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

Ghanem and Secretary, Department of Social Services (Social services second review) [2022] AATA 160 (4 February 2022)
Division:GENERAL DIVISION
File Number: 2020/2041-2
Re:Jacqueline Ghanem
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date:4 February 2022
Place:Sydney

The decision under review is set aside and, in its place, there is a decision that Ms Ghanem has a carer payment debt to the Commonwealth of $21, 448.09 and a carer allowance debt to the Commonwealth of $5,488.19 which debts are to be recovered in full.
................................[SGD]........................................
Mr Rob Reitano, Member
CATCHWORDS
SOCIAL SECURITY- carer payment debt- carer allowance debt- change in circumstances that might affect continued qualification for payment- whether the Secretary is required to waive the debt- administrative error- good faith- decision set aside and another decision substituted
LEGISLATION
Social Security Act 1991 (Cth): ss 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth): ss 66A, 68
REASONS FOR DECISION
Mr Rob Reitano, Member
4 February 2022

This matter concerns the need for recipients of social security benefits to let Centrelink know about changes to circumstances that might affect their continued qualification for payment of those benefits and the obligation to repay those benefits when it is discovered that they should not have been paid in the first place.
On 2 September 2019, an Authorised Review Officer (ARO) decided that Ms Jacqueline Ghanem (Ms Ghanem) had two debts that were owed to the Commonwealth: a carer payment debt of $21,448.09 and a carer allowance debt of $5,488.19. Both debts related to the period 13 November 2017 to 7 June 2019 (excluding the period from 28 September 2018 to 31 October 2018). Both debts were the result of overpayment of the respective benefit to Ms Ghanem.
On 5 March 2020, the Administrative Appeal Tribunal (Social Services and Child Support Division) (AAT1) set aside the ARO’s decision. AAT1 remitted the matter with directions that ‘so much of the debt as was incurred in the period from 27 February 2019 to 7 June 2019 is waived; that so much of the carer payment debt is waived as Ms Ghanem might have been received in newstart allowance during the period 11 December 2017 to 26 February 2019 be waived’; and that the balance of the carer payment and carer allowance be recoverable.
On 4 April 2020, Ms Ghanem sought a review of the decision of AAT1 and on 7 April 2020 the Secretary sought a review of the decision of AAT1.
I have decided to set aside the decision of AAT1 and in its place, have decided that Ms Ghanem has a carer payment debt to the Commonwealth of $21,448.09 and a carer allowance debt to the Commonwealth of $5,488.19, both of which are recoverable in full. I set out my reasons for those decisions below.
THE FACTS
On 20 September 2016, Ms Ghanem lodged a claim for carer payment and carer allowance in respect of the care she provided to Mr Fred Hajjar (Mr Hajjar). A few weeks later, she lodged a carer allowance questionnaire stating that she provided personal care for Mr Hajjar seven days a week, for 73 hours each week. The extent of Ms Ghanem’s care for Mr Hajjar, at the time she was applying and was granted carer allowance, it should be kept in mind, was on the face of things, very significant.
On 16 November 2016, Ms Ghanem was granted carer allowance backdated to the date the claim was made, 20 September 2016. That same day, Ms Ghanem was given a notice that she was required to notify Centrelink within 14 days if any number of nominated events occurred. Ms Ghanem does not recall receiving the notice but the evidence, including the existence of a copy of the notice with her home address on it, would suggest that it was sent to her. Her failure to recall receiving it suggests even if she did she probably did not read it, especially given the fate of the later notice I refer to in a moment. The nominated events for which Ms Ghanem was required to give notice to Centrelink included if:
-Mr Hajjar ‘stops living with you’;
-Mr Hajjar ‘needs less care or no longer requires daily care and attention’;
-Mr Hajjar ‘temporarily ceases to receive her care to enter a hospital or other institution for a period of 24 hours or more’;
-Mr Hajjar or Ms Ghanem leaves ‘Australia even if it is for a short time’;
-Mr Hajjar or Ms Ghanem change their address;
-Ms Ghanem starts or stops sharing Mr Hajjar’s ‘care with someone else including, an institution such as a nursing home…’; or
-Ms Ghanem ceased providing care at all to Mr Hajjar
On 10 April 2017, Ms Ghanem was granted the carer payment which was also backdated to 20 September 2016. Ms Ghanem was given another notice that said she was required to tell Centrelink within 14 days if a number of nominated events occurred. She did not read the notice. The events that she was to tell Centrelink about were very similar to those set out in the 16 November 2016 notice to which I have already referred. They included if:
- Ms Ghanem no longer provides care to Mr Hajjar;
-Mr Hajjar no longer requires care for a significant period either permanently or temporarily;
- Mr Hajjar leaves her care or enters hospital for 24 hours or more;
-Ms Ghanem, or her partner, or Mr Hajjar are sent to prison or are charged with an offence and are in custody on remand or if she travelled outside Australia.
The kinds of events that were referred to in each notice were reasonably likely to be the kinds of things that might affect the continued payment of either of the benefits.
It is convenient to note that the requirements in the notices reflected the obligation in s.66A(2) of the Social Security (Administration Act) 1999 (Cth) (Administration Act). That section obliges a person who is being paid a social security payment to give notice to the relevant Department within 14 days where an event or change in circumstances has occurred that might affect the payment of that benefit. Those requirements also reflect the power of the Secretary in s.68 of the Administration Act to give notice to a person that they must tell the relevant Department about specified events or changes that might affect the payment of that benefit. As will be seen later, it is important that the obligation in the notices, as reflected by s.68 and s.66A(2) of the Administration Act, were obligations imposed on the person who was receiving payment of the relevant benefit quite irrespective of the fact that someone else might have provided notice containing the same information.
On 10 July 2017, Ms Ghanem left Australia and returned on 6 August 2017. She did not notify Centrelink that she was proposing to leave Australia or that she had done that, as she was required to by the terms of both notices.
On 5 October 2017, Mr Hajjar was sent to prison and so, it followed, amongst other things, that his address changed, and he no longer lived with Ms Ghanem. Centrelink was told about Mr Hajjar’s imprisonment by a ‘State Correctional Department’. Mr Hajjar’s aged pension was cancelled as result.
Ms Ghanem, the recipient of the carers payment and carers allowance, did not notify Centrelink of Mr Hajjar’s imprisonment (the fact of his imprisonment, his address change, that he was no longer living with her and that she was no longer caring for him) in accordance with the requirements of either notices, presumably because she had not read the notices. To the extent that it was suggested that she was caring for him whilst he was imprisoned I do not need to say much about that, if anything need be said about it, because the requirement to notify required that the other things needed to be notified.
Ms Ghanem was aware that Mr Hajjar’s aged pension payment was cancelled when he went to prison. She says she was not aware that the carers payment and carers allowance should have stopped whilst Mr Hajjar was in prison. That suggestion is more than a little remarkable, given that the payment of the carers payment and carers allowance was always very reasonably obviously based on the care she had provided to Mr Hajjar from 20 September 2016 when she had earlier told Centrelink.
On 26 September 2018, Mr Hajjar left prison. His aged pension was reinstated.
On 31 October 2018, Mr Hajjar went to live at a nursing home and later went to Bankstown Hospital. Ms Ghanem said Mr Hajjar was ‘in and out of hospital’ during November and December 2018, but it seems at some stage before 20 December 2018, Mr Hajjar returned to the nursing home. This is because of what Ms Ghanem said in the phone call with Centrelink to which I will refer in a moment. Ms Ghanem did not give notice to Centrelink about any of those events around the time they occurred, even though it would seem that they involved several of the kinds of events that required notice to be given to the Centrelink.
On 19 December 2018, Ms Ghanem went to Centrelink with her passport, some other identification documents, and a Power of Attorney form she held for Mr Hajjar. Ms Ghanem said that she informed the Centrelink employee she spoke to about Mr Hajjar being in hospital, and that he was not coming home but instead going straight to a nursing home. She told the employee that the nursing home needed a new pension card. The employee she saw in-person could not help her and told her to call the Centrelink call centre. The purpose of what she was telling the Centrelink employee, taken with the documents she had, was obviously directed to getting a new pension card for Mr Hajjar. There was nothing in the conversation that alerted the Centrelink employee to the fact that Ms Ghanem was in receipt of carers payments and allowances, or that she was notifying Centrelink of changed circumstances in accordance with a notice or s.66A(1) of the Administration Act.
On 20 December 2018, Ms Ghanem rang Centrelink to make inquiries about a replacement pension card. In the course of the phone call Ms Ghanem spoke to a representative of Centrelink, who I will refer to as the first employee. Ms Ghanem told the first employee that Mr Hajjar had ‘moved into a nursing home yesterday’. After hearing that the first employee said to Ms Ghanem, ‘So I think what we should do is put you through to the Carers because your carers is going to cancel’. That statement could only have been understood by Ms Ghanem as a reference to Ms Ghanem’s ‘carers payment’ as being what was ‘going to cancel’ as there was nothing else that it could have been referable to. After some further conversation about the pension card, the first employee said, ‘But I think we should also pop you through to the carers team and get someone to look at you carers payment because otherwise you’re going to be overpaid.’
Ms Ghanem was ‘popped through’ to the ‘Carers team’ where another representative of Centrelink, who I will call the second employee, spoke to her. The phone call ended fairly quickly when Ms Ghanem told the second employee that she had another call coming through. Ms Ghanem said as she ended the call that she would call back after Christmas. Ms Ghanem did not call back after Christmas or at all.
On 24 December 2019, Ms Ghanem said she visited a Centrelink office. Her evidence about this was more than a little confusing. Initially, she said she went and handed in a Power of Attorney form and Residential Aged Care form for Mr Hajjar, and that she did not tell anyone she was no longer caring for Mr Hajjar because she considered that she was still caring for him at that time. She later said that she did not hand in the Power of Attorney form that day, and that she had told someone that day ‘she was coming off care’ or that she was no longer a carer ‘because there was no other reason for me to go there’. She also later said she could not recall ‘what forms’ and what the purpose of he going to Centrelink that day was. ‘I would say maybe it was a form from…’. In the absence of some other evidence, I do not consider that I am able to rely on anything that Ms Ghanem says about what happened that day because her evidence about it was so confused. There is certainly nothing that would permit a finding to be made that Ms Ghanem had told anyone from Centrelink that day in clear terms that she was notifying an event or changed circumstance that was related to or might affect her carers payment or carers allowance, or that she was following up the issues raised in the phone call that she had ended a few days earlier.
There were two documents which were marked ‘Submission by Respondent on 24 December 2018’ which included what appears to be the Residential Aged Care form for Mr Hajjar. That form is signed by Mr Hajjar and dated 13 December 2018. The form appears to be a Centrelink form and records Mr Hajjar’s address as that of a nursing home. It records Ms Ghanem as Mr Hajjar’s authorised representative. It shows that each of them live at different addresses. The form does not record that Ms Ghanem was in receipt of carers payment or carers allowance in respect of Mr Hajjar. There was also in the ‘Submission by Respondent on 24 December 2018’, a Power of Attorney dated 17 October 2018 signed by Mr Hajjar. It was agreed by both parties, that the documents were received by Centrelink on 24 December 2018. One thing the forms do not show is how they found their way to Centrelink, but it is more probable than not, that Ms Ghanem took them there. The likely reason for her visit on 24 December was to take the forms there. What else was said or done that day is not confirmed by any other evidence. What Ms Ghanem may or may not have said, if anything, to the employees of Centrelink is no more than conjecture.
On 8 February 2019, Mr Hajjar moved into an aged care facility. Ms Ghanem again did not give notice to Centrelink as she was required to do by the two notices.
On 27 February 2019, Mr Hajjar contacted Centrelink to ask that Ms Ghanem’s carer payments in respect of her care for him cease because she was no longer caring for him. He said that he had been in hospital for four months and had moved into a nursing home three or four weeks earlier, and that Ms Ghanem was no longer providing care for him.
On 17 June 2019, following a review of Ms Ghanem’s carer payments and carer allowance, Centrelink cancelled both payments because Ms Ghanem was no longer caring for Mr Hajjar. That same day, Centrelink raised a carer payment debt of $21,911.37 and a carer allowance debt of $5,592.34 against Ms Ghanem. Both debts related to the period between 8 December 2017 to 7 June 2019 because Ms Ghanem was not entitled to those payments, as she was not during that period caring for Mr Hajjar.
There were some adjustments to the amounts of the debt because the overseas travel had not been taken into account, and again when it was considered that Ms Ghanem was entitled to the carer payment and carer allowance for the period 28 September 2018 to 31 October 2018. The eventual debts decided upon by the ARO were for the amounts of $21,448.09 and $5,488.19, respectively.
It was agreed that in the period 13 November 2017 to 7 June 2019 (except for the period between 26 September 2018 to 31 October 2019), Ms Ghanem was not entitled to receive payments of carer payments or carer allowance. There is no issue that during that period she continued to receive payment of carer payment and carer allowance. It was also agreed that the amounts received by Ms Ghanem to which she was not entitled are $21,448.09, in respect of carers payment and $5,488.19, in respect of carers allowance.
THE ISSUES
The issues are whether the Secretary is required to waive Ms Ghanem’s debt because of ss.1237A(1) of the Social Security Act 1991 (Cth) (the Act) or, alternatively whether the Secretary should, as a matter of discretion, waive the debt because of s.1237AAD of the Act. I will deal with each issue separately.
WAS THE SECRETARY REQUIRED TO WAIVE THE DEBT?
Sub-section 1237A(1) of the Act provides:
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.
Section 1237A(1A) of the Act is not relevant for present purposes.
Sub-section 1237A of the Act requires two issues to be considered. First, was the debt attributable solely to administrative error by the Commonwealth, and second, were the amounts paid received in good faith. Again, it is convenient to consider them separately.
ATTRIBUTABLE SOLEY TO AN ADMINISTRATIVE ERROR’
The phrase ‘attributable solely to administrative error made by the Commonwealth’ means that the debt must have arisen only because of the administrative error on behalf of the Commonwealth and must not have been contributed to by anyone or anything else.
The question raised by the phrase ‘attributable solely to administrative error made by the Commonwealth’ requires consideration of what the reason was that the payments of carer allowance and carer payment continued to be paid to Ms Ghanem during the relevant periods for which she received payment but had no entitlement to.
The circumstances show that Centrelink was notified several times between 10 October 2017 and 27 February 2019, that there were circumstances that made it unlikely that Ms Ghanem was continuing to care for Mr Hajjar. It is necessary to say something about each of them.
First, on 10 October 2017, Centrelink was told by the ‘State Correctional Department’ that Mr Hajjar had gone to prison on 5 October 2017. Second, Ms Ghanem told an employee of Centrelink, on 19 December 2018, that Mr Hajjar was coming out of hospital and was not returning home, instead he was going to a nursing home. Third, Ms Ghanem told the first employee during a telephone conversation on 20 December 2018, that Mr Hajjar had gone into a nursing home the previous day. Fourth, on 24 December 2018, and perhaps on 8 February 2019 as well, Centrelink was told in a form that related to Mr Hajjar’s affairs, that Mr Hajjar was in residential care. Fifth, on 27 February 2019, Mr Hajjar told Centrelink he had been in hospital, and had within the last few weeks been moved to a nursing home and was not under Ms Ghanem’s care.
With that information, Centrelink was aware, in one way or another, that Ms Ghanem was more than likely no longer caring for Mr Hajjar, but of course, only in the phone call of 19 December 2018 was it aware that that circumstance bore upon Ms Ghanem’s entitlement to carers payments of one kind or another. Centrelink’s failure to act on the information and the notification it had received were undoubtedly factors that contributed to the error that was made, but the issue is whether they are or were the sole reason for the error.
There were other matters that contributed to the error. First, it is very clear that Ms Ghanem was given a notice that she, personally, had an obligation to notify Centrelink of circumstances that may or would lead to her no longer receiving the carer payment or carer allowance, including where Mr Hajjar stopped living with her, but also in the circumstances where she no longer cared for him, and where either of them went to prison. One or more of those circumstances existed after 5 October 2017, and yet no notification at all was given by Ms Ghanem except, perhaps, on 19 and 20 December 2018. One fairly obvious reason why Ms Ghanem did not give notice was because she did not read the letter sent to her on 10 April 2017. Had she read the letter she undoubtedly would have been aware of her obligation to tell Centrelink about the things referred to in the notice. Her failure to tell Centrelink about the relevant events is explained by her failure to read the notice which also contributed to the debt.

In turn, the failure by Ms Ghanem, as the recipient of the relevant social security benefit, to tell Centrelink about what was happening as it affected her social security benefits is significant. This was because all the other information that Centrelink had from others, such as the ‘State Correctional Department’, left it for Centrelink to work out how any of Mr Hajjar’s changed circumstances might affect the social security benefits that were being paid to someone else. One purpose or objective of requiring the person in receipt of benefits to give notice as provided for by the notices themselves, and the purpose of ss.66A(2) of the Administration Act, is to avoid that very type of thing. Had Ms Ghanem read the notice and told Centrelink personally what was going on, Centrelink would reasonably have been able to ascertain that what it was being told might, or in fact, did affect the benefits being paid to her. If it did not ascertain from the very person who was receiving the benefit had told them, Centrelink could hardly complain that it was anyone else’s fault that the benefit continued to be paid after that notice was given. It was not a big step for Ms Ghanem to have said to Centrelink when Mr Hajjar went to prison ‘I am receiving a carers payment and carer allowance and in accordance with the notice you gave me I am telling you that the person I receive that benefit in respect of has gone to prison [or has been taken to hospital or moved into a nursing home]’ or something similar to that. There is a world of difference between that kind of statement and a statement solely concerned with Mr Hajjar’s whereabouts absent the context concerning the payment of benefits to Ms Ghanem.
The requirement to inform Centrelink about changed circumstances is not satisfied by telling Centrelink that someone, whether by name or not, is going into a nursing home. Centrelink needs to know why information is being provided. It needed to be made clear that that information was being given for the purpose of notifying circumstances that have changed and in turn might affect the continued payment of a benefit to the very person providing the information. Ms Ghanem’s conversation with the Centrelink employee during her visit to Centrelink on 19 December 2018, classically illustrates the point: in a conversation that had as its object securing a pension card for Mr Hajjar because the nursing home had requested it, it is hardly notice of changed circumstances affecting Ms Ghanem’s continued receipt of carers payment and carers allowance. Even if it could, somehow, be regarded as such, Ms Ghanem contributed to the ‘error’ by failing to make clear the purpose for why she was imparting the information about Mr Hajjar’s relocation. The failure to provide clear notice to Centrelink that Ms Ghanem, as the recipient of carers payment or carers allowance, was notifying changes relating to Mr Hajjar’s abode (temporary or permanent) are reasonably likely to have contributed to the error.
Second, so far as the notification on 20 December 2018 was concerned, that notification was, ‘incomplete’ as no relevant details were conveyed. Also, it was incomplete because Ms Ghanem, not the second employee or Centrelink, terminated the phone call in circumstances where the first employee had expressly told Ms Ghanem that she needed to talk to someone in the carers team, as her payment was ‘going to cancel’ and ‘otherwise (sic) your going to be overpaid’. The suggestion that Ms Ghanem told Centrelink that Mr Hajjar had gone into a nursing home was in the context where Centrelink’s employee specifically told Ms Ghanem that she needed to speak to someone in the carers team. Instead of doing that Ms Ghanem ended the phone call saying she would call back after Christmas. Importantly, she did not do so. The failure to stay on the phone and deal with the matter or to call Centrelink back as promised meant that the debt could not be attributable solely to an administrative error made by the Commonwealth because Ms Ghanem contributed to the debt by her conduct in terminating the call and not calling back.
It should be said, although it is not directly relevant, that it probably would have been wholly inappropriate for Centrelink to cancel the payment of carers payments and carers allowances upon a simple statement that Mr Hajjar had been admitted to a nursing home the day before without making full enquiries of Ms Ghanem about what was going on. Ms Ghanem’s failure to participate in that process contributed to the error that was ultimately made. This aspect is relevant for another reason. The phone call, and what Ms Ghanem was told about her payment being cancelled and her being overpaid, is sufficient to dispel any suggestion that had Ms Ghanem personally and properly reported what was going on at any time, it was more likely than not, following proper enquiry of her as was contemplated by putting her through to the carers team, that she would no longer receive the carers payment or carers allowance because she no longer cared for Mr Hajjar.
Third, although ceasing to live at the same address was one thing that Ms Ghanem was required to give notice about, there were, as I have recorded, a whole range of other things that were required to be the subject of a notice which included: her starting to share care with someone else, including a nursing home; if Mr Hajjar temporarily stopped receiving Ms Ghanem’s daily care and admission to hospital or for some other reason for a period of more than 24 hours; or, that Mr Hajjar was admitted to an institution. Ms Ghanem was required to give notice of any and all of these things, so as to ensure that Centrelink was aware of any circumstances that might or would adversely affect her receipt of the carers payment and carers allowance. She was required to give notice of all of the circumstances identified in the November 2016 and April 2017 notices that occurred, and yet gave notice of none of them, perhaps with the exception of what happened on 20 December 2018. That was explained by her failure to read, at least, the April 2017 notice. Her failure to read the notice and to tell Centrelink about those things contributed to the overpayment.
Put another way, had Ms Ghanem notified Centrelink on 5 October 2017, of the fact that she was being paid carers payment and carers allowance in respect of Mr Hajjar and that Mr Hajjar had gone to prison, that Mr Hajjar was no longer living with her, and that she was no longer caring for him, or had she spoken to the second employee on 20 December 2018, she would have been able to say that she did not contribute to the error because she would have done all that she was able to do to prevent the error. Her failure to do any of those things meant that the overpayment was not ‘attributable solely to administrative error made by the Commonwealth’.
It was suggested that Centrelink needed to prove that had Ms Ghanem reported the matter the payments of her benefits would have ceased. That misstates the issue: the question is whether the overpayment is attributable solely an administrative error of the Commonwealth. In circumstances where Ms Ghanem did not do what she was obliged to do in giving notice and did not clearly and personally disclose circumstances that she was aware that she was required to tell Centrelink about that were likely to affect her receipt of carers allowance and carers payment, it is not possible to say the sole cause for the overpayment can be sheeted home to Centrelink.
If, for example, Ms Ghanem been able to produce a written notice that she handed to an employee of Centrelink, telling Centrelink that she was a recipient of social security benefits and one or other of the disqualifying circumstances or events had happened, such as that Mr Hajjar had gone to prison, within 14 days of when that happened, it would not be possible to suggest that any part of the error lay at her feet. The only conclusion would be that it was only the administrative error of the Commonwealth that led to the overpayment. None of the evidence she gave about what she said and did put Centrelink on notice about what was going on so far as it affected the carer payment or carers allowance she was receiving, such that it is not possible to find that the overpayment was attributable solely to an administrative error on the part of the Commonwealth.
I am unable to find that Ms Ghanem’s debt is attributable solely to an administrative error made by the Commonwealth. The debt is not required to be waived.
GOOD FAITH
As I have found that the payments were not because of sole administrative error it is not, strictly speaking, necessary to consider the question of whether the payments were received in good faith which is the other criteria in s.1237A(1) of the Act.
The phrase ‘received in good faith’ obviously enough means the payments must be received with an honest belief that there was an entitlement to receive them. Where a person knows, or knows of circumstances that mean the person is not entitled to the payment, the payment will not have been received in good faith. A payment will not be received in good faith in circumstances where a person, simply or deliberately, makes no enquiries as to whether they are entitled to the payment. Good faith in this context really means no more than receiving the payment in the honest belief that there was an entitlement to the payment.
It was clear that Ms Ghanem knew at all times, that the payments she was receiving were for the care she was to provide to Mr Hajjar. She was not providing that care when he went to prison or when he was in a nursing home. She was certainly not providing anything like the level of care that she had provided to him before he went to prison, which was for something like 73 hours a week. The fact that she ceased caring for Mr Hajjar must have raised doubts in her mind about her entitlement to continue receiving the payments. But that, it seems, was allayed by the fact that she understood that Mr Hajjar’s aged pension had been stopped because Centrelink knew he was in prison, whilst at the same time her payments had not been stopped. From that, so it seems, she took it, albeit mistakenly, that she was still entitled to receive the carer payments and carer allowance. I have some doubts about the question of good faith so far as the period between Mr Hajjar’s imprisonment and 20 December 2018 is concerned, but on balance I am satisfied that Ms Ghanem was of the mistaken belief that she was entitled to continue to receive the carer payments and carer allowances, even though she was not providing care anything like what she had provided to him before.
The position is different for the period after the phone call on 20 December 2018. From that time Ms Ghanem was on notice that because Mr Hajjar had gone into a nursing home, her carers payment might cancel or she might be overpaid and yet she did not, so it appears, do anything to address that situation. This was in a context where she knew Centrelink wanted to talk to her about the matter and where she said she would call Centrelink back. The continued receipt of the carers payment and carers allowance, in the face of what she was told, and without doing anything at all to clear up the position, suggests that she was not receiving the payments in good faith. This is even stronger in the face of her visit to Centrelink on 24 December 2018, where she had the opportunity to fully disclose what she had been told in the phone call only a few days earlier and have the matter sorted out.
The carer payments and carer allowances received by Ms Ghanem after 20 December 2018 were not received by her in good faith either because she was aware she was not entitled to them, or because she turned a blind eye to circumstances and information, she had been given that raised a real doubt about her entitlement to them. It is unnecessary to say anything more about the issue because of my finding concerning sole administrative error.
SPECIAL CIRCUMSTANCES
Section 1237AAD of the Act permits the Secretary to waive a debt due in special circumstances. It provides:
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.
Note 1:       Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2:       This section has effect subject to section 1237AAE in relation to an assurance of support debt.
I have found that Ms Ghanem probably did not read either of the notices dated 16 November 2016 or 10 April 2017. It was not suggested that she had actual knowledge of the requirement to give notice of relevant events that is found in s.66A(2) of the Administration Act. It follows that the debt did not arise because Ms Ghanem knowingly made a false statement or representation, or that she knowingly failed or omitted to comply with a provision of the Act. I have significant doubts about whether this is so after the phone call with the first employee on 19 December 2018 but given my finding about special circumstances below it is not necessary to resolve that question.
The question then is whether there are special circumstances, other than financial hardship alone, that make it desirable to waive the debt or part of it. The term ‘special circumstances’ involves ascertaining whether there is something that makes the case unusual.
Ms Ghanem put a number of matters together collectively that were submitted to be ‘special circumstances’. In some respects, because they were presented together it is a little artificial to consider them separately. It does, however, need to be observed that there is nothing much ‘special’ about some of the things Ms Ghanem relied upon so far as they concern people in Ms Ghanem’s position. In that regard Ms Ghanem, referred to having ‘modest financial circumstances’, suffering from some, albeit not seriously debilitating conditions or illnesses, such as diabetes and depression, and being subject to ‘difficulties’ associated with people they care for and especially having to invest much time in them which is generally in the nature of ‘goodwill’ or ‘charity’ so far as the person they care for. I do not consider that any of these things together or individually take the matter out of the ordinary. They are often the kinds of things that affect people or are associated with people providing care to others, who are receiving carers payments and carers allowances. They are often things that also come together that affect people who take care of others.
In any event, the final circumstance that Ms Ghanem relied upon was that she would have notionally been entitled to the Newstart Allowance or Jobseeker Allowance if she had not been receiving carer payments. There is no information available to me that would permit me to determine the notional entitlement for, or amount of, any such allowances that Ms Ghanem would have been entitled to if she made a claim. There are aspects of the quantification of those allowances that I do not know anything about.
To the extent that I do, they point against any entitlement. Ms Ghanem gave evidence that she was not looking for work during the relevant period. I do not know whether she would have met the requirements of the activity test and I do not know whether there were circumstances that might exist to have exempted her from that requirement. All of those things would involve a significant degree of speculation that I do not consider it appropriate to engage in. It would not be appropriate to proceed on some notion of deemed or assumed satisfaction of the criteria that exists for receiving Newstart or Jobseeker Allowance.
I am unable to find special circumstances that make it desirable to waive the debt or any part of it.
I also do not consider having regard to Ms Ghanem’s contribution to how the debt arose in the first place, that it is appropriate to exercise any discretion, if it were available, in her favour. In particular, the fact that Mr Hajjar went to, and was in, prison should reasonably have alerted someone who was being paid carers payment and carers allowance whether based on 73 hours a week care for him or less, to, at the least, to make an enquiry about their continued entitlement to receive those benefits. Also, the continued payment of carers payments and carers allowance after that date based on the evidence before me would be inimical the object of the Act that directs public expenditure to those in actual need.
DECISION
The decision under review is set aside and, in its place, there is a decision that Ms Ghanem has a carer payment debt to the Commonwealth of $21, 448.09 and a carer allowance debt to the Commonwealth of $5,488.19 which debts are to be recovered in full.

I certify that the preceding 59 (fifty - nine) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

............................[SGD]............................................
Associate
Dated: 4 February 2022

Date of hearing: 17 August 2021

Solicitors for the Applicant: Mr S Hodges

Solicitors for the Respondent: Ms E Ulrick

[2022] AATA 160

4 February 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal

Jurisdiction

Date of hearing:	17 August 2021
Solicitors for the Applicant:	Mr S Hodges
Solicitors for the Respondent:	Ms E Ulrick