Charnley and Secretary, Department of Social Services (Social services second review) - [2022] AATA 1530

Charnley and Secretary, Department of Social Services (Social services second review) [2022] AATA 1530 (8 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1616
Re:Kate Charnley
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:8 June 2022
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[SGD]..........................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – Family Tax Benefit – overpayment – administrative error – where no sole administrative error – where no special circumstances – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Cases
Boscolo v Secretary, Dept of Social Security[1999] FCA 106; (1999) 90 FCR 531
Chalmers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 540
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084
Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) FCA 1923; (2008) 174 FCR 157
Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; [1981] AATA 57
Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225
Re Secretary, Department of Families, Housing, Community Service and Indigenous Affairs and Sarolea [2008] AATA 372
Re Stubbs and Secretary, Department of Families and Community Services (2003) AATA 03/0729
Saab and Secretary, Department of Education, Skills and Employment [2021] AATA 2766
Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72; (2001) 65 ALD 553
Secretary, Department of Social Services and Gilmartin [2022] AATA 723
Secretary, Department of Social Security v Hales [1998] FCA 219
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (2003) 76 ALD 105
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Skinner and Secretary, Department of Social Services [2015] AATA 569
Tubic and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 13
REASONS FOR DECISION
Member D Mitchell
8 June 2022
INTRODUCTION

The decision under review is the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated 8 February 2021.[1] On that date, the SSCSD affirmed the Respondent’s decision to:[2]
(a)raise a family tax benefit debt of $5,855.15 for the 2017-2018 financial year;
(b)raise a family tax benefit debt of $8,143.58 for the 2018-2019 financial year; and
(c)to recover those debts in full.
[1] Exhibit 1, T Documents, T2, pages 8-20, Decision of the SSCSD.
[2] Exhibit 1, T Documents, T2, pages 8-20, Decision of the SSCSD.
The Applicant sought review of that decision by this Tribunal by way of an application dated

15 March 2021.[3]
[3] Exhibit 1, T Documents, T1, pages 1-7, Application for Review.
BACKGROUND
Throughout the 2017-2018 and 2018-2019 financial years (the debt period), the Applicant had been receiving family tax benefit (FTB). Her rate of FTB was paid on the basis that she was recorded as being single. As such, her rate of FTB was calculated based solely off her adjusted taxable income.
On 9 March 2018, the Respondent issued a notice to the Applicant which, among other things, stated:[4]
[4] Exhibit 1, T Documents, T28, page 435, Agency letters issued 9.03.17 to 18.06.19.
About your family’s income
You need to tell us about any changes to your and/or your partner’s income as soon as possible. This is important because your and/or your partner’s income will be checked with the Australian Taxation Office at the end of each financial year to make sure you have been paid the right amount.
On 7 April 2018, the Applicant submitted that her estimated income for FTB purposes was $10,000 for the 2017-2018 financial year.[5] The Applicant did not report any partner income.[6]
[5] Exhibit 1, T Documents, T24, page 347, Agency mainframe screen captures.
[6] Exhibit 1, T Documents, T24, page 348, Agency mainframe screen captures.
On 9 May 2018, the Applicant contacted the Respondent seeking information in relation to her Newstart Allowance and advised she was in a relationship.[7] At the Applicant’s request, she was sent a MOD P (Partner Details) form to complete and return.[8] It was recorded by the Respondent that:[9]
Recipient advised also that she has spoken with F&P and is awaiting paperwork to complete as no longer separated under one roof, is now partnered and living with partner.
[7]     Exhibit 1, T Documents, T25, page 365, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
[8]     Exhibit 1, T Documents, T25, page 365, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20; Exhibit 1, T Documents, T28, page 454, Agency letters issued 9.03.17 to 18.06.19.
[9]     Exhibit 1, T Documents, T25, page 366, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
On 30 May 2018, the Applicant lodged the MOD P form with the Respondent. The Applicant provided her partner’s details and declared that they had been living together since

7 April 2018.[10]
[10] Exhibit 1, T Documents, T5, page 55, Partner Details (Mod P) form, including copy of partner passport.
On 16 June 2018, the Respondent issued to the Applicant a notice about her family assistance payments which restated that she was required to ensure both her income and that of her partner were reported correctly to Centrelink for the purpose of ensuring she was paid the right amount.[11]
[11] Exhibit 1, T Documents, T28, page 465, Agency letters issued 9.03.17 to 18.06.19.
On 18 June 2018, the Applicant contacted the Respondent to check on the MOD P form she had lodged. The Applicant was asked to provide a clearer copy of her partner’s passport and complete question 27 on the form and resubmit it.[12] On the same day, the Applicant lodged a further copy of her partner’s passport.[13]
[12] Exhibit 1, T Documents, T25, page 365, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
[13] Exhibit 1, T Documents, T6, pages 68-69, Copy of partner passport.
On 14 July 2018, the Respondent wrote to the Applicant about her FTB for the 2017-2018 financial year and provided that having reviewed her FTB entitlement for the year, she was owed $2,405.80.[14] The letter also provided:[15]
It is extremely important to make sure your estimate of your annual income is as accurate as possible. Remember to include all taxable income for yourself and your partner for the whole financial year including ……
[14] Exhibit 1, T Documents, T28, page 467, Agency letters issued 9.03.17 to 18.06.19.
[15] Exhibit 1, T Documents, T28, page 468, Agency letters issued 9.03.17 to 18.06.19.
On 31 July 2018, the Respondent wrote to the Applicant about her family assistance, outlining that as she no longer received an income support payment each fortnight, she needed to provide a new estimate of her family income within 14 days. It was outlined that this information was required to assist the Respondent in making the right decision about continuing her FTB payments.[16]
[16] Exhibit 1, T Documents, T28, pages 469-470, Agency letters issued 9.03.17 to 18.06.19.
There is no evidence before the Tribunal that the Applicant provided an update of her family income to include her partner’s income during the debt period.
On 5 August 2018 and 8 September 2018, the Respondent wrote to the Applicant about her family assistance which, among other things, set out the requirement that the Applicant must advise about any changes to her or her partner’s income as soon as possible.[17]
[17] Exhibit 1, T Documents, T28, pages 474-475 and 484-485, Agency letters issued 9.03.17 to 18.06.19.
On 4, 11 and 15 October 2018, the Respondent wrote to the Applicant providing an Income Statement that showed information they hold about her on her Centrelink record. Each notice recorded “N” next to “Customer Partnered”.[18] Each notice also requested that if any of the details outlined in the notice were incorrect that the Applicant contact the Respondent as soon as possible.[19]
[18] Exhibit 1, T Documents, T28, pages 487, 490, 496, 499, 508, 511, Agency letters issued 9.03.17 to 18.06.19.
[19] Exhibit 1, T Documents, T28, pages 489, 492, 498, 501, 510, 513, Agency letters issued 9.03.17 to 18.06.19.
On 24 October 2018, the Applicant updated her accommodation details online, providing a new address as being effective from 18 October 2018. She recorded the following accommodation details:[20]
[20] Exhibit 1, T Documents, T25, page 370, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
Customer owns home: No
Customer live with parents: No
Customer shares accommodation: No
Customer has life interest: No
Customer has recently sold their home: No
Changes in accommodation take place from 24 October 2018
Customer lives in accommodation where they pay Private rent
Customer shares accommodation: No
Amount of Private rent paid by the customer $400.00
Frequency: Weekly
On 1 November 2018, the Applicant further updated her accommodation details, again providing that she did not share her accommodation at the new address.[21]
[21] Exhibit 1, T Documents, T25, page 372, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
On 8 November 2018, the Applicant lodged a Rent Certificate declaration form to the Respondent, declaring that she receives rent assistance for her rental home, that her weekly rent was $400.00 and that she did not live in shared accommodation.[22] On the same day, the Applicant also lodged with the Respondent a copy of her general tenancy agreement which named both herself and her partner as tenants of the property.[23]
[22] Exhibit 1, T Documents, T7, pages 70-72, Rent Certificate.
[23] Exhibit 1, T Documents, T8, pages 73-75, General Tenancy Agreement.
On 7 August 2019, the Respondent wrote to the Applicant and notified her that after her entitlement to FTB for the 2017-2018 financial year had been reconciled against her annual family income and her family circumstances, she had been overpaid $2,107.70.[24]
[24] Exhibit 1, T Documents, T9, pages 76-79, Agency letter: Account Payable – Family Tax Benefit 2017-18.
On 14 August 2019, the Applicant updated her family income estimate for FTB purposes to $22,000.00 for the 2019-2020 financial year.[25]
[25] Exhibit 1, T Documents, T24, page 347, Agency mainframe screen captures.
On 21 August 2019, the Respondent wrote to the Applicant and notified her that after her entitlement to FTB for the 2018-2019 financial year had been reconciled against her annual family income and her family circumstances, she had been overpaid $4,109.72.[26]
[26] Exhibit 1, T Documents, T10, pages 80-83, Agency letter: Account Payable – Family Tax Benefit 2018-19.
On 2 September 2019, the Applicant called the Respondent and requested a review of the FTB debts raised against her. The Respondent agreed to pause debt recovery action for a period of 3 months.[27]
[27] Exhibit 1, T Documents, T25, page 377, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
On 10 September 2019, the Applicant attended a Centrelink Service Centre. It was recorded by the Respondent that:[28]
MOD P lodged 30/5/18 however not actioned. Have linked cus and ptr as at 7/4/19. Ptr works casually. Cus does not believe should rec a debt as she adv of being partnered on 30/5 and MOD P was not actioned. Letter sent to request ptr payslips and bank statements. …
[28] Exhibit 1, T Documents, T25, page 378, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
On the same day it was recorded that the Applicant’s debt was temporarily written off[29] and the Respondent wrote to the Applicant in respect of her entitlement to FTB for the

2017-2018 financial year.[30] The notice outlined that as the Respondent’s records showed that the Applicant did not confirm her family income, which she needed to do by 30 June 2019, all of the FTB payments she received for the 2017-2018 financial year must be paid back. The result of the notice was that the Applicant had an account payable amount for the 2017-2018 financial year of $25,256.83.[31]
[29]    Exhibit 1, T Documents, T25, page 379, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
[30]    Exhibit 1, T Documents, T11, pages 84-86, Agency letter: Account Payable (2017-18).
[31]    Exhibit 1, T Documents, T11, pages 84-86, Agency letter: Account Payable (2017-18).
On 10 September 2019, the Respondent sent the Applicant a further notice regarding her entitlement to FTB for the 2018-2019 financial year. The notice stated that the Applicant’s family income for the year was $19,378.00 and based on that income and her family circumstances during the year, she received more FTB than she was entitled to. The result of the notice was that the Applicant was not entitled to any of the FTB that she received for the 2018-2019 financial year and as such, had an account payable amount of $22,991.56 for the year.[32]
[32] Exhibit 1, T Documents, T12, pages 87-89, Agency letter: Account Payable – Family Tax Benefit 2018-19.
On 10 September 2019, the Applicant updated her family income estimate for FTB purposes to $42,000.00 for the 2019-2020 financial year.[33]
[33] Exhibit 1, T Documents, T24, page 347, Agency mainframe screen captures.
On 12 September 2019, the Respondent wrote to the Applicant notifying her that her FTB debt for the 2018-2019 financial year had been recalculated on the basis of her family income of $38,198.00 and had been reduced to $8,401.34.[34]
[34] Exhibit 1, T Documents, T14, pages 93-96, Agency letter: Account Payable – Family Tax Benefit 2018-19.
On 16 September 2019, the Respondent wrote to the Applicant notifying her that her FTB overpayment for the 2018-2019 financial year was $8,143.58[35] and that she was overpaid FTB in the 2017-2018 financial year of $5,795.15.[36]
[35] Exhibit 1, T Documents, T15, pages 97-100, Agency letter: Account Payable – Family Tax Benefit 2018-19.
[36] Exhibit 1, T Documents, T16, pages 101-104, Agency letter: Account Payable – Family Tax Benefit 2017-18.
On 2 and 3 October 2019, the Applicant contacted the Respondent to discuss debt recovery.[37]
[37] Exhibit 1, T Documents, T25, pages 383-384, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
On 8 October 2019, the Applicant requested a review of the Respondent’s decisions to raise FTB debts relating to the 2017-2018 and 2018-2019 financial years against her.[38] In responding to the question why she believed the decisions were wrong, the Applicant provided a letter outlining that she did not know why debts had been raised against her when she contacted Centrelink to advise them of her changes of circumstances, uploaded the MOD P form and supporting documentation on 30 May 2018 and confirmed it was received on 18 June 2018 by the Respondent. The Applicant stated:[39]
Since then I have followed this up numerous times with Centrelink and staff repeatedly acknowledged receipt of this form and supporting documentation. Each time, Centrelink staff assured me it would be actioned. This clearly was never actioned. This is the incompetence of Centrelink.
[38] Exhibit 1, T Documents, T17, pages 105-108, Review of a decision form with letter from Applicant.
[39] Exhibit 1, T Documents, T17, page 108, Review of a decision form with letter from Applicant.
On 14 October 2019, the Applicant provided a further letter in response to the question why she believed the decisions were wrong, which was consistent to that provided on

8 October 2019.[40]
[40] Exhibit 1, T Documents, T18, pages 109-110, Letter from Applicant.
The Applicant also contacted the Respondent on that date to discuss her appeal against the debt decisions. It was recorded that the Respondent paused debt recovery action for three months.[41]
[41] Exhibit 1, T Documents, T25, pages 386-387, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
Following further contact by the Applicant on 14 October 2019, it is noted in her Centrelink file that her request for review of the debt decisions had been referred to an Authorised Review Officer (ARO). The officer making the referral formed the opinion that the debts were caused by sole administrative error and that the waiver provisions were met.[42]
[42] Exhibit 1, T Documents, T25, pages 388-389, , File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20; Exhibit 5, Centrelink record of the Applicant referring to contact made on 14 October 2019, pages 1-3; Exhibit 9, Respondent’s Closing Submissions, pages 1-6.
On 2 December 2019, following a request made by the Applicant, the Respondent agreed to extend the debt recovery pause pending finalisation of her review request.[43]
[43] Exhibit 1, T Documents, T25, page 390, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
On 10 November 2020, an ARO affirmed the decision to raise debts of FTB in the amounts of $5,855.15 for the 2017-2018 financial year and $8,143.58 for the 2018-2019 financial year against the Applicant and that those debts should be recovered.[44] The ARO provided the following findings of fact:[45]
[44] Exhibit 1, T Documents, T21, pages 113-118, Decision and Notes of ARO.
[45] Exhibit 1, T Documents, T21, page 114, Decision and Notes of ARO.
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·On 30 May 2018 you advised us that you became partnered on 7 April 2018. Your record was not updated on this date.
·You stated within your rent certificate supplied on 8 November 2018 that you do not share your accommodation with anyone.
·You received Family Tax Benefit for the 2017-18 and 2018-19 financial years based on adjusted taxable income estimates of $10,000.
·Your actual adjusted taxable income for the 2017-18 and 2018-19 financial years were $35,891 ($20,680 for you and $15,211 for your partner) and $38,198 ($19,378 for you and $18,820 for your partner).
·You received more Family Tax Benefit than you were entitled to receive for the 2017-18 and 2018-19 financial years because your actual adjusted taxable incomes were more than the estimated incomes used to calculate your Family Tax Benefit.
·As a result of income being higher than the estimates used you were overpaid the 2 amounts listed on page 1 of this letter.
On that same day, it was noted by the Respondent on the Applicant’s file that “Waiver considered. We failed to update customer’s report and customer underestimated her income causing the debt, therefore the debts are not solely due to adm error”.[46]
[46] Exhibit 1, T Documents, T25, page 401, File notes (ODR/DOC) of customer contact for period 5.09.17 to 10.11.20.
The Applicant sought review of the ARO’s decision by the SSCSD.[47]
[47] Exhibit 1, T Documents, T22, pages 119-129, Application for Review (to AAT1).
On 9 February 2021, the SSCSD affirmed the decision of the ARO.[48]
[48] Exhibit 1, T Documents, T2, pages 8-15, Decision of the SSCSD (AAT1).

Following this, the Applicant sought a second-tier review of this matter by the General Division of the Tribunal by way of application dated 15 March 2021.[49]
[49] Exhibit 1, T Documents, T1, pages 1-7, Application for Review of Decision.
In making her applications to both the SSCSD and this Tribunal seeking review of the decision to raise and recover FTB debts against her for the 2017-2018 and 2018-2019 financial years, the Applicant has, on a number of occasions, outlined the effects that those debts have had on both her mental and physical health and that of her family.[50]
[50] Exhibit 1, T Documents, T1, pages 3-7, T2, pages 16-20, ST1 and ST2, Exhibits 4, 6 and 9.
Consequently, by consent, it was agreed that this matter could be adequately determined in the absence of the parties. The Tribunal agreed to review the reviewable decision in accordance with section 34J of the Administrative Appeals Tribunal Act1975 (Cth) and provided the parties with the opportunity to make final submissions. As such, a hearing was not conducted in this matter. The Tribunal’s decision has been reached “on the papers” having considered the documents filed by the parties.
The Tribunal admitted into evidence and considered the following:
·Exhibit 1, T Documents – Section 37 T-Documents.
·Exhibit 2, Supplementary T-Documents – Section 38AA Documents.
·Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, dated
24 January 2022.
·Exhibit 4, Applicant’s email submissions dated 17 August 2021.
·Exhibit 5, Centrelink record of the Applicant referring to contact made on 14 October 2019, submitted by email by the Applicant on 4 and 11 May 2022.
·Exhibit 6, Email from the Applicant dated 10 April 2022 attaching a further statement of the Applicant.
·Exhibit 7, Email from the Applicant dated 12 April 2022 providing a further statement and attachments.
·Exhibit 8, Email from the Applicant dated 18 April 2022.
·Exhibit 9, Respondent’s Closing Submissions, dated 27 April 2022.
·Exhibit 10, Emails from the Applicant dated 11 May 2022 attaching a further statement of the Applicant, a statement from her mother and reattaching the Centrelink record at Exhibit 7.
The relevant law in relation to the payment of FTB and recovery of debts to the Commonwealth is found in the A New Tax System (Family Assistance) Act 1999 (Cth)
(FA Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
(FA Administration Act).
ISSUES
The issues for the Tribunal to consider are:
1.whether the Applicant was paid more than her correct amount of family tax benefit during the period the 2017-2018 and 2018-2019 financial years (debt period); and if so
2.whether the excess payments are debts to the Commonwealth; and if so
3.whether they are recoverable in part or in full.
APPLICANT’S EVIDENCE AND SUBMISSIONS
The Applicant’s submissions outlined that she has three children of whom she loves dearly. She home schools her children, who have medical conditions that she ensures are cared for.[51]
[51] Exhibit 1, T Documents, T1, pages 3-7, Application for Review; T2, pages 16-20, Decision of the SSCSD (AAT1); Exhibit 4, Applicant’s email submissions dated 17 August 2021, pages 1-3; Exhibit 6, Email from the Applicant dated 10 April 2022 attaching a further statement of the Applicant, pages 1-3; Exhibit 9, Respondent’s Closing Submissions, pages 1-6.
The Applicant further outlined details of both her physical health and mental health during the debt period and leading up to this matter being heard on the papers.[52]
[52] Exhibit 1, T Documents, T1, pages 3-7, Application for Review; T2, pages 16-20, Decision of the SSCSD (AAT1); Exhibit 4, Applicant’s email submissions dated 17 August 2021, pages 1-3; Exhibit 6, Email from the Applicant dated 10 April 2022 attaching a further statement of the Applicant, pages 1-3; Exhibit 9, Respondent’s Closing Submissions, pages 1-6.
The Applicant has not specifically disputed that she was paid more FTB than she should have been during the debt period. However, she contends that she had notified the Respondent of the changes in her circumstances and it was their failure to update her record that led to any such overpayment.
In submissions made to the SSCSD, of which are consistent with subsequent submissions, the Applicant contended that she would never intentionally take extra payments and provided that:[53]
Centrelink told me they paid me as a single person. That is their fault. I was not at any time aware that they were paying me as a single person. They made an administrative error. This is solely attributable to Centrelink error. This was not a deliberate act by me. I did not knowingly and intentionally receive extra money. I received all payments in good faith. I will suffer severe financial hardship.
Centrelink told me that my income estimates were incorrect. I was never aware that my income estimate was inadequate. I came out of a marriage to being single and I was struggling to cope each day and raising my three children on my own. I suffer depression. I was suddenly receiving a different payment and I wasn't aware that reflected in my income estimate. As far as I was aware I was not employed and therefore I received no income, as it was in my marriage. Centrelink should be more supportive and assist people.
If Centrelink had put my partner in their system then this issue about income estimates would have been picked up after the first financial year balancing and it would not have occurred a second time (the following year) which was two years in a row which is ridiculous and unacceptable. That is a fact and they know it. This is common sense. They cannot treat me as though I am stupid because I am not. I will not pay for their mistake. I will never stop fighting this.
[53] Exhibit 1, T Documents, T2, pages 16-17, Decision of the SSCSD (AAT1).
The Applicant further provided in a separate submission to the SSCSD:[54]
[54] Exhibit 1, T Documents, T2, pages 18-19, Decision of the SSCSD (AAT1).
….
Even if my income estimate was accurate, Centrelink still would have paid me the way they did because they didn't put my partner's details in their system.
The outcome would have been the same, regardless of the income estimate. This still would have happened. I did not realise my income estimate was inadequate. This was not intentional. I don't feel I need to defend myself over income estimates anyway because I believe this has had no effect on this. Centrelink have already shown their incompetency.
My income estimate is irrelevant to this anyway. It did not cause an overpayment. Centrelink not processing my partner's details is the only cause of a so called overpayment. They told me they paid me as a single person. That is their mistake and I will not pay for their mistake. They have not apologised to me for that.
My partner has a low income and when I was married, my ex-husband's earnings were always under the threshold and my partner's earnings are far less than that. When my partner and I began our relationship, his money was his and my money was mine. I paid for the rent, bills etc for a very long time as I had done when I was single. After I separated from my ex-husband I was trying to get through one day at a time the best I could.
Centrelink sent me a letter saying this matter had been set aside. They cannot go back on that.
….
Centrelink are coming after me because they looked at my bank account and they see I have a bit of savings in my bank account that they want to target. That money is from the sale of our family home when my ex husband and I separated. The entire time we were together we barely made ends meet with the mortgage and bills which was very stressful and the money I received from the sale of our home has almost all gone as we have had to live off that also. My three children are my priority.
…..
AAT sent me a Statement of Financial Circumstances form. I should not be expected to fill this form out to prove financial hardship when the debt is not my fault in the first place. This is not about whether I'm able or unable to pay this debt. I'm not responsible for this debt. Centrelink know what money is in my bank account except that it will be even less since I last updated it which wasn't too long ago. The amount of money I receive from Centrelink is not enough to cover rent, bills and basic necessities. Therefore, I need to take extra money from my other account which goes down each week due to rent, groceries, bills etc and I don't know how we will cope once that money has all gone. We will barely have a roof over our heads.
In her application to this Tribunal, the Applicant outlined the contacts she had made with the Respondent to update her detail, stating that:[55]
…..
I know the debts were caused solely by Centrelink's administrative error yet you tell me recovery of the debts won't be waived on this basis. You also tell me that I have no special circumstances. I have three wonderful, precious children. Every day I experience emotional pain and depression. Every day I experience physical pain in my entire body, my muscles, joints as well as nerve pain. The pain at times is so immense I need morphine.
…..
I told you that the amount of money in my bank account is irrelevant to this and that this is a matter of principle. You have proved to me that you're only focused on my bank account and not the emotional and physical well-being of myself and my three children. We are citizens of Australia and this is how we are being treated.
I cannot live knowing I'm being forced to pay for Centrelink's mistake.
We will suffer severe financial hardship and much worse than that. I might not even be capable of phoning Lifeline or 000 next time. Explain that to [my children].
[55] Exhibit 1, T Documents, T1, pages 4-5, Application for Review.
The Applicant’s general practitioner, Dr Catherine McGarvey provided letters dated

22 April 2021 and 16 September 2021 outlining her concern that having to deal with her Centrelink debts was negatively impacting on the Applicant’s health.[56] Dr McGarvey noted that the matter was affecting the Applicant’s mental health, leading to thoughts of self-harm for which welfare police checks had been undertaken. Dr McGarvey stated that the Applicant reassures her “that she would never do anything that would impact on her children.”[57]
[56] Exhibit 2, Supplementary T-Documents, ST1 and ST2, pages 1-2, Letter from Dr Catherine McGarvey.
[57] Exhibit 2, Supplementary T-Documents, ST2, page 2, Letter from Dr McGarvey.
In a submission provided by email on 10 April 2022, in response to the Respondent’s Statement of Facts, Issues and Contentions, the Applicant outlined that:[58]
·Her relationship with her partner broke down and he moved out in December 2021.
·She received an email from the Real Estate on 8 April 2022 with notice to leave and then a further email stating that the owner might temporarily do a periodic rental agreement as they are not sure of their intentions in the very near future.
·She has barely any money in her bank account as any money she ever had, she has had to live off.
·She considers that Centrelink knows nothing about the extent of the medical appointments and hospital visits she and her family experience each year. Her most recent visit to hospital was by ambulance in February 2022. She has chronic pain and only someone with chronic pain would know how that feels and how it robs you of your quality of life.
·Her son was unwell during March 2022 and had to go to hospital by ambulance three times within a week. This was extremely traumatic for him, his siblings and for her.
·Her thoughts of self-harm and depression have worsened.
·She did nothing wrong yet is being punished.
·She considers that Centrelink are the ones in the wrong and are fully responsible for what they have done to her.
[58] Exhibit 6, Email from the Applicant dated 10 April 2022, pages 1-3.
In an email dated 12 April 2022, the Applicant submitted that:[59]
·She regularly tries to update her financial details with Centrelink, but they will not allow it.
·The money in her bank account always goes down rapidly due to having to live off that money to survive.
·She also has another $1,000 debt.
[59] Exhibit 7, Email from the Applicant dated 12 April 2022, pages 1-2.
Attached to that email, the Applicant provided screen shots from her Centrelink myGov page which indicated that on 30 November 2021, it was recorded that she had $17,000 in savings. However, on 12 April 2022, it was recorded that she had $7,000 in savings.
In an email dated 18 April 2022, the Applicant submitted that her son had been unwell and that she was exhausted and in pain all over her body. She also submitted that her children have a number of specialist appointments coming up and that she had just been notified her mother was unwell and had been taken to and admitted to hospital.[60]
[60] Exhibit 8, Email from the Applicant dated 18 April 2022, pages 1-2.
After receiving the Respondent’s closing submissions, the Applicant provided submissions dated 11 May 2022. The Applicant submitted that if the Respondent had done its job correctly, then everything would have fallen into place and she would not have “had to go through almost three years of hell.” In the Applicant’s submission she:[61]
[61] Exhibit 10, Email from the Applicant with statements dated 11 May 2022, pages 1-5, Applicant’s statement.
·Outlined in detail how the matter has been affecting her and making her feel.
·Outlined that the matter has been affecting her children.
·Contended that the Respondent has no idea about her medical situation and the treatment she has sought and that the details they referred to are not up to date.
·Contended that the Respondent has not provided any evidence relation to the debt calculations.
·Stated that having the police do welfare checks on her upset both her and her children, that talking to Centrelink social workers was a waste of her time and energy and that she should not need to see a psychologist because of what has occurred.
·Said that the owner of the house she is renting has decided not to sell however has put the rent up to $460.
·Contended that to say she would not suffer severe financial hardship is a lie.
·Said:
The Centrelink payments I receive, and child support is my only income and it is never enough to cover rent, bills, living costs. The very small amount of savings I have is disappearing rapidly due to my income not covering the basic essentials of living.
·Said:
I’ve lost three years of my health and my life to this. I’ve had to fight this because it’s a matter of principle and also I should not have to and I cannot afford to pay a debt that I did not cause. I did not know I was being paid incorrectly.
I don’t trust anyone. I only leave the place we live to go to medical appointments, buy groceries, get petrol.
This has affected every area of my life. Home educating my children has also been ruined by this. I’m so angry about this. I’m very passionate about home educating and this stress has made it very difficult for me to even function in any way.
On 11 May 2022, the Applicant also provided a statement in support from her mother.[62]
[62] Exhibit 10, Email from the Applicant with statements dated 11 May 2022, page 1, Statement from the Applicant’s mother.
The Tribunal notes that the Respondent has provided both the Applicant’s and her husband’s income tax returns for the debt period. The Tribunal has reviewed those returns in relation to the adjusted taxable income amounts calculated by the Respondent and is satisfied that the amounts calculated are correct.
CONSIDERATION
Did the Applicant receive the correct amount of FTB during debt period?
Section 21 of the FA Act provides the requirements for when an individual is eligible for FTB and refers to those provisions of the Act which are relevant in working out the individual’s rate of FTB.
Section 58(1) of the FA Act provides that an individual’s annual rate of FTB is to be calculated in accordance with the Rate Calculator in Schedule 1 to the FA Act. The rate calculator for FTB takes into consideration the individual’s adjusted taxable income and maintenance entitlement and includes the standard rate of FTB, relevant supplement and rent assistance benefits.
Schedule 3 to the FA Act provides that the “adjusted taxable income” of an individual for FTB purposes for an income year, where the individual is a member of a couple, includes the adjusted taxable income for that the year of the individual’s partner.
Where it is determined that an individual is eligible to receive FTB, their rate is calculated and the general proposition is that a reconciliation will be undertaken to ensure the person is paid the correct amount of FTB during the relevant period.
Section 71(2) of the FA Administration Act provides that if a person has been paid an amount and received an amount that is greater than the amount that should have been paid to the person, the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
It is not disputed that the Applicant became partnered from 7 April 2018 and remained so during the debt period. Consequently, it means that the Applicant should have been paid FTB during the debt period at the partnered rate, which would have taken both the Applicant’s and her partner’s adjustable taxable income into account when determining her eligible rate of FTB.
The Tribunal notes the evidence before it clearly indicates that in calculating the Applicant’s rate of FTB during the debt period, her partner’s income was not taken into consideration. While the Applicant contended that she was not aware of how her FTB was calculated or that she was getting the incorrect amount, it does not detract from the fact that, had her partner’s income been taken into consideration, the rate of FTB she was paid would have been different.
Based on the evidence before it, the Tribunal is satisfied that the Applicant has received more FTB than she was entitled to during the debt period on the basis that her partner’s adjusted taxable income was not taken into consideration. As such, pursuant to section 71(2) of the FA Administration Act, the Tribunal finds that the amount of FTB the Applicant has been overpaid during the debt period is a debt owed to the Commonwealth.
The Tribunal notes the calculation details provided by the Respondent[63] and in the absence of any evidence to the contrary, accepts that the FTB debts for the debt period have been correctly calculated.
[63] Exhibit 1, T Documents, T23 and T24, pages 130-353, Agency mainframe screen captures.
Are the Respondent’s FTB debts repayable in part or in full?
As the Tribunal has found that FTB debts exist for the debt period, it must consider whether those debts must be repaid.
It is generally expected that debts to the Commonwealth are recovered. This proposition in relation to debt recovery was expressed by French J in Secretary, Department of Social Security v Hales [1998] FCA 219 at [1] as:
The taxpayer is entitled to expect that in the ordinary course money paid to people that they are not entitled to received will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.
However, there are circumstances where the recovery of debts is either put on hold for a period of time (written off) or are no longer pursued (waived). Relevant to the Applicant’s FTB debts, the Respondent may write off, or waive, her FTB debt if the requirements set out in sections 95, 97 or 101 of the FA Administration Act are met.
Should the debts be written off pursuant to section 95 of the FA Administration Act?

Section 95(1) of the FA Administration Act provides the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsections (2), (4A) or (4B) applies. Relevantly, section 95(2) of the FA Administration Act allows the Respondent to decide to write off a debt 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 95(4) of the FA Administration Act provides that for the purposes of paragraph (2)(b), if a debt is recoverable by means of:
(a)deductions under section 84; or
(aa)deductions under section 1231 of the Social Security Act 1991 (Cth); or
(b)setting off under section 84A family assistance; or
(c)application of an income tax refund under section 87; or
(d)setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments);
the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.
The Tribunal notes the FA Administration Act does not define severe financial hardship. However, this issue has been discussed in many Tribunal decisions. In Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225, it was found that for severe financial hardship to be established, a person’s entire financial position would need to be materially less than the current rate of pension. Further, in Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729, it was stated that:
…Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature.
The Respondent contended that there is no basis to write off the debt as there is no evidence that the debt is irrecoverable at law, the Applicant’s whereabouts are known, it is cost effective for the Commonwealth to take action to recover the debts and that there is no evidence that the Applicant has no capacity to repay the debt. The Respondent submitted that the Applicant was in receipt of fortnightly family assistance payments of $339.36 and fortnightly jobseeker payments of $543.40. The Respondent submitted that withholding arrangements were reinstated from 30 March 2021, initially at the rate of $80.00 per fortnight, however, were reduced to $20.00 per fortnight from 18 January 2022.[64]
[64] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 8, paragraphs 50-51.
The Respondent further contended that the Applicant’s evidence that she had a depleted savings account balance of $7,000.00, is insufficient in and of itself to satisfy the Tribunal that the Applicant is in severe financial hardship.[65]
[65] Exhibit 9, Respondent’s Closing Submissions, page 2, paragraphs 7-10.
Based on the evidence before it, the Tribunal is satisfied that the Applicant’s FTB debts are recoverable at law, her whereabouts are known, and it is cost effective for the Commonwealth to take action to recover the debts. As such, the Tribunal must further consider whether the Applicant has capacity to repay the debts.
The Tribunal notes that the Applicant has not provided any specific details in relation to her overall financial position. Rather, the Applicant has asserted that she should not have to complete a Statement of Financial Circumstances as she believes the debt is due to sole administrative error and as such, she should not have a debt to repay. While the Tribunal accepts that the Applicant’s financial position is strained, there is insufficient corroborating evidence before it to allow the Tribunal to be satisfied that recovery of the FTB debts as per the current withholding arrangements is causing or would cause her severe financial hardship. The Applicant has not provided any evidence to show that she is unable to meet her financial commitments or even what such commitments are.
As such, based on the evidence before it, the Tribunal finds that the Applicant has capacity to repay the debts and while her financial circumstances are difficult, there is no corroborating evidence before the Tribunal that recovery would cause her severe financial hardship.
Consequently, the Tribunal finds that the Applicant’s FTB debts cannot be written off pursuant to section 95 of the FA Administration Act.
Should the debts be waived due to sole administrative error pursuant to section 97 of the FA Administration Act?
Section 97 of the FA Administration Act, for the purposes of this matter, provides that the Respondent must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received, in good faith, the payment or payments that gave rise to that proportion of the debt.
Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph [35] stated:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
The Respondent submitted that it accepts the Applicant had received the payments that gave rise to the FTB debts in good faith.[66] Based on the evidence before it, the Tribunal agrees with that submission.
[66] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 11, paragraphs 63-65.
The Respondent submitted that it accepts the Applicant did notify Centrelink that she was partnered on 30 May 2018, however contended that the Applicant’s FTB debts were not attributed solely to administrative error as:[67]
58.In the present case, the Applicant was required to keep the Agency informed as to matters that would have affected her entitlement to receive, or rate of, FTB. It is conceded that the Applicant notified the Agency of her changed relationship status on 30 May 2018 by lodging the MODP form containing her partner’s details. However, the Applicant was also required to ensure that her and her partner’s adjusted taxable incomes were reported to the Agency to ensure she was paid correctly.
59.Notwithstanding the Applicant’s attempts to provide the Agency with information that she was partnered, no attempt was made to provide details of her family income as she was required to do in response to the Agency’s letter of 31 July 2018 (T28, 469). There is no record of the Applicant contacting the Agency in response to Income Statements dated 4, 11 and 15 October 2018 that clearly state that the Agency holds information that she was not partnered in its records (T28, 487 & 496). This was plainly incorrect.
60.Further, while the Applicant submitted a copy of the tenancy agreement for Beresford Street on 8 November 2018 identifying [her partner] as a co-tenant of that property (T8, 74), the rental certificate completed on the same day identifies that she did not live in shared accommodation. Her earlier declarations to the Agency on 24 October and 1 November 2018 were that she did not share that accommodation (T25, 370 & 372).
61.In light of the above, the Secretary contends that while the Agency contributed to the debt by failing to update her partner status, it cannot be said that the debt arises solely due to administrative error. The Applicant did not appropriately declare her family income as required, nor otherwise correct the record. These failures of the Applicant materially contributed to the debt.
[67] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 9-11, paragraphs 53-62.
The Applicant’s whole case centred around her contention that she does not see why she should be asked to repay money where she has done nothing wrong, told the truth by notifying the Respondent that she was partnered, that notification was not actioned and now a debt has arisen.
Based on the evidence before it and the concession made by the Respondent, the Tribunal finds that the Applicant’s FTB debts for the debt period were caused by an administrative error made on behalf of the Respondent.
The test, however, is not whether those debts arose in part or substantially due to an administrative error, but rather, whether they arose solely due to an administrative error. It is here that the problem lies for the Applicant.
An obligation is placed on social security benefit recipients, pursuant to the notices they receive, to ensure that the details held by the Respondent are correct and that they update them accordingly.[68] In circumstances where such details have not been updated by the benefit recipient, such failure is likely to be found to have contributed to the debt, which effectively means that those debts cannot be waived pursuant to section 97 of the FA Administration Act.
[68] See section 158 of the FA Administration Act. Further, section 25 of the FA Administration Act requires a person to notify the Secretary as soon as practicable about matters that might affect their entitlement to FTB.
This Tribunal in Secretary, Department of Social Services and Gilmartin [2022] AATA 723 (Gilmartin) rejected the claims of sole administrative error in circumstances where Ms Gilmartin had not taken steps to correct information communicated to her by Centrelink. The Tribunal provided:
62. The notice provisions of the FA Administration Act make it clear that upon being issued with such a notice, a positive obligation is placed on the FTB payment recipient to not only advise Centrelink if their circumstances change, but to also check the details outlined in the notice and advise Centrelink if they are incorrect. The Respondent in failing to engage with the letters (which constitute notices for the purposes of the FA Administration Act) she received from Centrelink has failed to meet the obligation to ensure that the information being used to calculate her entitlements to FTB were correct. Regardless of the fact that the Respondent considered her circumstances had not changed and that Centrelink had access to all relevant information it may need, she has through her failure to positively engage with Centrelink contributed to the circumstances in which the FTB debts in question arose.
[Footnote omitted]
In Saab and Secretary, Department of Education, Skills and Employment [2021] AATA 2766 (Saab), Senior Member Puplick provided that it is not up to the Respondent to police the behaviour of benefit recipients:
66. While it might be argued that the department had a responsibility to check up on such matters as to whether or not the children were actually receiving the care in question, this is not a sustainable argument. The Department has no responsibility to “police” the behaviour of benefit recipients, rather the obligation lies on the recipients to ensure and maintain conformity with the benefit conditions or requirements, especially when benefits are paid directly to a recipient, but it also applies when the recipient knows that payments are being made to third parties (in this case the alleged service provider) on their behalf or via their instructions. Their personal responsibility includes responding to departmental correspondence and notices.
68. It is accepted that sole administrative error cannot arise where an applicant has failed in their personal statutory duty to report relevant matters to the Department.
The Applicant’s submissions outline a degree of acknowledgement that she made errors in relation to the provision of income estimates and the completion of rent assistance forms. The Applicant, however, maintained that despite such actions, she should not have to repay a debt she considers was caused by the Respondent’s incompetence.
The Applicant provided in submissions to the SSCSD that she was not aware her income estimate was inadequate, and that the Respondent should be more supportive and should assist people.[69] Further, in her application to this Tribunal, the Applicant submitted that she filled out the tenancy detail forms quickly as she was very stressed from moving house. She gave the Respondent the tenancy agreement which clearly showed that her partner’s name was included, which she says is “another example of Centrelink’s incompetency” and that they are still blaming her.[70] The Applicant further submitted that if her partner had been put in the system when she first notified the Respondent, then the issue about income estimate would have been picked up after the first financial year balancing and it would not have occurred a second time in the following year.[71]
[69]    Exhibit 1, T Documents, T2, page 17, Decision of the SSCSD.
[70]    Exhibit 1, T Documents, T1, page 4, Application for Review.
[71]    Exhibit 1, T Documents, T2, page 17, Decision of the SSCSD.
The Tribunal notes that the Applicant was provided with a number of notices throughout the debt period by the Respondent and based on the evidence before it, it appears that she did not take steps to rectify her relationship, housing or family adjusted taxable income details.
The notice provisions of the FA Administration Act[72] make it clear that upon being issued with such a notice, a positive obligation is placed on the FTB payment recipient to not only advise Centrelink if their circumstances change, but to also check the details outlined in the notice and advise Centrelink if they are incorrect. The Applicant, in failing to respond to the letters (which constitute notices for the purposes of the FA Administration Act) she received from the Respondent to correct those details which were incorrect, has failed to meet the obligation to ensure that the information being used to calculate her entitlements to FTB were correct. Regardless of the fact that the Applicant considered she had done everything she had to in reporting her relationship status and income details, she has through her failure to provide her family adjusted taxable income for the debt period and to update her details in response to the Respondent’s notices, contributed to the circumstances in which the FTB debts in question arose.
[72] Section 158 of the FA Administration Act.
Consequently, based on the evidence before it, and in accordance with the decision made in Gilmartin and Saab, the Tribunal finds that the Applicant received the amounts of FTB in the debt period in good faith, however the FTB debts in relation to the debt period are not attributable solely to an administrative error.
As such, the Tribunal finds that the Applicant’s FTB debts in relation to the debt period cannot be waived pursuant to section 97 of the FA Administration Act.
Should the debts be waived due to special circumstances pursuant to section 101 of the FA Administration Act?
Section 101 of the FA Administration Act provides that the Respondent may waive the right to recover all or part of a debt if they are satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of 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 FA Administration Act does not provide a definition of ‘knowingly’; however it has been considered in a number of Tribunal decisions.[73] The Tribunal notes that in Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114 in referring to an earlier decision in Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72 at [74] said:
‘…I concluded that 'knowingly' means actually knowing as opposed to the other two of the three degrees of knowledge. The first of the other two sorts is the sort of knowledge that comes from deliberately refraining to make enquiries because the enquiries will lead to answers that are not desired by the enquirer. The second is constructive knowledge in the sense that the person ought to have known the specific information or had the means of knowledge.’
[73] For example see: Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435 and Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494.
Based on the evidence before it and noting that the Respondent did not make submissions on this issue, the Tribunal is satisfied that the Applicant’s FTB debts did not result from her knowingly making a false statement or false representation or from knowingly failing or omitting to comply with her notification obligations under the FA Administration Act.
The FA Administration Act does not provide a definition of special circumstances, however the general proposition established by relevant Federal Court decisions makes it clear that special means something different from the usual or ordinary.[74]
[74] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545per Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones(2012) 89 ATR 267; [2012] FCA 639, at [51]; Boscolo v Secretary, Dept of Social Security[1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084, at [37].
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal held at page 3:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
In Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; [1981] AATA 57, the Tribunal stated:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” …., the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … In the exercise of the discretion …., the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the …. Act.
The Federal Court in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) FCA 1923 provided that the decision to apply special circumstances should take into account all of the person’s circumstances and would usually be based on a combination of factors. Further, in accordance with the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99], such circumstances include the Applicant’s current circumstances and are not limited to the prevailing circumstances during the relevant period or at any other time before the Tribunal makes its decision.[75]
[75] Noting that the FA Act and FA Administration Act do not limit the inquiry into the Applicant’s circumstances at the time of the original, ARO or SSCSD decisions. See Skinner and Secretary, Department of Social Services [2015] AATA 569.

The Respondent, in its Statement of Facts, Issues and Contentions, summarised the Applicant’s submissions in relation to her physical and psychological conditions and the impact that the matter concerning the FTB debts in question was having on her health, her children and her elderly parents.[76] The Respondent provided reference to the Applicant’s Medicare Patient History and PBS patient summary records in relation to the letters provided by her general practitioner.[77]
[76] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 15-16, paragraphs 83-86.
[77] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 16-17, paragraphs 87-90.
As a result, the Respondent provided the following contentions:[78]
91.      The Secretary does not dispute that the Applicant has had, and continues to experience, health conditions. However the Secretary submits that her MPH and PBS records do not appear to indicate she has received, or is receiving, structured treatment for her mental health conditions or indeed for her fibromyalgia.
92.      Additionally, despite the Applicant’s assertions concerning the impact the debt has on her mental state, she continues to home-school her two younger children and takes responsibility for ensuring they attend medical appointments as required with their treating specialists.
93.      The Secretary does not consider the Applicant’s circumstances can be differentiated from those of other benefits recipients to such an extent that they can be regarded as unusual, uncommon or exceptional. Further, the Secretary does not consider the Applicant’s finances as they were discussed with the AAT1 indicate she was experiencing financial hardship, let alone severe financial hardship (which is not in and of itself sufficient to warrant an exercise of the discretion).
94.      In considering whether to exercise the special circumstances discretion, it is also relevant to consider how the overpayment came about. Even if the cumulative requirements in section 1237AAD of the Act were satisfied, waiver is not automatic. It still may not be appropriate in the circumstances to exercise the discretion. Given that the overpayments are a result of the Applicant’s failure to advise the Agency of her and her partner’s income as required, it would not be appropriate to exercise the discretion to waive in this instance.
95.      The Secretary submits that the special circumstances waiver discretion provided by s 101 of the FA Act ought not to be exercised by the Tribunal in respect of the debt.
[78]    Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 17, paragraphs 91-94.
In response to the further submissions made by the Applicant commencing on 10 April 2022, the Respondent contended:[79]
19.      The Secretary acknowledges health issues the Applicant describes experiencing herself, and those she asserts affect her family members as referred to in her submissions, cause her worry and concern.
20.      However, while the Applicant makes multiple references to these issues and their impact on her, the Secretary notes the lack of medical or other objective evidence in support of these submissions. Absent objective, reliable information about the nature, seriousness, duration and impact of the various health concerns ailing the Applicant and her parents and children, the Secretary submits that this Tribunal is not in a position to understand how one or any combination of these matters might be regarded as uncommon, unusual, exceptional or otherwise able to be distinguished from the circumstances or experience of other benefits recipients.
21.      Accordingly, the Secretary maintains the contention that there is insufficient objective evidence to ground a conclusion that the Applicant’s circumstances, either individually or collectively, can reach the high bar of being “special” as that term is defined (see paragraphs [73] to [81] inclusive of the SIFC).
[79]    Exhibit 9, Respondent’s Closing Submissions, pages 3-4, paragraphs 17-21.
The Respondent drew to the Tribunal’s attention[80] the decision of Senior Member Bean in Chalmers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 540 which considered the extent to which administrative error is capable of constituting or contributing to special circumstances. Senior Member Bean referred to the decision in Re Secretary, Department of Families, Housing, Community Service and Indigenous Affairs and Sarolea [2008] AATA 372 where the Tribunal observed:
42. In some cases special circumstances can arise in whole or part from the manner in which the Secretary or the Secretary's delegates administer the relevant legislation. This was the case in Re Reardon and Secretary, Department of Family and Community Services [2002] AATA 33. In that case the Tribunal had regard, in the context of s. 1237AAD of the Social Security Act, to the administrative error which caused the debt to arise when determining that there were special circumstances that made it desirable to waive half the debt.
43.      The decisions of the Tribunal in Brown v Secretary, Department of Family and Community Services [1999] AATA 113 and Castle v Secretary, Department of Employment, Training and Youth Affairs [1999] AATA 176, also recognise that administrative error by the Commonwealth's officers can be taken into account in determining whether there are special circumstances that make it desirable to waive a debt. However, in both of those cases, and in Reardon, the relevant administrative error was only one of a combination of factors which led the Tribunal to consider that there were special circumstances that made it desirable to waive the relevant debt. In contrast to those cases, in the present case the Respondent has confined her reliance to the administrative errors of the Secretary's delegates, and her response to them, as giving rise to special circumstances which make it desirable to waive the debt.
44.      In Tubic and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 13 at [30] I said, in similar circumstances to the present case:
‘I do not exclude the possibility that there might be cases where administrative error, taken alone, will give rise to special circumstances which make it desirable to waive a debt under s. 101 of the Administration Act. However, waiver under s. 101 of the Administration Act will not necessarily be appropriate in all circumstances in which administrative error causes or contributes to a debt being incurred. There must be something in the administrative error that gives rise to what may be properly regarded as special circumstances. In that regard it should be noted that the experience of the Tribunal has been that administrative error by the Respondent's delegates is, unfortunately, far from unusual. More importantly, where special circumstances arise from administrative error of the Commonwealth, there must be something about the administrative error that makes it desirable to waive the debt. Often that will involve some unfairness or hardship to the person who received the payment if repayment were to be required.’
45.      I consider that statement of principle to be equally applicable to the present case. It follows that I do not necessarily accept the Secretary’s submission that administrative error alone can never constitute special circumstances which would justify the waiver of a debt under s. 101 of the Administration Act. However, ordinarily something more will be required.
46.      It is also to be noted that administrative error of the kind reflected in the Respondent’s case is far from unusual, and is a common feature of most of the cases which come before this Tribunal. So much has been noted in a number of decisions of the Tribunal. That is a sad reflection on the manner in which the relevant legislation is administered, but it remains that fact that administrative error is common. It might be thought undesirable that the Secretary should be able to rely on common past administrative errors by his delegates to resist waiver on the grounds of special circumstances. However, Parliament has specifically addressed the circumstances where debts resulting solely from administrative error of the Commonwealth are to be waived, in s. 97 of the Administration Act. To conclude that administrative error will of itself generally not constitute special circumstances is consistent with Parliament having made that separate provision.”
[80]    Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 14-15, paragraph 81.
The Tribunal notes that when considering special circumstances, the Applicant in her submissions predominately referred to her health conditions, her children health conditions, and the stress placed on her and her family as a result of the FTB debts in question. The Tribunal considers that the Applicant has clearly communicated the psychological toll the process in relation to her disputing the FTB debts raised against her for the debt period has and is having. The Tribunal also accepts that the Applicant is not living a lavish lifestyle. However, the issue for the Tribunal is that as discussed at paragraph 76 above. The Applicant has not provided sufficient evidence in relation to her present financial circumstances that would allow the Tribunal to make a finding that she is presently experiencing severe financial hardship. The Tribunal does not know whether the Applicant has been meeting her financial obligations or how the requirement to repay the FTB debts would cause her severe financial hardship.
As such, given the most recent information before the Tribunal indicates that the Applicant is presently in receipt of social security payments and had $7,000.00 in savings, the Tribunal finds that her financial circumstances, when considered as a whole, are not different and may in fact be better than other people in receipt of social security payments. Consequently, the Tribunal finds that the Applicant’s circumstances cannot be considered to be special for the purpose of exercising the discretion to waive the repayment of her FTB debts pursuant to section 101 of the FA Administration Act.
The Tribunal has no reason not to accept the submission of the Applicant in relation to both her health and the health of her children and her parents. However, the Applicant has not provided sufficient details of these matters or corroborating evidence of their effects on her. As such, the Tribunal agrees with the submissions of the Respondent in that, as a result of the lack of objective, reliable information about the nature, seriousness, duration and impact of the various health concerns ailing the Applicant, her parents and children, the Tribunal is not in a position to understand how one or any combination of these matters might be regarded as uncommon, unusual, exceptional or otherwise able to be distinguished from the circumstances or experiences of other benefit recipients.
As outlined above, the Tribunal accepts that the Applicant’s FTB debts arose in part due to an administrative error made on behalf of the Respondent. Consistently, with the precedents referred to above, the Tribunal agrees that administrative errors alone can constitute special circumstances in some cases. However, in such cases there must be something in the administrative error that makes it desirable to waive the debt, such as there being some unfairness or hardship to the person who received the payment if repayments were to be required.
In this instance, an administrative error did contribute to the Applicant’s FTB debts arising, however as set out above, the debt also arose due to the Applicant’s failure to ensure that the information on which her FTB payments were calculated was correct. Had the Applicant provided her family adjusted taxable income to include her partner’s income, reported her circumstances correctly when notifying of her change of accommodation and/or responded to the notices issued to her by the Respondent to correct the relevant details, then the information available to the Respondent to calculate her rate of FTB and annual reconciliation would have been correct from either the beginning, or at a later junction of the debt period. In such circumstances, the Tribunal does not consider an unfairness or hardship arises from the Respondent being required to repay her FTB debt.
As such, the Tribunal finds that the administrative error in this matter does not lead to a finding of special circumstances being applicable such that the Applicant’s FTB debts could be waived pursuant to section 101 of the FA Administration Act.
Based on the evidence before the Tribunal and for the reasons outlined, the Tribunal finds that the Applicant’s circumstances are not sufficiently special or unusual to warrant the exercise of the discretion in section 101 of the FA Administration Act to waive the debt. Consequently, the Tribunal finds that the Respondent’s FTB debts cannot be waived pursuant to section 101 of the FA Administration Act.
CONCLUSION
The Tribunal notes that the Applicant has asserted a number of times in her submissions that no one cares about her or her children and that she places blame squarely on the Respondent for her deteriorating psychological health and thoughts of self-harm.
It is not, however, the case that no one cares. The issue is that eligibility to social security payments is set out in legislation. Where a person receives more social security payments than they are entitled to, there is a general public expectation that they pay that money back. In circumstances where the Respondent makes an error in relation to a recipient’s record, there are legislative requirements that must be met before a discretion to write off or waive any resulting debt can be made.
While in this matter the Tribunal can, on the reading of the material provided by the Applicant, empathise with her situation and acknowledge her dissatisfaction with the actions of the Respondent and her expressed distrust, she has not assisted herself in this matter before the Tribunal by failing to provide objective evidence to support her contentions.
The evidence before the Tribunal was clear that the Applicant received FTB payments during the debt period that were calculated without regard to her partner’s adjusted taxable income and as such, she was paid the incorrect rate of FTB. The evidence was also clear that although the Respondent had failed to update the Applicant’s record after she notified them of and followed upon with them on her change in relationship circumstances, the Applicant did not advise the Respondent of her family adjusted taxable income, nor did she report her partner’s income.
The legislative threshold tests to write off or waive any resulting debts require the Applicant to provide sufficient submissions and supporting evidence to allow the relevant decision maker, in the present case, the Tribunal to understand her situation fully so that they can be satisfied that her circumstances are unusual, uncommon or exceptional or that she is experiencing severe financial hardship.
There is nothing preventing the Applicant from seeking review of her payment plan from the Respondent or should her circumstances change, seeking to have any outstanding debts written off or waived.
For the reasons set out above, the Tribunal finds that the:
(a)
Applicant was paid more than her correct amount of family tax benefit for the

2017-2018 financial year;
(b)
Applicant was paid more than her correct amount of family tax benefit for the

2018-2019 financial year;
(c)Applicant’s family tax benefit debts are debts owed to the Commonwealth;
(d)requirements of sections 95, 97 and 101 of the FA Administration Act in relation to the Applicant’s family tax benefit debts are not met; and
(e)Applicant’s family tax benefit debts are recoverable in full.
120.Accordingly, the decision under review is affirmed.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.........................[SGD]..................................
Associate
Dated: 8 June 2022

Date of hearing: Heard on the papers, 24 May 2022

Applicant: Ms Kate Charnley

Solicitor for the Respondent: Ms Maleah Underhill
Services Australia

Date of hearing:	Heard on the papers, 24 May 2022
Applicant:	Ms Kate Charnley
Solicitor for the Respondent:	Ms Maleah Underhill Services Australia