Gilliam and Secretary, Department of Social Services Chief Executive Centrelink (Social security) - [2025] ARTA 314

Gilliam and Secretary, Department of Social Services Chief Executive Centrelink (Social security) [2025] ARTA 314 (3 January 2025)

Applicant/s: Mrs Gilliam

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/A190621
Tribunal: General Member K Hamilton
Place:Brisbane
Date:3 January 2025

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – carer payment and carer allowance – ceased to be qualified for CA – no longer providing her children with care – debts have been correctly calculated – special circumstances – CP debt is to be waived – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This matter concerns a decision made by Services Australia – Centrelink (Centrelink) on 25 January 2023 to cancel Mrs Gilliam’s carer payment (CP) and carer allowance (CA) and raise debts of $24,670.56 (for CP) and $10,451.44 (for CA) for amounts paid to Mrs Gilliam after 17 September 2021.
Immediately prior to 20 March 2020, Mrs Gilliam was in receipt of wife pension and was being paid CA in respect of care provided to her adult children, [Mr A] and
[Ms B].
On 20 March 2020 wife pension ceased to be payable as a social security payment. Recipients of wife pension who were in receipt of CA on 19 March 2020 were automatically transferred to CP. Mrs Gilliam commenced receiving CP from 20 March 2020.
On 25 January 2023, Centrelink cancelled Mrs Gilliam’s CP and CA on the basis she was no longer providing care and attention on a daily basis to the care recipients, and was no longer qualified to receive CA and consequently could not continue to receive CP.
Centrelink then raised debts of $24,670.56 (for CP) and $10,451.44 (for CA) for amounts paid to Mrs Gilliam after 17 September 2021.
Mrs Gilliam sought internal review of this decision and on 27 March 2023 an authorised review officer (ARO) affirmed the decision to raise both debts, however waived recovery of the whole of the CP debt on the basis of special circumstances. Mrs Gilliam then applied to the Administrative Appeals Tribunal (the AAT) on 27 August 2024 for independent review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was held on 20 December 2024. Mrs Gilliam participated in the hearing by telephone. The Tribunal had regard to relevant documents provided by Centrelink, numbered 1–168.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).
The issues which arises in this case are:
· Was Mrs Gilliam qualified to receive CP and CA after 17 September 2021?
· If not, can recovery of the resulting overpayments be waived?

CONSIDERATION

Issue 1 – Was Mrs Gilliam qualified for CP and CA?

Section 954 of the Act sets out the qualification criteria for CA where care is provided in a private home that is shared by the care receiver and the person claiming CA (the care provider). It relevantly requires that:
· the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and
· the care provider provides care and attention to the care receiver on a daily basis.

Section 957 of the Act provides that a person can continue to receive CA during periods where their care of the care receiver has temporarily ceased. However, the total periods of such temporary cessations of care cannot exceed 63 days in any calendar year.
Section 198AD of the Act sets out the qualification requirements for CP for ex wife-pension recipients (the woman). It requires that:
·The woman must have been receiving wife pension immediately before 20 March 2020;
·The woman must have been continuously receiving CA immediately before 20 March 2020;
·The woman must continuously receive CA on and after 20 March 2020; and
·The woman is not otherwise qualified for CP.
The note to section 198AD of the Act indicates that the effect of paragraph 198AD(c) is that once the woman stops receiving CA, the woman will not be able to again qualify for CP under this section.
The Social Security Guide, a guide that sets out government policy to assist
decision-makers, provides the following explanation of the transitional arrangements at 3.6.4.55:
As long as the carer continuously receives CA for either the person for whom they qualified for WP or another person for whom they received CA on 19 March 2020, the carer's CP qualification will continue.
If CA is cancelled the ex WP carer will cease to receive CP. If CA cannot be reinstated without a gap in entitlement, CP for the ex WP recipient cannot be restored or granted. In this case, the carer will need to apply and test eligibility for CP under the general CP qualification criteria.
Mrs Gilliam’s continuing qualification to CP under section 198AD of the Act was dependent on her continuously receiving CA on and after 20 March 2020. If Mrs Gilliam were to cease receiving CA after 20 March 2020, even if this were for a short time, she would cease to be qualified for CP under section 198AD.
Centrelink determined that Mrs Gilliam had ceased to be qualified for CA as her son [Mr A] had moved interstate and her daughter [Ms B] had been incarcerated for periods that exceeded the 63 days of allowable temporary cessation of care.
Mrs Gilliam told the Tribunal that her son [Mr A] moved interstate after getting married. She could not recall the exact date on which [Mr A] moved out of home. The ARO noted that the delegate had determined, based on a declaration provided by [Mr A], that he moved out of Mrs Gilliam’s home on 21 August 2021. It appears that Centrelink has then provided Mrs Gilliam with the benefit of the 63 days of allowable temporary cessation of care before cancelling Mrs Gilliam’s CA for [Mr A] from 23 October 2021.
Mrs Gilliam confirmed to the Tribunal that her daughter [Ms B] was incarcerated from 26 June 2021 to 24 August 2021, and then was incarcerated for a further period of 16 months from 11 September 2021. Mrs Gilliam acknowledged that she made a mistake and did not realise she had to inform Centrelink if [Ms B] was no longer living with her. She said that she continued to send money to [Ms B] while she was incarcerated to pay for items that [Ms B] had to buy herself.
Mrs Gilliam said that Centrelink knew that her son [Mr A] had moved out as she had told them this when it occurred. However, there are no records of such contact by Mrs Gilliam contained in Centrelink’s documents.
Mrs Gilliam also told the Tribunal that she did not understand why her CA debt was so large. She said that she thought after [Mr A] moved out that she continued receiving CA for her husband [Mr A], not her son [Mr A], and that Centrelink had made a mistake. Mrs Gilliam remembers going into the Centrelink office at [Suburb 1] to fill out forms to obtain CA for her husband [Mr A]. Mrs Gilliam said she filled out all the same medical forms as she had to do in 2023 when she (successfully) reclaimed CP and CA with respect to care she was providing to her husband [Mr A].
Mrs Gilliam said that she had been told by Centrelink officers that when the [Suburb 1] office was moved they had issues with their computer system. The ARO notes that no records could be found of any claim for CA or medical reports being lodged by Mrs Gilliam with respect to her husband [Mr A] prior to 2023.
I accept that Mrs Gilliam was confused as to the basis on which she was receiving CA. The letters sent by Centrelink to Mrs Gilliam regarding her payments, to the extent these have been provided in Centrelink’s documents lodged with the Tribunal, do not make it obvious which care receivers Mrs Gilliam was assessed as providing care for.
Mrs Gilliam is now in receipt of CP and CA in respect of care she provides to her husband [Mr A]. Her husband was receiving disability support pension for many years before being transferred to age pension. While I accept that Mrs Gilliam may have been providing care to her husband [Mr A] prior to the recent grant of CP and CA, in the absence of an effective claim by Mrs Gilliam having been made and assessed against the required criteria, I cannot be satisfied that she would have been qualified for CA at any earlier time.
I find that Mrs Gilliam was not qualified to receive CA in respect of care provided to her son [Mr A] from 23 October 2021. [Mr A] was no longer living in the same home as Mrs Gilliam and she was no longer providing him with care on a daily basis. Accepting the date determined by Centrelink as the date on which [Mr A] left Mrs Gilliam’s care, 21 August 2021, Mrs Gilliam’s 63 days of allowable temporary cessation of care for [Mr A] were exceeded as at 23 October 2021.
I find that Mrs Gilliam was not qualified to receive CA for her daughter [Ms B] from 17 September 2021. The period of [Ms B]’s first incarceration was 58 days. Following [Ms B] being incarcerated again on 11 September 2021, Mrs Gilliam’s 63 days of allowable temporary cessation of care for [Ms B] were exceeded as at 17 September 2021. Mrs Gilliam did not reapply for CA in respect of care provided to [Ms B] once she was released from gaol, as Mrs Gilliam did not expect [Ms B] to stay with her for long.
As Mrs Gilliam was not qualified for CA from 23 October 2021, she was not continuously in receipt of CA. This means that she also was no longer qualified for CP pursuant to section 198AD of the Act from 23 October 2021.
I am satisfied that Mrs Gilliam was overpaid CA in respect of care of her daughter [Ms B] from 17 September 2021, and was overpaid CA in respect of care of her son [Mr A] and was overpaid CP from 23 October 2021.
I am satisfied that the debts have been correctly calculated by Centrelink and find that Mrs Gilliam has debts of $24,670.56 (for CP) and $10,451.44 (for CA).

Issue 2 – Can recovery of the debts be waived?

Section 1237 of the Act provides that there are only limited circumstances in which a properly raised debt may not be recovered. As a general rule, two provisions may potentially operate to relieve Centrelink debtors from a liability to repay: section 1237A (sole administrative error on the part of the Commonwealth, and where the debtor receives payments in good faith), and section 1237AAD, which is a discretionary waiver provision that can be applied in instances where “special circumstances” exist, and where, amongst other things, a person does not knowingly fail to comply with their Centrelink obligations, and it is more appropriate to waive than write off recovery.
Waiver on the basis of administrative error by Centrelink is only available under section 1237A if the debt has arisen solely due to an error by Centrelink. In this case Mrs Gilliam’s debts have arisen because she failed to advise Centrelink that [Mr A] and [Ms B] had left her care. The debts cannot be waived under section 1237A.
That leaves for consideration “special circumstances”. In order for waiver to be available under section 1237AAD on the basis of special circumstances, the debt cannot arise from the debtor knowingly providing false information or failing to comply with their obligations.
It was evident that Mrs Gilliam was confused about her obligations to inform Centrelink of any changes in her circumstances. I note that Mrs Gilliam has a number of medical conditions and suffers from memory difficulties. She genuinely believed that as she continued to provide money to [Ms B] while she was incarcerated, that she remained entitled to the payments she was receiving. I am satisfied that the application of section 1237AAD is not excluded on the basis of any knowing failure on Mrs Gilliam’s part.
For special circumstances to exist, there needs to be something which distinguishes a person’s case from the ordinary or usual case – see Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25. The starting position is that overpaid Commonwealth monies should generally be recovered.
The Social Security Guide at 6.7.3.40 provides the following explanation:
In Davy and Secretary, DEWR (2007) AATA 1114, the AAT held that:
‘special circumstances are not merely directed to the person’s own circumstances. Rather they are directed to those that are ‘special enough 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.’
Mrs Gilliam told the Tribunal that she currently lives with her husband, who receives age pension. Mrs Gilliam now receives CP and CA in respect of care provided to her husband. They have no other sources of income.
Mrs Gilliam said that apart from the debts the subject of this review, she also owes Centrelink for an advance payment. She is around $5,700 in arrears on her electricity bills and has a payment arrangement with her provider to pay $130 per fortnight to reduce her arrears. She also has a credit card debt of around $7,000 to $8,000. She and her husband have no assets other than their car and household possessions. Mrs Gilliam said they have about $30 in the bank at the date of the hearing.
Mrs Gilliam and her husband both suffer from numerous health issues. They are required to take various medications, all of which are subsidised under the PBS. Mrs Gilliam says that her husband’s doctors have recommended that he take [medication] as he needs to lose 40–50 kg to try to prevent [scarring]. However this medication is not subsidised and costs $300 per fortnight. They cannot afford this expense.
The ARO determined that the whole of Mrs Gilliam’s CP debt should be waived on the basis of special circumstances. This was because, had Mrs Gilliam not been qualified to receive CP as an ex wife-pension recipient, Mrs Gilliam would have been entitled to receive jobseeker payment at the transitional rate for ex wife-pension recipients (see section 654 of the Act). On this basis, the ARO accepted that Mrs Gilliam was notionally entitled to jobseeker payment at the same rate as her CP throughout the debt period and found that this amounted to special circumstances justifying waiver of the whole of the debt.
I am satisfied that Mrs Gilliam’s notional entitlement to an alternate payment at the same rate as her CP, considered alongside her difficult financial and personal circumstances, amount to special circumstances. I find that the whole of the CP debt of $24,670.56 is to be waived under section 1237AAD of the Act.
In relation to Mrs Gilliam’s CA debt, this debt arose as Mrs Gilliam did not notify Centrelink that [Mr A] and [Ms B] had left her care. While Mrs Gilliam’s husband [Mr A] has a number of medical conditions, he was previously in receipt of disability support pension prior to being transferred to age pension. Mrs Gilliam now receives income support. Their financial circumstances are presently straitened, however overall their circumstances are not particularly unusual, uncommon, or exceptional when compared to other social security recipients.
I find that the discretion contained in section 1237AAD of the Act to waive the debt on the basis of special circumstances should not be exercised with respect to any part of Mrs Gilliam’s CA debt. This means the whole of the CA debt is to be recovered.
Section 1236 of the Act allows for the “write off” of the recovery of a debt for a stated period or otherwise. It is typically applied where a debtor has no capacity to repay a debt. Mrs Gilliam is currently in receipt of Centrelink payments. I am satisfied that the debt can be recovered by instalments at a manageable rate that would not cause undue hardship to Mrs Gilliam. Section 1236 has no application in this case.
As the Tribunal has reached the same conclusion as the authorised review officer, the decision under review will be affirmed.

DECISION
The Tribunal affirms the decision under review.

Date(s) of hearing:	Friday, 20 December 2024
Representative for the Applicant:	Self