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

Gorman and Secretary, Department of Social Services (Social services second review) [2023] AATA 371 (13 March 2023)
Appid: Gorman and Secretary, Department of Social Services
Mattertype:    Social services second review
Division:GENERAL DIVISION
File Number:2020/6146
Re:Sharon Gorman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member D Mitchell
Date:13 March 2023
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides that the Applicant was:
(a)not overpaid parenting payment prior to 25 September 2000;
(b)overpaid parenting payment of $3,214.80 in the period 25 September 2000 to
14 January 2001. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount is waived pursuant to section 1237AAD of the Social Security Act 1991 (Cth) (the Act);
(c)not overpaid parenting payment in the period 15 January 2001 to
16 December 2004;
(d)overpaid parenting payment of $39,824.59 in the period 17 December 2004 to
8 January 2008. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act;
(e)overpaid carer payment of an amount to be calculated by the Respondent in the period 9 January 2008 to 18 March 2011. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act;
(f)not overpaid carer payment in the period 19 March 2011 to 13 October 2011;
(g)overpaid carer payment of an amount to be calculated by Services Australia in the period 14 October 2011 to 29 January 2013. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act;
(h)not overpaid rent assistance for the period 14 October 2011 to 29 January 2013; and
(i)overpaid rent assistance of $17,236.90 in the period 1 May 2014 to 14 May 2019. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act.

..............................[SGD]..............................
Member D Mitchell

Catchwords
SOCIAL SECURITY – parenting payment, carer payment and rent assistance – overpayments – where assets were not disclosed and rent ceased being paid – where not appropriate to write off debts – where no sole administrative error – where special circumstances established – where Respondent concedes the application – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531
Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693; [2007] AATA 1114
Groth v Secretary, Department of Social Security (1995) 40 ALD 541; [1995] FCA 1708
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
L v Department of Social Security [1981] AATA 57
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 Ivovic and Director-General of Social Services (1981) 3 ALN N95; [1981] AATA 57
Re Lumsden and Secretary Department of Social Security [1986] AATA 228
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553; [2001] AATA 72
Re Stubbs and Secretary Department of Families Community Services [2003] AATA 729
Secretary, Department of Social Security v Hales [1998] FCA 219
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) 76 ALD 105; [2003] FCAFC 190
Ward and Secretary, Department of Families and Community Services [2000] AATA 212
REASONS FOR DECISION
Member D Mitchell
13 March 2023
Introduction

Ms Sharon Gorman (the Applicant) sought review of a decision made by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated

2 September 2020[1] by way of an application dated 5 October 2020.[2]
[1] Exhibit 1, T Documents, T2, pages 8-50, Decision of the SSCSD.
[2] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
The decision of the SSCSD related to decisions of the Respondent to raise and recover parenting payment, carer payment and rent assistance debts relating to the period

25 September 2000 to 14 May 2019 (debt period). The SSCSD set aside the decisions of the Respondent and in substitution decided that:[3]
[3] Exhibit 1, T Documents, T2, pages 8-9, Decision of the SSCSD.
(a)[The Applicant] was not overpaid parenting payment prior to 25 September 2000 and in the period 15 January 2001 to 16 December 2004;
(b)[The Applicant] was overpaid parenting payment of $3,214.80 in the period 25 September 2000 to 14 January 2001. The amount overpaid is a debt and recovery of the whole amount of the debt is waived under section 1237AAD of the Social Security Act 1991;
(c)[The Applicant] was overpaid parenting payment of $39,824.59 in the period 17 December 2004 to 8 January 2008. The amount overpaid is a debt and recovery of the whole amount of the debt is waived under section 1237AAD of the Social Security Act 1991;
(d)[The Applicant] was not overpaid carer payment in the period 19 March 2011 to 13 October 2011 and from 1 March 2013;
(e)[The Applicant] was overpaid carer payment of an amount to be calculated by Centrelink in the periods 9 January 2008 to 18 March 2011 and 14 October 2011 to 28 February 2013. Centrelink is to recalculate [the Applicant’s] entitlement to carer payment in the period 9 January 2008 to 28 February 2013 taking into account the asset values and relevant threshold amounts set out in paragraph 145 of this decision and that [the Applicant] was entitled to rent assistance in the period 14 October 2011 to 28 February 2013;
(f)The amount of carer payment overpaid to [the Applicant] in the periods
9 January 2008 to 18 March 2011 and 14 October 2011 to 28 February 2013 are debts. Recovery of that part of the debt due to overpayment of carer payment in the period 9 January 2008 to 21 November 2011 is waived under section 1237AAD of the Social Security Act 1991 and that part of the debt due to overpayment of carer payment in the period 22 November 2011 to
28 February 2013 is recoverable; and
(g)The amount of carer payment of $17,236.90 paid as rent assistance in the period 1 May 2014 to 14 May 2019 is a recoverable debt and that decision is affirmed.
Background
During the debt period, the Applicant purchased and sold two properties. For the purposes of the Centrelink asset test threshold, they should have been taken into consideration in calculating her entitlement to and rate of social security payments. She was, during the debt period, at various times, considered to be a homeowner and a non-homeowner.
For the purposes of the rent assistance debt period, the Applicant resided in a property that she considers herself to be the owner of, although it had been purchased in her daughter’s name.
In May 2019, the Respondent, having taken into consideration information that it had acquired or that had been supplied by the Applicant, made decisions to raise and recover parenting payment,[4] carer payment[5] and carer payment (rent assistance)[6] debts for various periods during the debt period.
[4]     Exhibit 1, T Documents, T24, page 1691, ARO decision (parenting payment debt).
[5]     Exhibit 1, T Documents, T25, page 1695, ARO decision (carer payment debt).
[6]     Exhibit 1, T Documents, T26, page 1699, ARO decision (rent assistance debt).
With regards to the debts raised in relation to the Applicant’s parenting payment and carer payment debts, the debts were raised on the basis of the application of the asset test that applies in calculating a person’s rate of payment. The evidence before the Tribunal shows that the Applicant had not disclosed or at the very least, not fully disclosed her interests in the relevant properties to the Respondent during the applicable debt period.
With regards to the debt raised in relation to rent assistance, the debt was raised on the basis that the Applicant was not paying rent during the applicable debt period. The evidence before the Tribunal shows that the Applicant had not disclosed her change in living arrangements to the Respondent during the applicable debt period.
The Applicant sought review of those decisions and on 21 October 2019, an Authorised Review Officer (ARO) affirmed the decision in relation to the parenting payment[7] and carer payment debts[8] and varied the decision in relation to the rent assistance debt.[9] The ARO affirmed the decision that all debts should be recovered.
[7]     Exhibit 1, T Documents, T24, pages 1691-1694, ARO decision (parenting payment debt).
[8]     Exhibit 1, T Documents, T25, pages 1695-1698, ARO decision (carer payment debt).
[9]     Exhibit 1, T Documents, T26, pages 1699-1702, ARO decision (rent assistance debt).
The Applicant sought review of that decision from the SSCSD. In a decision dated

2 September 2020, the SSCSD decision as outlined above at paragraph 2, in effect affirmed some of the debt calculations, required that the debts relating to some periods be recalculated, found that all overpayments were debts owed to the Commonwealth and waived recovery of some debts and not others.
The evidence before the Tribunal reflects that the Applicant, throughout the debt period, was a single parent of two children with disabilities, had at various times caring responsibilities for her mother, her children and another person and was dealing with major health concerns of her own.
There is a large amount of evidence before the Tribunal in relation to the Applicant’s mental and physical health issues that she experienced both prior to and during the Respondent’s review of her entitlement to social security payments. The evidence before the Tribunal clearly shows that the Applicant’s health concerns have continued to deteriorate to a point where her overall capacity to engage with the proceedings became limited.
To that end the Applicant was assisted by Ms Abby Cone, solicitor from Townsville Community Centre.
As a result of the Tribunal process, the Respondent wrote to the Tribunal on 25 July 2022,[10] advising that it conceded the application and considered that it was not appropriate to invite the Applicant to sign terms of agreement to resolve the application pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) given the evidence before the Tribunal regarding the Applicant’s lack of capacity. The Respondent requested that the Tribunal proceed to make a decision pursuant to section 43 of the AAT Act in the following terms:[11]
[10] Exhibit 3, Respondent’s letter dated 25 July 2022, pages 1-3,
[11] Exhibit 3, Respondent’s letter dated 25 July 2022, pages 1-2, paragraph 2.4.
1)The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 2 September 2020 is set aside and substituted with a decision that:
(a)Ms Gorman was not overpaid Parenting Payment prior to
25 September 2000;
(b)Ms Gorman was overpaid Parenting Payment of $3,214.80 in the period 25 September 2000 to 14 January 2001. The amount overpaid is a debt and recovery of the whole amount is waived under section 1237AAD of the Social Security Act 1991 (the Act);
(c)Ms Gorman was not overpaid Parenting Payment in the period
15 January 2001 to 16 December 2004;
(d)Ms Gorman was overpaid Parenting Payment of $39,824.59 in the period 17 December 2004 to 8 January 2008. The amount overpaid is a debt and recovery of the whole amount of the debt is waived under section 1237AAD of the Act;
(e)Ms Gorman was overpaid Carer Payment of an amount to be calculated by Services Australia in the period 9 January 2008 to
18 March 2011. The amount overpaid is a debt and recovery of the whole amount of the debt is waived under section 1237AAD of the Act;
(f)Ms Gorman was not overpaid Carer Payment in the period
19 March 2011 to 13 October 2011;
(g)Ms Gorman was overpaid Carer Payment of an amount to be calculated by Services Australia in the period 14 October 2011 to
29 January 2013. The amount overpaid is a debt and recovery of the whole amount of the debt is waived under section 1237AAD of the Act;
(h)Ms Gorman was not overpaid Rent Assistance for the period
14 October 2011 to 29 January 2013; and
(i)Ms Gorman was overpaid Rent Assistance of $17,236.90 in the period 1 May 2014 to 14 May 2019. The amount overpaid is a debt and recovery of the whole amount of the debt is waived under section 1237AAD of the Act.
The Respondent further provided:[12]
2.5 The Secretary notes that the Carer Payment debt under review by the AAT1 was raised for the period 9 January 2008 to 29 January 2013. The Secretary therefore considers that the AAT1 did not have jurisdiction to make findings relating to the period after 29 January 2013. In particular, the Secretary considers that the AAT1 did not have jurisdiction to find:
(a)at paragraph (d) of its decision, that Ms Gorman was not overpaid Carer Payment from 1 March 2013;
(b)at paragraph (e) of its decision, that Ms Gorman was overpaid Carer Payment of an amount to be calculated by Services Australia in the period 30 January 2013 to 28 February 2013, and was entitled to Rent Assistance in the period 30 January 2013 to 28 February 2013; and
(c)at paragraph (f) of its decision, regarding recovering of Ms Gorman’s Carer Payment debt for the period 30 January 2013 to 28 February 2013.
2.6 The decision sought by the Secretary, as set out above, corrects this issue, as underlined.
[12] Exhibit 3, Respondent’s letter dated 25 July 2022, page 2, paragraphs 2.5-2.6.
Ms Cone advised the Tribunal by email dated 6 September 2022 that she had explained the Respondent’s letter of 25 July 2022 to the Applicant and that she had instructed that she was happy with the position proposed in that letter.[13]
[13] Exhibit 4, Email from Ms Cone dated 6 September 2022.
Consequently, the Tribunal interpreted the party’s correspondence of 25 July 2022 and

6 September 2022 as a request and agreement for the matter to be considered based on the evidence filed. The Tribunal considered that the matter could be adequately determined in the absence of the parties and agreed to review the reviewable decision in accordance with section 34J of the AAT Act.[14] As such, a hearing was not conducted in this matter. The Tribunal’s decision has been reached “on the papers” having considered the documents filed by the parties.
[14] The Tribunal sought confirmation from the parties on 1 February 2023 of its understanding and asked that they advise the Tribunal as a matter of urgency – no concerns were raised.
The Tribunal admitted into evidence and considered the following:
·Exhibit 1, T Documents – Section 37 T-Documents.
·Exhibit 2, Documents filed by the Applicant on 4 August 2021.
·Exhibit 3, Respondent’s letter dated 25 July 2022.
·Exhibit 4, Email from Ms Cone dated 6 September 2022.
In effect, the Respondent’s concession of the application has the effect of the recovery of all overpayments of parenting payment, carer payment and rent assistance found to be debts during the relevant debt periods owed by the Applicant to the Commonwealth no longer being contested. Given the circumstances of this application and in considering whether it is appropriate for the Tribunal to make a decision in accordance with the Respondent’s concession, the Tribunal does not consider it necessary to outline in full the evidence before it.
It is important from the outset to make it clear that the Tribunal in no way makes any particular finding with regards to the Applicant’s conduct throughout the debt period or to the time leading up to this to decision, other than to find that she did not knowingly make false statements or representations or knowingly fail or omit to comply with a provision of the Social Security Act 1991 (Cth) or the Social Security (Administration) Act 1999 (Cth). Rather, the Tribunal acknowledges the difficulties of which she had faced and her clear dedication to her daughters and caring for others.
Issues
The issues before the Tribunal are:
1.Whether the Applicant was paid more than her correct amount of Parenting Payment, Carer Payment and Rent Assistance during the debt period;
2.If so, whether any such overpayments constitute debts owed to the Commonwealth; and
3.If so, whether the debts are recoverable in part or in full?
consideration
The law in relation to the payment of parenting payment, carer payment and rent assistance and recovery of social security debts owed to the Commonwealth is found in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (Administration Act).
The Tribunal must consider whether the parenting payment, carer payment and rent assistance debts exist during the debt period and if so, whether the debts should be recovered in part or in full.
Did a debt exist?
How is the rate of parenting payment, carer payment and rent assistance calculated and did a debt arise?
The calculations of the rate of parenting payment, carer payment and rent assistance are set out in the Act. Where a person receives a payment that they were not entitled to for any reason, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.[15]
[15] Section 1223(1) of the Act.
The obligation is on the payment recipient to report any changes in their circumstances, which includes their income, assets and living arrangements.[16] This is set out in most letters sent by Centrelink to the Applicant pursuant to section 68 of the Administration Act. Section 74 of the Administration Act provides that it is an offence to fail to comply with a notice given under section 68.
[16] Section 66A of the Administration Act.
Section 100 of the Administration Act deals with circumstances where a person, who is receiving a social security payment, is given a notice under section 68(2) of the Administration Act requiring them to report a change in circumstances within a specified time. If the change occurs but the person does not inform Centrelink within the notification period in accordance with the notice and the person’s rate of social security payment changes, the social security payment becomes payable to the person at the reduced rate on the day on which the change of circumstances occurred.
The Tribunal notes that the SSCSD’s reasons for decision provided by Member Bradley with regards to how the rate of parenting payment, carer payment and rent assistance was calculated during the relevant debt periods and analysis of whether a debt arose and the quantum is exceptionally detailed.
Outside of the matters raised at paragraph 14 by the Respondent with regards to the debt period in question in relation to carer payment and rent assistance with which the Tribunal agrees, having reviewed the evidence before it, and in the absence of evidence to the contrary, the Tribunal accepts and agrees with the findings of Member Bradley.
Consequently, having reviewed the evidence before it, the Tribunal finds that the Applicant was:
(a)not overpaid parenting payment prior to 25 September 2000;
(b)
overpaid parenting payment of $3,214.80 in the period 25 September 2000 to

14 January 2001;
(c)
not overpaid parenting payment in the period 15 January 2001 to

16 December 2004;
(d)
overpaid parenting payment of $39,824.59 in the period 17 December 2004 to

8 January 2008;
(e)overpaid carer payment of an amount to be calculated by the Respondent in the period 9 January 2008 to 18 March 2011;[17]
(f)not overpaid carer payment in the period 19 March 2011 to 13 October 2011;
(g)overpaid carer payment of an amount to be calculated by the Respondent in the period 14 October 2011 to 29 January 2013;[18]
(h)not overpaid rent assistance for the period 14 January 2011 to 29 January 2013;[19] and
(i)overpaid rent assistance of $17,236.90 in the period 1 May 2014 to 14 May 2019.
[17]    Noting that the Tribunal finds that the SSCSD did not have jurisdiction to consider the period after 30 January 2013 as that period was not before it, as such this Tribunal is limited to considering the debt period up to 29 January 2013.
[18]    Noting that the Tribunal finds that the SSCSD did not have jurisdiction to consider the period 30 January 2013 to 28 February 2013 as that period was not before it, as such this Tribunal is limited to considering the debt period between 14 October 2011 and 29 January 2013.
[19]    Noting that the Tribunal finds that the SSCSD did not have jurisdiction to consider the period 30 January 2013 to 28 February 2013 as that period was not before it, as such this Tribunal is limited to considering the debt period between 14 October 2011 and 29 January 2013.
Are the parenting payment, carer payment and rent assistance debts recoverable?

As the Tribunal has found that parenting payment, carer payment and rent assistance debts in relation to the debt period exist, it must determine whether those debts must be repaid.
It is generally expected that debts to the Commonwealth resulting from overpayments are recovered. This proposition was expressed by French J in relation to debt recovery in Secretary, Department of Social Security v Hales [1998] FCA 219 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 debts is either put on hold for a period of time (written off) or is no longer pursued (waived). Relevant to the Applicant’s debts, the Respondent may write off, or waive, her debts if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.
Should the Applicant’s parenting payment, carer payment and rent assistance debts be written off pursuant to section 1236 of the Act?
Section 1236 of the Act applies in relation to whether the Applicant’s parenting payment, carer payment and rent assistance debts for the debt period should be written off.
Section 1236(1) of the Act provides that subject to section 1236(1A), the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise.
Section 1236(1A) of the Act allows the Respondent to decide to write off a debt if and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
Section 1236(1B) of the Act provides that for the purposes of section 1236(1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
Section 1236(1C) of the Act provides that for the purposes of section 1236(1A)(b), if a debt is recoverable by means of:
(a)deductions from the debtor’s social security payment; or
(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c)setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those
means would result in the debtor being in severe financial hardship.
The term severe financial hardship is not defined in the Act, however, has been considered by the Tribunal in a number of cases.
In Re Lumsden and Secretary Department of Social Security [1986] AATA 228, the Tribunal considered that for financial hardship to be established, a person’s entire financial position would need to be materially less than the current rate of pension.
In Re Stubbs and Secretary Department of Families Community Services [2003] AATA 729, the Tribunal remarked at [20] 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 ….
In L v Department of Social Security [1981] AATA 57, the Tribunal stated at [66]:
In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write off under subsection 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing in mind the financial means and obligations of the individual concerned. Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation ….
The evidence before the Tribunal is that the Applicant is in receipt of fortnightly payments of carer payment. Further, the Tribunal has found that the Applicant’s parenting payment, carer payment and rent assistance debts for the debt period exist.
In the absence of evidence to the contrary, the Tribunal is satisfied that the Applicant’s parenting payment, carer payment and rent assistance debts for the debt period is not irrecoverable at law, that the Applicant’s whereabouts are known and it is cost effective for the Commonwealth to take action to recover the debt. As such, the Tribunal must further consider whether the Applicant has capacity to repay the debts.
There is no evidence before the Tribunal in relation to the Applicant’s present financial circumstances. As such, it is not in a position to make a finding that a requirement to repay the debts by way of a deduction from her carer payments or by way of a repayment plan would cause severe financial hardship.
Consequently, the Tribunal finds that the Applicant’s parenting payment, carer payment and rent assistance debts for the debt period cannot be written off pursuant to section 1236(1) of the Act.
Should the Applicant’s parenting payment, carer payment and rent assistance debts be waived due to sole administrative error pursuant to section 1237A of the Act?
Section 1237A of the Act applies in relation to whether the Applicant’s parenting payment, carer payment and rent assistance debts for the debt period should be waived due to a sole administrative error having been made by the Respondent.
Section 1237A of the Act provides that the Respondent 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.
Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph [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.
Relevantly, in Ward and Secretary, Department of Families and Community Services [2000] AATA 212, Deputy President Forgie held at [47]:
This means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor.
Having reviewed the evidence before it, making reference to the fulsome summary provided in the SSCSD decision by Member Bradley, the Tribunal finds that the Applicant’s parenting payment, carer payment and rent assistance debts arising during the debt period resulted from her failure to accurately report her assets and living arrangements and as such, did not result from an administrative error, let alone a sole administrative error.
Consequently, the Tribunal finds that the Applicant’s parenting payment, carer payment and rent assistance debts cannot be waived pursuant to section 1237A of the Act.
Should the Applicant’s parenting payment, carer payment and rent assistance debts be waived due to special circumstances pursuant to sections 1237AAD of the Act?
Section 1237AAD of the Act applies in relation to whether the Applicant’s parenting payment, carer payment and rent assistance debts for the debt period should be waived due to the presence of special circumstances.
Section 1237AAD of the 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 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.
The Act does not provide a definition of “knowingly”, however it has been discussed in numerous Tribunal decisions. In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, it was stated at [48]:
There is nothing in section 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.
In Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494, the Tribunal stated at [27]:
… It is open for the Tribunal to infer that the applicant has actual knowledge of his obligations under the Act where there are opportunities for that knowledge to be gained and where there are no obstacles to him acquiring that knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act through the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge.
In Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, Deputy President Forgie referred to her decision in Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72 at [74]:
… I concluded that 'knowingly' means actually knowing as opposed to the other two of the three degrees of knowledge. The first of the other two sorts is the sort of knowledge that comes from deliberately refraining to make enquiries because the enquiries will lead to answers that are not desired by the enquirer. The second is constructive knowledge in the sense that the person ought to have known the specific information or had the means of knowledge.
In the evidence before the Tribunal, the Applicant indicated that she was not aware that she was receiving rent assistance during the debt period and thought she had communicated about the ownership of the relevant properties and was within the asset test thresholds.
Given the evidence before it, in particular the medical evidence, the Tribunal finds that the Applicant did not knowingly make a false statement or knowingly fail to comply with her reporting obligations during the debt period. The Tribunal notes that given the Respondent’s concession in this application, this point is not in contention.
In considering whether special circumstances exist (other than financial hardship alone) that make it desirable to waive the Applicant’s parenting payment, carer payment and rent assistance debts for the debt period, the Tribunal notes that the Act does not provide a definition of special circumstances. The general proposition established by relevant Federal Court decisions, however, makes it clear that special means something different from the usual or ordinary.[20]
[20] 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 paragraph 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] 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 Tribunal is cognisant that the bar to establish special circumstance for the purposes of section 1237AAD of the Act is high. It is not uncommon for social security recipients to be experiencing financial hardship and physical and mental health conditions, as such the presence of these factors alone do not usually amount to a finding that special circumstances exist.
Each matter must, however, be considered on its own merits, based on the evidence before the Tribunal. The evidence before the Tribunal indicates that the Applicant’s mental and physical health conditions, together with her personal circumstances with regard to her family and carer situations, are more severe that of other social security recipients who have incurred debts.[21]
[21] The Tribunal has not outlined in detail the Applicant’s circumstances as given the nature of this matter and the Respondent’s concession and request that the debts in questions be waived as a result of special circumstances. To do so would only cause unnecessary stress and humiliation for the Applicant and would not have been disclosed had the application resolved pursuant to a decision made in accordance with section 42C of the AAT Act.
In considering the Applicant’s circumstances as a whole and the impact they have had and continue to have on her capacity to engage with the Respondent in a fulsome manner and in the proceedings before the Tribunal, the Tribunal considers that her circumstances are unusual, uncommon and exceptional when compared to other social security recipients who have incurred debts and that an injustice would arise should she be required to repay the debt.
As such, based on the evidence before it, the Tribunal is satisfied that, for the purposes of section 1237AAD of the Act, special circumstances exist that make it desirable to waive the Applicant’s parenting payment, carer payment and rent assistance debts in relation to the debt period and that it is more appropriate to waive the debts rather than write them off.
Consequently, the Tribunal finds that the Applicant’s parenting payment, carer payment and rent assistance debts in relation to the debt period are to be waived pursuant to section 1237AAD of the Act.
DECISION
For the reasons outlined above, and consistently with the submissions of the parties, the Tribunal sets aside the decision under review and in substitution decides that the Applicant was:
(a)not overpaid parenting payment prior to 25 September 2000;
(b)
overpaid parenting payment of $3,214.80 in the period 25 September 2000 to

14 January 2001. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount is waived pursuant to section 1237AAD of the Act;
(c)not overpaid parenting payment in the period 15 January 2001 to
16 December 2004;
(d)overpaid parenting payment of $39,824.59 in the period 17 December 2004 to
8 January 2008. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act;
(e)overpaid carer payment of an amount to be calculated by the Respondent in the period 9 January 2008 to 18 March 2011. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act;
(f)not overpaid carer payment in the period 19 March 2011 to 13 October 2011;
(g)overpaid carer payment of an amount to be calculated by Services Australia in the period 14 October 2011 to 29 January 2013. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act;
(h)not overpaid rent assistance for the period 14 October 2011 to 29 January 2013; and
(i)overpaid rent assistance of $17,236.90 in the period 1 May 2014 to 14 May 2019. The amount overpaid is a debt owed to the Commonwealth and recovery of the whole amount of the debt is waived pursuant to section 1237AAD of the Act.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...............................[SGD].................................
Associate
Dated: 13 March 2023

Hearing on the Papers: 3 March 2023

Applicant:
Ms Sharon Gorman

Assisted by:
Ms Abby Cone
Townsville Community Law

Solicitors for the Respondent: Ms Gillian Gehrke
Sparke Helmore Lawyers

[2023] AATA 371

13 March 2023

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