Campagna and Secretary, Department of Social Services (Social services second review) - [2018] AATA 5160

Campagna and Secretary, Department of Social Services (Social services second review) [2018] AATA 5160 (14 December 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3941
Re:John Campagna
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date: 14 December 2018
Place:Melbourne

The Tribunal affirms the decision under review.
................[sgd]........................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – family tax benefit/rent assistance–– overpayment – debt due to the Commonwealth – whether recovery of debt should be written off or waived – whether debt attributable solely to error made by Centrelink – no special circumstances – decision under review affirmed
Legislation
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Cases
Re Anderson and Secretary, Department of Families and Community Services [2002] AATA 495
Re Callaghan and Secretary Department of Social Security [1996] 45 ALD 435
Groth and Secretary, Department of Social Security [1995] FCA 989
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Ms Anna Burke, Member

Mr Campagna (the Applicant) is seeking a second tier review of the decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 22 June 2018 to raise and recover the following debts:
(i)FBT and rent assistance debt of $227.64 for the period 14 November 2015 to 4 December 2015, and
(ii)FTB debt of $878.18 for the period 1 July 2013 to 30 June 2014.
As Mr Campagna’s disability prohibited him from appearing before the Tribunal. The Tribunal decided the issue could be adequately determined in the absence of the parties, and the parties consented to the review being determined without a hearing. Therefore, in accordance with s 34J of the Administrative Appeals Tribunal 1975, the Tribunal dispensed with the hearing and determined this application on the papers. Ms Belinda Lewis, a government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, provided a Statement of Issues, Facts and Contentions for the Respondent.
BACKGROUND
On 22 July 2015 Centrelink advised Mr Campagna by letter that as he was no longer receiving an Australian Government pension or allowance that he needed to provide a new estimate of his total family income to help Centrelink make the right decision in continuing his Family Tax Benefit (FTB). Prior to July 2015 Mr Campagna had been on a Sickness Allowance and at all times had 100 per cent care of an FTB-eligible child.
On 9 November 2015 Centrelink advised Mr Campagna by letter that he and/or his partner had not lodged an income tax return to have their incomes confirmed by the Australian Tax Office (ATO). This meant that Centrelink had not been able to balance Mr Campagna’s payments to ensure the correct amount of FTB had been paid between 1 July 2013 and 30 June 2014. This meant Mr Campagna had to repay the entire amount of FTB paid to him for that period, being $11,091.87.
On 9 November 2015 Centrelink advised Mr Campagna by letter that he was no longer entitled to FTB Part A. This meant that he had to repay the full amount of the Schoolkids Bonus, being $410.00.
On 22 September 2016 Centrelink advised Mr Campagna by letter that the FTB Part A and Part B Supplement that he had received with his FTB entitlement was being withheld to recover the family assistance entitlement overpayments he had previously received.
On 3 April 2017 Centrelink advised Mr Campagna by letter that this letter replaced any other letter he had received in respect of his FTB assessment for the 2013-2014 financial year, following a check of his entitlement against his annual family income and his family circumstances. Mr Campagna now had to repay $878.18 for this period.
On 12 May 2017 Centrelink advised Mr Campagna by letter that this letter replaced any other letter he had received in respect of his FTB assessment for the 2015-2016 financial year, following a check of his entitlement against his annual family income and his family circumstances. Mr Campagna now had to repay $1,694.59 for this period.
On 27 May 2017 Centrelink advised Mr Campagna by letter that $2,264.34 he was originally entitled to receive as an FTB payment was being withheld to recover the family assistance entitlements he had been overpaid for the 2015-2016 financial year.
On 8 March 2018, on internal review, a departmental Authorised Review Officer (ARO) reviewed the Centrelink decisions. . This review was of the decisions of 3 April 2017 and 12 May 2017, in respect of debts for FTB payments for the periods between 1 July and 4 December 2015, between 9 May and 30 June 2015, and between 1 July 2013 and 30 June 2014. The ARO determined that:
·the FTB debt of $1,694.59 for the period between 1 July and 4 December 2015 should be reduced to $227.64, for the period between 14 November 2015 and 4 December 2015;
·that Mr Campagna no longer had an FTB debt of $569.75 for the period between 9 May 2015 and 30 June 2015; and
·the FTB debt of $878.18 for the period between 1 July 2013 and 30 June 2014 was correct and remains recoverable.
On 8 March 2018 the ARO found:
I have first considered your family tax debt for the 2013/14 financial year.
At the end of the financial year a process known as reconciliation occurs in which a person’s income estimates are compared with the income assessed by the Australian Taxation Office. If the income estimates were too low, the person may incur a debt. If they were high, the person may receive arrears.
As you had not met the requirements for Family Tax Benefit reconciliation for the 2013/14 financial year as you had not lodged an income tax return, or advise the department that you are not required to, all the Family Tax Benefit paid to you for the 2013/14 financial year was raised a debt due to the Commonwealth.
However once information had been received from the Australian Taxation Office that you lodged the return to the 2013/14 year, the previously raised Family Tax Benefit non lodger debt in the amount of $11,091.87 was recalculated.
During the period 1 July 2013 to 23 May 2014 you received Family Tax Benefit part A and rent assistance at the maximum rate as you were in receipt of an income support payment. However on the 24 May 2014 your Sickness Allowance was cancelled and on 17 June 2014 you provided an income assessment of $18,000. Your total adjusted taxable income for the 2013/14 financial year as advised by the Australian Taxation Office was $111,770.
As the adjusted taxable income figure initially used to calculate your entitlement was less than the actual income for the 2013/14 financial year, you were paid more Family Tax Benefit then you were entitled to receive. It has been calculated that you have been overpaid $878.18 for the 2013/14 financial year. This amount is therefore a debt due to the Commonwealth.
I have also considered your Family Tax Benefit debts for the 2014/15 and 2015/16 financial years. These debts were a result of your rent assistance being cancelled for the period 9 May 2015 to 4 December 2015 as you indicated that you had been couch surfing in your claim for Newstart Allowance lodged on 12 May 2017.
From the evidence provided to me, I am satisfied that you were living at and paying $568.00 per fortnight rent at […] Surfers Paradise. The lease from this property shows you were paying this rent during the period 21 March 2015 to 13 November 2015.
From 3 December 2015 your mail was being returned to sender from […] Surfers Paradise.
Given the total evidence before me, I find that you have not been overpaid rent with your Family Tax Benefit for the period 9 May 2015 to 13 November 2015. This means you no longer have a Family Tax Benefit debt for the 2014/15 financial year, and your debt of $1694.59 for the 2015/16 financial year is reduced to $227.64.
The balance of the debt for 2015/16 financial year is the rent assistance paid to you for the period 14 November 2015 to 4 December 2015, as there is no evidence to support that you were still paying rent at […] Surfers Paradise during this period.
[…]
In your request for review you state that you felt these debts were a result of the Sickness Allowance debt that was raised on 9 February 2016. As stated above, these debts were a result of your actual income as provided by the Australian Taxation Office and for the later years, your rental circumstances.
[…]
I have also considered whether recovery of the debt can be waived due to special and unusual circumstances. There is nothing in the information provided to me that could be considered are special or exceptional to warrant waving the debts in full. (Emphasis added).
The ARO’s notes of 8 March 2018, in respect of Mr Campagna’s debt, record: email has been received from Ombudsman to advise that his mental health condition does not allow him to contact the department by telephone.[…] All over-recovered overpayments are to be refunded to the customer ASAP.
On 22 June 2018 the AAT1 affirmed Centrelink’s decision finding:
The FTB overpayment occurred in this case after Centrelink compared Mr Campagna’s income estimates with the actual verified income assessed from the ATO. This debt is therefore a reconciliation debt; Mr Campagna received a higher rate of FTB than he was entitled to receive following the reconciliation of his actual income for 2013/2014 financial year when compared with his estimated income for this financial year and the income that was reported after he lodged his tax return with the ATO.
[…]
Mr Campagna said he should not have to pay this debt because Centrelink paid him this money by mistake as Centrelink continued to pay him even though the rental agreement only went to 13 November 2015.
On 3 December 2015 Centrelink noted that correspondence from Centrelink addressed to Mr Campagna at the Surfers Paradise address had been returned to them. There is no evidence in the Centrelink documents indicating Mr Campagna informed Centrelink that he was no longer living at [...] Surfers Paradise Queensland.
The tribunal is satisfied that Mr Campagna received FTB RA that he was not entitled to receive and this payment is therefore a debt to the Commonwealth in accordance with section 71 of the Administration Act.
[…]
Subsection 95(2) of the Administration Act provides the Secretary “may” decide to write off a debt due to the Commonwealth if the debt is irrecoverable at law, or the debtor has no capacity repay the debt or the debtor’s whereabouts are unknown. None of these circumstances apply to Mr Campagna, as the debts have been repaid in full.
[…]
None of the circumstances that allow for the debts to be waived apply to Mr Campagna’s past or current circumstances that would make it unjust or unreasonable for the debts not to be recovered and Mr Campagna has repaid these debts in full.
On the 13 July 2018 Mr Campagna sought a review of the AAT1 decision by this division of the Tribunal; he believes the decision is wrong for the following reasons: The Commonwealth law was not applied.
THE ISSUES IN CONTENTION
The Tribunal needs to consider the following relevant issues:
(a)whether Mr Campagna was overpaid rent assistance of $227.64 between 14 November 2015 and 4 December 2015; and whether Mr Campagna incurred an FTB debt of $478.80 between 1 July 2013 and 30 June 2014;
(b)if so, is the debt recoverable; and if yes
(c)should the debt be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 (the Social Security Act); or
(d)whether special circumstances exist such that the debt should be waived pursuant to section 1237AAD of the Social Security Act.
LEGISLATIVE FRAMEWORK
The FTB is worked out as an annual entitlement, based on the combined adjusted income of the recipient and their partner. If information of an individual’s adjusted taxable income is not available, a determination of an individual’s eligibility or rate of FTB is based on an estimate.
In the financial year in question, recipients could elect to receive FTB in fortnightly instalments based on their income assessments. Alternatively, they could elect to receive their full FTB entitlement after the end of the financial year.
Schedule 1 Section 28B of A New Tax System (Family Assistance) Act 1999 (the Act) describes how the Part B FTB supplement rate is determined as nil when the adjusted taxable income exceeds $100,000:
(1)Despite Subdivisions A and B, an individual’s Part B rate is nil if the individual’s adjusted taxable income is more than $100,000.
Note: If the individual is a member of a couple, the individual’s adjusted taxable income is the higher of the individual’s adjusted taxable income and the adjusted taxable income of the individual’s partner: see clause 3 of Schedule 3.
(2)However, subclause (1) does not apply while the individual, or the individual’s partner, is receiving a social security pension, a social security benefit, a service pension, income support supplement or a veteran payment.
Schedule 1 Section 38L of the Act outlines the income test to pension and benefit recipients and their partners
If an individual, or an individual’s partner, is receiving a social security pension, a social security benefit, a service pension, income support supplement or a veteran payment:
(a) the individual’s income excess is nil; and
(b) the individual’s income tested rate is the same as the individual’s maximum rate
Section 38C of the Act describes the Eligibility for rent assistance
(1)An amount by way of rent assistance for a period is to be added in working out an individual’s maximum rate if:
(a)        the individual has at least one rent assistance child; and
(b)the individual’s claim for family tax benefit is not a claim to which subclause (2) applies; and
(ba)neither the individual nor the individual’s partner is receiving payments of incentive allowance under clause 36 of Schedule 1A to the Social Security Act 1991; and
(c)        the individual is not an ineligible homeowner; and
(d)        the individual is not an aged care resident; and
(e)        the individual pays, or is liable to pay, rent (other than Government rent); and
(f)if the individual has at least one FTB child and is not a relevant shared carer—the rent is payable at a rate of more than:
(i)if the individual is not a member of a couple—$3,073.30 per year; or
(ii)if the individual is a member of a couple but is not partnered (partner in gaol) or a member of an illness separated couple, a respite care couple or a temporarily separated couple—$4,547.90 per year; or
(iii)if the individual is partnered (partner in gaol) or is a member of an illness separated couple or a respite care couple—$3,073.30 per year; or
(iv)if the individual is a member of a temporarily separated couple—$3,073.30 per year; and
(fa)      if the individual is a relevant shared carer, or has only one or more regular care children (but no FTB children)—the rent is payable at a rate of more than:
(i)if the individual is not a member of a couple—$2,332.35 per year; or
(ii)if the individual is a member of a couple but is not partnered (partner in gaol) or a member of an illness separated couple, a respite care couple or a temporarily separated couple—$3,806.95 per year; or
(iii)if the individual is partnered (partner in gaol) or is a member of an illness separated couple or a respite care couple—$2,332.35 per year; or
(iv)if the individual is a member of a temporarily separated couple—$2,332.35 per year; and
(g)if the individual is outside Australia:
(i)the person was paying rent (other than Government rent) for accommodation in Australia immediately before the individual left Australia; and
(ii)the person continues to pay rent for the same accommodation while outside Australia.
(2)This subclause applies to an individual’s claim for family tax benefit if:
(a)the claim is for family tax benefit for a past period that occurs in the first or second income year before the one in which the claim is made; and
(b)when the claim is made the individual:
(i)is eligible for family tax benefit; and
(ii)is not prevented by section 9 of the A New Tax System (Family Assistance) (Administration) Act 1999 from making an effective claim for payment of family tax benefit by instalment; and
(c)the claim is not accompanied by a claim for family tax benefit by instalment.
(3)Paragraph (2)(c) does not apply if, at the time the claim for payment of family tax benefit for a past period is made, subsection 32AE(2) of the Family Assistance Administration Act applies in respect of the individual or subsection 32AE(5) of that Act applies in respect of the individual’s partner.
Section 71 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act) provides guidance on debts in respect of FTB advance:
No entitlement to amount
(1)If:
(a)an amount has been paid to a person by way of family tax benefit, stillborn baby payment or single income family supplement (the assistance) in respect of a period or event; and
(b)the person was not entitled to the assistance in respect of that period or event;
(i)the amount so paid is a debt due to the Commonwealth by the person.
(ii)Overpayment
(2)If:
(a)an amount (the received amount) has been paid to a person by way of assistance; and
(b)the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
Section 97 of the Administration Act provides grounds for the decision maker to waive recovery of any part of the debt. The Act provides that the decision maker must waive a debt if it was attributable solely to an administrative error made by the Commonwealth, and the debtor received the payments in good faith.
Section 95(2) of the Administration Act allows the decision-maker to write off a debt 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.
Section 101 of the Administration Act allows the decision maker to waive all or part of the debt if they are satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of the family assistance law; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”. Mr Campagna also provided statements.
Mr Campagna’s contentions
Mr Campagna provided the following information for the Tribunal’s consideration:
The debt recovery department from the Department of Human Services assessed the amount received from Colonial Mutual and it was deemed to be compensation and not assessable by Social Security Law 4.13.1.20. The amount received is not assessable as per ATO and therefore no tax lodgement is required from 1 July 2013 to 30 June 2014 financial year. The ATO fraudulently claims the insurance company is my employer and the amount received is for Salary/Wages, DHS does not belief this to be true but still raised a debt of $878.18 for Family Tax Benefits. If DHS believed the amount that I receive was for Salary/Wages, they would have request that I pay back the payments paid for the Sickness Allowance.
The AAT member […] ignored the ATO documents which I presented, I provided evidence of the amended ATO tax return for the 1 July 2013 to 30 June 2014. The evidence was not considered in the decision dated 22 June 2018 and a debt of $878.18 was affirmed. I presented this document to Centrelink office at Epping Victoria and once processed the debt was reduced to $478.80. I have demonstrated errors by the ATO and DHS; the AAT has affirmed the debts regardless of the evidence presented. The debt of $478.80 is still an error created by the DHS, using wrong information supplied by the ATO as evidence. The errors have been created solely by Commonwealth, ATO and DHS. I have not contributed to the errors anyway and therefore the debt cannot be raised as per Social Security Guide 6.7.3.30 Waiver for Administrative Error Debt.
On 23 June 2014, it was recorded the taxable income: 18000 for the next financial year, 1 July 2014 to 30 June 2015, as per DHS requirements and not an estimate for 1 June 2013 to 30 June 2014 as there is only one week left in that year.
Since the mail can be redirected from my residential address, prior to the expiration of my lease, I attended a Centrelink office and requested that my address be removed as my son and I would be homeless. I attended to Centrelink office a second time to confirm that the address status was updated. I was told the address status “Surfers Paradise” only. The reason to supply the Rental Agreement to DHS is to have a cut off point for rent assistance unless another agreement is present, therefore a new cut off point is recorded for rent assistance. I have submitted the correct documents to the department and I have gone above and beyond by requesting that the address be removed from my record. This is another error that DHS has created solely by themselves.
I request the debts are cancelled, unless DHS can demonstrate, as written evidence, that I have mislead them. File entries by DHS staff on my file had no value as there is no guarantee that the right information has be entered or altered after the entry.
The Respondent’s contention
FTB debt of $478.80 for the period from 1 July 2103 to 30 June 2014.

The respondent contended that:
[D]uring the 2013-14 income year, the Applicant was receiving sickness allowance under the social security law. On 27 May 2014 the Applicant contacted the Department about a payment received from Colonial Mutual and requested that his sickness allowance and FTB be cancelled. The Applicant’s sickness allowance was cancelled on 23 May 2014. As per clause 38L of Schedule 1 of the Act, for the period 1 July 2013 to 23 May 2014 the Applicant was paid FBT on the basis that he was in receipt of sickness allowance.
[…]
In a file note dated 23 June 2014 it is recorded that Mr Campagna provided an income estimate of $18,000 and his FTB was restored from 17 June 2014.
[…]
For the period 24 May 2014 to 30 June 2014 the Applicant continued to be paid maximum rate of FTB Part A.
[…]
[A]s the Applicant was on a social security benefit for part of the year and his ATI was under $150,000 for the 2013-14 income year, he was entitled to FTB Part B for the entire year.
Centrelink conducted a reconciliation of Mr Campagna’s actual income and entitlement to FTB on 27 March 2017, when Mr Campagna submitted his tax return for the 2013/14 income year. The reconciliation occurred because Mr Campagna had been previously paid FTB on the basis of an estimated income and his actual income had only become known following lodgement of his tax return.
On 27 March 2017 Centrelink made the decision to raise the debt of $878.18 against Mr Campagna, based on his taxable income of $111,770.00. This decision was affirmed by both the ARO and the AAT1. On 26 July 2018 a decision was made by the delegate of the Secretary that an incorrect income had been applied and the correct income for the 2013/14 financial year should be $71,837.00. The new debt was determined to be $478.80.
The Respondent contends that Mr Campagna’s income for the 2013-2014 income year has been correctly calculated and as such he has been overpaid FTB and has a debt to the Commonwealth.
Rent assistance debt of $227.64 for the period from 14 November 2015 to 4 December 2015
The Respondent accepts that Mr Campagna was liable to pay rent for his unit in Surfers Paradise in accordance with his tenancy agreement, from 21 March 2015 to 13 November 2015.
The Respondent contends that for the period from 14 November 2015 to 4 December 2015 Mr Campagna was paid rent assistance of $227.64, to which he was not entitled as he was not paying rent.
That Mr Campagna failed to notify the Department that he was no longer paying rent during this period and did not advise the Department of a change in his status as soon as practicable. He only notified Centrelink in May 2017 of his status when he applied for Newstart Allowance.
CONSIDERATION
Mr Campagna’s contention is that his income in the 2013/14 financial year was not based upon wages he received, but a superannuation payout from Colonial Mutual for total permanent disability and financial hardship. He argued at the AAT1 hearing that the ATO had inappropriately assessed this payment as wages and had taxed this payment inappropriately. The AAT1 hearing referred to a letter from the ATO to Mr Campagna which stated:
The ATO has acknowledged that the payments you received were received as lump sum amounts. However, they were salary continuance payments from 5 October 2012 to 4 June 2014 as per the letter from the superannuation fund, FirstChoice Employer Super, dated 16 May 2014. Based on this information, the ATO is of the view that it is assessable.
The AAT1 accepted the ATO’s findings that the lump sum payment was adjustable income in accordance with schedule 3 of the Act. Accordingly, Centrelink had used this actual income to reconcile Mr Campagna’s entitlement for FTB and found he had received a higher rate than that to which he was entitled, and a debt to the Commonwealth had arisen.
Mr Campagna has drawn the Tribunal’s attention to the Centrelink file note of 27 May 2014 which refers to the Social Security Guide which indicates that clause 4.13.1.20 Assessment of compensatory type payments determines that:
Personal accident policies and/or income protection policies attached to superannuation policies, and Disability Pensions paid from a superannuation fund are not to be treated as compensation even if they have offset clauses. These payments are to be means tested as income streams.
The Tribunal has concluded, based on all the evidence before it, that Mr Campagna has had his income for the 2013/14 financial year assessed appropriately by the ATO. When this figure is applied in accordance with the Social Security Guide and reconciled by Centrelink, the Department has come to the correct conclusion that the Applicant’s FTB debt to the Commonwealth was $478.80 for the period from 1 July 2103 to 30 June 2014.
Mr Campagna contends that his rent assistance debt should be written off as he provided a lease agreement to Centrelink which ended on 13 November 2015 but Centrelink continued to pay him rent assistance.
The current Social Security Guide states:
1.2.15 Rent Assistance (RA) - Description
RA recognises the housing costs that low income families face in the private (i.e. non-government) rental market. RA is payable to eligible individuals for an FTB child or regular care child who is also an RA child.
RA is payable as part of an eligible individual's fortnightly FTB Part A instalment payment, or a lump sum payment where claim and reconciliation requirements are met.
2.2.13.20 RA - Verification Required
Summary
RA recipients, who are not exempt from providing verification of accommodation details, should verify the amount of rent paid by providing:
·a current 'lease' or tenancy agreement, or
·a Rent Certificate, or
·a Rent Declaration (these are acceptable in limited circumstances only).
The Centrelink file note of 8 March 2018 states:
I have not been able to speak with customer about where he was living or the rent he paid in the debt periods so I have made my decision based on all the evidence before me. Customer had a lease for the period in question. He provided medical certificates with the same address as a lease. He was enquiring about his payments through this debt period as he was concerned he wouldn’t be paid and then could not pay his rent. Customer was renting at […] which has since closed down so I am not able to speak with the property manager. But on the total evidence before me I find it would be reasonable to say that customer was living and paying rent at […] Surfers Paradise. […] the remaining debt is due to the customer not advising that he moved from the unit […] and no verification of rent - for the period 14/11/2015-04/12/2015. No lease for this period therefore this part of the debt would remain.
The Tribunal concludes, based on all the evidence before it, that Mr Campagna has been overpaid rent assistance for the period from 14 November 2015 to 4 December 2015, as he did not advise Centrelink that he had relocated from the unit in Surfers Paradise. He therefore owes a debt of $227.64 to the Commonwealth.
Waiver the debt on the basis of administrative error
Under section 97(1) of the Administration Act, the Tribunal must waive the right to recover the proportion of a debt, if it was due solely to administrative error by the Commonwealth.
The Respondent submitted that the debt had not arisen as a result of administrative error and consequently section 97(1) of the Administration Act was not satisfied.
The AAT1 found, and this Tribunal concurs, that the debt occurred because of the “new” reconciliation of Mr Campagna’s income for the 2013/2014 financial year; and Mr Campagna’s failure to advise Centrelink that he had changed addresses, and not as a result of an error made by the Commonwealth.
Write off a debt
Under section 95 of the Administration Act, the Tribunal has discretion to write off a debt if: the debt is irrecoverable at law; the debtor has no capacity to repay the debt; the debtor’s whereabouts are unknown; and it is not cost effective for the Commonwealth to take action. Mr Campagna’s does not meet any of these criteria. As Mr Campagna’s whereabouts are known and his debt has already been recovered in full, this provision of the Administrative Act cannot apply.
Waiver of all or part of the debt in special circumstances
The Tribunal, standing in the shoes of the Secretary, also has the discretion to waive all or part of Mr Campagna’s debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 101 of the Administration Act must be satisfied.
The Respondent contends that there is no evidence to suggest that Mr Campagna’s circumstances are such that they can be considered special to the extent that waiver of part or all of the debt is warranted under section 101.
Knowingly
The term ‘knowingly’ has not been defined in the Administration Act, though it has been considered extensively by the Tribunal in similar circumstances.
In Re Callaghan and Secretary Department of Social Security [1996] 45 ALD 435, Deputy President Forgie said:
There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation that he or she is failing or omitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
The Tribunal finds that Mr Campagna did not make any false statements or declarations. As a result the debt did not arise because he knowingly made false statements or declarations. The Tribunal finds that Mr Campagna did not deliberately act dishonestly with any intention to mislead Centrelink.
In Re Anderson and Secretary, Department of Families and Community Services [2002] AATA 495, the Tribunal stated:
[…]it is open to the Tribunal to infer that the applicant has actual knowledge of his obligations under the Act where there are opportunities for that knowledge to be gained and where there are no obstacles to him acquiring that knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act through the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge”.
The Tribunal finds Mr Campagna did not knowingly or deliberately mislead Centrelink, and therefore the debt had not arisen solely or partly from him knowingly making a false statement, or knowingly failing to comply with the legislation. As such, subsection (a) of section 101 of the Administration Act is not satisfied.
Special circumstances
The expression “special circumstances” has not been defined in the Administration Act. However, the meaning of special circumstances has been considered extensively by the Federal Court and the Tribunal.
In Ryde v Sec Department of Family and Community Services [2005] FCA 886, Branson J said:
[…] the evident purpose of s 1237AAD is to enable a flexible response to the wider range of circumstances which could give rise to hardship or unfairness, the statutory requirement for ‘special circumstances’ discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.
In Groth v Secretary Department of Social Security [1995] FCA 989, Kiefel J said:
[…] for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
In summary, it has been held that for circumstances to constitute special circumstances they must be circumstances which are unusual, uncommon or exceptional, markedly different from the usual run of cases, special, or out of the ordinary, and they include events which would render the strict application of the rule in question unfair or inappropriate.
Mr Campagna did not present any factors to the Tribunal which demonstrated hardship or unfairness sufficient to constitute special circumstances which would justify waiving his debt.
The Respondent submitted there was no substantive reason or evidence provided by Mr Campagna that there are special circumstances that make it desirable to waive the debt.
The Tribunal finds it was not able to assess Mr Campagna’s special circumstances as he did not provide any evidence in respect of his current situation. The Tribunal notes that Centrelink records that Mr Campagna advised he had been homeless since 2015, that his Centrelink benefits had ceased in 2015, and that he did not seek to reengage with Centrelink until he applied for Newstart in 2017. The Tribunal notes that Mr Campagna has advised he has a disability but has provided no evidence on which the Tribunal can determine its impact on his current circumstances..
The Tribunal is very sympathetic to Mr Campagna’s apparent circumstances and the difficulty and frustration he must have experienced in respect of his numerous Centrelink debts, the amounts of which have chopped and changed since he was first advised of them in 2017. However, there was no evidence on which the Tribunal could justify waiving his debt. Mr Campagna’s total debt now stands at $706.44 and has been repaid in full. The Tribunal trusts that Mr Campagna has had all his entitlements reimbursed in line with the ARO’s directive of 8 March 2018.
Waiving the debt more appropriate than writing-off the debt
The Tribunal finds it is not appropriate to write-off the debt and therefore Mr Campagna does not satisfy section 101(c) of the Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, Member

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Associate
Dated: 14 December 2018