El-Mawas and Secretary, Department of Social Services (Social services second review)

The Administrative Appeals Tribunal considered the case of Ms El-Mawas and the Secretary, Department of Social Services. The dispute concerned a debt of $119,897.66 raised by the Department of Human Services against Ms El-Mawas for overpayment of carer payment. Ms El-Mawas contended that she lacked the means to repay the debt and would face severe hardship if required to do so, claiming she was unaware of her ownership of jointly held property until late 2016 and was also unaware of her husband's financial affairs.

The Tribunal was required to determine whether the debt, which arose due to the undisclosed jointly owned property, could be waived or written off. Specifically, the Tribunal had to consider if the debt resulted wholly or partly from Ms El-Mawas knowingly making a false statement or representation, or failing to comply with the Social Security Act 1991. It also needed to assess whether special circumstances existed that would warrant waiving the debt under section 1237AAD of the Act, or whether the debt should be written off under section 1236 of the Act.

The Tribunal found that Ms El-Mawas's evidence lacked clarity and was inconsistent, preventing her from reliably setting out the circumstances surrounding the undisclosed property. Consequently, the Tribunal was not satisfied that the debt did not arise from her knowingly making false statements or omissions, nor was it satisfied that special circumstances, beyond mere financial hardship, existed to justify waiving the debt. The Tribunal also found no basis to write off the debt.

Accordingly, the Tribunal set aside the reviewable decision and substituted its own decision. It determined that Ms El-Mawas had received an overpayment of carer payment totalling $119,897.66 for the period from 17 May 2004 to 24 January 2017, which constituted a debt due to the Commonwealth.