Goodheart and Secretary, Department of Social Services (Social Security) - [2025] ARTA 1273

Goodheart and Secretary, Department of Social Services (Social Security) [2025] ARTA 1273 (28 April 2025)

Applicant/s: Miss Goodheart

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/B192531
Tribunal: Member O Sarrinikolaou
Place:Melbourne
Date:28 April 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that:
1.Miss Goodheart received carer payment totalling $9,492.79 from 22 January 2021 to 10 June 2021 which she was not entitled to receive;
2.Miss Goodheart received carer allowance totalling $1,384.95 from 22 January 2021 to 17 June 2021 which she was not entitled to receive; and
3.Half of the carer payment debt ($4,746.39) and half of the carer allowance debt ($692.48) are waived under section 1237AAD of the Social Security Act 1991.

CATCHWORDS

SOCIAL SECURITY – Carer Payment and Carer Allowance – young adult child left home – overpayment not disputed – waiving or writing off – special circumstances – multiple traumatising events and diagnosed developmental/mental health conditions – impaired ability to comply – notional entitlement to JobSeeker Payment – financial circumstances – debts almost repaid through fortnightly withholdings – debts waived in part – decision under review set aside and substituted

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

Miss Goodheart applied to the Tribunal for review of a decision made by Services Australia (Centrelink) to raise and recover debts for carer payment and carer allowance paid to her in 2021 on the basis that she was no longer caring for [her son].
On 29 June 2021, an employee with Centrelink decided that Miss Goodheart was overpaid:
· carer payment in the amount of $9,492.79 for the period 22 January 2021 to 10 June 2021; and

· carer allowance in the amount of $1,384.95 for the period 22 January 2021 to 17 June 2021.

Miss Goodheart requested internal review of the decision and on 29 August 2024, an authorised review officer with Centrelink affirmed the decision.
On 17 December 2024, Miss Goodheart applied to the Tribunal for an independent review of Centrelink’s decision.
The Tribunal hearing was held on 14 April 2025. Miss Goodheart attended via Microsoft Teams audio and gave evidence on affirmation. She was represented by Ms Wardill, solicitor with Basic Rights Queensland. The Tribunal had before it documents provided by Centrelink (folios 1 to 145), copies of which had been provided to Miss Goodheart prior to the hearing. The Tribunal also had before it, legal submissions prepared on behalf of Miss Goodheart, together with supporting evidence (A1 to A19).

ISSUES

The statutory provisions relevant to this review are set out in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999.
The legal issues for the Tribunal are:
(i) Does Miss Goodheart owe debts to the Commonwealth for overpayment of carer payment and carer allowance?

(ii) Is there any reason the debt/s should not be recovered by Centrelink?

CONSIDERATION

Does Miss Goodheart owe debts to the Commonwealth?

Carer payment

Division 1 of Part 2.5 of the Act sets out the qualification requirements for carer payment. Relevantly, subsection 198(2) provides that a person qualifies for carer payment if they personally provide constant care to a disabled adult who has been assessed and given a score of at least 25 under the Adult Disability Assessment Tool (ADAT) with a professional questionnaire score of at least 10, or the disabled adult has been assessed with a sore of at least 80 under the ADAT being a score calculated on the basis of a total professional questionnaire score of at least 32. The provision also requires that the care is provided in the care receiver’s home, the carer and the care receiver are Australian residents, satisfy the income and assets test unless the care receiver is exempt from the assets test.
Miss Goodheart was caring for [her son] until 21 January 2021 when [her son] moved in with his older brother. Miss Goodheart agreed that she was not caring for [her son] from 22 January 2021 and therefore, was not qualified for carer payment during the debt period as found by Centrelink. In the absence of dispute, the Tribunal finds that from 22 January 2021 to 10 June 2021, Miss Goodheart received carer payment totalling $9,492.79 which she was not entitled to receive, and this is a debt due to the Commonwealth in accordance with section 1223 of the Act.

Carer allowance

Section 954 of the Act provides that a person is qualified for carer allowance if the care receiver is an Australian resident, is a family member of the person, and has been assessed under the ADAT and scored at least 30 being a score calculated on the basis of a professional questionnaire score of at least 12 and receives care and attention from the person on a daily basis for at least 20 hours per week in their private home. The person providing the care must also satisfy the residence requirements and income test. For the reasons set out above and in the absence of dispute, the Tribunal finds that Miss Goodheart ceased caring for [her son] from 22 January 2021. Therefore, Miss Goodheart was not qualified to receive carer allowance from 22 January 2021 to 17 June 2021, and the amount of $1,384.95 paid to Miss Goodheart is a debt due to the Commonwealth under section 1223 of the Act.

Is there any reason the debts should not be recovered?

The Act allows for a debt to be waived or written off. Waiving recovery of the debt means that although the debt exists, a decision is made to forgo the legal right to recover the monies. This means that no recovery action is possible, and the debt cannot be pursued. Write off means that, while the debt is recoverable, recovery of the debt is postponed.
The Tribunal notes that the general expectation is that individuals who have received social security payments to which they are not entitled should repay the amounts received unless the repayment is unjust, unreasonable or inappropriate in the circumstances of a specific case (Skinner and Secretary, Department of Social Services [2015] AATA 569 at [48]).

Waiver – Administrative error

Section 1237A of the Act allows for a debt to be waived if the debt was caused solely by an administrative error on the part of the Commonwealth, the debtor has received the payments in good faith and the debt was raised more than 6 weeks after the first payment giving rise to the debt.
In circumstances where Miss Goodheart did not advise Centrelink of the change in her circumstances and the cessation of care, the Tribunal is satisfied that the debts did not arise solely from an administrative error on the part of Centrelink. Therefore, section 1237A of the Act does not apply.

Waiver – Special circumstances

Section 1237AAD of the Act allows for waiver of a debt if the Tribunal is satisfied that:
·      The debt did not result wholly or partly from the debtor or another person knowingly:
-making a false statement or false representation; or
-failing or omitting to comply with a provision of the social security law; and
·      There are special circumstances (other than financial hardship alone) that make it desirable to waive; and
·      It is more appropriate to waive than to write off the debt or part of the debt.
“Knowingly” is not defined in the Act. In the absence of such a definition, the ordinary meaning of the word should be applied which has been the approach taken by the Federal Court and the former Administrative Appeals Tribunal. The ordinary meaning is the dictionary definition of the word. The Macquarie Dictionary defines knowingly as “conscious; intentional; deliberate”.
In Re Callaghan and Secretary, Department of Social Services [1996] AATA 413, the Tribunal said at [48]:
There is nothing in s 1237AAD which suggests that the word 'knowingly' should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
The issue of “knowingly” has been considered by the Tribunal in cases involving mental health diagnoses. In Re Nisha and Secretary, Department of Family and Community Services [2000] AATA 315, the applicant suffered from depression after giving birth to her son who was born with a disability. The Tribunal held that although the applicant had failed to meet her notification obligations, she had not done so knowingly because her capacity to comprehend her obligations and responsibilities was severely reduced. A similar approach was adopted by the Tribunal ReWoodward and Department of Family and Community Services [2001] AATA 818.
Section 66A of the Administration Act provides that if a person has made a claim for a payment that has been granted and an event or a change in circumstances occurs that might affect the person’s social security payment, the person must, within 14 days after the day on which the event or change occurs, inform Centrelink of the occurrence of the event or change.
The term “special circumstances” is not defined in the legislation. However, the Federal Court and the Tribunal have considered the issue of special circumstances on a number of occasions. In every case, the individual circumstances of the case were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. In particular, the Full Court of the Federal Court in the matter of Dranichnikov v Centrelink [2003] FCAFC 133 determined that whether there are special circumstances in a particular case is dependent on whether there are circumstances that would distinguish the case from the usual case.
The Tribunal first considered whether Miss Goodheart knowingly made false statements or failed to comply with her obligation to advise Centrelink of the change in [her son]’s care. Ms Wardill submitted that Miss Goodheart did not deliberately fail to notify Centrelink of the change in her circumstances but rather was “overwhelmed by the consecutive traumatising events and was experiencing an exacerbation in her mental health conditions, including an impact on her memory”.[1] Miss Goodheart gave evidence to the Tribunal of a long trauma history marked by sexual assault as a teenager, family violence, stalking and home invasions. In response to questions from the Tribunal, Miss Goodheart said that she didn’t even think about advising Centrelink of the change – it was the last thing on her mind, and she was annoyed at herself. She told the Tribunal that her memory is terrible. When asked how she was able to apply for the crisis payment before and during the debt period, Miss Goodheart told the Tribunal that she was engaged with support services who assisted her.
[1] A5
The documentary evidence before the Tribunal records multiple instances of emotional and physical abuse requiring medical attention, as well as an incident when Miss Goodheart and her children were locked in their house before her former partner set the house on fire. In 2019, her close friend hung himself in the bush opposite her home. Miss Goodheart’s general practitioner, [Dr A] reported that she has been diagnosed with severe anxiety disorder, grief disorder, post-traumatic stress disorder (PTSD), severe panic disorder, social phobia, and that she experiences nightmares and flashbacks. [Dr A] reported that Miss Goodheart has a lifelong history of undiagnosed and untreated attention deficit hyperactivity disorder (ADHD)[2] which affects Miss Goodheart’s “ability to read and comprehend communication” and her multiple co-morbidities and lifelong difficulties with concentration would have reduced her capacity to comply with Centrelink obligations.[3]
[2] A8-A9
[3] A9
Having heard Miss Goodheart in the hearing, together with the medical evidence from [Dr A] and the submissions made by Ms Wardill, the Tribunal is satisfied that although Miss Goodheart failed to notify Centrelink of the change in her circumstances, she did not do so knowingly. The Tribunal accepts that the cumulative effect of her multiple traumas, combined with an exacerbation in her mental health conditions and the impact of her ADHD during the debt period impaired her ability to comply with her obligations and manage the various aspects of her life.
For completeness, the Tribunal notes that there is no evidence that Miss Goodheart made false statements to Centrelink and when asked about her circumstances during the review of her entitlements, Miss Goodheart was forthcoming. Having found that Miss Goodheart did not knowingly fail to comply with her notification obligations, the Tribunal will consider whether it is desirable to waive the whole or part of the debts.
Ms Wardill submitted that the circumstances in the present case are such that the Tribunal should waive the entirety of the outstanding carer payment debt and an amount equivalent to her notional entitlement to jobseeker payment.

Notional entitlement

Ms Wardill referred the Tribunal to the Federal Court decision in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923 where the court overturned the Tribunal’s decision because the applicant’s entitlement to an alternative, unclaimed payment was not taken into account in determining whether the debt should be waived on the basis of special circumstances. Ms Wardill submitted that during the debt period, Miss Goodheart was unemployed and would have satisfied the qualification requirements for jobseeker payment in accordance with section 593 of the Act. Ms Wardill submitted that given her circumstances during the debt period, it is likely that Miss Goodheart would have satisfied the personal crisis exemption and alternatively, the medical exemption from job search activities. Centrelink’s records show that Miss Goodheart’s claim for jobseeker payment was granted on 8 July 2021.[4]

Family and domestic violence

[4] Hearing papers, page 125

Miss Goodheart gave evidence of a long traumatic history. At the age of 15, while at home, men broke in and attempted to rape her. The perpetrators were caught and imprisoned. She was again the victim of a home invasion when her marriage ended approximately 7 years ago. Miss Goodheart gave evidence that her marriage ended after a history of family violence, unpredictable behaviour and drug use by her former husband.
Prior to the debt period, Miss Goodheart reconnected with a former boyfriend. He borrowed money from her and to ensure he repaid the money, Miss Goodheart allowed him to stay at her home. However, he began to display possessive behaviours and wanted more from the relationship. When Miss Goodheart told him that she did not have romantic feelings for him, he snapped, he became angry and started to harass her. Miss Goodheart believes, he was stealing her mail, including a new bank card and was sending pizzas to her home. He would attend her home during the night and on one occasion he poured paint over her patio. The police became involved and in October 2020, a protection order was made. The harassment and stalking continued until the perpetrator was incarcerated in November 2022.
In June 2021, Miss Goodheart’s former husband attended her home. He kicked down the garage door and threw a brick at her security cameras. The police were called, and a protection order was issued. Miss Goodheart and her children were listed as protected persons. Queensland police referred Miss Goodheart to support services.
Miss Goodheart gave evidence that in 2017, [her son] was withheld against his will by his father for 7 weeks which had a significant impact on [her son]’s mental health. At the time [her son] was 14 years old and the impact on his mental health was such that he was unable to return to school. Miss Goodheart qualified for carer payment and carer allowance because of the constant care she was providing to [her son]. When Miss Goodheart’s former boyfriend returned and the harassment and stalking began, Miss Goodheart’s mental health deteriorated, and she was concerned that her situation would adversely affect [her son]’s recovery, so the decision was made for him to move in with his older brother.

Financial hardship

In addition to the traumatic events that have had a significant impact on Miss Goodheart and her family, including her mental health, Ms Wardill submitted that Miss Goodheart is also experiencing severe financial hardship which the Tribunal should have regard to.
Miss Goodheart gave evidence that she is struggling financially. She lives in public housing with her two children aged 15 and 12 who both attend a public secondary school. When asked about her financial situation, Miss Goodheart could not recall specific amounts. She told the Tribunal that she receives parenting payment and family assistance, and her social security payments are her sole source of income. She has no savings. She pays approximately $250 each week for rent, $300 weekly for groceries. She receives quarterly energy bills totalling $350 which she repays in instalments. She and her daughter have [physical] conditions which require specialist [medications] and [treatments]. The children’s school fees are $350 per year. She told the Tribunal that she cannot afford to purchase laptops for the kids, so they use the school computers during the day. Without computers at home, they are unable to complete homework.
Miss Goodheart has outstanding traffic infringements totalling approximately $8,000 to $10,000 which she pays off through fortnightly instalments of $30. She said that her ex-husband deliberately drove through red lights and speed cameras which she must now repay. Miss Goodheart borrowed $4,000 from her father to purchase a car and she is required to repay half, that is $2,000. She has car running costs and is shortly due to renew her registration. She is unable to rely on financial support from her father who has [cancer] and relies on [medical equipment]. Miss Goodheart often relies on Urban Angels for food. She ensures that her children have their needs met which means that she does not eat regular meals. Miss Goodheart requires dental work and medication which costs $134 which she cannot afford. She told the Tribunal that her daughter requires braces which she will prioritise over her own health needs.
Miss Goodheart has been subjected to multiple traumas in her lifetime which started during her teenage years and continued during her relationships as an adult. The cumulative effect of the traumatic events has had a profound impact on her feelings of safety and security, and a significant impact on her mental health which was apparent during the hearing. Miss Goodheart has been diagnosed with several mental health conditions, including PTSD. As is often the case with family and domestic violence, the impact extends beyond the victims’ physical and mental wellbeing. Miss Goodheart has incurred these Centrelink debts, as well as significant traffic infringements as a direct result of the actions of the perpetrators. Her strained financial situation and mounting debts are causing further stress and pressure. Her limited financial resources means that she prioritises the needs of her children over her own which means that she will go without food and treatment.

In making its decision, the Tribunal also considered the expectation that overpayments will be recovered unless unjust or unreasonable or inappropriate, and that Centrelink has already recovered a substantial amount of the overpayments. Having regard to the totality of the circumstances, including Miss Goodheart’s likely entitlement to jobseeker payment, the Tribunal is persuaded that special circumstances exist which make it desirable to waive half of each of the carer payment and carer allowance debts under section 1237AAD of the Act. This means that the amount of $4,746.39 is waived from the carer payment debt and $692.48 is waived from the carer allowance debt.

Write off

Section 1236 of the Act allows for a debt to be written off for a period where the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown, or it is not cost-effective for the Commonwealth to take action to recover the debt. In circumstances where Miss Goodheart has repaid almost both the debts through fortnightly withholdings, and having regard to her circumstances, the Tribunal is not satisfied that section 1236 of the Act applies.

DECISION

The Tribunal sets aside the decision under review and in substitution decides that:

Miss Goodheart received carer payment totalling $9,492.79 from 22 January 2021 to 10 June 2021 which she was not entitled to receive;
Miss Goodheart received carer allowance totalling $1,384.95 from 22 January 2021 to 17 June 2021 which she was not entitled to receive; and
Half of the carer payment debt ($4,746.39) and half of the carer allowance debt ($692.48) are waived under section 1237AAD of the Social Security Act 1991.

Date of hearing:	14 April 2025
Representative for the Applicant:	Ms Wardill, Basic Rights Queensland