example Hammelswang and Secretary, Department of Social Services [2015] AATA 905; Purches and Secretary, Department of Family and Community Services [2005] AATA 267; Bullivant and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 674; Spence and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 25; and Massoud and Secretary, Department of Social Services [2017] AATA 1366.
Based on the evidence before it and for the reasons outlined, the Tribunal finds there is no basis to distinguish the Applicant’s circumstances from the ordinary or usual case such that they are ‘special’ and thereby warrant the exercise of the discretion in section 1237AAD of the Act to waive the Debts.
3)Were the interest charges applied to the Debts correctly imposed?
Based in the evidence before it, the Tribunal is satisfied that the interest charges applied to the Applicant’s Debts were correctly imposed under section 1229A. The Applicant was given notices under subsection 1229(1) in relation to the Debts and they remain unpaid. There is no evidence that the Applicant has entered into a repayment arrangement under section 1234 of the Act.
The Tribunal is satisfied that the exemptions under section 1229E do not apply to the Applicant as she is not receiving a social security payment or family tax benefit, nor any other payments provided for under subsection 1229E(1).[176] It also finds that the exemption under section 1229F does not apply in the Applicant’s circumstances as there is no evidence that she had a reasonable excuse for failing to enter into a repayment arrangement. The Applicant has the financial capacity to repay the Debts, yet she chose not to do so. She has benefited from the accrual of interest on the balance in the account where the AP payments are being held. The Tribunal is satisfied that are no exceptional circumstances to warrant exempting the Applicant from the imposition of the interest charge provisions of the Act.
[176] RSFIC [132].
DECISION
Pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Reviewable Decision is varied such that the Second Debt owed by the Applicant to the Commonwealth is in the amount of $12,592.44 for the debt period 6 August 2014 to 20 June 2017, and the interest charge imposed on the Second Debt is varied accordingly. The Reviewable Decision is affirmed in relation to the First and Third Debts and the interest charge imposed on the First Debt.
I certify that the preceding 169 (one hundred and sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
......................[sgd]..............................
Associate
Dated: 4 June 2024
Date(s) of hearing:
3 April 2024 by Video
Advocate for Applicant:
Advocate for the Respondent:
Mr Peter Butler
Mr Matthew Sheedy
Solicitors for the Respondent:
Sparke Helmore Lawyers
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