Godfrey and Secretary, Department of Social Services (Social services second review) - [2023] AATA 1817

Godfrey and Secretary, Department of Social Services (Social services second review) [2023] AATA 1817 (27 June 2023)
Division:GENERAL DIVISION
File Number(s):2021/5267 and 2021/5271
Re:Simon Godfrey
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:27 June 2023
Place:Brisbane

The Tribunal dismisses application number 2021/5267.
The Tribunal affirms the decision under review in application number 2021/5271.
.........................[SGD]..............................
Member D Mitchell

Catchwords
SOCIAL SECURITY – Family Tax Benefit – overpayment – administrative error – where no sole administrative error – where no special circumstances – decision under review affirmed
PRACTICE AND PROCEDURE – reviewable decision superseded – Tribunal undertakes a de novo review – application dismissed by consent
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Cases
Boscolo v Secretary, Dept of Social Security[1999] FCA 106; (1999) 90 FCR 531
Chalmers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 540
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084
Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) FCA 1923; (2008) 174 FCR 157
Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; [1981] AATA 57
Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225
Re Secretary, Department of Families, Housing, Community Service and Indigenous Affairs and Sarolea [2008] AATA 372
Re Stubbs and Secretary, Department of Families and Community Services (2003) AATA 03/0729
Saab and Secretary, Department of Education, Skills and Employment [2021] AATA 2766
Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72; (2001) 65 ALD 553
Secretary, Department of Social Services and Gilmartin [2022] AATA 723
Secretary, Department of Social Security v Hales [1998] FCA 219
Secretary, Department of Social Services and Moncrieff [2022] AATA 4052
Secretary, Department of Social Services and Wagar [2020] AATA 1493
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (2003) 76 ALD 105
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Skinner and Secretary, Department of Social Services [2015] AATA 569
Tubic and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 13
REASONS FOR DECISION
Member D Mitchell
27 June 2023
INTRODUCTION

Mr Godfrey (the Applicant) has sought review of two decision of the Social Services and Child Support Division (SSCSD) of the Tribunal.[1]
[1] Exhibit 1, T Documents (2021/5267), T1, pages 1-6, Application for Review and Exhibit 2, T Documents (2021/5271), T1, pages 1-6, Application for Review.
Those decisions relate to a decision of the Respondent to raise and recover a debt in relation to Family Tax Benefit (FTB) payments made to the Applicant for the period
17 November 2017 to 31 July 2019 (the debt period).
Application number 2021/5267 relates to the first decision made by the SSCSD on
24 March 2020 to set aside the reviewable decision of the Respondent to raise and recover a FTB debt in the amount of $3,396.60 for the period 1 July 2018 to 31 July 2019. The SSCSD remitted the matter to the Respondent with directions that:[2]
(a)the debt be reconciled once there had been a full reconciliation of the 2017/2018 and 2018/2019 financial years; and
(b)that the debt as recalculated should be recovered in full.
[2] Exhibit 1, T Documents (2021/5267), T2, pages 7-12, Decision of the SSCSD.
Application number 2021/5271 relates to the second decision made by the SSCSD on
24 November 2020 to affirm a decision made by the Respondent in response to the first SSCSD decision. That decision affirmed the Respondent’s decision to raise and recover a FTB debt in the amount of $13,667.21 (the debt) for the period 17 November 2017 to
[3] Exhibit 2, T Documents (2021/5271), T2, pages 7-9, Decision of the SSCSD.
31 July 2019.[3]
BACKGROUND
The facts in relation to how the debt arose are not in dispute.
The Applicant was in receipt of FTB at all material times in the debt period in respect of two of his children (the children).
On 19 October 2015, the Applicant lodged an online claim for FTB in respect of the children after he had separated from their mother.[4]
[4] Exhibit 2, T Documents (2021/5271), T4, pages 16-21, Online Claim.
A Centrelink file note dated 15 October 2017 provides that the Applicant became partnered on 30 June 2017 and the rate of FTB was reassessed as a blended family as his partner was also in receipt of FTB.[5]
[5] Exhibit 2, T Documents (2021/5271), T9, page 116, Centrelink notes.
The Applicant’s shared care percentage in relation to the children was deemed by the Child Support Agency (CSA) to be 28% (with their mother having 72% care) with effect from

10 November 2017.[6]
[6] Exhibit 1, T Documents (2021/5267, T6, pages 48-52, Cuba file note.
Due to an administrative error, the Respondent recorded the Applicant as having 72% care of the children from 10 November 2017 and his FTB payments were assessed and paid on that basis.[7]
[7] Exhibit 2, T Documents (2021/5271),T9, page 117, Centrelink notes.
Between 27 November 2017 and 12 July 2019, the Applicant was sent 21 notices that informed him of his FTB payments and outlined that his payments were based on him having a shared care percentage of 72% for the children.[8]
[8] Exhibit 1, T Documents (2021/5267), T11, pages 244-246, 249-251, 286-288, 291-293, 297-299, 304-306, 307-309, 310-312, 318-320, 321-323, 324-326, 327-329, 330-332, 333-335, 343-345, 346-348, 358-360, 362-364, 365-367, 368-370 and 371-373, Centrelink notices.
On 7 August 2019, the Applicant’s FTB records were corrected to reflect that he had 28% care of the children. On the same date, a notice was sent to the Applicant confirming that his FTB payments had been cancelled.[9]
[9] Exhibit 1, T Documents (2021/5267), T11, pages 382-383, Centrelink notice.
On 11 September 2019, the Respondent made a decision to raise and recover a FTB debt in the amount of $3,396.60 for the period 1 July 2018 to 31 July 2019.[10]
[10] Exhibit 1, T Documents (2021/5267), T11, page 384, Centrelink notice.
The Applicant sought review of that decision.[11]
[11] Exhibit 1, T Documents (2021/5267), T8, pages 61-62, Request for Statement.
On 19 December 2019, an authorised review officer (ARO) affirmed the decision.[12]
[12] Exhibit 1, T Documents (2021/5267), T7, pages 53-60, Decision and notes of ARO.
On 23 December 2019, the Applicant sought review of the ARO’s decision by the SSCSD.[13]
[13] Exhibit 1, T Documents (2021/5267), T8, pages 61-62, Request for Statement.
On 24 March 2020, the SSCSD set aside and remitted the matter to the Respondent with the directions that the debt was to be recalculated and that the recalculated debt be recovered.[14]
[14] Exhibit 1, T Documents (2021/5267), T2, pages 7-12, SSCSD Decision.
On 4 June 2020, the Respondent reconsidered the matter in accordance with the SSCSD directions and a new decision was made to raise and recover a debt in the amount of $13,667.21 for the period 17 November 2017 to 31 July 2019.[15]
[15] Exhibit 2, T Documents (2021/5271), T9, pages 120-121, Centrelink file notes.
The Applicant sought review of that decision.
On 2 September 2020, an ARO affirmed the decision.[16]
[16] Exhibit 2, T Documents (2021/5271), T6, pages 29-34, Decision and notes of the ARO.
On 28 September 2020, the Applicant sought review of the ARO’s decision by the SSCSD.[17]
[17] Exhibit 2, T Documents (2021/5271), T7, pages 35-36, Request for Statement.
On 24 November 2020, the SSCSD affirmed the ARO’s decision.[18]
[18] Exhibit 2, T Documents (2021/5271), T2, pages 7-9, Decision of the SSCSD.
By way of applications dated 14 July 2021, the Applicant sought a second-tier review of the SSCSD decisions made on 24 March 2020 and 24 November 2020.[19]
[19] Exhibit 1, T Documents (2021/5267), T1, pages 1-6, Application for Review and Exhibit 2, T Documents (2021/5271), T1, pages 1-6, Application for Review.
On or around October 2022, the Applicant separated from his partner and had no fixed address until shortly before the Hearing.[20]
[20] Exhibit 5, Secretary’s Further Statement of Issues, Facts and Contentions, paragraph 3. The Applicant confirmed at the Hearing that he was no longer homeless as he had moved into a rental property.
On or around December 2022, the Applicant received a lump sum compensation payment in the amount of $150,000 for an injury that occurred in December 2019. No charge or preclusion period was applied by the Respondent in relation to that payment.[21]
[21] Exhibit 3, Supplementary T Documents, ST1, pages 1-2, Centrelink letter.
The Applicant was in receipt of the disability support pension (DSP) until it was suspended for failure to update his income and assets.[22]
[22] Exhibit 3, Supplementary T Documents, ST2, page 3 and ST3, page 4, Centrelink screen captures.
On 25 May 2023, a telephone Hearing was held for the Applicant’s two applications. At the Hearing the Applicant gave evidence under affirmation.
The relevant law in relation to the payment of FTB and recovery of debts to the Commonwealth is found in the A New Tax System (Family Assistance) Act 1999 (Cth)
(FA Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
(FA Administration Act).
ISSUES
The issues for the Tribunal to consider are:
1.whether the Applicant was paid more than his correct amount of family tax benefit during the period 17 November 2017 to 31 July 2019 (debt period); and if so
2.whether the excess payment is a debt owed to the Commonwealth; and if so
3.whether it is recoverable in part or in full.
APPLICANT’S EVIDENCE AND SUBMISSIONS
Despite being invited to provide a Statement of Financial Circumstances the Applicant did not file any documentary evidence in relation to his financial circumstances at or around the date of the Hearing.
At the Hearing the Applicant told the Tribunal:
·He agreed that during the debt period his shared care percentage in relation to the children was 28%.
·He agreed he received the FTB payments to which the debt relates.
·He does not dispute the debt calculation however disputes it is a debt that he should have to repay as he had no idea at that time that he was not eligible to receive the payments.
·He understood and agrees with the Respondent that the decision of the SSCSD dated 24 March 2020 was superseded by the further decision of the SSCSD dated 24 November 2020.
·He agreed that Application 2021/5267 could be dismissed by consent.
·He had never been through the scenario he faced in 2017 before. He had not before had a marriage break down, lost his house or lost one of his daughters who refuses to speak to him.
·He has been assaulted on more than one occasion and the assaults resulted in hospitalisations, surgery and him at various times being heavily medicated and depressed.
·He found out during the debt period that he was diabetic and the medication together with the assaults have left him with brain fog.
·It was not his job to know how much he should be paid by Centrelink.
·He told the CSA the correct information so he did not see why he would need to check his payments.
·He does not think it is right that the onus is on him to pick up the error when Centrelink and his ex-wife did not pick it up.
·He did not recall seeing the Centrelink notices in relation to his FTB payments.
·When he got child support letters he did not read them, he just filed them as he knew he had provided the correct information.
·He does not like reading as it gives him a headache.
·He is presently not receiving any Centrelink payments, his DSP payments were cut off.
·He is working full time and every day he is in pain. When he gets home he has to take medication.
·He is no longer homeless.
·He does not understand why he should have to provide financial information when he is not getting any payments.
·He could pay off the debt over time, however he does not think he should have to as he received the payments in good faith.
·It was Centrelink’s error not his and he should not be punished for a mistake that was not his.
·He spent the FTB payment on seeing the children.
·He has mental health conditions due to past injuries, losing his career, having been homeless and having one of his children not talking to him.
·He did have MyGov but always forgot his password and had to go into a Centrelink Office to have it reset.
·He did not look at the letters as he thought all was in order so there was no need to check them.
On cross-examination, the Applicant:
·     When referred to a file note referring to a November 2017 discussion he had with CSA about the time the children were in his care, said he can not remember that phone call due to his brain fog.
·     Said he has had brain fog since 2014 after being assaulted.
·     Said that in 2015 he underwent spinal surgery and has since then been on medication for nerve damage.
·     Said he hates paperwork as it makes him feel sick.
·     Agreed that if he did have the conversation referred to with CSA he would have been alerted that his percentage of shared care would have been recalculated, however he questioned why no one had followed up with him.
·     When asked why if his FTB payments increased after the CSA conversation he did not realise there was an issue, said that he did not check how much he got and did not know how much he should have received, he trusted that he was being paid correctly.
·     Said he never checks payments made into his bank account.
·     Said he was presently earning $1,000 a week working full time as a delivery driver.
·     Said he was presently paying $350 rent a week.
·     Agreed that he had signed up to receive Centrelink notices online via MyGov.
·     Agreed that had he of read the Centrelink notices he would have noticed the mistake, however he did not read the notices.
·     Said that even though it is being said that he should have read the letters, it was Centrelink’s error not his.
·     Said if people muck up on their side that is on them.
·     Said he had never been told he had an obligation to read the letters and advise of any errors, so having not read the letters he did not know about the obligation.
·     When it was put to him that it was his choice not to read the letters, said it was Centrelink’s choice to incorrectly pay him.
CONSIDERATION
Preliminary matters
The Respondent submitted that the decision of the SSCSD made on 24 March 2020 had been replaced by the later SSCSD decision made on 24 November 2020. The Respondent contended that in such circumstances application 2021/5267 is lacking in substance and should be dismissed.[23]
[23] Exhibit 4, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 4, 66-71.
The Applicant agreed with that position at the Hearing and consented to application 2021/5267 being dismissed.
The Tribunal’s view is that its role in relation to application 2021/5271 and hence the SSCSD decision made on 24 November 2020 is to undertake a de novo review of the original decision.[24] As such the Tribunal considers that there is no utility in considering application 2021/5267 as all issues in relation to the Applicant’s FTB debt for the debt period will be considered in determining application 2021/5271.
[24] See Secretary, Department of Social Services and Moncrieff [2022] AATA 4052.
Consequently, the Tribunal with the consent of the parties, dismisses application 2021/5267 pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
Did the Applicant receive the correct amount of FTB during the debt period?
Section 21 of the FA Act provides the requirements for when an individual is eligible for FTB and refers to those provisions of the Act which are relevant in working out the individual’s rate of FTB.
Section 58(1) of the FA Act provides that an individual’s annual rate of FTB is to be calculated in accordance with the Rate Calculator in Schedule 1 to the FA Act.
Section 59 of the FA Act deals with situations where an individual is a FTB child of more than one person who are not members of the same couple and provides that an individual has a shared care percentage for an FTB child if the Secretary has determined their percentage of care for the child during the care period and that percentage is at least 35%.
Section 25 of the FA Act provides that if an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child of that individual for any part of the period.
Section 71(2) of the FA Administration Act provides that if a person has been paid an amount and received an amount that is greater than the amount that should have been paid to the person, the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
It is not disputed that the Applicant’s care percentage in relation to the children during the debt period was 28%. As such, the FA Act makes it clear that he was not entitled to receive FTB payments he received during the debt period.
Based on the evidence before it, the Tribunal is satisfied that the Applicant received more FTB than he was entitled to during the debt period. As such, pursuant to section 71(2) of the FA Administration Act, the Tribunal finds that the amount of FTB the Applicant was overpaid during the debt period is a debt owed to the Commonwealth.
The Tribunal notes that in the absence of any evidence to the contrary, it accepts that the FTB debt of $13,667.21 for the debt period has been correctly calculated.
Is the Applicant’s FTB debt repayable in part or in full?
As the Tribunal has found that the Applicant has a FTB debt in relation to the debt period, it must consider whether those debts must be repaid.
It is generally expected that debts to the Commonwealth are recovered. This proposition in relation to debt recovery was expressed by French J in Secretary, Department of Social Security v Hales [1998] FCA 219 at [1] as:
The taxpayer is entitled to expect that in the ordinary course money paid to people that they are not entitled to received will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.
However, there are circumstances where the recovery of a debt is either put on hold for a period of time (written off) or is no longer pursued (waived). Relevant to the Applicant’s FTB debt, the Respondent may write off, or waive, his FTB debt if the requirements set out in sections 95, 97 or 101 of the FA Administration Act are met.
SHOULD THE FTB DEBT BE WRITTEN OFF PURSUANT TO SECTION 95 OF THE FA ADMINISTRATION ACT?
Section 95(1) of the FA Administration Act provides that the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsections (2), (4A) or (4B) applies. Relevantly, section 95(2) of the FA Administration Act allows the Respondent to decide to write off a debt 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.

Section 95(4) of the FA Administration Act provides that for the purposes of paragraph (2)(b), if a debt is recoverable by means of:
(a)deductions under section 84; or
(aa)deductions under section 1231 of the Social Security Act 1991 (Cth); or
(b)setting off under section 84A family assistance; or
(c)application of an income tax refund under section 87; or
(d)setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments);
the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.
The Tribunal notes the FA Administration Act does not define severe financial hardship. However, this issue has been discussed in many Tribunal decisions. In Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225, it was found that for severe financial hardship to be established, a person’s entire financial position would need to be materially less than the current rate of pension. Further, in Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729, it was stated that:
…severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature.
Based on the evidence before it, the Tribunal is satisfied that the Applicant’s FTB debt is recoverable at law, his whereabouts are known, and it is cost effective for the Commonwealth to take action to recover the debts. As such, the Tribunal must further consider whether the Applicant has capacity to repay the debt.
The Applicant’s evidence at Hearing was that he was no longer in receipt of the DSP. As such the Tribunal considers that section 95(4) of the FA Administration Act does not apply in relation to recovery of the Applicant’s debt through deductions from other social security benefits. However, it may apply should the debt be recoverable from future income tax refunds, as such whether the Applicant would suffer severe financial hardship if that occurred must be considered.
The Respondent contended that there is no evidence that the Applicant’s financial circumstances demonstrate severe financial hardship and as such, grounds in section 95 of the FA Administration Act for the Applicant’s debt to be written off have not been met.[25]
[25] Exhibit 4, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 27-33 and Exhibit 5, Secretary’s Further Statement of Issues, Facts and Contentions, paragraphs11-16. .
The Tribunal notes that the Applicant’s evidence at Hearing was that he could repay the FTB debt. The Applicant did not complete a Statement of Financial Circumstances or fully outline his financial position. Rather he asserted that he should not have to provide such details as he was not presently receiving any payments from Centrelink; he believes that the debt is due to a sole administrative error and as such he should not have a debt to repay.
In the absence of evidence to the contrary, the Tribunal finds that the Applicant has capacity to repay the FTB debt and such repayment would not cause him severe financial hardship.
Consequently, the Tribunal finds that the Applicant’s FTB debt cannot be written off pursuant to section 95 of the FA Administration Act.
SHOULD THE FTB DEBT BE WAIVED DUE TO SOLE ADMINISTRATIVE ERROR PURSUANT TO SECTION 97 OF THE FA ADMINISTRATION ACT?
Section 97 of the FA Administration Act, deals with the waiver of an FTB debt that arose from error as follows:
97 Waiver of debt arising from error
(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
(3) The Secretary must waive the administrative error proportion of a debt if:
(a) the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and
(b) the debt is raised after the end of:
(i) the debtor’s next income year after the one in which the eligibility period or event occurs; or
(ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
(4) For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.
As such, in order for the Applicant’s FTB debt to be waived in full or in part pursuant to section 97 of the FA Administration Act, the Tribunal must be satisfied that all of the following requirements are met:
(a) the debt or part of that debt arose due to a sole administrative error of the Respondent; and
(b) the Applicant received the payments in good faith; and
(c) the Applicant would suffer severe financial hardship if the debt was not waived.
Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, at [35] stated:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
The Respondent submitted that there is no dispute, and it accepts that the debt had arisen solely by reason of administrative error however only for the period 10 November 2017 until 26 November 2017, being the date between when the error was recorded and when the Applicant was issued with the notice dated 27 November 2017.[26]
[26] Exhibit 4, Secretary’s Statement of Issues, Facts and Contentions, paragraph 35.
The Respondent contended that despite the Applicant stating that he did not read the notices issued to him via his Centrelink online account, that for the debt period – being

27 November 2017 to 31 July 2019, the debt did not arise by reason of sole administrative error, but rather as a result of the Applicant’s failure to comply with his obligations to correct any information held by Centrelink.[27]
[27] Exhibit 4, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 37-40.
The Applicant contended that the correct information was provided to the CSA and the error that occurred was an error of Centrelink alone.
Based on the evidence before it and the concession made by the Respondent, the Tribunal finds that the Applicant’s FTB debt for the debt period were caused by an administrative error made on behalf of the Respondent.
The test, however, is not whether a debt arose in part or substantially due to an administrative error, but rather, whether they arose solely due to an administrative error. It is here that the problem lies for the Applicant.
An obligation is placed on social security benefit recipients, pursuant to the notices they receive, to ensure that the details held by the Respondent are correct and that they update them accordingly.[28] In circumstances where such details have not been updated by the benefit recipient, such failure is likely to be found to have contributed to the debt, which effectively means that those debts cannot be waived pursuant to section 97 of the FA Administration Act.
[28] See section 158 of the FA Administration Act. Further, section 25 of the FA Administration Act requires a person to notify the Secretary as soon as practicable about matters that might affect their entitlement to FTB. See also Secretary, Department of Social Services and Wagar [2020] AATA 1493 at [32].
The Tribunal in Secretary, Department of Social Services and Gilmartin [2022] AATA 723 (Gilmartin) rejected the claims of sole administrative error in circumstances where Ms Gilmartin had not taken steps to correct information communicated to her by Centrelink. The Tribunal found:
62. The notice provisions of the FA Administration Act make it clear that upon being issued with such a notice, a positive obligation is placed on the FTB payment recipient to not only advise Centrelink if their circumstances change, but to also check the details outlined in the notice and advise Centrelink if they are incorrect. The Respondent in failing to engage with the letters (which constitute notices for the purposes of the FA Administration Act) she received from Centrelink has failed to meet the obligation to ensure that the information being used to calculate her entitlements to FTB were correct. Regardless of the fact that the Respondent considered her circumstances had not changed and that Centrelink had access to all relevant information it may need, she has through her failure to positively engage with Centrelink contributed to the circumstances in which the FTB debts in question arose.
[Footnote omitted]
In Saab and Secretary, Department of Education, Skills and Employment [2021] AATA 2766 (Saab), Senior Member Puplick found that it is not up to the Respondent to police the behaviour of benefit recipients:
66. While it might be argued that the department had a responsibility to check up on such matters as to whether or not the children were actually receiving the care in question, this is not a sustainable argument. The Department has no responsibility to “police” the behaviour of benefit recipients, rather the obligation lies on the recipients to ensure and maintain conformity with the benefit conditions or requirements, especially when benefits are paid directly to a recipient, but it also applies when the recipient knows that payments are being made to third parties (in this case the alleged service provider) on their behalf or via their instructions. Their personal responsibility includes responding to departmental correspondence and notices.
…
68. It is accepted that sole administrative error cannot arise where an applicant has failed in their personal statutory duty to report relevant matters to the Department.
The Applicant’s case centred around his contention that he should not have to check Centrelink’s information and correct their errors where he did not provide incorrect information. The Applicant contended that he did not know how much FTB he was entitled to receive and did not check his bank to notice whether or not his payments went up or down. The Applicant told the Tribunal that he did not read the notices sent to him by Centrelink.
The Tribunal notes that the Applicant was provided with a number of notices throughout the debt period by the Respondent and based on the evidence before it, he did not take steps to rectify his shared care percentage for the children.
The notice provisions of the FA Administration Act[29] make it clear that upon being issued with such notices, a positive obligation is placed on the FTB payment recipient to not only advise Centrelink if their circumstances change, but to also check the details outlined in the notice and advise Centrelink if they are incorrect. The Applicant, in failing to respond to the letters (which constitute notices for the purposes of the FA Administration Act) he received from the Respondent to correct the details which were incorrect, has failed to meet his obligations to ensure that the information being used to calculate his entitlements to FTB were correct. Regardless of the fact that the Applicant considered he had done everything he had to in relation to reporting the care arrangements for the children, he has through his failure to update his details in response to the Respondent’s notices, contributed to the circumstances in which the FTB debt in question arose.
[29] Section 158 of the FA Administration Act.
Consequently, based on the evidence before it, and in accordance with the decision made in Gilmartin and Saab, the Tribunal finds that the FTB debt in relation to the period

10 November 2017 until 26 November 2017 were a result of sole administrative error however, the FTB debt that relates to the remainder of the debt period was not attributable solely to an administrative error.
In order for the FTB debt that relates to the period 10 November 2017 until

26 November 2017 to be waived pursuant to section 97 of the FA Administration Act, as outlined above the Tribunal would also need to be satisfied that the Applicant received any applicable payments during that period in good faith and that recovery of that portion of the debt would cause severe financial hardship.
The Tribunal considers that prior to the first notice being sent to the Applicant on

27 November 2017 and given his circumstances at that time, he had received any FTB payments during the period 10 November 2017 and 26 November 2017 in good faith. For the reasons outlined above at paragraph 54 the Tribunal is not satisfied that recovery of that portion of the FTB debt would cause the Applicant to experience severe financial hardship.
As such, the Tribunal finds that the Applicant’s FTB debt in relation to the debt period cannot be waived pursuant to section 97 of the FA Administration Act.
SHOULD THE FTB DEBT BE WAIVED DUE TO SPECIAL CIRCUMSTANCES PURSUANT TO SECTION 101 OF THE FA ADMINISTRATION ACT?
Section 101 of the FA Administration Act provides that the Respondent may waive the right to recover all or part of a debt if they are 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 the family assistance law; 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.
The FA Administration Act does not provide a definition of ‘knowingly’; however it has been considered in a number of Tribunal decisions.[30] The Tribunal notes that in Wolley and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 26, Deputy President McDonald stated:
37. To avoid meeting the definition of ‘knowingly’ by turning a blind eye and throwing Centrelink’s notices, unread, into a draw is in the view of the Tribunal to knowingly fail or omit to comply with an obligation with a provision of the Act where the recipient has a duty, under s 68 of the Administration Act, to respond to a notice to provide information requested by the Secretary. The currently accepted manner for the Secretary to give notice that he wants information is by way of corresponding to a recipient. A recipient who refuses to open such a letter sent by the Secretary is knowingly refusing to comply with the request.
38. Further social security recipients receive public moneys. It must be taken that the Australian population is aware the public moneys are distributed under the Act on the basis of need according to graduated scales to ensure the most needy receive the full benefit and those with correspondingly less need receive more limited support. Attached to the receipt of any public money is an ongoing responsibility for the recipient to ensure information in his/her control is provided to ensure he or she is qualified to receive the amount paid. An intentional disregard of that responsibility by not reading letters which remind recipients of their responsibilities and a failure to assess the level or income or assets is to knowingly disregard a recipient's responsibilities...
[30] For example see: Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435; Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494; Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72; Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114 and Secretary, Department of Social Services and Schuh [2022] AATA 53.
The Respondent contended that in circumstances where the Applicant has provided evidence that he did not read his notices despite making the necessary arrangements to receive them electronically, it is open to the Tribunal to find the Applicant knowingly failed to comply with his obligations.[31]
[31] Exhibit 4, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 52-54.
While the Tribunal accepts that the Applicant does not like reading and gave evidence that he did not read the notices sent to him by Centrelink, or the CSA, that does not absolve him of his obligation to comply with the obligations placed on him by the FA Act and FA Administration Act. As such, the Tribunal finds based on the evidence before it that the Applicant’s failure to engage with Centrelink in relation to the notices he was sent contributed to the debt as he knowingly failed or omitted to comply with his notification obligations under the FA Administration Act. As such, the Applicant’s FTB debt in relation to the debt period cannot be waived undersection 101 of the FA Administration Act.
For completeness, the Tribunal has also considered whether special circumstances (other than financial hardship alone) exist that would make it desirable to waive the Applicant’s FTB debt.
The FA Administration Act does not provide a definition of special circumstances, however the general proposition established by relevant Federal Court decisions makes it clear that special means something different from the usual or ordinary.[32]
[32] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545per Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones(2012) 89 ATR 267; [2012] FCA 639, at [51]; Boscolo v Secretary, Dept of Social Security[1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084, at [37].
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal held at page 3:
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 Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; [1981] AATA 57, the Tribunal stated:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances”…, the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … In the exercise of the discretion…, the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the ... Act.

The Federal Court in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) FCA 1923 provided that the decision to apply special circumstances should take into account all of the person’s circumstances and would usually be based on a combination of factors. Further, in accordance with the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99], such circumstances include the Applicant’s current circumstances and are not limited to the prevailing circumstances during the relevant period or at any other time before the Tribunal makes its decision.[33]
[33] Noting that the FA Act and FA Administration Act do not limit the inquiry into the Applicant’s circumstances at the time of the original, ARO or SSCSD decisions. See Skinner and Secretary, Department of Social Services [2015] AATA 569.
The Respondent contended that the Applicant has not disclosed any evidence as to his circumstances that would make it desirable to exercise a discretionary special circumstances waiver.[34]
[34] Exhibit 4, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 55-65 and Exhibit 5, Secretary’s Further Statement of Issues, Facts and Contentions, paragraphs 20-24.
The Tribunal notes that the Applicant’s told the Tribunal that he has ongoing medical issues and is presently working to support himself. The Applicant’s evidence as outlined that he could repay the FTB debt, however, does not think he should have to. The Applicant did not provide any oral or corroborating documentary evidence in support of a claim for special circumstances. As such the Tribunal is not in a position to make an assessment of how the Applicant’s circumstances might be regarded as uncommon, unusual, exceptional or otherwise able to be distinguished from the circumstances or experiences of benefit recipients.
Based on the evidence before the Tribunal and for the reasons outlined, the Tribunal finds that the Applicant’s circumstances are not sufficiently special or unusual to warrant the exercise of the discretion in section 101 of the FA Administration Act to waive the debt.
Consequently, the Tribunal finds that the Applicant’s FTB debt in relation to the debt period cannot be waived pursuant to section 101 of the FA Administration Act.
CONCLUSION
For the reasons set out above, the Tribunal:
(a)dismisses application 2021/5267 pursuant to section 42A(1) of the AAT Act.
(b)for the purposes of determining application 2021/5271 finds that the:
(i)
Applicant was paid more than his correct amount of family tax benefit for the

period 17 November 2017 to 31 July 2019;
(ii)Applicant’s FTB debt for that period is $13,667.21;
(iii)Applicant’s family tax benefit debt is a debt owed to the Commonwealth;
(iv)requirements of sections 95, 97 and 101 of the FA Administration Act in relation to the Applicant’s FTB debt are not met; and
(v)Applicant’s family tax benefit debt is recoverable in full.
(c)affirms the decision under review in application 2021/5271.
89.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.....................[SGD]..................................
Associate
Dated: 27 June 2023

Date of hearing: 25 May 2023

Applicant: By Telephone

Solicitor for the Respondent: Ms Sophie Roberts
Mills Oakley Lawyers

Date of hearing:	25 May 2023
Applicant:	By Telephone
Solicitor for the Respondent:	Ms Sophie Roberts Mills Oakley Lawyers