Dewan and Secretary, Department of Social Services (Social services second review)
[2024] AATA 777
•3 April 2024
Dewan and Secretary, Department of Social Services (Social services second review) [2024] AATA 777 (3 April 2024)
Division:GENERAL DIVISION
File Number(s): 2023/6271
Re:Asma Dewan
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:3 April 2024
Place:Canberra
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
....[SGD]........................................................
Member W Frost
Catchwords
SOCIAL SECURITY – Family Tax Benefit - whether an overpayment is a debt owing to the Commonwealth – whether all or part of the debt should be recovered – failure to update taxable income – whether a debt should be written off – whether a debt should be waived – definition of severe financial hardship – definition of sole administrative error – definition of special circumstances – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 34J, 37, 43.
A New Tax System (Family Assistance) Act 1999 (Cth), Schedule 1, Schedule 3.
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 25, 71, 78, 78B, 78C, 78D, 95, 97, 101, 128.Cases
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25Beadle and Director-General of Social Security (1984) 6 ALD 1
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov and Centrelink [2003] FCAFC 133
Feneley and Secretary, Department of Family and Community Services [2003] AATA 496
Gerhardt and Department of Employment, Education and Training [1996] AATA 173
Ghanem and Secretary, Department of Social Services [2022] AATA 160
Groth and Secretary Department of Social Security (1995) FCA 1708
Ivovic and Director General of Social Services (1981) 3 ALN N95
Klaverstyn and Secretary, Department of Family and Community Services [2003] AATA 71.
Lumsden and Secretary Department of Social Security [1986] AATA 228
Purches and Secretary, Department of Family and Community Services [2005] AATA 267
Secretary, Department of Family and Community Services and Birgden [2003] AATA 67
Secretary, Department of Social Security v Coralie Hales (1998) 82 FCR 154
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Stafford and Secretary, Department of Social Services [2018] AATA 2764 at [78]
REASONS FOR DECISION
Member W Frost
3 April 2024
INTRODUCTION
This decision concerns the overpayment to the Applicant, Ms Asma Dewan, of Family Tax Benefit (FTB) totalling $4,418.20, and what should happen to that debt. At all relevant times, up until the penultimate day of the financial year ending on 30 June 2020, the then Department of Human Services (now Services Australia and referred to in this decision as the Agency) was not informed by the Applicant of her spouse’s actual income during that financial year. This led to Ms Dewan being overpaid FTB.
Ms Dewan applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for review of the decision made by its Social Services and Child Support Division (AAT1), which affirmed the debt and its recovery. Pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act), the parties agreed to the Tribunal determining the review by considering the evidence provided and without holding a hearing. The Tribunal has considered all documents filed in this proceeding by the Respondent, pursuant to section 37 of the AAT Act, together with Ms Dewan’s evidence and the parties’ written submissions.[1] For the following reasons, the Tribunal has decided to affirm the AAT1 decision. As a result, Ms Dewan’s application to the Tribunal is unsuccessful.
[1] Exhibits 1 to 4.
ISSUES
The issues for determination by the Tribunal in this proceeding were:
(a)whether Ms Dewan was paid FTB in excess of her entitlement; and
(b)if so, whether the overpayment is a debt owing to the Commonwealth; and
(c)if so, whether all or part of the debt should be recovered.
BACKGROUND
On 13 August 2019, the Agency sent Ms Dewan a notice requesting she provide within 14 days a new estimate of her family’s income in relation to FTB or otherwise that payment would be cancelled.[2]
[2] Exhibit 1, pages 223-224.
On 2 September 2019, the Agency cancelled Ms Dewan’s FTB on the basis that she had ‘not provided the income details we requested’.[3] On the same date, Ms Dewan provided the Agency with an estimate of her family income for the 2019/20 financial year in the amount of $48,587.[4]
[3] Ibid., pages 225-226.
[4] Ibid., page 124.
On 23 September 2019, the Agency sent Ms Dewan a notice informing her that she would be paid FTB effective from 2 September 2019, based upon a combined income estimate of $48,587, and stating that she needed to tell the Agency about any changes to her family’s income to ensure that she was paid the correct amount of FTB.[5] Under the heading, ‘About your family’s income’, the notice relevantly stated that:[6]
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.
…
The income details you must tell us about include changes to your or your partner’s:
· taxable income including income from salary and wages…
[5] Ibid., pages 229-231.
[6] Ibid., page 230.
On 3 January 2020, the Agency sent Ms Dewan a notice informing her that the regular FTB payment was being calculated using a combined income amount of $48,587 and that she must inform the Agency if her family’s income changed.[7]
[7] Ibid., pages 236-238.
On 29 January 2020, the Agency informed Ms Dewan that she was no longer eligible for FTB because she had been ‘outside Australia for more than six weeks’.[8]
[8] Ibid., pages 239-240.
On 30 January 2020, the Agency sent Ms Dewan a notice informing her that FTB would be paid effective from 28 January 2020, based on a combined income in the amount of $48,587, and that she needed to tell the Agency about any changes to her family’s income.[9]
[9] Ibid., pages 241-243.
On 16 May 2020, the Agency sent Ms Dewan a notice stating that information used to calculate her regular FTB payment from 20 May 2020 was a combined income in the amount of $48,587 and that she needed to tell the Agency about any changes to her family’s income.[10]
[10] Ibid., pages 247-249.
On 29 June 2020, Ms Dewan informed the Agency that her family’s combined income was $98,000.[11] In a notice sent to Ms Dewan on the same date, the Agency noted that it could not pay her ‘more than the base rate of Family Tax Benefit Part A because your income has exceeded the income limit’.[12]
[11] Ibid., page 109.
[12] Ibid., page 253.
On 22 October 2020, Ms Dewan’s partner lodged his income tax return for the 2019/20 financial year.[13]
[13] Ibid., page 88.
On 9 April 2021, the Agency raised a debt in the amount of $5,853.74 against Ms Dewan for the overpayment of FTB in the 2019/20 financial year.[14] The Agency’s notice issued to Ms Dewan stated that payment of the debt or the setting up of a payment arrangement must be done by 7 May 2021.[15] It also relevantly stated that Ms Dewan may be charged interest daily if she did not repay the debt in full or keep to a payment arrangement.[16]
[14] Ibid., pages 74-77.
[15] Ibid., page 74.
[16] Ibid.
On 11 May 2021, the Agency sent Ms Dewan a notice regarding the FTB debt of $5,853.74, which relevantly stated that she had not entered or kept to a payment arrangement and that the Agency would apply daily interest on that debt.[17]
[17] Ibid., pages 262-264.
On 14 July 2022, the Agency sent Ms Dewan a notice regarding repayment of the FTB debt.[18]
[18] Ibid., pages 265-267.
On 28 July 2022, the Agency sent Ms Dewan a further notice regarding repayment of the FTB debt.[19]
[19] Ibid., pages 268-270.
On 15 August 2022, Ms Dewan contacted the Agency requesting a review of its decision of April 2021 to raise the FTB debt.[20]
[20] Ibid., pages 81-82 and 115.
On 5 October 2022, an authorised review officer (ARO) varied the Agency’s decision and determined that Ms Dewan was overpaid FTB in the amount of $4,418.20, not $5,853.74, and that the interest charge of $85.83 was correctly applied by the Agency.[21]
[21] Ibid., pages 83-86.
On 5 January 2023, the Tribunal received Ms Dewan’s application to the AAT1 for review of the ARO’s decision.[22]
[22] Ibid., pages 94-98.
On 5 July 2023, the AAT1 affirmed the ARO’s decision.[23]
[23] Ibid., pages 3-8.
On 18 August 2023, Ms Dewan applied to the Tribunal for review of the AAT1 decision.[24]
LEGISLATION
[24] Ibid., pages 1-2.
FTB entitlement
Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (FA Act) sets out the rate calculator to determine a person’s annual rate of FTB and requires identification of the person’s ‘adjusted taxable income’.
Schedule 3 of the FA Act defines the term ‘adjusted taxable income’ and relevantly states that:
if an individual is a member of a couple, the individual's adjusted taxable income for an income year includes the adjusted taxable income for that year of the individual's partner.
Subdivision D of Division 1 of Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act) sets out the FTB reconciliation conditions. The reconciliation process compares the person’s FTB entitlement for the financial year based on their actual adjusted taxable income with the actual amount the person received during the year based on their estimated income. An adjustment takes place where the reconciliation shows a difference between the amount of FTB the person received and their correct entitlement in a particular financial year.
Creation of a debt
Subsection 25(1) of the Administration Act relevantly states that:
If, after a claimant becomes entitled to be paid family tax benefit by instalment:
(a) anything happens that causes the claimant to cease to be eligible for family tax benefit on the days for which the claimant will become entitled to be paid the benefit under the determination concerned, or to become eligible for a daily rate of family tax benefit that is less than that specified in the determination; or
(b) the claimant becomes aware that anything is likely to happen that will have that effect;
the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.
Subsection 71(2) of the Administration Act provides as follows:
If:
(a)an amount (the received amount) has been paid to a person by way of assistance; and
(b)the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person. [emphasis in original]
Writing off a debt
Section 95 of the Administration Act relevantly provides that:
(1) The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.
(2) The Secretary may decide to write off a debt under subsection (1) 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.
(3) For the purposes of paragraph (2)(a), a debt is taken to be irrecoverable at law if, and only if:
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
(4) 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; 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.
For the avoidance of doubt, the aforementioned subsection 95(4A) and (4B) of the Administration Act, regarding debts where a claimant and partner separate, are not applicable in this proceeding.
Waiving a debt
Administrative error
Section 97 of the Administration Act relevantly provides that the Respondent ‘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 the debtor received in good faith the payment or payments that gave rise to that proportion of the debt, and the person ‘would suffer severe financial hardship if it were not waived’.
Special circumstances
Section 101 of the Administration Act states that the Respondent may waive the right to recover all or part of a debt if 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.
Tribunal’s jurisdiction
For completeness, the Tribunal notes that under section 128 of the Administration Act, an application may be made to the Tribunal for review of a decision of the AAT1 made under subsection 43(1) of the AAT Act. As previously mentioned in these reasons, the AAT1 made a decision in July 2023 pursuant to subsection 43(1) of the AAT Act. This Tribunal therefore has jurisdiction in relation to the application made by Ms Dewan for review of the AAT1 decision.
CONTENTIONS
Ms Dewan
Ms Dewan did not dispute that she received an overpayment of FTB in the 2019/20 financial year. However, Ms Dewan contended that, due to the COVID-19 pandemic, the amount of hours worked by her spouse during the relevant financial year and, therefore, his income, increased. As set out in the AAT1 decision, Ms Dewan’s spouse submitted that the initial income estimate provided to the Agency was accurate but, as a then casual employee, his hours of work were variable and difficult to predict in advance. As a result of the pandemic, Ms Dewan’s spouse obtained significantly more work than expected and this caused the substantial increase in his income in the 2019/20 financial year. Ms Dewan also submitted that they did not have capacity to repay the debt.
Respondent
The Respondent contended that the Tribunal should affirm the AAT1 decision, because:
(a)Ms Dewan was overpaid FTB because she had underestimated her family’s income in the 2019/20 financial year;
(b)the Agency correctly applied an interest charge on the debt; and
(c)there was no basis to not recover the debt.
CONSIDERATION
Was Ms Dewan overpaid FTB?
The Tribunal is satisfied that Ms Dewan was paid FTB in the 2019/20 financial year based on a combined income of $48,587, which estimate she provided to the Agency on 2 September 2019.[25] There was no evidence before the Tribunal that Ms Dewan or her spouse informed the Agency at any time before 29 June 2020 that the combined income amount the Agency used to calculate her FTB was incorrect. The evidence from the Australian Taxation Office, obtained as part of the FTB reconciliation process, indicated that the actual combined income for Ms Dewan and her spouse in the 2019/20 financial year was $96,544.[26]
[25] Ibid., page 124.
[26] Exhibit 3.
While Ms Dewan was entitled to receive FTB in the 2019/20 financial year, she was not eligible to receive the total amount that she received from the Agency because the couple’s adjusted taxable income was substantially higher than their estimated combined income of $48,587, which was used to calculate that FTB entitlement. In the relevant financial year, Ms Dewan received FTB payments totalling $6,364.72, but she was only eligible to receive $1,946.52 based on her family’s actual combined income for the 2019/20 financial year.
Is the overpayment a debt?
Based on the evidence before the Tribunal, pursuant to subsection 71(2) of the Administration Act, the Tribunal finds that the difference between the received amount of FTB and the correct amount is a debt due to the Commonwealth by Ms Dewan. The amount of the FTB debt is $4,418.20. The Tribunal is satisfied that the amount of overpaid FTB has been correctly calculated in accordance with sections 78 and 78C of the Administration Act.
Section 78 of the Administration Act states that when a person is given a notice in relation to a debt and the debt remains unpaid and there is no arrangement in effect by the due date, then the person is liable to pay, by way of penalty, an interest charge.
As set out above in these reasons, the Agency sent Ms Dewan a notice on 9 April 2021 in relation to her FTB debt, which advised that she may be charged interest daily on that debt if she did not fully repay it or enter into a payment arrangement by 7 May 2021.[27] Based on the evidence before the Tribunal, Ms Dewan did not contact the Agency in relation to her FTB debt until more than 15 months later on 15 August 2022.[28] Accordingly, the Tribunal is satisfied that it was appropriate for the Agency to apply an interest charge to the debt.
[27] Exhibit 1, pages 74-77.
[28] Ibid., page 115.
In accordance with section 78B of the Administration Act the Tribunal finds that the interest charge amount is also a debt due to the Commonwealth, and the exemption under section 78D of the Administration Act does not apply because Ms Dewan was not in receipt of FTB instalments during the interest charge period, which was stated by the Agency to run from 8 May 2021 to 15 August 2021.[29] The Agency’s records indicate that it was not until one year after 15 August 2021, on 15 August 2022, that Ms Dewan contacted the Agency regarding the FTB debt. It therefore appears open to the Agency to have found that a higher interest charge amount was applicable than that which was applied to the debt.
[29] Ibid., pages 85 and 115.
Should the debt be recovered?
In Secretary, Department of Social Security v Coralie Hales (1998) 82 FCR 154 at 155, the Federal Court of Australia espoused the principle that the Australian community or ‘taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned’. To this end, and as set out above, the Parliament has provided for family assistance debts otherwise due to the Commonwealth to be written off or waived in certain circumstances.
Write off
Subsection 95(1) of the Administration Act provides that the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period of time. However, a debt may only be written off if the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown, or it is not cost effective for the Commonwealth to pursue action to recover the debt.
Subsection 95(3) of the Administration Act sets out the circumstances when a debt is irrecoverable at law. Subsection 95(4) of the Administration Act provides that if a debt is recoverable by means of deductions from a social security payment, the person is taken to have capacity to repay the debt unless recovery would cause ‘severe financial hardship’.
The meaning of ‘severe financial hardship’ has been considered in a number of Tribunal decisions.[30] In Feneley and Secretary, Department of Family and Community Services [2003] AATA 496 at [36], the Tribunal stated that:
Severe financial hardship is not defined in the Act. However, the meaning of the term, while not implying destitution goes beyond straightened financial circumstances and imports a need for the particular circumstances of a person to include suffering of a severe or extreme nature.
[30] Re Lumsden and Secretary Department of Social Security [1986] AATA 228; Secretary, Department of Family and Community Services and Birgden [2003] AATA 67; and Klaverstyn and Secretary, Department of Family and Community Services [2003] AATA 71.
The Tribunal finds that Ms Dewan’s FTB debt is not irrecoverable at law. The evidence before the Tribunal does not establish that Ms Dewan and her spouse are unable to repay the debt. Ms Dewan’s spouse is presently employed on a full-time basis and has an annual taxable income of over $100,000.[31] Ms Dewan currently receives a Carer Allowance of approximately $153.50 per fortnight.[32] As suggested by the Respondent, Ms Dewan can negotiate repayment of the FTB debt in instalments at an amount satisfactory to both parties. As set out above, subsection 95(4) of the Administration Act relevantly provides that if a debt is recoverable by means of deductions from a social security payment, the person is taken to have capacity to repay the debt. Accordingly, based on the available evidence before the Tribunal, while acknowledging that repayment of the debt may put Ms Dewan and her family under some financial strain, the Tribunal is satisfied that recovery of the debt would not cause ‘severe financial hardship’ and it is cost effective for the Agency to recover the debt.
[31] Exhibit 3.
[32] Ibid.
The Tribunal is therefore not satisfied that there are grounds to write off the debt. In this regard, the Tribunal finds that the debt cannot be written-off under section 95 of the Administration Act on the grounds that the debt is not irrecoverable at law; Ms Dewan and her spouse have capacity to repay the debt; and repayment of the debt would not result in them experiencing severe financial hardship.
Waiver
Sole administrative error
Under section 97 of the Administration Act, the Respondent must waive the right to recover a debt that is ‘attributable solely to an administrative error made by the Commonwealth’ if the debtor received the payments the subject of the debt in good faith, and the person would suffer severe financial hardship if it were not waived.
In Gerhardt and Department of Employment, Education and Training [1996] AATA 173 the Tribunal stated at [36] that the word ‘solely’ was to be given its ordinary meaning, being ‘only’ and ‘to the exclusion of all else.’ To this end, the duty to waive a debt does not extend to those debts attributable to errors or other factors independent of any administrative error made by the Commonwealth. In this regard, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at [35], the Full Federal Court of Australia held that:
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 Tribunal finds that the debt cannot be solely attributed to any error made by the Commonwealth. The debt arose because the Agency was not advised of changes to Ms Dewan’s spouse’s income for the relevant financial year. Therefore, Ms Dewan’s estimate of her family’s combined income for the payment of FTB was less than the amount of income they actually received in the 2019/20 financial year. Additionally, as set out above in these reasons, Ms Dewan failed to comply with multiple notices sent to her by the Agency throughout the relevant period. These notices stated that Ms Dewan’s FTB payments were being calculated based on the reported combined income of $48,587 and informed her that she was required to advise of changes to her family’s income as soon as possible, in accordance with section 25 of the Administration Act.
Ms Dewan failed to report her family’s updated annual income to the Agency until the penultimate day in the 2019/20 financial year, being 29 June 2020. By failing to report updated details of her spouse’s employment income, Ms Dewan contributed to the debt and the Tribunal accordingly finds that there was no error solely attributable to the Commonwealth. In this regard, the Tribunal has regularly found that there can be no sole administrative error on the part of the Commonwealth in circumstances where a person has failed to comply with their notice obligations.[33] As a result of the above findings, the Tribunal is satisfied that the debt should not be waived under section 97 of the Administration Act, because there was no administrative error attributable solely to the Commonwealth.
[33] See, for example, Stafford and Secretary, Department of Social Services [2018] AATA 2764 at [78]; and Ghanem and Secretary, Department of Social Services [2022] AATA 160 at [41]-[42].
As previously set out in this decision, section 97 of the Administration Act also requires that the person received the relevant payment that gave rise to the debt in good faith. Based on the Tribunal’s above finding that no part of the debt is attributable solely to an administrative error made by the Commonwealth, there is no requirement to consider whether Ms Dewan received the FTB payments in good faith and the Tribunal makes no findings in that regard. In addition, subsection 97(2)(b) of the Administration Act provides that the administrative error proportion of a debt must be waived if the person would suffer ‘severe financial hardship’ if the debt were not waived. Again, because of the Tribunal’s above findings, there is no requirement to consider whether Ms Dewan would suffer severe financial hardship pursuant to subsection 97(2)(b) of the Administration Act and the Tribunal makes no findings in that regard.
Special circumstances
As set out above in these reasons, pursuant to section 101 of the Administration Act, the Respondent may waive the right to recover all or part of a debt if satisfied of the following cumulative elements: the debt did not result wholly or partly from the debtor ‘knowingly’ making a false statement 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’.
The term ‘special circumstances’ is not defined in the Administration Act. However, its meaning has been considered by the Tribunal and the Federal Court. In Beadle and Director-General of Social Security (1984) 6 ALD 1 at [12], the Tribunal found that special circumstances meant those that are ‘unusual, uncommon or exceptional’. Although the circumstances need not be unique, they ‘must have a particular quality of unusualness that permits them to be described as special’ and be ‘markedly different from the usual run of cases’.[34] In this regard, the Tribunal in Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 (Davy) at [80], stated that the provision ‘necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system’. Furthermore, in Dranichnikov and Centrelink [2003] FCAFC 133 at [66], the Full Federal Court stated that ‘[t]o some extent the question whether there were special circumstances must depend on how it came about that the error occurred’.[35]
[34] Ibid.
[35] The term ‘special circumstances’ has been considered in numerous other proceedings, including: Groth and Secretary Department of Social Security (1995) FCA 1708; Re Ivovic and Director General of Social Services (1981) 3 ALN N95; and Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25.
The Tribunal is not satisfied that Ms Dewan’s circumstances and that of her family, individually or collectively, are sufficiently ‘unusual, uncommon or exceptional’ or otherwise ‘special’ to warrant exercise of the discretion in section 101 of the Administration Act to waive all or part of the debt.
The Tribunal accepts the evidence regarding Ms Dewan’s and her family’s various medical conditions, including her and her spouse’s Type 2 diabetes mellitus and their daughter’s moderate intellectual disability.[36] In Purches and Secretary, Department of Family and Community Services [2005] AATA 267 at [55]–[56], the Tribunal referred to there being ‘a number of cases in which health issues were found not to constitute special circumstances’ and did not find the applicant’s ‘conditions to be so debilitating as to distinguish her from other women of her age, such as to amount to circumstances which are special’. While acknowledging the medical conditions experienced by Ms Dewan and her family, the Tribunal is not satisfied that the medical evidence establishes that those medical difficulties are of a severity to distinguish Ms Dewan’s case from the ordinary or usual case. For example, while accepting the evidence that Ms Dewan’s spouse has Type 2 diabetes and coronary heart disease, he also is presently working in a full-time capacity earning more than $100,000 per annum. Additionally, Ms Dewan currently receives a Carer Allowance due to her caring responsibilities for her daughter. The evidence also indicates that Ms Dewan’s daughter is a participant in the National Disability Insurance Scheme and receives a Disability Support Pension.[37]
[36] Exhibit 2.
[37] Exhibit 1, page 7.
In totality, and compared to the circumstances of others either in receipt of, or reliant on, family assistance payments, the Tribunal is not satisfied that Ms Dewan’s circumstances are distinguishable to the extent that they could be considered ‘special’, enlivening waiver of all or part of the debt under the Administration Act. Having considered Ms Dewan’s circumstances and submissions, the Tribunal is not satisfied that her circumstances would make it unfair, unreasonable or unjust for the debt to be recovered by the Commonwealth.
The requisite elements in section 101 of the Administration are cumulative, such that each of the three limbs must be satisfied to enliven the discretion to waive all or part of a debt. The Tribunal has found that one of those limbs has not been met, being the requirement that there are special circumstances that make it desirable to waive the debt. Accordingly, the Tribunal is not required to consider the two other limbs, one being whether Ms Dewan knowingly made a false statement or representation or failed or omitted to comply with a provision of the family assistance law. As a result, the Tribunal does not make any findings in relation to those particular matters.
For the above reasons, the Tribunal finds that Ms Dewan was overpaid FTB in the 2019/20 financial year, the resulting debt is owing to the Commonwealth and its recovery should not be waived pursuant to section 101 of the Administration Act.
CONCLUSION
As the AAT1 correctly said in its reasons:[38]
An underestimation of the income used to pay fortnightly instalments in advance, no matter how explicable, will inevitably give rise to an overpayment once the reconciliation is undertaken. Mr Dewan [sic] might have reduced the extent of the overpayment by adjusting the estimated family income being used once it became obvious to him that his employment hours and consequential income was increasing. If he ended up overestimating his income for the year, then the reconciliation would have resulted in a “top up” FTB payment to Mrs Dewan rather than an overpayment.
[38] Ibid., pages 6-7.
The Tribunal has found that, during the relevant financial year between 1 July 2019 and 30 June 2020, Ms Dewan accrued an FTB debt in the amount of $4,418.20, which debt is owing to the Commonwealth. The Tribunal is not satisfied that the debt should either be written off or waived pursuant to the relevant family assistance legislation. In accordance with Davy, the Tribunal is satisfied that there is no injustice in requiring Ms Dewan to repay monies of which she has had the benefit, but not the entitlement.[39]
[39] At [80].
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
...[SGD].....................................................................
Associate
Dated: 3 April 2024
Date of hearing: On the papers Date final submissions received:
7 March 2024
Solicitor for Respondent:
Mr George Lozynsky, Services Australia
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