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

This matter concerned a review of decisions by the Secretary of the Department of Social Services to raise a debt of $107,173.03 against Ms El Sulaiman and to refuse to waive or write off that debt. The debt arose from payments of Parenting Payment (single), Family Tax Benefit, and Child Care Subsidy. The primary dispute centred on whether Ms El Sulaiman was a ‘member of a couple’ during the relevant period, and consequently, whether she had failed to comply with her reporting obligations to the Department. The case was heard by A Poljak SM.

The legal issues before the court were whether Ms El Sulaiman was a member of a couple within the meaning of the relevant legislation, whether she was living separately and apart on a permanent or indefinite basis, whether the debt raised was due and payable, and whether any part or all of the debt could be waived or written off. The court was required to consider the provisions of the Social Security (Administration) Act 1999 (Cth) and the Family Assistance Administration Act 1999 (Cth) concerning notification obligations and the criteria for waiving debts.

The court found that Ms El Sulaiman was a member of a couple and had failed to disclose this fact to the Department, despite receiving numerous notifications about her reporting obligations. While the Department accepted that Ms El Sulaiman did not knowingly make a false representation, the court determined that the debt was due and payable. Applying section 1237AAD of the Social Security (Administration) Act 1999 (Cth) and the equivalent provision for Family Tax Benefit and Child Care Subsidy debts, the court considered the criteria for waiver, including the absence of knowing false statements or omissions, the presence of special circumstances beyond financial hardship, and whether waiver was more appropriate than writing off the debt. The court found that Ms El Sulaiman had not advanced a sound reason for the debt not to be repaid and that the circumstances did not meet the threshold for waiver or write-off.

Consequently, the court affirmed the reviewable decision.