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

The Administrative Appeals Tribunal considered the case of Essarras and the Secretary, Department of Social Services, concerning an overpayment of Family Tax Benefit (FTB) and Schoolkids Bonus (SKB). The applicant sought to have these debts written off or waived.

The Tribunal was required to determine whether FTB and SKB debts had been incurred by the applicant as determined by Centrelink, and if so, whether special circumstances existed to justify writing off or waiving any part of these debts. The applicant's eligibility for FTB and SKB was calculated based on his adjusted taxable income, and the debts arose from variations to his entitlement when updated income information was provided.

The Tribunal affirmed the existence of the FTB and SKB debts, finding that the applicant had been overpaid and did not dispute the amounts calculated. Regarding the waiver of the debt, the Tribunal considered the provisions for writing off debts under section 95 of the FA Administration Act, which requires the debt to be irrecoverable, the debtor to have no capacity to repay, or recovery to be not cost-effective. The Tribunal found no basis for writing off the debt under this section, as the applicant was repaying the debt by instalments and had not demonstrated severe financial hardship. Furthermore, the Tribunal examined the conditions for waiving a debt solely due to administrative error under section 97 of the FA Administration Act. It found that the applicant's failure to query or update his and his wife's income information, despite receiving multiple notices indicating how his FTB was being calculated and that his income would be checked against ATO records, meant the debt was not solely attributable to administrative error. The Tribunal concluded that the applicant's circumstances, while sympathetic, did not constitute "special circumstances" as understood in law to warrant a waiver.

Consequently, the Tribunal affirmed the decision, meaning the debts remained payable.