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

Cordin and Secretary, Department of Social Services (Social services second review) [2019] AATA 887 (15 May 2019)
Division:GENERAL DIVISION
File Number: 2018/4703
Re:Luke Toby Cordin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:15 May 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.....................[SGD]...................................................
Member D K Grigg
CATCHWORDS
FAMILY ASSISTANCE – parenting payment and family tax benefit – overpayment resulting in debt – whether sole administrative error – where no special circumstances exist to waive or write off the debt – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
SECONDARY MATERIALS
Guide to Social Security Law (2017, Cth)
REASONS FOR DECISION
Member D K Grigg
15 May 2019
INTRODUCTION & CLAIM HISTORY

In September 2013 Mr Cordin became a recipient of parenting payments (“PP”).[1] Mr Cordin also began receiving family tax benefit (“FTB”) payments on the basis that he had 100% care of his child.[2]
[1] Exhibit 1, ST Documents, ST1, page 1, Centrelink notice dated 13 September 2013.
[2] Exhibit 1, ST Documents, ST3, page 6, Centrelink notice dated 7 November 2013.
Pursuant to section 21 of the A New Tax System (Family Assistance) Act 1999 (“FAA”), an individual is eligible for FTB if, relevantly, they have at least one FTB child and are an Australian resident.
The rates at which people are paid PP is determined using the Pension Rate Calculator A at the end of section 1068A of the Social Security Act 1991 (Cth) (“SSA”). The maximum basic rate payable varies depending upon a person’s family situation and varies depending on any income earned.[3] Pursuant to section 58 of the FAA, entitlement to FTB is calculated with reference to a person’s adjustable taxable income.
[3] Section 1064-A1 and 1064-B1 of the SSA.
On 14 December 2015 Centrelink sent Mr Cordin a notice to advise that they could not pay FTB part B because he did not have any qualifying dependent children as his child was overseas.[4]
[4] Exhibit 1, T Documents, T4, page 48, Centrelink notice dated 14 December 2015.
On 23 December 2015 Mr Cordin contacted Centrelink and told a Centrelink officer that his child had been in the United States since 8 November 2015 and would be returning to Australia on 8 February 2016.[5]
[5] Exhibit 1, T Documents, T25, page 152, Centrelink records.
On 10 March 2016 Centrelink sent Mr Cordin a notice indicating that he was to be paid FTB part B of $152.88.[6]
[6] Exhibit 1, T Documents, T5, page 51, Centrelink notice dated 10 March 2016.
On 9 July 2016 Centrelink sent Mr Cordin a notice indicating that Centrelink had checked his entitlement against his annual family income and determined that it owed him $276.45 by way of FTB part B supplement.[7]
[7] Exhibit 1, T Documents, T7, page 57, Centrelink notice dated 9 July 2016.
On 19 July 2016 Centrelink sent Mr Cordin a notice to advise that they could not pay FTB part B because he did not have any qualifying dependent children as his child was overseas.[8]
[8] Exhibit 1, T Documents, T7, page 60, Centrelink notice dated 19 July 2016.
Centrelink records indicate that on 10 January 2017 Mr Cordin contacted Centrelink regarding his PP. The Centrelink records note that Mr Cordin should have cancelled his PP once his dependent child had been overseas for more than 6 weeks and that the child had been overseas for 7 months. Mr Cordin had failed to advise Centrelink that his child had been overseas for that length of time.[9]
[9] Exhibit 1, T Documents, T8, page 63, Centrelink records.
As a result of this information Centrelink decided to cancel Mr Cordin’s PP and FTB on 27 January 2017.[10]
[10] Exhibit 1, T Documents, T9, page 64, Centrelink notice dated 27 January 2017; T10, page 66, Centrelink notice
dated 27 January 2017.
Centrelink also determined that as a result of Mr Cordin’s receiving PP and FTB when he was not eligible that he had been overpaid FTB payments totalling of $2,176.75 during the 2015 – 16 financial year.[11]
[11] Exhibit 1, T Documents, T11, page 68, Centrelink notice dated 27 January 2017.
On 1 March 2017 Centrelink advised Mr Cordin that his repayment of the FTB debt was now due.[12]
[12] Exhibit 1, T Documents, T12, page 72, Centrelink notice dated 1 March 2017.
On 15 March 2017 Centrelink sent Mr Cordin notice indicating that Centrelink had checked his entitlement against his annual family income and determined that it owed him $386.06 by way of FTB part A supplement.[13]
[13] Exhibit 1, T Documents, T13, page 75, Centrelink notice dated 15 March 2017.
On 21 March 2017 Centrelink reminded Mr Cordin that in order to obtain the FTB entitlement he needed to lodge his tax return by 30 June 2017.[14] As at 14 July 2017 Mr Cordin had not lodged his income tax return.[15]
[14] Exhibit 1, T Documents, T14, page 77, Centrelink notice dated 21 March 2017.
[15] Exhibit 1, T Documents, T15, page 81, Centrelink notice dated 14 July 2017.
On 1 September 2017 Centrelink advised Mr Cordin that, as he had not lodged his income tax return, it had determined that he owed Centrelink $5,368.13 in overpaid FTB for the financial year ended 30 June 2016.[16]
[16] Exhibit 1, T Documents, T16, page 83, Centrelink notice dated 1 September 2017.
On 4 October 2017 Centrelink advised Mr Cordin that his repayment of the FTB debt was due.[17]
[17] Exhibit 1, T Documents, T17, page 85, Centrelink notice dated 4 October 2017.
On 26 October 2017 Centrelink notified Mr Corbin they had attempted to contact him to discuss his overpayment but were unsuccessful.[18]
[18] Exhibit 1, T Documents, T18, page 88, Centrelink notice dated 26 October 2017.
On 3 January 2018 Centrelink had become aware that Mr Cordin’s child had left his care and control between 20 December 2015 and 20 January 2017 and that, as a result, Mr Cordin:
(a)had been overpaid PP of $25,371.60 in relation to that period which was now a debt owed to Centrelink (“PP Debt”);[19] and
(b)had been overpaid FTB between 1 July 2016 and 20 January 2017 totalling $1,060.14 which was now debt owed to Centrelink (“FTB Debt”).[20]
[19] Exhibit 1, T Documents, T20, page 97, Centrelink notice dated 3 January 2018.
[20] Exhibit 1, T Documents, T20A, page 99, Centrelink notice dated 3 January 2018.
As at 5 February 2018 Centrelink determined that Mr Cordin owed a total of $31,799.87 in overpayments of FTB and PP.[21]
[21] Exhibit 1, T Documents, T21, page 101, Centrelink notice dated 5 February 2018.
During the period in which Mr Cordin received PP and FTB payments, Centrelink sent notices to Mr Cordin which set out that Mr Cordin was under an obligation to notify Centrelink within 14 days in the event that, among other things, his child stopped living with him, or if the child planned to leave Australia or returned to Australia.[22] The Centrelink notices also set out that his FTB would stop if he did not lodge his tax returns.
[22] see Exhibit 1, T Documents, T4 – T5, pages 48 - 53, Centrelink notices dated 14 December 2015 and 10 March
2016; ST Documents, ST27, pages 69 - 71, Centrelink notice dated 13 November 2014; ST Documents, ST29, pages 74 - 76, Centrelink notice dated 10 April 2015; ST Documents, ST31, pages 79 - 81, Centrelink notice dated 18 November 2015.
Mr Cordin sought a review of Centrelink’s original decision to raise the PP and FTB Debt by an Authorised Review Officer (“ARO”).[23] The appeal to the ARO was unsuccessful. The ARO found that the PP Debt and FTB had been raised correctly.[24]
[23] Exhibit 1, T Documents, T22, page 104, Confirmation of referral to ARO dated 1 May 2018.
[24]Exhibit 1, T Documents, T23, pages 105 - 114, Authorised Review Officer Decision and Notes dated 16 May 2018.
Mr Cordin then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Cordin’s claim and affirmed the ARO’s decision on 18 July 2018.[25]
[25] Exhibit 1, T Documents, T2, pages 6 – 10, SSCSD’s Decision and Reasons for Decision dated 18 July 2018.
Mr Cordin has sought a review of the SSCSD’s decision by this Tribunal.[26]
[26] Exhibit 1, T Documents, T1, pages 1 – 5, Application for Second Review of Decision dated 15 August 2018.
ISSUES FOR DETERMINATION
The issues for determination are whether:
(a)Mr Cordin has been overpaid PP and FTB;
(b)the PP and FTB Debt is recoverable; and, if yes
(c)the PP and FTB Debt should be written off; or
(d)the PP and FTB Debt should be waived due to administrative error; or
(e)“special circumstances” exist such that the PP and FTB Debt should be waived.
WAS MR CORDIN OVERPAID PP AND FTB PAYMENTS?
Pursuant to section 500 of the SSA, entitlement to PP is dependent upon a person having a PP child. A child is a PP/FTB child of a person if, among other things, the person is the principal carer of the child.[27] Sections 5(21) and 500D of the SSA and section 24 of the FAA provide that if a child leaves Australia for more than 6 weeks, a person cannot continue to be the principal carer, which means the child is no longer a PP child.
[27] Section 500D of the SSA; Section 21(1A) of the FAA.
Sections 1068A and 1068B of the SSA set out how the rate of a parent’s PP is determined depending on whether an applicant is single or partnered.
It is not in dispute that Mr Cordin had a PP/FTB child and was entitled to PP and FTB between 2013 and December 2015.
The Secretary contends that Mr Cordin ceased being a principal carer on 20 December 2015, which is 6 weeks after his child went overseas and was no longer in his care.
Mr Cordin submitted that the child remained in his care because he provided financial support for the child. Mr Cordin provided some bank statement entries (the statements were not provided in full) to show the financial contribution he had made for airfares and other needs of his child while overseas.[28] Even if this could constitute principal care, which it does not, these financial contributions were primarily made outside the period under consideration.
[28]Exhibit 2, Applicant’s Bundle of Documents received 3 January 2019, page 5; Exhibit 3, Applicant’s Bundle of Documents received 4 January 2019, pages 2 – 5.
The Tribunal finds that the child was not in Mr Cordin’s care from 8 November 2015, when he departed Australia. Records indicate that the child first went overseas on 8 November 2015. This resulted in the letter of 14 December 2015 (see para 4 above). The 6 week period expired on 20 December 2015. The child re-entered Australia on 10 March 2016. Mr Cordin then began receiving FTB payments. On 7 June 2016 the child again left Australia. There is no evidence of Mr Cordin informing Centrelink that his child left his care on 7 June 2016.
Pursuant to Sections 5(21) and 500D of the SSA and section 24 of the FAA, the child was no longer a PP child from 20 December 2015. Mr Cordin was not entitled to PP and FTB payments between 20 December 2015 and 20 January 2017. Because he continued to receive PP and FTB payments fortnightly while the child was overseas Mr Cordin has been overpaid his entitlements.
There was no dispute that Centrelink calculated the PP Debt and FTB in accordance with the SSA.
Section 1223 of the SSA provides that overpaid PP debts are debts due to the Commonwealth. Section 71 of the A New Tax System (Family Assistance) (Administration) Act 1999 (“FA Admin Act”) provides that overpaid FTB debts are debts due to the Commonwealth.
The Tribunal finds that Mr Cordin owes the PP and FTB Debt to the Commonwealth.
IS THE PP/FTB DEBT RECOVERABLE?
Even if a debt is owed, the Secretary may write off, or waive, a debt in certain circumstances (see sections 1236, 1237A and 1237AAD of the SSA and sections 95, 97 and 101 of the FA Admin Act).
Should the PP Debt be written off?
The Secretary may write off a debt in certain circumstances set out in section 1236(1A) of the SSA and section 95(2) of the FA Admin Act. Those sections provide that a debt may be written off, relevantly, where:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
…..
(d)It is not cost effective for the Commonwealth to take action to
recover the debt.
Relevantly in this matter, a debt is taken to be irrecoverable at law if, and only if there is no proof of the debt capable of sustaining legal proceedings for its recovery.[29]
[29] Section 1236(1B) of the SSA; Section 95(3) of the FA Admin Act.
If a debt is recoverable by, among other things, deductions from the debtor’s social security payment, the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person “severe financial hardship”.[30]
[30] Section 1236(1C) of the SSA; Section 95(4) of the FA Admin Act.
Is the debt irrecoverable at law? (Section 1236, SSA; Section 95(3), FA Admin Act)
None of the circumstances set out in section 1236 of the SSA and section 95(3) of the FA Admin Act exist in this case and therefore I find the debt is not irrecoverable at law.
Does Mr Cordin have the capacity to repay the debt? (Section 1236(1C), SSA; Sections 95(2)(b) and 95(4), FA Admin Act)
If a debt is recoverable by means of deductions from social security payments or family assistance payments, the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
Mr Cordin has made no repayments towards the debt. Rather, his mother, Mrs Brenda Cordin, has been repaying her son’s debt by way of fortnightly payments of $50.00 since October 2018.[31] Mrs Cordin said this arrangement was entered into because otherwise a flight prohibition order may have been put in place which would have prohibited Mr Cordin from travelling to the USA to see his son. Mrs Cordin says she will no longer be continuing to make these repayments.
[31]Exhibit 2, Applicant’s Bundle of Documents received 3 January 2019, page 7, Centrelink notice dated 25 September 2018.
Mrs Cordin submitted that Mr Cordin:[32]
(a)has no capacity to repay the debt;
(b)is unfit to work; and
(c)is currently under a medical certificate awaiting a mental health care plan at his local hospital for anxiety, depression and suicidal thoughts all brought on due to the physical separation from his child.
[32] Exhibit 5, Further Submissions from Mrs Cordin dated 11 February 2019.
The issue is whether Mr Cordin is suffering from “severe financial hardship”.
Other Tribunal decisions have determined that severe financial hardship needs to involve severe or extreme financial suffering and that a person’s entire financial position would need to be materially less than the current rate of their pension.[33]
[33] Re Lumsden and Secretary, Department of Social Security [1986] AATA 228; Stubbs and Secretary, Department
of Family and Community Services [2003] AATA 729; L and Department of Social Security [1995] AATA 159;
Secretary, Department of Family and Community Services and Birgden [2003] AATA 67.
Mr Cordin told the Tribunal that he is presently unemployed and, because he is concerned he could become liable to Centrelink again, has not applied for the New Start Allowance (NSA).
In terms of Mr Cordin’s medical conditions, the Tribunal was provided with:
(a)a letter from Dr Trevor Roy, General Practitioner, dated 6 February 2017 to Ms Christina de Wit, Psychologist, requesting an opinion regarding Mr Cordin’s “low mood and anxiety”;[34] and
(b)a medical certificate from Dr Anthony Edwards dated 17 December 2018. Dr Edwards indicated that 17 December 2018 was the first time he had seen Mr Cordin and that he had temporary depression which began on 1 January 2016.[35] This medical certificate was obviously based on Mr Cordin’s self-report. Dr Edwards only reports that Mr Cordin was temporarily unfit for work between 17 December 2018 and 16 March 2019.
[34]Exhibit 2, Applicant’s Bundle of Documents dated 3 January 2019, page 8, Letter from Dr Trevor Roy dated 6 February 2017.
[35]Exhibit 3, Applicant’s bundle of Documents received 4 January 2019, page 1, Medical certificate of Dr Edwards dated 17 December 2018.
No report from Ms de Wit was provided to the Tribunal.
The medical evidence provided by Mr Cordin shows only that he had a temporary incapacity for work. There is no evidence before the Tribunal which establishes that Mr Cordin cannot work or indeed that he has been medically unable to do so since he was informed of the debt in February 2018.
More importantly, there is no medical evidence which indicates that he was unable to keep Centrelink aware of his child’s movements. If he had done so, no debt would have arisen. It is open to Mr Cordin to apply for NSA. He has no need to be concerned about incurring further debts provided he keeps Centrelink informed of relevant circumstances, such as his income. If he was receiving the NSA, deductions could then be made by Centrelink towards the repayment of his debt and his mother would not need to voluntarily take on that burden.
At present Mr Cordin says he had no income (which has not been verified) but he also has no daily living expenses. At the hearing Mr Cordin said his mother pays for his petrol, car registration and mobile phone bill and he has no other personal expenditure. There is a lack of evidence regarding how much money is provided to Mr Cordin by his parents. Mr Cordin also says he helps out on friends’ farms but receives no money. No bank account statements have been provided because he says his bank account has been closed down. There is no corroborating evidence of this. There is no evidence of the current amount of credit card debt. The letter Mr Cordin provided from the Commonwealth Bank only established the debt as it was in March 2017.[36] This is 2019. Mr Cordin told the Tribunal that the bank is not currently requiring that any repayments be made towards the credit card debt.
[36]Exhibit 2, Applicant’s Bundle of Documents received 3 January 2019, page 16, Letter from Commonwealth Bank to Mr Cordin dated 15 March 2017.
Given these circumstances the Tribunal is not satisfied that Mr Cordin would suffer from severe financial hardship if the debt is recovered.
Is it cost-effective for the Commonwealth to recover the debt? (Section 1236(1A)(d), SSA; Section 95(2)(d), FA Admin Act)
There is no indication from the Secretary that it is not cost-effective for it to recover the debt.[37]
SHOULD THE PP/FTB DEBT BE WAIVED DUE TO ADMINISTRATIVE ERROR? (SECTION 1237A, SSA; S 97, FA ADMIN ACT)
[37] Exhibit 6, Secretary’s Further Written Submissions dated 11 March 2019, paragraphs [17] – [19].
Section 97 of the FA Admin Act provides:
Waiver of debt arising from error
(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
Section 1237A of the SSA provides:
Waiver of debt arising from error
Administrative error
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

The Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
If administrative error was the sole cause for the debt arising, the Secretary must waive the right to recover the debt. The debt must be "attributable solely" to administrative error. Administrative error must be the sole cause, not merely one of multiple causes.[38]
[38] Secretary, Department of Family & Community Services v Sekhon[2003] FCA 76, at [41] per Wilcox J and on
appeal to the Full Federal Court in Sekhon v Secretary, Department of Family and Community Services[2003] FCAFC 190, at [23].
The Tribunal notes that the Guide to Social Security Law (“the Guide”) which is used by Centrelink in interpreting and applying the provisions of the Act. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[39] Paragraph 6.7.3.30 provides the following guidance:
[39] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
When is a debt attributable solely to administrative error?
In general, wherever a mistake has been made in administering a payment, the debt will arise 'solely to an administrative error' providing the recipient's conduct has not contributed to the debt in any way.
Examples of administrative error include mistakes in:
·calculating the amount of a payment,
·determining which social security payment/s a person is entitled to be paid, and
·correctly actioning information provided by the recipient.
The requirement that part of the debt must have arisen 'solely' from administrative error means that there must have been no other factors that caused the debt to arise or contributed to the debt arising. The part of the debt must have arisen as a result of administrative error alone.
Mr Cordin contended that a Centrelink officer told him that Centrelink had data matching capabilities which would enable them to know when his son was out of the country and automatically adjust his payments and therefore he did not need to inform Centrelink of this himself.
Mr Cordin also told the Tribunal that “the manager of managers” at Centrelink told him he would continue to receive payments while his child was overseas. Mr Cordin could not recall the names of the Centrelink officers to whom he spoke.
The Tribunal finds Mr Cordin’s evidence that these telephone conversations took place difficult to accept given that:
(a)there is no record of a Centrelink officer having this conversation with Mr Cordin advising him that he was entitled to continue receiving payments or that he was under no obligation to keep Centrelink informed;
(b)the Centrelink records show that Mr Cordin contacted Centrelink on 15 March 2017.[40] The records state that there had been an incorrect coding of his FTB on the Centrelink file and it had been corrected to take into account the dates the child had left Mr Cordin’s care. This record relates to the FTB for the 2015-2016 financial year. It goes directly against what Mr Cordin says the substance of the telephone conversation were and relates to a debt which is not in issue before this Tribunal;
(c)the notices sent to Mr Cordin specifically state that the recipient of the benefits under an obligation to keep Centrelink informed;
(d)there is no evidence of Mr Cordin informing Centrelink that his child left his care on 7 June 2016; and
(e)Mr Cordin had previously informed Centrelink of the child’s movements on 23 December 2015 so he was aware of his obligation to do so.[41]
[40] Exhibit 1, T Documents, T25, page 122, Centrelink Records.
[41] Exhibit 1, T Documents, T25, page 152, Centrelink records.
Mrs Cordin said nothing was received from Centrelink in writing to confirm the advice he asserts he was given other than the notice dated 15 March 2017. Mrs Cordin and Mr Cordin say this notice was issued on the day Mr Cordin had the telephone discussion with the Centrelink manager and confirms that Centrelink had checked his entitlement against his annual family income and determined that it owed him $386.06 by way of FTB part B supplement.[42] Mrs Cordin also said that Mr Cordin had telephoned Centrelink on 15 March 2017 because that was the day after he received a letter from a debt collection agency Dun & Bradstreet.[43] Dun & Bradstreet had been engaged by the Department to collect the overpaid FTB debt of $2,176.75 (see para 11 above).
[42] Exhibit 1, T Documents, T13, page 75, Centrelink notice dated 15 March 2017.
[43]Exhibit 2, Applicant’s Bundle of Documents received 3 January 2019, page 25, Letter from Dun & Bradstreet dated 14 March 2017.
Mr Cordin also said that after he was still receiving FTB he attempted to contact Centrelink repeatedly to ask why had his payments not been altered. There is no record of this happening and further, this evidence is contradictory to that given by Mr Cordin earlier when he said he was told he would keep receiving money. He said the manager told him he was entitled to the payments.
What is notable about this evidence is that it refers to a period after the period in dispute. Mr Cordin’s obligations to inform Centrelink about his child’s movements arose in November 2015 and onwards until his child returned to his care. If the advice he says he received was not proffered until March 2017, he cannot be said to have acted in the relevant period in reliance upon Centrelink’s representations to him.
Even if Mr Cordin had been misadvised by Centrelink, Centrelink sent numerous notices to Mr Cordin which would have alerted him to the fact that Centrelink was paying PP and FTB based on an incorrect assumption. Further, Mr Cordin continued to receive money into his account which also should have alerted him to the fact that Centrelink was paying him in error. It was Mr Cordin’s failure to follow Centrelink up and keep Centrelink fully informed that “materially contributed” to his being overpaid.[44]
[44]Exhibit 4, Secretary’s Statement of Facts and Contentions dated 4 February 2019, paragraph [4.15] – [4.21] and [4.39] – [4.43].
If Mr Cordin believes that because of advice he says he received from Centrelink he has suffered a detriment, the debt, Centrelink has a compensation scheme to which impacted applicants can apply.
The Debt did not arise solely due to administrative error. There is no basis for the PP and FTB Debt to be waived under section 1237A of the SSA and section 97 of the FA Admin Act.
ARE THERE SPECIAL CIRCUMSTANCES THAT MAKE IT DESIRABLE FOR THE PP DEBT TO BE WAIVED? (SECTION 1237AAD, SSA; SECTION 101, FA ADMIN ACT)
The Secretary may also waive a debt owed, under section 1237AAD of the SSA or section 101 of the FA Admin Act, if satisfied:
(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 (in the case of an FTB Debt) or the SSA, the FA Admin Act or Social Security Act 1947 (in the case of a PP Debt); 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.
Any circumstances relied upon to be “special” must be unusual, different, uncommon or exceptional.[45]
[45]The core requirement for “special reasons” is that there be something “unusual or different”: French J in Boscolo v Secretary, Department 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,
The Secretary submits that there is no evidence that special circumstances exist and that therefore the discretion to waive the debt cannot be invoked.[46]
[46]Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions dated 2 February 2019, paragraph [4.28] and [4.46].
Mrs Cordin submitted that her son’s mental health and his financial circumstances are special circumstances.[47] In written submissions Mrs Cordin submitted:[48]
1. AT NO TIME DID LUKE KNOW THE EXACT DATE THAT [THE CHILD] WOULD BE RETURNED TO HIM IN AUSTRALIA AND THIS WAS TOLD TO CENTRELINK CUSTOMER SERVICE MANAGERS AND LUKE WAS TOLD THAT DATA MATCHING IS DONE AND CENTRELINK WILL KNOW WHEN HE RETURNS TO AUSTRALIA, AT NO TIME DID LUKE GIVE ANY FALSE STATEMENTS OR AT ANY TIME DID LUKE KNOWINGLY CONTRAVENE THE ACT.
4.27. THE SECRETARY NOTES THAT THE FINANICAL SUPPORT PROVIDED WAS OUTSIDE OF THE DEBT PERIOD
1. BANK STATEMENTS SENT TO THE AAT2 SHOW THAT FINANCIAL SUPPORT WAS PROVIDED TO [THE CHILD] DURING THIS DEBT PERIOD
2. LUKE HAS AT ALL TIMES SUPPORTED [THE CHILD] FINANCIALLY THROUGHOUT THE DEBT PERIOD AND THIS REFLECTS ON THE AMOUNT OF CREDIT CARD DEBT LUKE HAS INCURRED.
4.28. THE SECRETARY CONTENDS THAT THE APPLICANT HAS NOT ADVISED OF ANY SPECIAL CIRCUMSTANCES WHICH ARE UNUSUAL, UNCOMMON OR EXCEPTIONAL WHICH WOULD WARRANT THE EXERCISE OF THE DISCRETION TO WAIVE ALL OR PART OF THE DEBT PURSUANT TO SECTION 1237AAD OF THE ACT
1. A CENTRELINK AUTHORISED REVIEW OFFICER PREVIOUSLY FOUND THAT THERE WERE SPECIAL CIRCUMSTANCES TO WAIVE THIS DEBT ON THE 29TH MAY 2018
2. LUKE IS UNDER MEDICAL CARE FOR ANXIETY, DEPRESSION, ISOLATION, SLEEP DISTURBANCE AND SUICIDAL THOUGHTS, IS THIS NOT AN UNUSUAL, UNCOMMON OR EXCEPTIONAL CONDITION TO BE SUFFERING FROM I BELIEVE IT IS AND SO DOES THE MEDICAL PROFESSIONALS THAT ARE TREATING LUKE.
[47] Exhibit 5, Submissions of Mrs Cordin dated 11 February 2019.
[48] Exhibit 5, Submissions of Mrs Cordin dated 11 February 2019.
Mr Cordin filed written submissions subsequent to the hearing as follows:[49]
IAM REQUESTING THE TRIBUNAL TO CONSIDER A WAIVER FOR THESE DEBTS UNDER SPECIAL CIRCUMSTANCES AS THESE DEBTS IF NOT WAIVED WILL HAVE A CATASTROPIC OUTCOME ON MY ALREADY DIRE FINANICAL SITUATION PLUNGING ME INTO SEVERE FINANCIAL HARDSHIP, I HAVE A CREDIT CARD DEBT OF $43,449.18 PLUS INTEREST WITH THE COMMONWEALTH BANK THIS CREDIT DEBT WAS DEFERRED ONLY UNTIL THE 15TH APRIL 2017 AND IS RECCURING INTEREST.I DO NOT HAVE ANY HOUSEHOLD EXPENCES AS I DONOT LIVE IN A HOUSE I LIVE IN A VECHILE I DO NOT HAVE ANY DEDUCTIONS AS I HAVE NO INCOME IAM NOT CURRENTLY RECIEVING ANY INCOME SUPPORT FROM CENTRELINK AND I DO NOT INTEND TO APPLY FOR ANY FUTURE PAYMENTS I WAS PREVIOUSLY GIVEN INCORRECT INFORMATION FROM CENTRELINK STAFF WHICH RESULTED IN THIS DEBT I BELIEVED I WAS ONLY RECIEVING MY CORRECT ENTITLEMENTS OF PARENTING PAYMENT AND FTB AND I FULLY SUPPORTED MY SON FINANICALLY WITH THESE PAYMENTS.I WAS ISSUED WITH A 3 MONTH MEDICAL CERTIFICATE FROM DR ANTHONY EDWARDS FOR DEPRESSION THAT STATED THIS CONDITION IS TEMPORARY WITH THE PROGNOSIS UNCERTAIN THIS CERTI FICATE WAS FOR THE PURPOSE TO CLAIM A CENTRELINK PAYMENT TO WHICH I DECLINED AS I DONOT HAVE ANY TRUST IN THE SYS1EM AND I WILL NOT BE SEEKING A RENEWED MEDICAL CERTIFICATE 1AM SUFFERING FROM SEVERE MENTAL ANGUISH DUE TO THE SEPARATION FROM MY SON I HAVE BEEN SUFFERING WITH THIS (TEMPORARY) DEPRESSION FOR QUITE A WHILE NOW AND IT DOES NOT FEEL (TEMPORARY) TO ME, MY MOTHER HAS BEEN SUPPORTING ME THROUGHOUT THIS TIME FINANICALLY AND EMOTIONALLY TO WHICH IAM GREATFUL FOR AND SHE WILL CONTINUE TO HELP ME WHEN IAM IN NEED, I LOOK AHEAD TO REBUILDING MY LIFE WITH MY SON BY MY SIDE WITHOUT THE BURDEN OF A CENTRELINK DEBT CONSTANTLY IN THE BACK OF MY MIND
[49] Exhibit 7, Statement of Mr Cordin received 29 March 2019.
Mrs Cordin filed written submissions subsequent to the hearing as follows:[50]
IN THIS FINAL SUBMISSION I SEND TO YOU TODAY IS A VERY BRIEF OUTLINE OF THE MENTAL ANGUISH THAT LUKE HAS AND STILL IS SUFFERING BROUGHT UPON BY THE PHYSICAL SEPARATION FROM HIS SON AND NOT KNOWING WHEN HE WOULD HAVE HIS SON BACK WITH HIM AGAIN.
LUKE HAS FROM THE DAY [THE CHILD] WAS BORN FULLY SUPPORTED HIS SON FINANICALLY AND EMOTIONALLY EVEN WHEN SEPARATED BY DISTANCE LUKE TALKS THROUGH SKYPE TO HIS SON EVERYDAY AND READS TO HIM EVERY NIGHT. IT WAS RECORDED BY CENTRELINK STAFF THAT WHEN [THE CHILD] LEFT AUSTRALIA IT WAS A PERMANENT DEPARTURE FROM THE 7TH JUNE 2016, IT HAS ALWAYS BEEN LUKES INTENTION FOR [THE CHILD] TO LIVE IN AUSTRALIA, GO TO SCHOOL IN AUSTRALIA AND GROW UP WITH HIS FAMILY IN AUSTRALIA. [THE CHILD] HAS RETURNED TO AUSTRALIA AS RECENTLY AS THE 13TH JUNE 2018 AND WE ARE NOW MAKING ARRANGEMENTS FOR HIS RETURN AGAIN .
NOT AT ANY TIME DID LUKE KNOW THAT WHEN [THE CHILD] LEFT AUSTRALIA WHAT HIS RETURN DATES WOULD BE, LUKE HAS PAID FOR [THE CHILD]S AIRFARES EVERY TIME HE HAS BEEN TRAVELLING TO THE UNITED STATES AND BACK TO AUSTRALIA THIS HAS ADDED TO LUKES CREDIT CARD DEBTS.
LUKE HAS AT ALL TIMES BELIEVED THAT HE WAS ONLY RECIEVING CENTRELINK PARENTING PAYMENTS AND FTB PAYMENTS THAT HE WAS ENTITLED TO AND AT NO TIME DID LUKE KNOWINGLY CONTRAVENE ANY ACT, LUKE WAS TRUSTING THE INFORMATION GIVEN TO HIM BY CENTRELINK STAFF DURING THE PHONE CALLS HE MADE, LUKES ONLY PRIORITY AND CONCERN WAS FOR HIS SON LUKE BELIEVED IT WHEN HE WAS TOLD BY CENTRELINK STAFF THAT CENTRELINK DATA CHECKS WITH THE DEPARTMENT OF IMMIRGRATION SO THEY WOULD KNOW WHEN [THE CHILD] LEFT AND RETURNED EVEN IF LUKE NEVER KNEW [THE CHILD]S RETURN DATES THAT THE DEPARTMENT WOULD BE INFORMED HE TRUSTED THIS INFORMATION TO BE CORRE.CT LUKE CONTINUED TO SUPPORT [THE CHILD] THROUGHOUT THIS DEBT PERIOD WHETHER [THE CHILD] WAS IN AUSTRALIA OR IN THE UNITED STATES.
ALL OF THIS HAS ADDED TO LUKES MENTAL ANGUISH AND I HAVE DONE MY BEST TO SUPPORT HIM THROUGH THIS TIME AND TO THIS DAY I WILL CONTINUE TO DO SO. I PAID INSTALMENTS FROM MY BANK ACCOUNT TOWARDS THIS DEBT TO THE AMOUNT OF $500 IAM REQUESTING THAT IFTHE TRIBUNAL GRANTS A WAIVER FOR THIS DEBT THAT I MAY BE REFUNDED THIS AMOUNT I WAS MAKING PAYMENTS FROM THE 5TH OCTOBER 2018 TO THE 8TH FEBRUARY 2019. PLEASE CONSIDER THIS WHEN MAKING YOUR DECISION, THANKING YOU
[50] Exhibit 8, Statement of Mrs Cordin received 29 March 2019.
The corroborating medical evidence before the Tribunal is outlined and discussed in paragraph [46] – [49] above.
The Tribunal can appreciate that it would be stressful for a parent to be separated from a child, but this does not constitute a special circumstance.
Without significant corroborating medical evidence the Tribunal cannot be satisfied of the correct diagnosis of any mental health condition Mr Cordin may be suffering or the impact of any condition. Due to the lack of evidence the Tribunal cannot find that there are special medical circumstances present which justify the exercise of the discretion to waive the debt.
Mr Cordin outlined he had significant credit card debt and no income. Financial circumstances alone cannot constitute special circumstances.
On the available evidence, the Tribunal finds that there are no “special circumstances” and that there is no basis for the PP or FBT Debt to be waived under section 1237AAD of the SSA or section 101 of the FA Admin Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

...............[SGD].........................................................
Associate
Dated: 15 May 2019

Date of hearing: 18 February 2019

Date final submissions received: 29 March 2019

Applicant’s Representative: Mrs Brenda Cordin

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Sparke Helmore Lawyers

at [37].

[2019] AATA 887

15 May 2019

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Statutory Interpretation

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Date of hearing:	18 February 2019
Date final submissions received:	29 March 2019
Applicant’s Representative:	Mrs Brenda Cordin
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers