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

This matter concerned an appeal by Mr and Mrs Dwyer against a decision of the Secretary of the Department of Social Services regarding an overpayment of age pension. The dispute arose from Mr Dwyer's erroneous indication on an income stream product form that he held a market-linked income stream, when in fact he held an allocated income stream. The Dwyers sought to have the resulting debt, or part of it, waived or written off, arguing that special circumstances applied.

The Tribunal was required to determine whether the debt was attributable solely to an administrative error by the Commonwealth, and if so, whether the debt or part of it should be waived or written off. A key legal issue was whether "special circumstances" existed that would make it desirable to waive the debt under the relevant provisions of the Social Security Act.

The Tribunal acknowledged the complexity and inscrutability of the form completed by Mr Dwyer, describing it as an "abject instance of public administration" for presenting technical options without explanation, leading to foreseeable errors by ordinary Australians. However, despite this criticism, the Tribunal found that Mr Dwyer's erroneous understanding, while based on an ordinary interpretation of "market-linked," could not be categorised as "sole administrative error" by the Agency. The Tribunal noted that if Mr Dwyer had been guided in his mistaken choice by an Agency officer, it would have been considered sole administrative error. The Tribunal applied the legal principle that "special circumstances" are not solely directed to the individual's circumstances but also to those that make waiver desirable in the context of the general administration of the social security system. Citing binding legal authorities, the Tribunal concluded it had very limited discretion.

The Tribunal was not satisfied that special circumstances existed that made it desirable to waive the debt. The decision under review was therefore varied.