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

This matter concerned an appeal by Mr Clark against a decision by the Secretary of the Department of Social Services to raise a debt for overpayments of his Disability Support Pension (DSP). Mr Clark had been in a same-sex de facto relationship with Mr Rush since 1998. The dispute centred on whether the whole or part of the debt should be waived, and whether special circumstances existed to warrant such a waiver. The decision was made by Senior Member Damien O’Donovan SM of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the debt raised for DSP overpayments should be waived, either in whole or in part, and if so, whether special circumstances existed to justify such a waiver. This involved determining whether Mr Clark had complied with his statutory obligations to notify Centrelink of changes in his circumstances, specifically his relationship status, and whether any misleading responses or honest mistakes had occurred that would warrant a waiver of the debt.

The Tribunal found that Mr Clark had been in a same-sex de facto relationship with Mr Rush since 1998. While Mr Rush had received advice in 2000 that same-sex couples were not recognised for Centrelink purposes, the law changed on 1 July 2009 to include same-sex couples in the definition of a partner. Despite public information campaigns, neither Mr Clark nor Mr Rush became aware of this change. However, the Tribunal was satisfied that Mr Clark received numerous notices from Centrelink requiring him to report his circumstances, including his relationship status. The Tribunal concluded that Mr Clark failed to comply with these notification obligations, and had he done so, his DSP would have been paid at the correct rate. Furthermore, the Tribunal found that Mr Rush had failed to accurately declare his income from employment, which led to a recalculation and increase in Mr Clark's debt. The Tribunal determined that the debt arose from Mr Clark's failure to comply with his statutory obligations and that the preconditions for waiving the debt under the relevant provisions of the Act were not met.

The Tribunal varied the decision under review by affirming that Mr Clark was overpaid DSP in the amount of $79,463.07 between 17 August 2009 and 30 March 2020, and that this amount constituted a debt owed to the Commonwealth under section 1223(1) of the Act, which could not be waived.