Conor Hennessy and Secretary, Department of Social Services
[2015] AATA 106
•27 February 2015
[2015] AATA 106
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2784
Re
Conor Hennessy
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 27 February 2015 Place Sydney The decision under review is set aside and the Tribunal remits the matter for recalculation of the debt in accordance with these reasons.
....................[sgd]....................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – debt – family tax benefit – children absent from Australia – whether the applicant owes a debt to the Commonwealth – whether the debt should be written off – whether the whole or a part of a debt should be waived – decision set aside
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, Sch 1
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 71, 95, 97, 101
Social Security Act 1991 (Cth) s 7Social Security (Administration) Act 1999 (Cth)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9; [2007] FCA 25
Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693; [2007] AATA 1114
Re Saunders and Secretary, Department of Family and Community Services (1999) 57 ALD 495Secretary, Department of Social Security v Hales (1998) 82 FCR 154
SECONDARY MATERIALS
Family Assistance Guide
REASONS FOR DECISION
Ms N Isenberg, Senior Member
27 February 2015
DECISION UNDER REVIEW
The decision under review is the decision of the Social Security Appeals Tribunal (SSAT) made on 1 May 2013, which affirmed a decision of an Authorised Review Officer (ARO) made on 19 December 2012 that the Applicant had debts relating to the overpayment of the family tax benefit (FTB) as follows:
(a)$7,599.28 for the period 21 August 2007 to 30 June 2008;
(b)$4,485.85 for the period 1 July 2009 to 30 June 2010; and
(c)$163.15 for the period 1 July 2010 to 13 July 2010.
The SSAT affirmed the ARO’s decision that these debts, amounting to $12,248.28 could not be waived, and were recoverable in full. The Applicant seeks review by this Tribunal.
In the original decision, Centrelink decided that Mr Hennessy owed debts arising from FTB overpayments during the period 1 July 2004 to 13 July 2010 and totalling $36,209.51 (based on the ARO’s calculations). Centrelink decided that this was a debt to be repaid in full. On internal review however, the ARO decided that the FTB debts arising in the periods 1 July 2004 to 20 August 2007 and 1 July 2008 to 30 June 2009 were to be waived because they arose solely due to Centrelink’s administrative error because Mr Hennessy had correctly informed Centrelink of his and his children’s departure from Australia and that his children continued to reside overseas throughout this period, although Mr Hennessy returned to Australia at various times. Centrelink had not calculated Mr Hennessy’s FTB payments based on his children’s absence from Australia.
For the remaining FTB debts – firstly, $7,599.28 for the period 21 August 2007 to 30 June 2008 – the ARO decided that this resulted from Mr Hennessy providing incorrect information on a family assistance claim form and therefore this was a debt to be collected.
Similarly, the ARO found that, although Mr Hennessy informed Centrelink on 23 June 2008 that his children were still in Ireland, Mr Hennessy was informed by the Family Assistance Office on 20 July 2010 that he was not entitled to payment and thus he did not receive the FTB payment in good faith for payments received after this date. Mr Hennessy received an FTB payment on 19 November 2010 of $4,485.85 for the 2009/2010 financial year and on 18 November 2010 he received an FTB payment of $163.15 for the 2010/2011 financial year.
The Respondent now presses for repayment of a greater portion of the debt. It says that when Family Court proceedings were commenced in Australia on 23 November 2005 it could no longer be said that any overpayment was due to Centrelink’s sole administrative error, because Mr Hennessy had failed to inform Centrelink of the Family Court proceedings and that he and the children were no longer overseas “on holidays”. Consequently he could not claim to have received money after that date in good faith. Alternatively, the Respondent said that as the Family Court proceedings concluded on 19 September 2008 monies received after that date could not be received in good faith.
ISSUE BEFORE THE TRIBUNAL
Whether Mr Hennessy owes the Commonwealth a debt for overpayment of FTB; and if so, whether there are any grounds not to recover part or all of the debt.
LEGISLATION
The relevant law is contained in the Social Security Act 1991 (SS Act), the Social Security (Administration) Act 1999 (SSA Act), A New Tax System (Family Assistance) Act 1999 (FA Act), and A New Tax System (Family Assistance) (Administration) Act 1999 (FAA Act).
The Family Assistance Guide (FA Guide) sets out the policy in respect of FTB.
At the time Mr Hennessy was granted FTB for his three children s 21(1) of the FA Act relevantly provided:
21 When an individual is eligible for family tax benefit in normal circumstances
(1) An individual is eligible for family tax benefit if:
(a) the individual has at least 1 FTB child (see section 22 and later provisions); and
(b) the individual:
(i) is an Australian resident; or
…
The Respondent conceded that at all material times, Mr Hennessy was an Australian resident, as required by s 21(1)(b)(i) of the FA Act.
At the time of his applications s 22 of the FA Act required, relevantly, that to be an FTB child of an individual the child (in the case of children aged under 18) had to be in that adult’s care, be an Australian resident and:
·the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
·a family law order or registered parenting plan is in force in relation to the individual; and under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to have contact; or
·the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
An “Australian resident” within the meaning of s 22 of the FA Act is, and was at all material times, defined in s 3 of the FA Act as having the same meaning as in the SS Act, which provided:
7 Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (2).
…
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
…
(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
The FTB is calculated using the rate calculators in Schedule 1 of the FA Act. Family tax benefit (FTB) is a payment intended to assist people with the costs associated with raising children. The rate of payment also varies according to whether the children are in Australia.
Section 24 of the FA Act provided, at the relevant time, effectively, that the maximum portability of FTB was three years. That is, a child could continue to be a FTB child when absent from Australia for up to three years.
The FA Guide provides that for continued eligibility for FTB the individual must continue to be an Australian resident during any absence overseas. At 2.1.2.30 the FA Guide states:
… To remain an FTB child or regular care child, a child who leaves Australia must continue to:
·be an Australian resident (1.1.A.130), or
·live with the individual.
For the individual and/or the FTB child/ren or regular care child/ren to be considered to be Australian residents for FTB purposes, the absence overseas must be temporary, and there must be a clear intention to return to Australia.
…
The individual must intend that they or their FTB child or regular care child will return to Australia for the absence to be regarded as temporary. Whether an absence will be temporary may be apparent from the purpose of the overseas absence. The reason for the absence should be consistent with the intended duration.
The following factors should also be considered:
·commitment to any overseas home, and
·evidence of continuing ties with Australia such as:
o retaining a home, bank account or employment in Australia,
o whether the person has immediate or extended family still living in Australia, and
o the length of residence in Australia before departure.
…
If the absence is initially regarded as temporary, but the individual advises that the absence has become permanent, FTB must be reassessed from the date the individual becomes aware that the absence is permanent.
…
BACKGROUND
Mr and Mrs Hennessy, who received FTB in respect of their three dependent children, F, U and D, left Australia with the children, on or about 20 August 2004 for an extended holiday in Ireland, and expected to return to Australia in early 2005. Mr and Mrs Hennessy separated while overseas and the children did not return to live in Australia.
Mr Hennessy returned to live in Australia in July 2005. On 16 August 2005, he claimed FTB in relation to the three children for the 2005/2006 year. In the claim form, he declared that:
·his marital status was “married”;
·their postal address was their home in Kellyville in New South Wales;
·the three children were in their care;
·Mr Hennessy had left Australia on 18 August 2004 and had returned to Australia on 27 July 2005; and
·the three children had left Australia on 15 August 2004 and were expected to return on 15 September 2005.
On 16 August 2005, Centrelink wrote to Mr Hennessy in relation to his FTB claim saying, among other things:
Under family assistance law, you must tell us about events that may affect your payments as soon as possible after any of these things happen or you become aware that they are likely to happen. You can write to us, telephone, or come in to see us at any Family Assistance Office.
…
You must also tell us if your FTB child:
• lives outside Australia, or ceases to live outside Australia, even for a short time;
• leaves Australia, even for a short time, or returns to Australia;
• stops living with you, or can no longer be considered your dependant ...;
• becomes, or ceases to be an Australian resident;
• is not an Australian resident and no longer lives with you;
…
Centrelink subsequently sent many such letters to Mr Hennessy over the ensuing years reminding him of the need to provide relevant information. Copies of the letters are among the Tribunal documents.
On 26 August 2005, Mr Hennessy lodged the following documents with Centrelink:
·a “Life residence in Australia and other countries” form signed and dated 26 August 2005;
·an accompanying letter dated 18 August 2005 explaining, among other things, why the holiday to Ireland with Mrs Hennessy and their three children had been “delayed”;
·a Newstart Allowance (NSA) declaration form signed and dated on 26 August 2005 saying, among other things:
ohe was still living at the Kellyville address;
ohe was receiving FTB for the three children;
othe three children were in his care (not “shared care”); and
othat he had ceased work on 18 August 2004.
On 20 July 2007, Mr Hennessy filed a “Claim for Family Assistance” form with Centrelink saying, among other things:
·he was moving from Australia to Ireland “temporary until further notice”;
·he was claiming FTB for his three children; and
·the three children, had not been absent from Australia for any period in the last three years.
On the same day, Mr Hennessy made an enquiry about portability. Centrelink’s record of the meeting says (among other things):
... plans to leave Australia on 23 JUL 2007
... will return after 21 JUL 2008 (52 weeks).
Kids: [F] and [U] are travelling overseas with the same travel details as [Mr Hennessy].
Kid: [D] is already overseas.
On 22 August 2007, Mr Hennessy contacted Centrelink about a change in his marital status for FTB purposes. Centrelink’s file note records (among other things) that he and his wife had separated, and the three children “are in their care 50% each”, and that none of the children had left Mr Hennessy’s care.
On 23 June 2008, Mr Hennessy contacted Centrelink. Centrelink’s file notes record the following:
·Mr Hennessy contacted Centrelink regarding an update for his NSA and “to enquire about eligibility for income support and FTB”;
·he returned from Ireland on 22 June 2008 but his children are still overseas;
·in relation to Mr Hennessy’s enquiry for FTB, it records he “returned from o’seas recently, all the children still in Ireland, would [he] qualify for more of the FTB as he does pay maintenance for all the children. [He] is not sure if and when the children will be back – there is at present court case going in both countries.”
On about 6 April 2009, Mr Hennessy lodged a NSA declaration form, saying to the effect that:
·he was living permanently in Australia in “shared accommodation”;
·his “marital status” was “Separated” as of 30 June 2007 with a handwritten amendment of 30 April 2003;
·that he was not receiving FTB for D, but he was receiving FTB for U and F;
·that the three children were in his care (not “shared care”), but he was not the “principal carer” for the three children.
On 19 July 2010, Mr Hennessy contacted Centrelink about his FTB entitlements and said that all his children reside in Ireland and he is paying child support for them. On 20 July 2010, Centrelink informed Mr Hennessy that he was not entitled to FTB because his children were residing in Ireland and he does have day to day care of them. Mr Hennessy said that he was in the process of going to court to get them back.
On about 23 August 2010, Mr Hennessy lodged another NSA declaration form with Centrelink saying:
·he was living permanently in Australia in rental premises and was no longer in “shared accommodation”;
·his “marital status” was stated on the form as “Separated” although there is a handwritten addition which seems to be intended to reflect that he was now divorced, the date of separation is given as 30 June 2007;
·he was not receiving FTB for the children U and F; and
·the two children, U and F were in his care (not “shared care”), but he was not the “principal carer” for them.
CONSIDERATION
Whether the Applicant owes a debt to the Commonwealth
As the SSAT remarked:
[15] Family tax benefit (FTB) is a payment intended to assist people with the costs associated with raising children. The Acts contain legislative provisions which deal with the payment of FTB with one of the requirements for eligibility that of an FTB child being an Australian resident.
I accept that when Mr and Mrs Hennessy left Australia with the children in 2004 the children were, at that time, Australian residents, as defined. I also accept that Mr Hennessy continued to have some legal responsibility for them.
I accept that, following Mr Hennessy’s advice to Centrelink on 16 August 2005, Centrelink was on notice that the Hennessy children had been overseas since 15 August 2004 and that they were expected to return on 15 September 2005. From 16 August 2005 Centrelink should have made payments in respect of that period at the overseas rate.
Eligibility for FTB ceases if the FTB child (or children) leaves Australia permanently or any absence ceases to be temporary, and they are no longer considered to be Australian residents for FTB purposes. To be an Australian resident the FTB child must not only have the right to live in Australia permanently, the child must also be residing in Australia. An Australian citizen who lives overseas permanently, or indefinitely, is generally not regarded as an Australian resident for FTB purposes because they do not intend to live in Australia permanently. I accept that it was not until the Family Court proceedings had concluded that the children were no longer Australian residents for FTB purposes.
Therefore Mr Hennessy was entitled to FTB in respect of the children from the time of their departure until either the resolution of the Family Court proceedings which determined that the children were to remain with their mother in Ireland, or the expiration of the three year portability period, whichever is the earlier.
Mr Hennessy steadfastly denied that he had attempted to deceive Centrelink. He said that, with one exception, discussed below, all the forms he completed were accurate. He said it was up to Centrelink to cross reference the information he provided with that from Department of Immigration (DOI), so as to confirm whether or not his children were in Australia. If Centrelink had done that they could have then just adjusted his payments at the end of each year.
When the Applicant applied for FTB on 16 August 2005 he had told Centrelink the children were expected to return on 15 September 2005. On 26 August 2005 Mr Hennessy told Centrelink that the children were “in [his] care”. This was not true; the children were in Ireland with Mrs Hennessy. He said that because he told Centrelink they were expected back, it was incumbent on Centrelink to check that they had in fact returned to Australia.
On 20 July 2007 in a claim form for family assistance Mr Hennessy said the three children, had not been absent from Australia for any period in the last three years. This was plainly untrue because they had in fact been absent for three years, since they had left in 2004.
Mr Hennessy’s provided a version of the meeting on 20 July 2007 to the effect that when he dropped in this form Centrelink staff confirmed that they had access to DOI data and would use it at the year-end review. He was going through a hugely emotional divorce where his children were taken to Ireland and kept there against his will. He was not prepared to say that they had left permanently as that might be used against him in the acrimonious divorce proceedings that were occurring in both Australia and Ireland. He said he told the staff that he was answering the question that they had not left permanently and the staff confirmed that the year-end review would take the DOI information into account and so not cause problems. He claimed to have told staff that the children would probably not return to Australia. He said that although the court case had not concluded his lawyers were not optimistic, despite the proceedings being hard-fought. He conceded that he may have made an error due to emotional strain, but claimed he had answered correctly because, at that time, they were not permanently overseas.
It was only in mid 2007 that Mr Hennessy contacted Centrelink about his separation from his wife. He reportedly told Centrelink that the three children “are in their care 50% each”, and that none of the children had left his care. This also was plainly untrue as, at the time, the children were living in Ireland with their mother. Mr Hennessy could not recall the conversation wherein this information was allegedly provided. He denied he had said that none of the children had left his care. Mr Hennessy argues that, in any event, he was paying 50% of their upkeep, so the children were “in his care”. I reject this interpretation of the eligibility requirements for FTB. At the time they were neither Australian residents themselves, nor living with an Australian resident, Mr Hennessy.
It was only on 23 June 2008 that Mr Hennessy informed Centrelink that his children were still overseas. In his evidence he said he reminded Centrelink that his children were overseas. He submitted that there had been no need to previously tell Centrelink about his children’s comings and goings because Centrelink should already have known by checking the DOI movement records. At that time he enquired about obtaining more of the FTB because he paid maintenance for the children. He reportedly said that he was not sure if and when the children would be back. It was at that time he told Centrelink that there was at that time a court case in both countries. In his evidence he said that the court case had started in 2005.
Mr Hennessy’s version of the meeting on 23 June 2008 is as follows:
On 23 June 2008, during the same tax year I went in and advised them that the kids probably would not return to Australia and asked them to update their files. They did not do anything. It was months before the actual payment was made.
Mr Hennessy also contended that he had a meeting with Centrelink officers on 30 June 2008. He said Centrelink did not use the information given to its staff on 30 June 2008 which set out in full detail everything about the children. It is inconceivable, he said, that Centrelink did not change their “systems flags” after this meeting, “What was the point in telling them something if they don’t act on it?”. Centrelink has no record of a meeting with, or contact from Mr Hennessy on or about 30 June 2008. Later, in cross-examination he said that there had been only one meeting in June 2008, namely on 23 June 2008.
Somewhat contrary to his contention, was his submission that he had told Centrelink in 2007 that the children were not coming back; there is no support for this contention whatsoever. It would have made all further references to his children’s possible return completely unnecessary. He said that he told Centrelink “every time” the children were overseas. This is plainly untrue.
On about 6 April 2009 Mr Hennessy told Centrelink, somewhat ambiguously in my view, that the three children were in his care (not shared care), but he was not the principal carer for the three children. I agree that it was reasonable, because Mr Hennessy noted that at the time he was living in Australia, for Centrelink to have inferred, that the children were also living in Australia.
In July 2010, when Mr Hennessy told Centrelink that all his children reside in Ireland and he is paying child support for them, Mr Hennessy was reported as saying that he was in the process of going to court to get them back. This was plainly untrue as the court case had concluded some two years beforehand. The Applicant, however, denied he had told Centrelink that he was seeking return of the children. In his evidence he denied being told by Centrelink, as recorded in his Centrelink file, that he had no entitlement to FTB as the children were residing in Ireland. He re-iterated that he thought he was entitled to FTB because he was paying maintenance.
In August 2010, in a NSA customer declaration form, he told Centrelink that U and F were in his care. In cross-examination he conceded that the children were not in his physical care but he had partial care of them, especially in relation to their emotional wellbeing. He could not explain why in completing forms about the care of the children that he did not nominate “shared care”. He said that while he was in Ireland he was sharing the care of the children because he made a number of visits to Ireland, although the children lived with their mother there.
Mr Hennessy said that key tax returns had not been lodged because his tax agent had “vanished”. He said that therefore Centrelink should not have actually paid him anything without confirmation from the ATO. Any overpayment then, he submitted, was Centrelink’s error. I do not accept this proposition.
The Applicant said that he assumed Centrelink would undertake an annual review and would cross-check its information with DOI movement information. If the Applicant made this assumption then to do so was, in my view, naive in the extreme. To suggest that it was up to Centrelink to verify his children’s whereabouts, is absurd; he was providing Centrelink information which was plainly incorrect.
The result is that the Applicant has been overpaid FTB for some years. Section 71 of the FAA Act makes it clear that if a person is paid more FTB than that to which they are entitled, the excess payment is a debt due to the Commonwealth.
Should the debt be recovered?
As a general rule if a person has a debt to the Commonwealth, the debt must be repaid.
Are there grounds to write-off the debt?
Section 95 of the FAA Act allows a debt to be written off in a limited set of circumstances. A debt can be written off if the debt is irrecoverable, or the debtor has no capacity to repay the debt, or the person’s whereabouts are unknown, or it is not cost effective to recover the debt.
None of these apply to Mr Hennessy.
Was the debt solely attributable to an administrative error by the Commonwealth?
Section 97 of the FAA Act provides that the debt must be waived where it is attributable solely to an administrative error made by the Commonwealth subject to subsection (2) or (3).
Subsection 97(2) requires that the payment must be received in good faith and the person would suffer severe financial hardship if the debt were not waived.
Subsection 97(3) applies to such debts which are raised after the end of “the debtor’s next income year after the one in which the eligibility period or event occurs” or “the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made” and the person received the payment in good faith.
I have discussed at paragraph [31] above the period 15 August 2004 to 15 September 2005.
Mr Hennessy contended that the error in continuing to pay him was as a result of Centrelink’s failure to check the DOI records as to whether the children were in Australia. I reject this contention. Centrelink was entitled to rely on the information provided to it by the Applicant, some of which I have found to be untrue, or at the very least, misleading. I therefore find that the debt for the period after 15 September 2005 did not arise solely from Centrelink’s error.
Having come to this view it was not necessary for me to consider if the payments were received in good faith. I observe that Mr Hennessy claims he believed, erroneously, that he was entitled to FTB because he paid maintenance for the children.
Are there special circumstances why the debt should be waived?
A further provision of the FAA Act allows for waiver of debts in “special circumstances”. Section 101 of the FAA Act provides for a debt to be waived if the Secretary is satisfied that “the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation; or failing or omitting to comply with a provision of the family assistance law; and there are special circumstances (other than financial hardship alone) that make it desirable to waive; and it is more appropriate to waive than to write off the debt or part of the debt”.
Before considering Mr Hennessy’s circumstances I must be satisfied that he is not precluded from consideration because the debt resulted wholly or partly from Mr Hennessy knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the family assistance law.
Mr Hennessy had been clearly informed that he must inform Centrelink if any of children lived outside Australia, even for a short time. Furthermore, he was to inform Centrelink even if any of the children were to leave Australia, again, even for a short time. Importantly, Centrelink was to be advised if a child were to stop living with him. Even on the most generous interpretation of Mr Hennessy’s communications with Centrelink, he could not be said to have complied with these clear obligations, which were brought to his attention on multiple occasions.
Inadvertent or unintentional failure does not constitute “knowingly”, even when an Applicant knows he or she needs to notify: Re Saunders and Secretary, Department of Family and Community Services (1999) 57 ALD 495. Mr Hennessy said he did not intentionally or deliberately fail to comply with his obligations. Having regard to my findings and what might be regarded as a pattern of deception I do not consider the benefits of this provision should be applied to the Applicant.
In any event, I do not consider his circumstances to be sufficiently special such that it desirable to waive the debt. The FAA Act provides no guidance as to the meaning of the term “special circumstances” in the provision. In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss” (at 674). There, the Court dismissed the appeal from the decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where, at 3 the Tribunal had acknowledged that the term was “incapable of precise or exhaustive definition” and that, to be special, the circumstances “must have a particular quality of unusualness that permits them to be described as special”. See also Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9; [2007] FCA 25 per Besanko J at [33].
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court’s decision in Beadle’s case, observed (at 545) that special circumstances:
would require something to distinguish [the] case from others, to take it out of the usual or ordinary 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.
Evidence was given about several aspects of Mr Hennessy’s personal circumstances which were said to be “special”.
Mr Hennessy is a trained accountant who is currently not working, and who has had no permanent job for some time. He expended his assets in custody proceedings and travels to and from Ireland and has no assets remaining. In the past year he did not work so he could spend time with each of his children who visited him in Australia during the northern summer holidays. He now has no savings remaining. Bankruptcy is said to be imminent.
He told the SSAT of the significant health issues of two of his three children, although none of these concerns were supported by medical evidence. Mr Hennessy pays child support for the youngest child and also contributes towards the financial support of both his older children because of their health issues. Details of the extent of this support were not provided. Due to the lack of substantiating evidence I place less weight on the effects of the Applicant’s children’s health in considering if there are special circumstances.
As to his own health, Mr Hennessy said he has been diagnosed with depression and is now medicated. He provided no medical evidence about his condition. Mr Hennessy is an insulin dependent diabetic. He has the costs associated with attending various specialist appointments due to the effects of diabetes, for example, a cardiologist, ophthalmologist, endocrinologist, dietician, podiatrist and dentist for management and monitoring of the disease. He is on a health care plan and in the previous year reached the safety net because of his conditions. I accept Mr Hennessy’s evidence as to his diabetes and the associated expense. However, Mr Hennessy has employment skills and experience working as an accountant. It appears that it has been largely Mr Hennessy’s choice to support himself from his savings and not work for a period of time. The Tribunal rejects his contention that, at 60 years of age, he is “too old” to get a job.
Since Mr Hennessy has the potential for employment and to earn a reasonable income, I am not satisfied that his circumstances are sufficiently special such that the debts should be waived, even if I were to consider he met the other prerequisites.
CONCLUSION
I accept that Mr Hennessy’s current circumstances may be unfortunate but, it remains that he has had the benefit of FTB payments to which he was not entitled. Taxpayers expect that in the ordinary course money paid to Centrelink beneficiaries to which they are not entitled will be recovered: Secretary, Department of Social Security v Hales (1998) 82 FCR 154. That approach has been adopted many times by this Tribunal: see, for example, Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693; [2007] AATA 1114.
DECISION
The decision under review is set aside and the Tribunal remits the matter for recalculation of the debt in accordance with these reasons.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...................[sgd].....................................................
Associate
Dated 27 February 2015
Dates of hearing 15 September and 16 December 2014 Applicant In person Solicitors for the Respondent Dr S Thompson, Sparke Helmore
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