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

Firth and Secretary, Department of Social Services (Social services second review) [2020] AATA 1633 (4 June 2020)
Division:GENERAL DIVISION
File Number: 2019/1097
Re:Kerri Firth
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:4 June 2020
Place:Perth

The Reviewable Decision, being the AAT1 decision dated 29 January 2019, is affirmed.
..............[sgd]..........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – overpayment of age pension – Applicant exceeded the asset limit – whether changing address and bank account details sufficient to advise of sale proceeds of property in bank accounts – obligation to notify of change of circumstances – whether debt or part of debt should be waived or written off – whether debt attributable solely to administrative error by the Commonwealth – whether special circumstances – AAT1 decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 19D(2), 37
Social Security Act 1991 (Cth) – ss 8, 9, 11, 55, 1064, 1064–G1, 1118, 1118(2), 1223(1), 1236, 1236(1), 1236(1A), 1236(1A)(c), 1236(1A)(d), 1237A(1), 1237AAD
Social Security (Administration) Act 1999 (Cth) – ss 66A, 68(2)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations (2007)
100 ALD 9
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Davy v Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
SECONDARY MATERIALS
Guide to Social Policy Law, Social Security Guide – Topic 4.6.3.80
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
4 June 2020
OVERVIEW

By an application lodged in the General Division (AAT2) of the Administrative Appeals Tribunal (the Tribunal) dated 28 February 2019 (T1/1–3), the Applicant is seeking review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) dated 29 January 2019 (T2/4–9). The AAT1 decision is the Reviewable Decision currently before the Tribunal.
The Reviewable Decision affirmed a decision of an Authorised Review Officer (ARO) of the Department of Human Services (Centrelink) to raise and recover from the Applicant a debt of $18,203.96 for the overpayment of an age pension during the period commencing on

15 July 2014 to 21 February 2018 (the Relevant Period) (T15/213–217).
ISSUES
The issues that require determination by the AAT2 were accurately summarised in paragraph [2] of the Secretary’s Statement of Issues, Facts and Contentions. In summary, the issues are:
(a)whether the Applicant was overpaid an age pension during the Relevant Period;
(b)if so, whether the overpayment constitutes a legally recoverable debt; and
(c)whether recovery of all or part of the debt should be waived or written off.
BACKGROUND FACTS
The Applicant was first granted an age pension with effect from 9 December 2011 (T20/238).
On 15 October 2012 the Applicant contacted Centrelink to enquire about borrowing funds to repair her investment property (Investment Property) (Exhibit R2/Annexure C).
On 1 November 2013 Centrelink sent a letter to the Applicant which stated her rate of age pension, together with the total assets that were used for calculating her regular payment (T5/194–195). The fine print on the second page of this letter stated that the Applicant must tell Centrelink within 14 days if there were any changes to, amongst other things, her income or assets.
On 10 July 2014 the Applicant telephoned Centrelink to advise of a change in her bank account details for her age pension to be paid into (Exhibit R2/Annexure A).
On 15 July 2014 the Applicant sold her residential home (Principal Home) and put the proceeds of the sale into two bank accounts (T13/210). She moved into her Investment Property.
On 22 July 2014 the Applicant telephoned Centrelink to update her contact details, including updating her home address to be the Investment Property address (T20/290–291 and 294).
In a letter dated 3 November 2016, Centrelink advised the Applicant that there had been changes to the assets test from 1 January 2017 and that she must tell Centrelink as soon as possible if there were any changes to her financial situation (T7/198–199).
On 3 December 2016 Centrelink sent another letter to the Applicant which stated her rate of age pension, together with the total assets that were used for calculating her regular payment, which were stated as being $332,839 together with an annual income of $32.18 (T8/201–203). This letter also stated that the Applicant must tell Centrelink within 14 days if there had been any changes to, amongst other things, her income or assets.
Similarly, on 20 February 2018 Centrelink sent another letter to the Applicant which stated her total assets as $352,839 and her annual income as being $32.18. The letter advised that the Applicant’s rate of age pension had been reduced because the value of her assets had increased (T9/204–205).
On 27 February 2018 Centrelink wrote to the Applicant to request further information about her bank account balance as at 27 February 2018, and the settlement statement following the sale of her Principal Home (T10/206–207).
Centrelink electronic records state that Centrelink was only notified of the sale, and the proceeds of the sale being put into savings, on 8 March 2018 (T21/301). Centrelink electronic records also record that the Applicant then lodged the settlement documents and the bank balances of two bank accounts after the time of settlement with Centrelink on 12 March 2018 (T21/298).
On 31 July 2018 Centrelink issued the Applicant with an account payable notice which stated that the Applicant had been over paid $18,235.21 from 15 July 2014 to

21 February 2018 and that Centrelink was seeking to recover the amount of the overpayment (Overpayment Decision). The account payable notice stated that this amount was payable because: ‘[o]n 15 JUL 2014 your combined assets increased due to the sale of your former principal home… and you moving into your [investment] property… with you re-investing your sale proceeds into your [bank name omitted] Bank accounts…’ (T13/210–211).
The Applicant requested an internal Centrelink review of the Overpayment Decision of

31 July 2018 and the decision was sent to an ARO to undertake the review (T14/212).
However, in a letter from the ARO dated 28 September 2018 the Applicant was advised that her appeal was unsuccessful because, after reviewing the Overpayment Decision, the ARO had decided that it was correct (T15/213). The ARO also decided that the debt calculation was correct and that there were no grounds upon which the debt could be waived (T15/215). The ARO’s decision will be referred to as the Internal Review Decision.
On 7 November 2018 the Applicant lodged an application with the AAT1 seeking review of the Internal Review Decision (T17/220–223). A hearing of the application took place on

21 January 2019 (T2/5).
On 22 January 2019 the AAT1 sought further information regarding the calculation of the overpayment debt (Exhibit R2/Annexure B). The information received from Centrelink was that there was a coding error with respect to one of the Applicant’s bank accounts which was corrected, resulting in the debt being reduced by $31.25, making the revised debt amount $18,203.96 (Exhibit R2/Annexure B; T19/236).
The Applicant was unsuccessful at the AAT1, with the AAT1 affirming the Internal Review Decision of 28 September 2018 and confirming that the Applicant had a recoverable age pension debt for the amended amount of $18,203.96.
As noted above, by an application dated 28 February 2019 (T1/1–3), the Applicant is seeking a review of the AAT1 decision by the AAT2.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by Member Fitzgerald on 13 September 2019.
The Applicant was self-represented and was accompanied by a friend as a support person. The Secretary was represented by Ms Jones-Bolla.
At the hearing, the Applicant read a statement containing submissions that she had prepared earlier and was cross-examined by Ms Jones-Bolla.
Member Fitzgerald ceased to be a member of the Tribunal on 5 March 2020, and at that time she had not delivered a decision with respect to this application.
By a direction made on 18 March 2020 pursuant to s 19D(2) of the

Administrative Appeals Tribunal Act 1975
(Cth) (AAT Act), the Tribunal was reconstituted to comprise Senior Member Dr M Evans-Bonner.
The parties attended a telephone directions hearing before the Senior Member on

31 March 2020 to discuss how the application should proceed. With the consent of the parties, it was directed that the application would be determined by the Senior Member based on the transcript of the 13 September 2019 hearing, and on the papers before the Tribunal.
The materials admitted into evidence at the hearing were:
(a)statement of the Applicant dated 16 April 2019 (Exhibit A1);
(b)statutory declaration of the Applicant dated 3 May 2019 (Exhibit A2);
(c)submission from the Applicant handed up at the hearing on 13 September 2019 (Exhibit A3);
(d)s 37 documents (T-documents) numbered T1 to T21 and comprising 324 pages (Exhibit R1);
(e)Secretary’s Statement of Issues, Facts and Contentions dated 19 July 2019, with Annexures A to F (Exhibit R2); and
(f)
Applicant’s bank statement showing transactions between 1 July 2014 and

18 July 2014 (Exhibit R3).
The Tribunal has read and considered all these materials, as well as the transcript of the hearing of 13 September 2019.
SUBMISSIONS OF THE PARTIES
The positions of the parties at the hearing will now be summarised.
The Secretary’s position was that the Applicant had been overpaid an age pension during the Relevant Period because her assets, which included the sale proceeds in her bank accounts, exceeded the assets limit. The Secretary submitted that this overpayment was a legally recoverable debt (Exhibit R2/6).
Further, the Secretary submitted that: the debt could not be written off because the Applicant had the capacity to repay it; the debt could not be waived due to sole administrative error because the Applicant had failed to notify Centrelink of the changes to her assets during the Relevant Period; and there were no special circumstances under which the debt could be waived (transcript, pages 8–9; Exhibit R2/7–12).
Consequently, the Secretary submitted that the AAT1 decision should be affirmed
(Exhibit R2/12[72]).
The Applicant’s position at the AAT2 hearing was that she had advised Centrelink about the sale of her Principal Home, and that she assumed that Centrelink had calculated her age pension on the correct information regarding her assets (transcript, pages 6, 18, 20). As will be discussed below, there were some inconsistencies in the Applicant’s evidence as to whether, when and how she advised Centrelink of the sale of her Principal Home and of the sale proceeds in her bank accounts at the AAT1 (T2/4–9), in her statement and statutory declaration (Exhibits A1 and A2), and in her evidence at the AAT2 hearing.

These inconsistencies are discussed below.
The Applicant agreed that she was overpaid an age pension during the Relevant Period, but stated, ‘… I don’t believe it was my fault or not entirely my fault’ (transcript, page 26). The Applicant also stated at the AAT2 hearing that, ‘I don’t deny that I was overpaid, I probably was, but as far as I’m concerned I didn’t have any reason to doubt that things weren’t being done properly’ (transcript, page 20).
RELEVANT LEGISLATION AND PRINCIPLES
Issue 1: Was the Applicant overpaid an age pension?
The Secretary submits that the Applicant was overpaid an age pension during the Relevant Period because, by Centrelink’s calculations, she was paid a total amount of $63,009.03 but was only entitled to receive approximately $44,773.82 (T19/234; Exhibit R2/7[40]).
The Secretary submits that this overpayment was because Centrelink was not notified of the sum of approximately $421,890 which was received in the Applicant’s bank accounts, being the proceeds of the sale of her Principal Home.
As noted above, the Applicant agreed that she was overpaid age pension during the Relevant Period, but she claims that she notified Centrelink of her change in assets (the sale proceeds in her bank accounts) shortly after selling her Principal Home. The Tribunal will review the evidence and make findings as to whether and when Centrelink was notified below.
The relevant statutory provision is s 55 of the Social Security Act 1991 (Cth) (the Act), which provides that the rate of age pension is worked out using the Pension Rate

Calculator A (Rate Calculator). This Rate Calculator is contained in s 1064 of the Act.

In summary, the rate of age pension will be calculated by using either the total value of the person’s assets or their total income, whichever produces a lower rate of pension.
Module G of the Rate Calculator contains an assets test. This test requires the

decision-maker to work out the value of a person’s assets and their asset value limit. If the value of the person’s assets exceeds their asset value limit, it will have the effect of reducing the rate of pension payable to the person (see s 1064-G1 of the Act).
An ‘asset’ is defined in s 11 of the Act to include ‘property or money’, which includes funds deposited in a bank account.
Section 1118 of the Act provides that certain assets are to be disregarded in calculating the value of a person’s assets. Specifically, s 1118(2) of the Act allows sale proceeds to be disregarded as an asset for a period of 12 months after the sale to the extent that the person intends to apply those proceeds to build, rebuild, repair or renovate another residence that is to be the person’s principal home, or if the person uses or intends to use the sale proceeds to purchase another residence. This is not applicable to the Applicant because she sold her Principal Home and moved into her Investment Property.
Further, if the sale proceeds of a person’s principal home are held in a financial investment, they will be subject to deeming (Guides to Social Policy Law, Social Security Guide, Topic 4.6.3.80). A ‘financial investment’ is defined in s 9 of the Act to include ‘deposit money’, which is in turn defined in s 8 of the Act as ‘the person’s money that is deposited in an account with a financial institution’. Thus, the monies held in the Applicant’s bank accounts from the sale of her Principal Home were not an exempt asset.
The calculation of the Applicant’s age pension during the Relevant Period did not include the monies held in the Applicant’s bank accounts from the sale of her Principal Home, which affected her rate of age pension. Accordingly, the Tribunal finds that the Applicant was overpaid an age pension during the Relevant Period in the sum of $18,203.96.
Issue 2: Is there a legally recoverable debt?
Subsection 1223(1) of the Act effectively provides that if a social security payment is made, and the person who obtains the benefit was not entitled to receive it, the amount of the payment is a debt due to the Commonwealth.
As the Applicant received an overpayment of age pension during the Relevant Period that she was not entitled to receive because she exceeded the assets limit, the Tribunal finds that the amount of the overpayment is a legally recoverable debt to the Commonwealth.
Issue 3: Should the debt or part of the debt be waived or written off?
In Secretary, Department of Social Security v Hales (1998) 82 FCR 154, 155, (Hales) Justice French (as he then was) noted that the taxpayer expects the repayment of social security benefits received by a person if they were not entitled to them:
From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The 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. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
However, as his Honour identified in the above passage, to prevent hardship the Act balances the requirement to repay an overpayment by providing for a social security debt to be waived or written off in certain circumstances. The Tribunal will now consider whether any of these circumstances apply to the Applicant’s situation.
Write off under s 1236(1) of the Act
Subsection 1236(1) of the Act provides:
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
Subsection 1236(1A) sets out the circumstances where the Secretary may decide to write off the debt under s 1236(1) of the Act. It provides:
(1A)The Secretary may decide to write off a debt under subsection (1) if, and only 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.
The Tribunal finds that the debt is recoverable at law because, as stated above, the overpayment is a legally recoverable debt to the Commonwealth. Further, the Applicant has the capacity to repay the debt and there is no evidence of financial hardship. The Applicant is currently in receipt of the age pension and is making repayments on the debt as withholdings from her age pension. She owns her home and at the time of the AAT2 hearing had over $300,000 in a bank accounts (transcript, page 21, Exhibit R2/Annexure D). The remaining subsections (s 1236(1A)(c) and (d) of the Act) are not relevant to this application.
Accordingly, the Tribunal finds that the debt cannot be written off under s 1236(1) of the Act.
Waiver for sole administrative error
Subsection 1237A(1) of the Act provides that the Secretary must waive a debt if the debt is attributable to the ‘sole administrative error’ of the Commonwealth (in this case Centrelink):
(1)Subject to subsection (1A), the Secretary must waive the right to recover the 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.
Note:Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
In Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173 [39]–[40] (Gerhardt), Deputy President Forgie stated that ‘solely’ in the context of a debt being attributable solely to the Commonwealth’s administrative error should be given its ‘ordinary meaning’. Deputy President Forgie stated, at [40]:
Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth’s administrative error. The Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error. Whether it is or is not attributable in that situation to the Commonwealth’s administrative error will be a question of fact.

In Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41, 47 [41], Wilcox J explained that:
However, it seems to me, the tribunal failed to consider the significance of the inclusion, in s 1237A(1), of the word “solely”. For the subsection to have effect, the “proportion” of the debt — in this case, it is common ground, that would be the whole of it — must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.
If it could be established that the Applicant did, as she claims, notify Centrelink of the sale of her Principal Home and the sale proceed monies in her bank accounts, and that the failure to record and action that information was solely due to an error by Centrelink, she may be able to establish that the debt arose as a result of a sole administrative error by Centrelink. As noted at paragraph [34] above, the Applicant’s evidence as to whether she advised Centrelink of the monies in her bank accounts was somewhat inconsistent. The Applicant’s evidence will now be examined by the Tribunal.
In a written statement dated 16 April 2019 (Exhibit A1), the Applicant stated that: ‘[o]n or around 10 July 2014 I advised Centrelink of the sale of my [Principal Home] property…’. She further stated that: ‘[t]o the best of my knowledge this advice was provided within 7 days of the sale of the property’ (Exhibit A1/paragraphs [1]–[2]).
The Applicant further stated (Exhibit A1/paragraph [3]):
As part of this advice I forwarded to Centrelink a copy of my [bank name omitted] “new account statement” dated 10 July 2014. This document provided to Centrelink written evidence of my two [bank name omitted] account details and combined current balance of $422,293.56.
(Emphasis added.)
In her written statement dated 16 April 2019 the Applicant stated, at paragraph [8] that: ‘T6 recorded the receipt date by Centrelink of these documents [the Applicant’s new account statement showing the sale proceed monies in her bank accounts] as 10 July 2014’. The Tribunal observes that the T-documents, including this account statement which is dated 10 July 2014 (T6/196–197), are ordered chronologically. This is the usual format of
T-documents that are compiled by decision-makers and filed with the Tribunal pursuant to s 37 of the AAT Act. The date of 10 July 2014 is the date of the statement produced by the Applicant’s bank, and the (undated) stamp on the statement is also from the bank. There is no stamp showing that it was received by Centrelink on 10 July 2014. Accordingly, the Tribunal finds that the order in which the account statement appears in the T-documents does not indicate that it was received by Centrelink on 10 July 2014.
In a statutory declaration dated 3 May 2019 (Exhibit A2), the Applicant stated that she personally attended the Centrelink office on 15 July 2014:
3.On the 15^th July 2014 I went to [suburb name omitted] Centrelink told them I had sold my property in [suburb name omitted]. My new address would be [address omitted]. I also gave them in writing the details of my new account and my pension was duly paid into the new account from July 2014.
4.The residential address was changed to [the Investment Property suburb] and my pension was paid into the new account in July 2014 so there was no reason to believe there was a problem.
(Emphasis added.)
In contrast, at the hearing the Applicant’s evidence was that because she advised Centrelink of her change of address and updated bank account details (which the relevant

T-documentation records as being on 10 July 2014 to update her bank account details and on 22 July 2014 to update her contact details – see also transcript, pages 12–14), Centrelink would have known about the sale proceeds in her bank accounts (transcript, pages 6, 18) by virtue of the fact that they continued to pay her pension into the updated account. This was contradictory to the evidence in the Applicant’s earlier statements that she had advised Centrelink about the sale of her Principal Home and had forwarded Centrelink copies of her bank account statements showing the sale proceeds.
Further, the evidence outlined above differed from the evidence of the Applicant recorded in the AAT1 reasons for decision which stated that: ‘[t]he applicant did not assert she advised Centrelink about the sale of her [Principal] home and the resultant deposit in the bank’ (T2/7[15]). The AAT1 reasons stated (T2/6[13]) that:
The applicant appreciated she had a debt to Centrelink. Her primary concern and her reason for requesting a review was whether the debt was correctly calculated.
At the hearing on 13 September 2019, the Applicant denied that she told the AAT1 that the debt had arisen because she failed to comply with her obligation to notify Centrelink (transcript, page 19).
The Tribunal appreciates that the Applicant was under a lot of pressure at the time her Principal Home sold in 2014 (see T2/7[16]; transcript, pages 19 and 25). The Tribunal also appreciates that it can be difficult for an applicant to recall events, such as the exact dates and content of telephone calls occurring some years ago – in this case over five years ago. The Tribunal therefore finds that the contemporaneous documentation of the Applicant’s phone calls and contact with Centrelink are likely to be the most accurate records of the Applicant’s contact with Centrelink.
The contemporaneous documentary evidence, as detailed in the Background Facts section above, shows that on 10 July 2014 the Applicant advised Centrelink by telephone of a change in her bank account details for her age pension to be paid into (Exhibit R2/Annexure A). On 22 July 2014 she telephoned Centrelink to update her contact details

(T20/290–291 and 294). There are no Centrelink records showing that the Applicant attended the Centrelink office, or otherwise advised of the sale proceeds in her bank accounts before March 2018. Specifically, Centrelink records of a phone call on 8 March 2018 note the proceeds of the sale (of the Applicant’s Principal Home) being put into savings (T21/201). Then on 12 March 2018, Centrelink records note that the Applicant lodged copies of her settlement documents and bank balances with Centrelink (T21/298), as requested in Centrelink’s letter of 27 February 2018 (T10/206–207). Thus, the Tribunal finds that the error was made by the Applicant because she did not update Centrelink regarding the change to her assets following the sale of her Principal Home. The error was not due to any failure of Centrelink to record details the Applicant provided, because she did not provide them until 12 March 2018.
Consequently, the Tribunal finds that the Applicant’s debt cannot be waived under s 1237A of the Act because the debt was not attributable solely to an administrative error made by the Commonwealth.
Special circumstances
Section 1237AAD of the Act provides that a debt can be waived by the Secretary if there are special circumstances. The section states:
The Secretary may waive the right to recover all or part of a debt if the Secretary is 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 this Act, the Administration Act or the 1947 Act; 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.
…
In summary, s 1237AAD of the Act gives the Secretary the discretion to waive a debt if there are special circumstances, other than financial hardship alone, which make it appropriate to do so. Additionally, the person must not have contributed to the debt by making a false statement, representation or by otherwise failing to comply with the Act or the Social Security (Administration) Act 1999 (Cth) (Administration Act).
Neither the Act nor the Administration Act defines ‘special circumstances’, however, the meaning has been considered by the Federal Court and the Tribunal in numerous decisions.
In Beadle and Director-General of Social Security (1984) 6 ALD 1, 3, the Tribunal stated:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, 545, Kiefel J (as she then was) stated:
The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case... and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
In Hales at 162, French J (as he then was) stated:
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.
In Angelakos v Secretary, Dept of Employment and Workplace Relations (2007)

100 ALD 9, 17–18 [33] Besanko J stated, after reviewing the case law on the meaning of ‘special circumstances’:
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word “exceptional” is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words “unusual” or “uncommon” are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
In Re Davy and Secretary, Department of Employment and Workplace Relations (2007)

94 ALD 693, 715–716 [80], Deputy President Forgie explained:
The “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement... The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
No submissions were made by the Applicant of any unusual, uncommon or exceptional circumstances that would constitute special circumstances. Additionally, there was no evidence arising from the materials before the Tribunal of any special circumstances which would justify the exercise of discretion to waive the debt under s 1237AAD of the Act.
The Tribunal also notes s 66A of the Administration Act, which provides that if there is an event or change of circumstances that might affect the payment of a social security payment, the person must within 14 days, inform the Department (which in this case would be Centrelink). Under s 68(2) of the Administration Act, the Secretary can issue a notice to a person to whom a social security payment is being paid requiring the person to inform the Department if there is a change in circumstances that may affect their social security payment.
In accordance with these provisions, the Applicant had previously received correspondence from Centrelink, including on 1 November 2013, 3 November 2016 and 3 December 2016, which stated that she must tell Centrelink within 14 days if there had been any changes to her income or assets. Despite this correspondence, the Applicant did not comply with the Act because she failed to update her details. Considering the inconsistent evidence given by the Applicant regarding when and how she advised Centrelink of her change in assets, it is difficult for the Tribunal to conclude that any failure to comply with her reporting requirements was made ‘knowingly’.
In conclusion, the Tribunal finds that the absence of evidence of any special circumstances means that the Tribunal cannot waive the debt under s 1237AAD of the Act.
CONCLUSION
In summary, and for the reasons outlined above, the Tribunal finds that:
(a)the Applicant was overpaid an age pension during the Relevant Period, due to exceeding the assets value limit;
(b)accordingly, the overpayment constitutes a legally recoverable debt; and
(c)there is no basis upon which the debt can be written off or waived in whole or in part.
DECISION
For the reasons outlined above, the Reviewable Decision, being the AAT1 Decision dated 29 January 2019, is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.............[sgd]..........................................................
Dated: 4 June 2020

Date of hearing: 13 September 2019

Applicant: In person

Counsel for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 1633

4 June 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	13 September 2019
Applicant:	In person
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers